Obama Presidential Eligibility - An Introductory Primer appeared on the Internet in June 2009. Its title was subsequently changed to Presidential Eligibility Tutorial, to avoid confusion with the WorldNetDaily Obama Eligibility Primer, an entirely separate and unrelated document published in 2010.
According to his autobiography and long-form Certificate of Live Birth [91]:
If this information is correct, President Obama was born with both American and British nationalities. He is a U.S. citizen by virtue of birth in the United States. He was also, at birth, a citizen of the United Kingdom and Colonies by descent from his father.
This Tutorial examines whether persons, such as Barack Obama Jr., who are born with both U.S. and foreign citizenship, are natural born citizens, Constitutionally eligible to serve as President.
The Philadelphia Convention adopted the U.S. Constitution on September 17, 1787 [01]. Anyone born after that date must be a natural born citizen in order to be eligible to serve as President of the United States [02].
What is a natural born citizen? Even if President Barack Obama was born a U.S. citizen, is he a natural born citizen?
According to an article which appeared in the Michigan Law Review in 2008, we know two things for sure about the meaning of "natural born citizen":
But what about other categories of persons? What about children born overseas to U.S.-citizen parents? And what about children born in the United States, of an alien parent? Today, such children are U.S. citizens. But are they natural born citizens? So far, Federal law, the Constitution and the courts have not settled these questions.
... the definition of what it means to be a natural-born citizen has never been decided in the courts and the Constitution doesn't explain exactly what it means by "natural born," according to Peter Spiro, a Temple University law professor and citizenship-law expert. (National Journal, Is Canadian-Born Ted Cruz Eligible to Run for President?, May 1, 2013)
In 2004, Senator Don Nickles predicted that, if the meaning of natural born citizenship remains unresolved, it will someday become "a real issue":
The definition of this term ["natural born citizen"] is an issue that has been debated in legal circles for years and has never been ruled on by the courts. Clarification is needed before this becomes a real issue. (Nickles)
Senator Nickles' prediction has come true.
President Obama's father, Barack Obama Senior (1936-1982), was a native of British East Africa (Kenya). He never became a U.S. citizen. Consequently, President Obama -- regardless of where he was born -- acquired British nationality, at birth, by descent from his father. The President publicly admits that his citizenship status, at birth, was "governed" by the British Nationality Act of 1948 (see Barack Obama's "fight the smears" website).
FactCheck.org has confirmed President Obama's foreign citizenship at birth:
...at the time of his birth, Barack Obama Jr. was both a U.S. citizen (by virtue of being born in Hawaii) and a citizen of the United Kingdom and Colonies (or the UKC) by virtue of being born to a father who was a citizen of the UKC. (FactCheck.org: Obama's Kenyan Citizenship)
An increasing number of Americans are concerned that, since President Obama was born with foreign nationality (in addition to U.S. citizenship), he might not be a natural born citizen and therefore might not be constitutionally eligible to serve as president [04].
Supreme Court: Throughout U.S. history, various individuals have expressed their personal opinion that all children born on U.S. soil (except the children of foreign ambassadors and alien enemies) are natural born citizens, regardless of their parents' citizenship. But the Supreme Court has never accepted this viewpoint, and on several occasions, has ruled against it.
In Inglis v. Trustees (1830) and Elk v. Wilkins (1884), the plaintiff was born in the United States, of a father who owed allegiance to a sovereignty other than the United States. In each case, the Court determined that the plaintiff did not acquire U.S. citizenship at birth: his nationality at the time of birth was that of his father, not his birthplace [32].
In U.S. v. Wong Kim Ark (1898), the Supreme Court -- contradicting its earlier decisions -- ruled that children born in the United States, of permanently-domiciled alien parents, are U.S. citizens. But, to this day, the Supreme Court has never ruled that such children are natural born citizens. On the contrary, our nation's highest court, in its majority opinions, has consistently used the term "natural born citizen" only in reference to persons born on U.S. soil, to U.S.-citizen parents.
"natural-born citizens are those born in the country of parents who are citizens" (Scott v. Sandford, 1856)
To this day, whenever an Opinion of the Supreme Court has referred to an individual as a "natural born citizen", the individual was always born in the United States, of U.S.-citizen parents. The Supreme Court has never, in any of its majority opinions, used the term "natural born citizen" in reference to someone whose parents were not both U.S. citizens.
Past Presidents: The United States has had 44 presidents (including Barack Obama). Of these 44 presidents, 34 were born after 1787 (the year the Constitution was adopted) and were therefore subject to the "natural born citizen" requirement. With only two exceptions, each of these 34 presidents was born in the United States, of parents who were both U.S. citizens (Citizenship Status of U.S. Presidents).
The two exceptions were Chester Arthur and Barack Obama. While running for office in 1880, Chester Arthur repeatedly made false statements to journalists about his family history (and later burned nearly all of his family records), thereby obscuring his British nationality at birth: he was born in the United States, but at the time of his birth, his father was a British subject, not a U.S. citizen (Historical Breakthrough - Chester Arthur).
January 20, 2009 was the first time in history that the U.S. knowingly inaugurated a post-1787-born president whose parents were not both U.S. citizens. Moreover, it was the first time that the U.S. knowingly inaugurated a post-1787-born president who was a foreign citizen (in addition to being a U.S. citizen) at the time of his birth [06].
Wong Kim Ark: In U.S. v. Wong Kim Ark (1898), the Supreme Court ruled that Mr. Wong -- who was born in the United States, of permanently-domiciled alien parents -- acquired U.S. citizenship at birth. The Court did not rule that Wong was a natural born citizen. Nevertheless, the Court's reasoning seems to imply (though it does not explicitly state) that, since nearly everyone born in 18th-century England was a natural-born subject, nearly everyone born in the United States is a natural born citizen.
Obama eligibility supporters argue that the Court's reasoning in U.S. v. Wong Kim Ark is the the Court's last word pertaining to citizenship and natural born citizenship. As such, it takes precedence over all contrary Supreme Court opinions rendered prior to 1898.
Obama eligibility challengers contend that there are two serious problems with the Court's reasoning in U.S. v. Wong Kim Ark.
Consequently, the Opinon of the Court in U.S. v. Wong Kim Ark is tainted, due to the fact that it was written by someone who had a compelling personal interest in the outcome of that case. By conferring birthright citizenship to Wong, the Court implicitly conferred birthright citizenship to Chester Arthur, thereby bestowing a semblance of legitimacy upon his presidency and upon Gray's appointment to the Supreme Court (Historical Breakthrough - Chester Arthur).
Until a modern-day Supreme Court settles this dispute, the "natural born citizen" status of persons who acquire foreign nationality at birth is in doubt [07]. This doubt is not based on the fanciful imaginings of tin-foil-hat-wearing conspiracy theorists on the lunatic fringe of society. This doubt comes from what the Supreme Court has said throughout U.S. history, as well as a variety of other historical and legal sources which are presented and discussed here.
In the following pages, we introduce the Obama eligibility controversy, in question-and-answer format, for a non-technical general audience. We've double-checked the facts presented here, cited their sources, and believe them to be correct. Please contact us if you find any material in this Tutorial that you believe to be inaccurate.
On August 21, 2008, attorney Philip J. Berg, a lifelong Democrat, filed a complaint in federal district court, "alleging that Obama was born actually in Mombasa, Kenya and that the Certification of Live Birth on Obama's website is a forgery" (Wikipedia: Phil Berg lawsuit concerning Barack Obama). Berg's complaint further alleged that, since Obama's mother (presumably married to a foreigner when Obama was born) was too young to confer U.S. citizenship to a foreign-born son, Barack Obama did not acquire U.S. citizenship at birth.
The term "birther" was probably coined in response to Berg's lawsuit. Originally, "birther" meant:
someone who believes Obama was not born in Hawaii or that he's not a U.S. citizen. (Are you a birther?)
According to a New York Times article (November 18, 2009) by Leslie Savan, the word "birther" was created by conservative bloggers Ed Morrissey and Steve Gilbert:
But despite its usefulness for liberals, birther probably wasn't birthed by them. Birther seems to have been coined about a year ago, separately, by the conservative bloggers Ed Morrissey and Steve Gilbert. Last December, in dismissing the birth-certificate argument as a "canard," Gilbert wrote, "The 'birthers' are the new 'truthers.' " (Savan)
David Weigel believes he was first to coin the term "birther":
I think I originally coined the term "Birthers" to describe the people who think the state of Hawaii and its time travel machine are concealing the truth about Obama's birth on the roof of a mosque in Kenya. (Weigel)
In her book Demonic, Ann Coulter attributes the term "birther" to the Sweetness & Light blog.
Indeed, it was Sweetness & Light that coined the term "birther." (Coulter, Chapter 5)
The New Oxford American Dictionary defines "birther" as:
a conspiracy theorist who challenges President Obama's U.S. birth certificate.
The Online Slang Dictionary defines "birther" as:
a person who believes -- against evidence -- that Barack Obama was born outside of the United States (Online Slang Dictionary: birther).
In October 2008, two lawsuits -- Donofrio v. Wells and Wrotnowski v. Bysiewicz -- argued that, regardless of his place of birth, Barack Obama is ineligible to serve as president because he acquired foreign citizenship, at birth, by descent from his father (Why Obama is ineligible -- regardless of his birthplace).
From that point on, the "birther" controversy was no longer limited to the President's birth certificate and place of birth. Today, most plaintiffs and lawyers who are challenging Obama's eligibility in court, acknowledge that the Obama eligibility question stems from two separate and distinct issues: the President's place of birth, and his foreign nationality at birth.
This Tutorial defines "birther" as anyone who has a fact-based reason to suspect that the "conditions" of Barack Obama's birth -- his place of birth and/or his dual citizenship at birth -- are not consistent with the presidential eligibility requirements set forth in the U.S. Constitution. This definition of "birther" is based, in part, on a commentary, titled A Constitutional Crisis is Brewing, published on the birther website.
As the birthers, we are pointing out that the conditions of Barack Hussein Obama, II's birth is [sic] not only important, but critical to the constitutional order of our Nation. (A Constitutional Crisis is Brewing)
Birthers are people who are aware of facts -- not mere conjecture or speculation -- suggesting that Barack Obama's legal status at birth might disqualify him from serving as president. President Obama's circumstances and activities after his birth -- his purported adoption and citizenship in Indonesia, his alleged use of a foreign passport, his suspected acceptance of financial aid intended for foreign students only, his ongoing use of a Connecticut social security number, his questionable selective service registration, etc. -- are of interest and warrant further investigation, but are not the issues that define who the birthers are [08].
Article II Section 1 of the U.S. Constitution 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.
This means that, in modern times, you cannot legally or legitimately serve as President of the United States, unless you are:
Regarding the third requirement ("natural born citizen"), the Constitution makes a special exception for persons who became U.S. citizens before September 17, 1787, the date on which the U.S. Constitution was adopted. Such persons may serve as president, even if they are not natural born citizens [09].
Today, no one qualifies for this special exception. No one alive today was a citizen when the Constitution was adopted. In modern times, if you wish to be president, it is not enough to be a U.S. citizen -- you must be a U.S. natural born citizen.
Birthers believe, or at least suspect, that Barack Obama is not a natural born citizen. They say that, in order to be a natural born citizen, you must meet two requirements:
There is some question as to whether President Obama meets the birthplace requirement [11]. There is suspicion that he might have been born in Kenya [12]. There is also speculation that he might have been born in Canada [13].
Far more importantly, Obama publicly acknowledges that, regardless of where he was born, he does not meet the parental citizenship requirement. His father was a Kenyan native who never became a U.S. citizen.
As a Kenyan native, Barack Obama Sr. was a British subject whose citizenship status was governed by The British Nationality Act of 1948. That same act governed the status of Obama Sr.'s children. ... In other words, at the time of his birth, Barack Obama Jr. was both a U.S. citizen (by virtue of being born in Hawaii) and a citizen of the United Kingdom and Colonies (or the UKC) by virtue of being born to a father who was a citizen of the UKC. (FactCheck.org: Does Barack Obama have Kenyan citizenship?)
Birthers believe, based on their understanding of American law and history, that an individual must be U.S.-born of U.S.-citizen parents in order to be a natural born citizen [14]. If the birthers' understanding is correct, Barack Obama is not a natural born citizen and is therefore not eligible to serve as president. But is the birthers' understanding correct?
In this Tutorial, we begin by looking in places where the Constitutional meaning of "natural born citizen" is not found. Listed below are five sources which do not adequately define "natural born citizen" as used in the U.S. Constitution.
Even though these sources do not have what we are looking for, we must examine them first because they give us important clues, background information and context that we will need later.
4.1 Modern-day word usage: In the popular press and contemporary legal writings, the term "natural born citizen" is often understood to mean either (a) anyone who acquires U.S. citizenship at birth, or (b) anyone who is born in the United States (except the child of a foreign diplomat or alien enemy). In 1991, the following definition of "natural born citizen" appeared in Black's Law Dictionary:
Natural born citizen. Persons who are born within the jurisdiction of a national government, i.e. in its territorial limits, or those born of citizens temporarily residing abroad. (Henry Campbell Black, A Dictionary of Law, 6th Ed., 1991, p.1026)
The modern-day consensus of legal opinion is that anyone born in the United States is a natural born citizen:
Anyone born after the adoption of the U.S. Constitution in 1787 must be a "natural born Citizen" of the United States to constitutionally fill the office of President or Vice-President. ... Some debate exists as to the meaning of this phrase. Consensus exists that anyone born on U.S. soil is a "natural born Citizen." One may also be a "natural born Citizen" if, despite a birth on foreign soil, U.S. citizenship immediately passes from the person's parents. (Legal Information Institute: Natural Born Citizen)
According to an article published by the Yale Law School, there is near-universal acceptance of the consensus viewpoint:
There is near-universal agreement that all persons born within the United States are natural born (Bonner, p.3)
According to a Congressional Research Service memorandum (April 3, 2009), the weight of legal opinion is that anyone born in the United States, except the child of a foreign diplomat, is a natural born citizen:
The weight of scholarly legal and historical opinion appears to support the notion that "natural born Citizen" means one who is entitled under the Constitution or laws of the United States to U.S. citizenship "at birth" or "by birth," including any child born "in" the United States (other than to foreign diplomats serving their country) ... (Maskell (2009), p.5)
Although no court has formally ruled on President Obama's eligibility, some judges have expressed, as dicta, their personal opinion that birthplace alone determines natural born citizenship:
... we conclude that persons born within the borders of the United States are "natural born Citizens" for Article II, Section 1 purposes, regardless of the citizenship of their parents. (David J. Dreyer, Ankeny v. Indiana, 2009)
It is well settled that those born in the United States are natural born citizens. (John A. Gibney, Tisdale v. Obama, 2012)
The modern-day consensus is that anyone born on U.S. soil (except the child of a foreign diplomat or alien enemy) is a "natural born citizen", regardless of parental citizenship and regardless of any other citizenship acquired at birth. However, this viewpoint is not consistent with the manner in which the term "natural born citizen" is used in U.S. Supreme Court majority opinions throughout U.S. history, up to the present day. Whenever the Supreme Court has referred to an individual as a "natural born citizen", the individual was always born in the United States, to parents who were both U.S. citizens. (See, for example, Perkins v. Elg and Kwock Jan Fat v. White [99]).
In Inglis v. Trustees (1830) and Elk v. Wilkins (1884), the Supreme Court ruled that, in the absence of an applicable State citizenship law or Federal naturalization act, a child born on U.S. soil, of a father who owes allegiance to a sovereignty other than the United States, does not acquire U.S. citizenship at birth [32]. At one time in American history, such children were not even citizens at birth. It is therefore unikely that they are natural born citizens, even today [95].
A U.S. State Department document, Interpretation 324.2: Reacquisition of Citizenship Lost by Marriage, uses the terms "native-born citizen" and "natural born citizen" in a manner suggesting that the two are not synonymous; not all native-born U.S. citizens (citizens by virtue of birth on U.S. soil) are necessarily natural born citizens (INS Recognizes Delineation Between Native-Born and Natural-Born).
During the Clinton and Bush administrations (from 1995 through August 20, 2009), the U.S. State Department Foreign Affairs Manual (FAM) acknowledged some uncertainty as to the meaning of "jurisdiction" as used in the 14th Amendment:
Questions have arisen about the meaning of the phrases "in the United States" and "subject to the jurisdiction thereof". (7 FAM 1100: Acquisition of U.S. Citizenship by Birth in the United States, August 20, 2009, page 4)
It further acknowledged that that the Supreme Court's ruling in U.S. v. Wong Kim Ark (1898) addressed only the status of U.S.-born children of domiciled alien parents; it did not resolve the status of U.S.-born children of temporary or illegal alien parents. As a matter of policy, the State Department considered such children as U.S. citizens, but prior to 2009, did not declare unequivocally that they actually were U.S. citizens as a matter of fact or settled law:
c. Pursuant to this ruling [U.S. v. Wong Kim Ark], it has been considered that:
(1) Acquisition of U.S. citizenship generally is not affected by the fact that the parents may be in the United States temporarily or illegally... (7 FAM 1100: Acquisition of U.S. Citizenship by Birth in the United States, August 20, 2009, page 7, italics are as they appear in the original)
After August 20, 2009, the Obama administration changed the Foreign Affairs Manual, so as to erase any legal ambiguity or uncertainty regarding the status of persons, such as President Obama himself, who were born in the United States, of an alien parent visiting the U.S. temporarily (Obama Administration Quietly Scrubbed The Foreign Affairs Manual).
To summarize:
Given these three considerations and numerous others mentioned later in this Tutorial, it appears that the modern-day consensus opinion -- that all children born on U.S. soil, except the children of foreign diplomats and alien enemies, are natural born citizens -- is a widely-held assumption, not established legal fact.
4.2 U.S. Constitution: The U.S. Constitution, and the Naturalization Acts of Massachusetts (1776-1790), use the term "natural born citizen" but do not define it.
An early draft of the Articles of Confederation (1777) contains the term "natural born free Citizens" but does not explain its meaning (Journals of the Continental Congress 1774-1789, Volume IX (1777), p.889).
In 1783, a proposed treaty between the United States and Great Britain used the term "natural born citizen" without defining it (Adams, p.449).
According to the U.S. Supreme Court, the meaning of "natural born citizen" is not found in the U.S. Constitution:
The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. (Minor v. Happersett, 1875)
In 2008, the Senate passed a resolution, expressing a non-legally-binding opinion that John McCain is a natural born citizen [15]. The resolution acknowledged that "natural born citizen" is not defined in the U.S. Constitution [16]:
Whereas the term 'natural born Citizen', as that term appears in Article II, Section 1, is not defined in the Constitution of the United States; (Senate Resolution 511)
4.3 Current Federal Statutes: Current Federal law, specifically Title 8 Section 1401, lists those who are U.S. citizens at birth, but the term natural born citizen is not found in any existing Federal statute. Although the U.S.-born child of a non-U.S.-citizen parent is a U.S. citizen by modern-day policy, no existing Federal statute declares such a child to be a natural born citizen [17].
In 1790, Congress passed the Naturalization Act of 1790, which used the term "natural born citizen" in connection with foreign-born children of U.S.-citizen parents:
And the children of citizens of the United States, that may be born beyond the sea, or out of the limits of the United States, shall be considered as natural born citizens (Naturalization Act of 1790)
Five years later, Congress repealed the 1790 Act and replaced it with the Naturalization Act of 1795. In the 1795 Act, the words "natural born" were deleted, leaving just "citizens":
... and the children of citizens of the United States born out of the limits and jurisdiction of the United States, shall be considered as citizens of the United States. (Naturalization Act of 1795)
Throughout history, Congress has enacted various laws conferring U.S. citizenship to certain children at birth. For example, the 1866 Civil Rights Act stated:
All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States (1866 Civil Rights Act)
But after 1790, Congress never again passed any law containing the term "natural born citizen".
Throughout U.S. history, there have been various attempts to enact a law, or amend the Constitution, so as to clarify, change or eliminate the presidential "natural born citizen" requirement (Attempts to redefine or amend Article II "natural born Citizen" Clause). So far, all such attempts have failed.
As of the time of this writing, there is no Federal statute that defines who is, and who is not, a natural born citizen. If such a statute were to be enacted, it would most likely be unconstitutional. Congress may not change the meaning of the Constitution by passing a law that redefines a term that the Constitution uses. The Constitution is changed only through a Supreme Court ruling or a Constitutional Amendment, not though laws that Congress enacts unilaterally.
4.4 English-language Literature: We are not aware of any English-language literature which, prior to the writing of the Constitution, explicitly defined the term "natural born citizen". Nevertheless, the manner in which the English-language phrases "natural citizen" and "natural born citizen" were used from the 16th through the 18th centuries provides clues regarding the Constitutional meaning of "natural born citizen".
Bodin's Republique became known in England soon after the first French edition was published in 1576. Richard Knolles began the translation for the first English edition in 1603, in the immediate aftermath of James's accession to the throne, and several years after Bodin's death. (Price, p.132)
Even before Knolles' English translation was completed in 1606, English speaking people -- many of whom knew French -- were already reading and appreciating Bodin's work.
Bodin's political works were well-known in early seventeenth-century England. One historian claimed that in 1600 no other political writer was cited in England "more often or more favorably" than Bodin. Another historian cited a dozen treatises from the Elizabethan and Stuart periods making use of Bodin's formulation of the idea of sovereignty. James himself, in The Trew Law of Free Monarchies, written in 1598, derived many of his ideas from Bodin... (Price, p.131)
Bodin expained that a "citizen" is not the same thing as a "subject". In ancient Greece, for example, freed slaves were subjects but not citizens.
...every Citizen is a subject, ... But every subject is not a Citizen... ...the enfranchised (freed) slaves in Greece were not admitted to be Citizens, although that they were of the same country, and natural subjects. (Bodin (as translated by Knolles), p.48)
Natural citizens are those who, at birth, inherit citizenship from their parents. In some commonweaths, you may acquire citizenship from either your father or your mother. In other commonwealths, you receive citizenship at birth only if both of your parents were citizens at the time of your birth.
Wherefore as of slaves some are born, some are made; so also of Citizens: some are made, some are born: the natural Citizen is he that is free of that wherein he is born; whether he be born but of one of his parents a Citizen, or of both of them Citizens. True it is that of ancient time (and yet at this present also in diverse Commonwealths) to be a Citizen it was needful to have both father and mother Citizens... (Bodin (as translated by Knolles), p.49)
Tooley (1955) translated Bodin's definition of "natural citizen" as follows:
The natural citizen is the free subject who is a native of the commonwealth, in that both, or one or other of his parents, was born there. (Bodin (as translated by Tooley))
Although subjecthood depends on one's birthplace, citizenship does not. Citizenship, when acquired at the time of one's birth, comes from one's parents, not from one's place of birth:
For the place maketh not the child of a Stranger (man or woman) to be a citizen: and he that was born in Africk of two Roman citizens is no less a citizen, than if he had been born in Rome. (Bodin (as translated by Knolles), p.49)
Homerum Colophonii civem esse dicunt suum, Chii suum vindicant, Salaminii repetunt, Smyrnaei vero suum esse confirmant, itaque etiam delubrum eius in oppido dedicaverunt: ... Ergo illi alienum, quia poeta fuit, post mortem etiam expetunt: nos hunc vivum, qui et voluntate et legibus noster est, repudiabimus? (Marcus Tullius Cicero, Pro A. Licinio Archia, Paragraph 19)
In 1720, Henry Eelbeck published this English translation of the above text:
The Colophonians claim Homer as their own free Denizen, the Chians challenge him as theirs, the Salaminians demand him again for their own, but the Smyrneans assert him to be their natural born Citizen; and therefore have also dedicated a temple to him in their Town of Smyrna. ... If they then demand a Stranger who was a Poet to be theirs, even after his death, shall not we accept of this living One, who both by his own good Will, and the Laws, is ours already? (Eelbeck, p.17, PDF page 22, boldface emphasis added)
Eelbeck's translation (1720) exemplifies the use of the term "natural born citizen" in English-language writings prior to the U.S. Constitution. In Eelbeck's work, "natural born citizen" is the English translation of the Latin esse, the root of the English word "essence". Esse means "to be", but according to the Latin English Dictionary, can also mean "nature of being". It appears that the "natural born citizen" of Smyrna was someone who is Smyrnean by nature.
Roman Antiquities includes the story of Gaius Marcius Coriolanus, a Roman general who lived during the 5th century BC. Coriolanus is the subject of the Shakespearean play "Coriolanus", and the Movie "Coriolanus" which was released in 2011.
When (wrongly) exiled from Rome, Coriolanus sought refuge with Rome's enemy, the Volsci, who accepted him and treated him as though he were one of their own natural born citizens. Later, Coriolanus led the Volscian army in a campaign to conquer and destroy Rome. But before he and his soldiers reached the city walls, his mother Veturia interceded on Rome's behalf (Apuzzo, 2012).
Here (in Latin) is an excerpt of Veturia's plea:
Haec igitur ea sunt, fili Marci, quorum caussa veni, & quae peto ut mihi concedas: quae non habent ullas difficultates, quas tu memoras; & quae ab omni injusto ac impio facinore adeo sunt aliena, ut ea salva conscientia facere possis. Age vero, infami amne times, si ea quae tibi suadeo feceris, ne ingrati animi in bene de te meritos redarguaris, quite suum hostem hospitio exceptum in partem omnium bonorum, quorum cives nati sunt participes, receperunt. Haec enim sunt quae semper verbis tantopere exaggeras. (Hudson, page 499, PDF page 526, boldface emphasis added).
Spelman translated the above text as:
These are the favors I am come to ask of you, Marcius, my son, which are neither impossible to be granted, as you say; neither do they imply any consciousness of injustice or impiety. But it seems you are afraid, if you do what I advise, of incurring the infamy of ingratitude to your benefactors who received you when you were their enemy, and communicated to you all the advantages, which their natural born citizens are intitled to: For these are the things you are, ever, magnifying. (Spelman, p.358, boldface emphasis added).
The term cives nati is Hudson's Latin transation of the Greek fysei polites ("natural citizens"). In Ancient Greece, there was a distinction beween natural citizens and naturalized citizens:
The right of attending and voting was enjoyed by all citizens of full age (generally supposed to be twenty, certainly not less than eighteen) ... and not labouring under any atimia or loss of civil rights. They were either (1) natural-born (fysei kai genei) citizens, born in lawful wedlock of parents both Athenians ... or (2) dhmopoihtoi, presented with the freedom of the state, and enrolled in a deme, phratry, and tribe. The latter, however, were not qualified to hold the office of archon or any priesthood until the second generation. (Smith (1890))
In Spelman's translation (1758) of Roman Antiquities, "natural born citizen" is the English translation of cives nati, a Latin term referring to a child who acquires citizenship, at birth, from its legally-married parents -- a father who is a citizen, and a mother who is either a citizen or a foreigner who, by applying for and accepting conubium, has relinquished her right to confer her foreign nationality on any children produced by her marriage (Appendix 6: Roman Citizenship) [56].
...enthusiasm for Quintilian spread with humanism itself, reaching northern Europe in the 15th and 16th centuries. Martin Luther, the German theologian and ecclesiastical reformer, claimed that he preferred Quintilian to almost all authors, "in that he educates and at the same time demonstrates eloquence, that is, he teaches in word and in deed most happily" (Wikipedia: Quintilian)
When the U.S. Constitution was being written (1787), there were two English translations of Institutio Oratoria: one by Guthrie (pubished in 1756) and one by Patsall (published in 1774). (Greschak).
Institutio Oratoria contains this Latin sentence:
Quare, si fieri, potest et verba omnia et vox huius alumnum urbis oleant, ut oratio Romana plane videatur, non civitate donata. (Quintilianus, Institutio Oratoria, Book 1, Chapter VIII, as quoted by Greschak)
Guthrie (1756) translated the above sentence as:
Therefore we ought, if we possibly can, to bring our Language and Pronunciation to that Purity, that they may seem to be the Natives of our Country, and not naturalized into her. (William Guthrie's translation of Institutio Oratoria, as quoted by Greschak)
Patsall (1774) translated the same sentence differently:
Therefore, if possible, every word and the very tone of voice, should bespeak the natural born citizen of Rome, that the language may be purely Roman, and not so by a right different from birth and education. (Patsall, p.32)
The Latin term urbis means "city" and alumnum means "native" [22]. The translations by Guthrie and Patsall suggest that the "native", or "natural born citizen", of Rome was someone who was "purely" Roman by birth and education.
In Law of Nations, Book 1, Chapter 19, Vattel discusses two concepts: citizen and native. A child naturally acquires, at birth, the citizenship of its father, regardless of where the child is born (Vattel, §212,215). However, if your place of birth is within the country of your parents' citizenship, you are (by birth) more than just a "citizen" of your parents' country -- you are also a "native" or "indigene" of that country [20].
The original French-language version of Vattel's Law of Nations contained this sentence:
Les naturels, ou indigenes, font ceux qui font nes dans le pays, de parens citoyens. (Des citoyens et naturels)
An English translation of Law of Nations, published in 1759, rendered the above sentence as:
The natives, or indigenes, are those born in the country, of parents who are citizens.
These words were quoted, verbatim, by the Supreme Court in The Venus case (1814).
In a revised English translation published in 1797, the word "indigenes" was changed to "natural born citizens" [21]:
The natives, or natural born citizens, are those born in the country, of parents who are citizens. (Vattel, §212)
The examples cited above do not necessarily prove anything about the Constitutional meaning of "natural born". Nevertheless they seem to imply that "natural born" refers to the highest, purest or most intrinsic membership that a society or political body recognizes.
4.5 18th Century Meaning of "Native": Today, the "native" of a country is, generally speaking, a person who was born in that country. The Free Dictionary, for example, defines "native" (noun) as "One born in or connected with a place by birth" (Free Dictionary: native). According to Webster's Dictionary, "One born in any place is said to be a native of that place, whether country, city or town" (Noah Webster's Dictionary: native, 1828).
But, in at least some eighteenth-century contexts, the English word "native," when used as a noun, implied "natural" or "natural born", and suggested something more than mere birth in a particular place.
When the word "native" is used as an adjective (as, for example, in "native-born"), it implies birth in a particular place. But, in at least some 18th century contexts, the word "native," when used as a noun, implies "natural born" and suggests something more than the locality of one's birth.
Summary: Modern-day word usage, the U.S. Constitution itself, existing Federal statutes enacted by Congress, and eighteenth-century English-language literature provide useful hints, but do not conclusively establish the meaning of "natural born citizen" as used in the U.S. Constitution. We must look elsewhere to determine the term's originally intended meaning.
Obama eligibility supporters make three points:
Given this information, politicians and members of the mainstream news media understandably ask, "What's the problem here? How could there be any credible question or doubt regarding President Obama's 'natural born citizen' status?"
The Obama eligibility controversy arises from four facts:
As a Kenyan native, Barack Obama Sr. was a British subject whose citizenship status was governed by The British Nationality Act of 1948. That same act governed the status of Obama Sr.'s children. ... In other words, at the time of his birth, Barack Obama Jr. was both a U.S. citizen (by virtue of being born in Hawaii) and a citizen of the United Kingdom and Colonies (or the UKC) by virtue of being born to a father who was a citizen of the UKC. (FactCheck.org: Does Barack Obama have Kenyan citizenship?)
Since the term "natural born citizen" pertains only to one's status at the time of one's birth [27], the only "foreigners" that the "natural born citizen" provision could have possibly excluded were persons who were foreigners (foreign citizens or subjects) when they were born. But the "natural born citizen" provision could not have fulfilled even this limited purpose (the exclusion, from the presidency, of persons who were "foreigners" at birth) unless "natural born citizens" are defined as those who were not foreigners at birth, i.e., those who were, at birth, citizens of the United States exclusively and not citizens or subjects of any foreign country.
The natives, or natural born citizens, are those born in the country, of parents who are citizens. (Vattel, §212)
In his concurring opinion in Scott v. Sandford (1856), Justice Daniel characterized the 1797 English-language Law of Nations definition of "natural born citizen" as unexceptionable (incapable of being criticized).
The Law of Nations definition of "natural born citizen" was published 10 years after the U.S. Constitution was adopted. Nevertheless, it sheds light on the meaning of "natural born citizen" during the Constitutional Era (1786-1800), and casts doubt on the "natural born citizen" status of persons (such as President Obama) who were born of a non-U.S.-citizen parent.
In Minor v. Happersett (1875), the Supreme Court defined two classes: native-born children whose parents were citizens, and native-born children whose parents were not citizens. The Court used the term "natural born citizen" only in reference to members of the first class. The Court doubted whether members of the second class were even citizens, let alone natural born citizens [05]:
The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. (Minor v. Happersett, 1875).
Since a child acquires "natural born citizen" status only at birth [27], and since (according to Minor v. Happersett) natural born citizens are "distinguished from" aliens or foreigners, it follows that natural born citizens are persons who, when born, are not aliens or foreigners, i.e., are not citizens or subjects of any foreign country.
In 1898 (in U.S. v. Wong Kim Ark), the Supreme Court, in an apparent departure from prior precedent, ruled that the U.S.-born child of domiciled immigrant parents is a "citizen". But to the present day, a majority Opinion of the Court has never referred to any such child as a "natural born citizen". Whenever the Supreme Court, in any of its majority opinions, has referred to an individual as a "natural born citizen", the individual was always born in the United States, of U.S.-citizen parents (see, for example, Perkins v. Elg and Kwock Jan Fat v. White [99]).
Since children born in the United States, of non-U.S.-citizen fathers, were not even citizens prior to 1898, they are unlikely to be natural born citizens, even today [95].
All English subjects (except persons made denizens by the king), regardless of how or when they acquired their subjecthood, had the legal status or position of a natural-born subject. Naturalized subjects, foreign-born subjects and neary everyone born on English soil were natural-born subjects in the eyes of the law. But only those persons born on English soil, to parents owing actual "obedience" (allegiance) [54] to the king, were true natural-born subjects in fact (see Question 19: Natural-born subject).
All those are natural born subjects, whose parents, at the time of their birth, were under the actual obedience [allegiance] of our king, and whose place of birth was within his dominions. (Cunningham (1771), p.95, in section entitled "Aliens"; also Bacon, Matthew (1736), p.77)
Children born on English soil, of alien parents, were denizens by statute (Question 20: English born children of alien parents). They were natural-born subjects only in a legal sense. Since his father was not under the actual obedience (allegiance) of the United States, President Obama might be deemed "natural-born" by law, but it is doubtful he is "natural-born" according to the 18th-century factual meaning of the term.
Since subjecthood was a land-based relationship, you might acquire subjecthood from the land on which you were born. But since citizenship was a people-based relationship, we find that, in 18th-century literature dealing with the concept of citizenship in general (Bodin, Wolff, Vattel, etc.), you receive citizenship only from other citizens -- either by inheriting citizenship, at birth, from citizen parents; or by accepting a grant of citizenship from the governmental authority representing the citizenry as a whole. In either case, you always acquire citizenship from the people that your citizenship would tie you to, never from your place of birth (see, for example, Question 26: Law of Nations, and Appendix 1: Jus Gentium).
Since the words "subject" and "citizen" had different meanings, we cannot assume that "natural born", when used in conjunction with "subject", meant the same thing as "natural born" when used in conjunction with "citizen". Nearly everyone born on English soil was deemed (by law) to be an English subject. But, in 18th-century England and it colonies prior to the American Revolution, you were a citizen of an English city, at birth, only if your father was a citizen of that city at the time of your birth (see Question 22: English Citizenship).
However, the Court's reasoning in U.S. v. Wong Kim Ark is fraught with serious internal problems; it is riddled with factual errors and misrepresentations of prior Supreme Court opinions (Appendix 5: Wong Kim Ark Reasoning), hence is neither a sound nor a credible basis on which to argue for President Obama's eligibility (see Question 11: Wong Kim Ark).
The above eight reasons, taken together as a whole, cast doubts on President Obama's natural born citizenship.
Now that Obama's [natural born] citizenship has been seriously questioned, the burden of proof rests squarely on his shoulders. The "burden of establishing a delegation of power to the United States ... is upon those making the claim." Bute v. Illinois, 333 U.S. 640, 653 (1948). And if each of the General Government's powers must be proven (not simply presumed) to exist, then every requirement that the Constitution sets for any individual's exercise of those powers must also be proven (not simply presumed) to be fully satisfied before that individual may exercise any of those powers. The Constitution's command that "[n]o Person except a natural born Citizen ... shall be eligible to the Office of President" is an absolute prohibition against the exercise of each and every Presidential power by certain unqualified individuals. Actually (not simply presumptively or speculatively) being "a natural born Citizen" is the condition precedent sine qua non for avoiding this prohibition. Therefore, anyone who claims eligibility for "the Office of President" must, when credibly challenged, establish his qualifications in this regard with sufficient evidence. (Vieira)
If a presidential or vice presidential candidate's "natural born citizen" status is in doubt, the candidate has a duty to ask the Supreme Court for a declaratory judgment resolving the doubt. Until such judgment is rendered, the candidate cannot legally swear to his/her eligibility [07].
To summarize, Barack Obama admits that he acquired foreign citizenship at birth, by descent from his father:
When Barack Obama Jr. was born on Aug. 4, 1961, in Honolulu, Kenya was a British colony, still part of the United Kingdom's dwindling empire. As a Kenyan native, Barack Obama Sr. was a British subject whose citizenship status was governed by The British Nationality Act of 1948. That same act governed the status of Obama Sr.'s children. (FactCheck.org, as quoted in Obama's "Fight the Smears" webpage regarding his birth certificate).
This public admission raises the question, "Is Obama a natural born citizen of the United States, given that his legal status at birth was 'governed' (at least partially) by the laws of a foreign country?"
Obama eligibility supporters answer "Yes". They believe there are only two kinds of American citizens: naturalized and natural born. A naturalized citizen is someone who becomes a citizen after his or her birth, through a legal process called "naturalization". A natural born citizen is anyone who acquires U.S. citizenship at birth, by virtue of birth on U.S. soil. Since President Obama was born in the United States and acquired U.S. citizenship at birth, he is a natural born citizen, regardless of his parents' citizenship and regardless of any other citizenship also acquired at birth [24].
Birthers answer "No". In their understanding, not all children who acquire U.S. citizenship at birth are natural born citizens. A law enacted by Congress, an Amendment to the U.S. Constitution, or a ruling by the U.S. Supreme Court, may confer U.S. citizenship to certain children as soon as they are born, regardless of any other citizenship also acquired at birth. Such children are artificially deemed to be U.S. citizens by man-made law. But it is not "natural" to be a citizen of more than one country simultaneously [25].
Thus we have two opposing viewpoints regarding the meaning of "natural born citizen". Which viewpoint is correct?
Only the Supreme Court (not Congress, not the voters, not the consensus of American legal opinion) has the Constitutional authority to answer this question. President Obama has a duty to ask the Supreme Court for a declaratory judgment resolving all doubts with respect to his "natural born citizen" status.
There are two opposing theories regarding the meaning of "natural born citizen":
The United States Attorney General, considered "the chief lawyer of the U.S. government," has issued conflicting statements regarding natural born citizenship.
There can be no doubt that naturalization does, pro facto, place the native and adopted citizen in precisely the same relations with the Government under which they live, except so far as the express and positive law of the country has made a distinction in favor of one or the other. ... Here none but a native can be President. ... A Native and a Naturalized American can go forth with equal security over every sea and through every land under heaven, including the country in which the latter was born. ... They are both of them American citizens, and their exclusive allegiance is due to the Government of the United States. One of them never did owe fealty elsewhere, and the other, at the time of his naturalization, solemnly and rightfully, in pursuance of public law and municipal regulations, threw off, renounced and abjured forever all allegiance to every foreign prince, potentate, State and sovereignty whatever, and especially to that sovereign whose subject he had previously been. (Black, boldface emphasis added)
And our Constitution, in speaking of natural born citizens, uses no affirmative language to make them such, but only recognizes and reaffirms the universal principle, common to all nations, and as old as political society, that the people born in a country constitute the nations, and, as individuals, are natural members of the body politic. If this be a true principle, and I do not doubt it, it follows that every person born in the country is, at the moment of birth, prima facie a citizen; and he who would deny it must take upon himself the burden of proving some great disfranchisement strong enough to override the "natural born" right recognized by the Constitution... In every civilized country the individual is born to duties and rights -- the duty of allegiance and the right of protection: and these are correlative obligations, the one the price of the other, and they constitute the all sufficient bond of union between the individual and his country, and the country he is born in is, prima facie, his country. (Bates, p.12).
Likewise, the United States Secretary of State has issued conflicting opinions regarding the meaning of "natural born citizen":
...I am under the impression that every person born in the United States must be considered a citizen, notwithstanding one or both of his parents may have been alien at the time of his birth. This is in conformity with the English Common Law, which law is generally acknowledged in this country; and a person born of alien parents would, it is presumed, be considered such natural born citizen, in the language of the Constitution, as to make him eligible to be President. (Marcy)
Conflicting statements by Attorney Generals and Secretaries of State illustrate that there are two sides of the "natural born citizen" debate. Each side supports its viewpoint with a litany of historical and legal sources [93].
So, how does one decide which viewpoint is correct?
Obama eligibility challengers concede that, if both sides are given equal weight, the "natural born citizen" debate ends in a statemate: neither side has an advantage over the other. But, if each opinion is "weighted" according to the rules listed below, the "weight of authority" favors the two-parent theory:
Justice Curtis' dissenting opinion in Scott v. Sandford (1857) supports the viewpoint that anyone born in the United States is a natural born citizen. However, Justice Daniel's concurring opinion characterized as unexceptionable (beyond criticism or objection) the 1797 Vattelian definition of "natural born citizen":
The natives, or natural born citizens, are those born in the country, of parents who are citizens. (Scott v. Sandford, 1856)
Likewise, in Inglis v. Trustees Of Sailor's of Snug Harbor (1830), the majority ruled that, even if the plaintiff had been born in U.S.-controlled territory, he was a British subject by birth and not an American citizen, due to the fact that his parents were British subjects, not U.S. citizens. In his dissenting opinion, Justice Story noted that, by common law, birthplace alone determines nationality at birth:
Nothing is better settled at the common law than the doctrine that the children even of aliens born in a country while the parents are resident there under the protection of the government and owing a temporary allegiance thereto are subjects by birth. (Joseph Story's dissenting opinion, Inglis v. Trustees Of Sailor's of Snug Harbor, 1830).
In both of these examples, the majority Opinion of the Court, and a justice's concurring opinion, supported the two-parent theory, while dissenting opinions supported the birthplace-only theory.
Obiter dicta, or simply dicta, are a judge's remarks or opinions which are not relevant to his ruling in a particular case.
Obiter dictum (plural obiter dicta) is an opinion or a remark made by a judge which does not form a necessary part of the court's decision. The word obiter dicta is a latin word which means "things said by the way." Obiter dicta can be passing comments, opinions or examples provided by the judge. Statements constituting obiter dicta are therefore not binding. For example, if a court dismisses a case due to lack of jurisdiction and offers opinions on the merits of the case, then these opinions constitute obiter dicta. (Obiter Dictum Law & Legal Definition)
In Ankeny v. Indiana (2009), for example, an Appeals Court ruled that "the Plaintiffs have failed to state a claim upon which relief can be granted." On that basis, Judge Brown dismissed the Ankeny lawsuit. President Obama's eligibility was not relevant to the court's ruling. Nevertheless, in his written opinion, Judge Brown expressed his belief, or dicta, that anyone born on U.S. soil is a natural born citizen.
But in 1884, the Supreme Court ruled that children born on U.S. soil, of parents owing allegiance to a sovereignty other than the United States, do not acquire U.S. citizenship at birth. A child, born in the United States, is a U.S. citizen at birth only if its parents are subject to complete U.S. political jurisdiction. Native American Indians, being subject to tribal jurisdiction, are not subject to complete U.S. political jurisdiction, hence do not acquire U.S citizenship at birth:
The persons declared to be citizens are "all persons born or naturalized in the United States, and subject to the jurisdiction thereof." The evident meaning of these last words is not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction and owing them direct and immediate allegiance. ... Indians born within the territorial limits of the United States, members of, and owing immediate allegiance to, one of the Indian tribes, (an alien though dependent power,) although in a geographical sense born in the United States, are no more 'born in the United States and subject to the jurisdiction thereof,' within the meaning of the first section of the fourteenth amendment, than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States, of ambassadors or other public ministers of foreign nations. (Elk v. Wilkins, 1884)
In the Ankeny case, a state judge's dicta asserted that all children born on U.S. soil are natural born citizens. But in Elk v. Wilkins, the Supreme Court ruled that a child born in the United states, of parents who are subject to an alien power, is not a U.S. citizen (natural born or otherwise).
Representative John Bingham (1815-1900), regarded as the father of the 14th Amendment, explained to his colleagues that a "natural born citizen" is someone who meets two requirements at birth. First, a natural born citizen is one who was born in the United States:
Who are natural-born citizens but those born within the Republic? Those born within the Republic are citizens by birth -- natural-born citizens. (Congressional Globe, 37th, 2nd Sess.(1862), p.1639, leftmost column)
Second, a natural born citizen is one whose parents, at the time of his birth, did not owe allegiance to any sovereignty other than the United States. American Indians owe allegiance to their respective tribes, which are separate sovereignties. Since Indians owe allegiance to a sovereignty other than the United States, their children, though born on U.S. soil, are not natural born citizens:
All from other lands, who, by the terms of your [congress'] laws and in compliance with their provisions become naturalized, are adopted citizens of the United States; all other persons born within the Republic, of parents owing allegiance to no other sovereignty, are natural-born citizens. Gentlemen can find no exception to this statement except what is said in the Constitution in relation to Indians. The reason why that exception was made in the Constitution is apparent to everybody. The several Indian tribes were recognized at the organization of this Government as independent sovereignties. They were treated as such; and they have been dealt with by the Government ever since as separate sovereignties. Therefore they were excluded from the general rule. (Congressional Globe, 37th, 2nd Sess.(1862), p.1639, leftmost column, emphasis added)
In 1872, the U.S. House of Representatives discussed the case of Dr. Houard who, at the time, was incarcerated in Spain. Representative Bingham explained that Dr. Houard is a natural born citizen because he was born in the United States, of parents who were naturalized U.S. citizens:
As to the question of [Dr. Houard's] citizenship I am willing to resolve all doubts in favor of a citizen of the United States. That Dr. Houard is a natural born citizen of the United States there is not room for the shadow of a doubt. He was born of naturalized parents within the jurisdiction of the United States, and by the express words of the Constitution, as amended to-day [to date], he is declared to all the world to be a citizen of the United States by birth. (Congressional Globe, 42nd, 2nd Sess.(1872), p.2791, rightmost column, emphasis added)
Representative Bingham's understanding of natural born citizenship has special weight for two reasons:
1) It was tacitly accepted by the House membership.
Throughout history, some Congresspersons have expressed their belief that persons born on U.S. soil, of alien parents, might, under some circumstances, acquire U.S. citizenship at birth. But, at no time did anyone (from the House floor) challenge, question or dispute Representative Bingham's understanding that natural born citizens are those born in the United States, of parents not owing allegiance to any sovereignty other than the United States (House of Representatives Definition of 'Natural Born Citizen').
2) It is reflected in the citizenship clauses of the 1866 Civil Rights Act and the 14th Amendment.
The first sentence of the Civil Rights Act of 1866 states:
All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States (1866 Civil Rights Act)
Representative Bingham led Congress to believe that children born in the United States, of parents owing allegiance to a foreign power, are neither natural born citizens nor citizens according the 1866 Civil Rights Act. When Congress passed the 1866 Civil Rights Act, it did so based on the understanding that the Act's citizenship clause mirrors the Constitutional meaning of "natural born citizen":
I find no fault with the introductory clause [of the 1866 Civil Rights Act], which 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;... (Congressional Globe, 39th, 1st Sess.(1866), p.1291, center column, emphasis added)
Senator Jacob Howard, a member of the Joint Committee which drafted the 14th Amendment, likewise led Congress to believe that the citizenship clause in the 14th Amendment is "declaractory" of existing law. It includes, as citizens, those who are already citizens by virtue of being natural born citizens or citizens according to the 1866 Civil Rights Act; and it excludes, from citizenship, persons born in the United States who are foreigners, aliens, [or] who are children of foreign ambassadors and diplomats. (see Appendix 8: Senator Howard's Asyndeton).
This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. (Congressional Globe: Senate, 39th Congress, 1st Session, 1866, p.2890, center column)
When deciding whether to vote for or against the 1866 Civil Rights Act and the 14th Amendment, Congress relied on representations by the authors and sponsors of those bills; and these representations have weight because Congress relied on them.
Professor Fairman's "history" relies very heavily on what was not said in the state legislatures that passed on the Fourteenth Amendment. Instead of relying on this kind of negative pregnant, my legislative experience has convinced me that it is far wiser to rely on what was said, and, most importantly, said by the men who actually sponsored the Amendment in the Congress. I know from my years in the United States Senate that it is to men like Congressman Bingham, who steered the Amendment through the House, and Senator Howard, who introduced it in the Senate, that members of Congress look when they seek the real meaning of what is being offered. And they vote for or against a bill based on what the sponsors of that bill and those who oppose it tell them it means. (Supreme Court Justice Hugo Black, Concurring Opinion in Duncan v. Lousiana, 1968. See also Justice Hugo Black in Duncan v. Lousiana).
Some commentators and historians -- such as Rawle (1829), McPherson (1864) and Bancroft (1866) -- have expressed their opinion that, since everyone born on English soil was a natural-born subject, everyone born on U.S. soil must be a natural born citizen. While serving as U.S. Secretary of State, William Marcy expressed the same viewpoint (Marcy). In these instances, an opinion was merely stated or assumed, not explained, argued, defended or substantiated.
Likewise, in Tisdale v. Obama (2012), Judge Gibney rendered an opinion -- that President Obama is a "natural born citizen" -- but did so without holding any hearings on the matter and without considering any of the relevant evidence. The Tisdale case was dismissed the same day it was filed.
... not only has he [Judge Gibney] given us an incredibly hurried decision that does not provide his own independent thoughtful and reasoned analysis of the meaning of an Article II "natural born Citizen" ... but the case citations he includes in his 2 and 1/2 page Order to support his decision do not provide any basis for his conclusion ... (Tisdale v. Obama and the "Natural Born Citizen" Clause)
In contrast, Attorney Breckinridge Long published, in the Chicago Legal News (1916), a detailed legal analysis, carefully explaining why Republican presidential candidate Charles Evan Hughes is not a natural born citizen. Although Mr. Hughes was born in the United States, his parents at the time of his birth were British subjects, not U.S. citzens.
In U.S. v. Wong Kim Ark (1898), the Supreme Court ruled that children born in the United States, of permanently-domiciled alien parents, are U.S. citizens. The Court did not rule that such children were natural born citizens. Nevertheless, Obama eligibility supporters argue that Justice Gray's reasoning in the Wong Kim Ark case, when carried to its logical conclusion, supports the birthplace-only theory.
In his reasoning, Justice Gray cited five prior Supreme Court cases:
Justice Gray misrepresented all five of them. In each cited case, the actual Opinion of the Court does not support Justice Gray's reasoning (see Appendix 5: Wong Kim Ark reasoning).
In 2009, the Congressional Research Service (CRS) published a memo which (among other things) implied that the Supreme Court's decision, in Perkins v. Elg (1939), supports the birthplace-only theory. The CRS memo states:
See specifically Perkins v. Elg, supra at 329-330, where the Supreme Court explains that "a child born here of alien parentage becomes a citizen of the United States," even if she or he is removed to a foreign country by a parent and made a citizen there. The Court favorably cites a decision of the Attorney General that such a person is "a native-born American citizen. There is no law of the United States under which his father or any other person can deprive him of his birthright. He can return to America at the age of twenty-one, and in due time, if the people elect, he can become President of the United States ... [even though] the father, in accordance with the treaty and the laws, has renounced his American citizenship and his American allegiance and has acquired for himself and his son German citizenship and the rights which it carries ..." (Maskell (2009), footnote 25)
The above text misrepresents both the Court's decision and the Attorney General's opinion that the Court had cited. Marie Elg was born in the United States, of parents who were both U.S. citizens. Her father was a U.S. citizen by naturalization and her mother was a U.S. citizen by marriage.
In 1875, Attorney General Edwards Pierrepont rendered an opinion regarding the legal status of Mr. Steinkauler, who was born in St. Louis in 1855. Steinkauler's father emigrated from Germany to the United States in 1848 and became a naturalized U.S. citizen in 1854. When Mr. Steinkauler was born, his father was a U.S. citizen by naturalization and his mother was a U.S. citizen by marriage.
The CRS memo implies that Elg and Steinkauler were born of alien (non-U.S.-citizen) parents. That implication is factually incorrect. Both Elg and Steinkauler were natural born citizens, each having been born in the United States, of naturalized U.S. citizens (see Barnett, Chapter 5).
In 2011, the CRS misrepresented the Supreme Court opinion in Kwock Jan Fat v. White (1920). The CRS memo stated:
... the Supreme Court of the United States explained that "[i]t is not disputed that if petitioner is the son" of two Chinese national citizens who were physically in the United States when petitioner was born, then he is "a natural born American citizen ..." (Maskell (2011))
In the Kwock Jan Fat case, the Supreme Court said just the opposite [99]. The plaintiff was a natural born citizen because he was born in the United States, to parents who were both U.S. citizens. (Debunking the new Natural Born Citizen Congressional Research Propaganda).
The Court's reasoning in U.S. v. Wong Kim Ark, and the two CRS memos, have diminished weight because their arguments are based on overt falsehoods.
Throughout history, there have been conflicting viewpoints regarding the meaning of "natural born citizen". At first glance, the "natural born citizen" debate appears to be a stalemate between dueling opinions, with little prospect of resolution. However, Obama eligibility challengers contend that, when each opinion is "weighted" according to the above-listed rules, the overall "weight of authority" supports the viewpoint that natural-born citizens are those who are, at birth, citizens of the United States exclusively.
The Constitutional Convention first convened on May 25, 1787. Ten weeks later, John Rutledge presented an initial draft of the U.S. Constitution, based on discussions up to that point.
On Tuesday, July 24, 1787, the Constitutional Convention appointed members to the Committee of Detail. The Committee was tasked with taking all of the points debated by the Convention up to that point and constructing a document that could be used as a basis for further debate. The members started meeting on the following Thursday while the rest of the delegates enjoyed some time off from the debates. For ten days, the five members of the committee met together and in consultation with their fellow delegates. On August 6, 1787, John Rutledge, delegate from South Carolina, presented the draft to the Convention. (August 6 Draft of the Constitution)
Article 10 Section 1 of Rutledge's draft specified that the United States shall have a President, but did not mention any presidential eligibility requirements:
The Executive Power of the United States shall be vested in a single person. His style shall be, "The President of the United States of America;" and his title shall be, "His Excellency." He shall be elected by ballot by the Legislature. He shall hold his office during the term of seven years; but shall not be elected a second time. (Article 10, Section 1, August 6 Draft of the Constitution)
The "native" requirement for Representatives: Before considering the eligibility requirements for the Office of President, the Convention debated the eligibility requirements for the House of Representatives. On August 13, 1787, Elbridge Gerry proposed that only "natives" be permitted to serve as Representatives. James Madison opposed Gerry's proposal, arguing that:
America was indepted to emigration for her settlement and prosperity. That part of America which had encouraged them most had advanced most rapidly in population, agriculture and the arts. There was a possible danger, he admitted, that men with foreign predilections might obtain appointments; but it was by no means probable that it would happen to any dangerous degree. For the same reason that they would be attached to their native country, our own people woud prefer natives of this country to them. Experienced proved this to be the case. Instances were rare of a foreigner being elected by the people with any short space after his coming among us. (Elliot, pp.411-412)
However, George Mason believed that, since citizenship criteria varied widely among States, mere citizenship alone (as determined by the States) might not adequately protect against foreign influence in government:
The states have formed different qualifications themselves for enjoying different rights of citizenship. Greater caution would be necessary in the outset of the government than afterwards. ... If persons among us attached to Great Britain should work themselves into our councils, a turn might be given to our affairs, and particularly our commercial regulations, which might have pernicious consequences. The great houses of British merchants would spare no pains to insinuate the instruments of their views into the government. (Elliot, p.413-414)
The Convention decided to allow naturalized citizens to serve in the U.S. House of Representatives. Nevertheless, it appears that Gerry's and Mason's concerns resurfaced during the Convention's subsequent debates regarding presidential eligibility.
The "native-born" requirement for the Presidency: On August 22, 1787, Convention delegates agreed that the President must be a U.S. citizen:
The committee report, that, in their opinion, the following additions should be made to the report now before the Convention, namely: ... At the end of the first section, tenth article, add "he [the President] shall be of the age of thirty-five years, and a citizen of the United States, and shall have been an inhabitant thereof for twenty-one years. (Elliot, p.462)
Around that time, Alexander Hamilton wrote his own draft of the U.S. Constitution, but he never presented it to the Convention, presumaby because he was frequently absent on legal business:
During the convention, Hamilton constructed a draft for the Constitution based on the convention debates, but he never presented it. (Wikipedia: Alexander Hamilton).
Nevertheless, Hamilton's draft provides an historical "snapshot" of the Constitution at an intermediate stage of its development. Hamilton's draft suggests that, at one point during the Convention, there was a proposal to change the presidential eligibility requirement from "citizen" to "born a citizen":
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. (Hamilton's draft of the U.S. Constitution, as reprinted in Works of Alexander Hamilton, p.407, boldface emphasis added).
According to Burdick, the Convention considered using the term "native-born citizen":
A residence qualification for eligibility to the office of President was first suggested when the only other qualifications proposed were as to age and citizenship. It was reasonable to provide against the possibility of a person being elected to the high office of President who had but recently become a citizen and a resident, and who were, therefore, not familiar with our institutions and traditions. The committee of eleven radically modified the original proposal of the committee of five by requiring that a person to be eligible to the office of President shall be "a native-born citizen, or a citizen of the United States at the time of the adoption of this Constitution." (Burdick, pp.54-55, boldface emphasis added)
Both terms -- "born a citizen" and "native-born citizen" -- refer to someone who was born in the United States. At the time, one must be born in the United States in order to acquire U.S. citizenship by birth. A child born in a foreign country -- even if his parents were U.S. citizens at the time of his birth -- was not "born a citizen" of the United States. Even today, foreign-born children are not regarded as U.S. citizens by birth; they are naturalized, at birth, by statute:
The state of the law in the United States is easily deduced. The notion that there is any common law principle to naturalize the children born in foreign countries, of native-born American father and mother, father or mother, must be discarded. There is not and never was any such common law principle. But the common law principle of allegiance, was the law of all the States at the time of the Revolution, and at the adoption of the Constitution; and by that principle the citizens of the United States are, with the exceptions before mentioned, such only as are either born or made so, born within the limits and under the jurisdiction of the United States, or naturalized by the authority of law, either in one of the States before the Constitution, or since that time, by virtue of an Act of the Congress of the United States. (Binney (3rd Ed.), p.203)
If the Constitutional Convention had intended merely to exclude foreign-born individuals from the presidency, the proper wording would have been "native-born citizen":
The fact that the Constitution says "natural" instead of native shows to my mind that the distinction was thought of and probably discussed. A natural born citizen would be one who by nature, that is by inheritance, so to speak, was a citizen, as distinguished from one who was by nativity or locality of birth a citizen. ... It seems to me that if the founders of the government had meant to confine the presidency to such of its citizens as were born upon the soil of the country, they would have used the word "native," which is a much more apt word than natural. (Percy A. Bridgham, People's Lawyer, Boston Daily Globe, November 9, 1896. See also The Boston Globe: "native born" does not equal "natural born" for Presidential eligibilty)
Alexander Porter Morse (in 1904) similarly noted that, if the Constitutional Convention had intended merely to exclude foreign-born persons from the presidency, the term "native-born," instead of "natural born," would have been sufficient:
At the time of the adoption of the Constitution, immigration was anticipated and provisions for naturalization would immediately follow the establishment of the government. Those resident in the United States at the time the Constitution was adopted were made citizens. Thereafter the president must be taken from the natural-born citizens. If it was intended that anybody who was a citizen by birth should be eligible, it would only have been necessary to say, "no person, except a native-born citizen"; but the framers thought it wise, in view of the probable influx of European immigration, to provide that the president should at least be the child of citizens owing allegiance to the United States at the time of his birth. (Morse)
The Convention untimately decided to make natural born citizenship, instead of native-born citizenship, a presidential eligibility requirement. Why?
Dual citizenship at birth: When the thirteen colonies became independent States, each State determined the citizenship of children born within its borders. States were not required to limit themselves to any "natural law" theory of birthright citizenship. Each State had the right to determine, in any manner it saw fit, those who were, and those who were not, its citizens by birth [30].
Any child who was "born a citizen" of any State, according to the laws of that State, was automatically "born a citizen" of the United States [31].
A child who was "born a citizen" of a State might acquire foreign nationality (in addition to State citizenship) at birth. For example, when the U.S. Constitution was being written, a child was a British subject at birth if such child was born in the U.S., of British parents who had not yet become naturalized U.S. citizens. Depending on the applicable State laws, such a child could be, at birth, both a citizen of a State (by virtue of birth within that State) and a British subject (by virtue of birth to a British father).
...children and grandchildren, born of British parents in foreign countries, are British-born subjects; yet these, no doubt, by the laws of the respective foreign countries, are also deemed natural-born subjects there. I am aware of the difficulties which such persons may labor under with these double claims of allegiance upon them. ...the king cannot reckon upon the full and absolute obedience of such persons, because they owe another fealty besides that due to him... (Reeve, emphasis added)
Therefore, in some cases, a person who is "born a citizen" of the United States might also be a "foreigner" (a citizen or subject of a foreign country). At the time, the meaning of the word "foreigner" was not limited to persons born overseas; it also included persons who were foreign citizens or subjects (see Question 8: Foreigner).
Change to "natural born citizen": On September 4, 1787, the Constitutional Convention adopted the presidential "natural born citizen" eligibility requirement.
It was originally proposed in the Constitutional Convention that the presidential qualifications be a "citizen of the United States." It was so reported to the Convention, by the Committee which had it in charge, on the 22nd day of August, 1787. It was again referred to a Committee, and the qualification clause was changed to read "natural born citizen," and was so reported out of Committee on September the 4th, 1787, and adopted in the Constitution. (Long, p.7)
According to Alexander Hamilton, the Framers of the Constitution feared that a foreign power might raise a "creature of their own" to the U.S. Presidency:
Nothing was more to be desired, than that every practicable obstacle should be opposed to cabal, intrigue, and corruption. These most deadly adversaries of Republican government, might naturally have been expected to make their approaches from more than one quarter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils. How could they better gratify this, than by raising a creature of their own to the chief magistracy of the Union? (Alexander Hamilton, Federalist No. 68, March 14, 1788, emphasis added)
In a letter to George Washington, dated 25 July 1787, John Jay (1745-1829) recommended that the presidency be restricted to "natural born citizens" only. The stated reason for this restriction was to exclude "foreigners" from the presidency:
Permit me to hint whether it would not be wise and seasonable to provide a strong check to the admission of foreigners into the administration of our national government; and to declare expressly that the command in chief of the American army shall not be given to, nor devolve on any but a natural born citizen. (John Jay, Letter to George Washington, 25 July 1787)
According to Minor v. Happersett (1875), natural born citizens are "distinguished from" foreigners, suggesting that natural born citizens are persons who, besides being citizens, are not "foreigners" at birth [05]:
...it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. (Minor v Happersett, 1875, boldface emphasis added)
St. George Tucker (1752-1827) explained that the purpose of the "natural born citizen" provision was to exclude "foreigners" from the presidency, and thereby protect the presidency from foreign influence:
That provision in the constitution which requires that the president shall be a native-born citizen (unless he were a citizen of the United States when the constitution was adopted) is a happy means of security against foreign influence, which, wherever it is capable of being exerted, is to be dreaded more than the plague. The admission of foreigners into our councils, consequently, cannot be too much guarded against... To have added a [foreign] member to this sacred family in America, would have invited and perpetuated among us all the evils of Pandora's Box. (St. George Tucker, as quoted in Madison(2008))
According to U.S. Supreme Court Justice Joseph Story (1779-1845), early patriots were eligible to be president, even though they were naturalized citizens and not natural born citizens. But after their generation passed away, only natural born citizens were eligible to be president. The reason for this "natural born citizen" requirement was to exclude "foreigners" from the presidency.
It is indispensable, too, that the president should be a natural born citizen of the United States; or a citizen at the adoption of the constitution, and for fourteen years before his election.This permission of a [pre-1787-born] naturalized citizen to become president is an exception from the great fundamental policy of all governments, to exclude foreign influence from their executive councils and duties. It was doubtless introduced (for it has now become by lapse of time merely nominal, and will soon become wholly extinct) out of respect to those distinguished revolutionary patriots, who were born in a foreign land, and yet had entitled themselves to high honours in their adopted country. A positive exclusion of them from the office would have been unjust to their merits, and painful to their sensibilities.
But the general propriety of the exclusion of foreigners, in common cases, will scarcely be doubted by any sound statesman. It cuts off all chances for ambitious foreigners, who might otherwise be intriguing for the office; and interposes a barrier against those corrupt interferences of foreign governments in executive elections, which have inflicted the most serious evils upon the elective monarchies of Europe. Germany, Poland, and even the pontificate of Rome, are sad, but instructive examples of the enduring mischiefs arising from this source. (Story, § 1473)
Three years after the U.S. Constitution was adopted, Thomas Paine published The Rights of Man, in which he contrasts the American presidency with the English monarchy. He notes that a foreigner (or half-foreigner) may serve as King of England, but may not serve as President of the United States:
The president of the United States of America is elected only for four years. ... He cannot be elected under thirty-five years of age; and he must be a native of the country.... In England the person who exercises prerogative is often a foreigner; always half a foreigner, and always married to a foreigner. He is never in full natural or political connection with the country ...
The presidency in America (or, as it is sometimes called, the executive) is the only office from which a foreigner is excluded, and in England it is the only one to which he is admitted. A foreigner cannot be a member of Parliament, but he may be what is called a king. If there is any reason for excluding foreigners, it ought to be from those offices where mischief can most be acted ... (Paine, Chapter 4, Part 2)
Precedent for foreign exclusion: It was not unusual for a nation to exclude foreigners from its highest levels of government. The Hebrew Torah, for example, prohibits the appointment of a foreigner as king:
One from among your brethren you shall set as king over you; you may not put a foreigner over you, who is not your brother. (Hebrew Transliteration: Deuteronomy 17, Verse 15)
In Deuteronomy 17:15, "foreigner" is the English translation of the Hebrew nokriy which means either foreigner or alien. The words "brethren" and "brother" are English translations of the Hebrew ach which can figuratively refer to any sort of kinship or relationship, but literally means a blood relative.
In 1701, the English Parliament passed a law excluding, from public office, foreign-born persons of non-English parents:
...no person born out of the Kingdoms of England, Scotland, or Ireland, or the dominions thereunto belonging (although he be naturalized or made a denizen), except such as are born of English parents, shall be capable to be of the Privy Council, or a member of either House of Parliament, or to enjoy any office or place of trust, either civil or military, or to have any grant of lands, tenements or hereditaments from the Crown, to himself or to any other or others in trust for him; (Act of Settlement, 1701)
According to Cunningham's Law Dictionary (1764 and 1783 editions), foreigners -- even those who had become English subjects by denization or naturalization -- were ineligible to hold public office in England:
Foreigners, Though made denizens or naturalized here, are disabled to bear offices in the government, to be of the Privy council, members of Parliament, &c. by acts of settlement of the crown. (Cunningham, 1771, vol.2, p.82, under "Foreigner")
Status at birth: Natural born citizenship is conferred only at birth and cannot be acquired in later life [27]. Thus, the presidential natural born citizen provision, in the Constitution, pertains only to one's legal status at the time of one's birth.
The natural born citizen provision does not necessarily exclude all possible categories of foreigners from the presidency. It only excludes persons who were "foreigners" at birth.
When the Constitution was written, there were only two ways that a child could be a "foreigner" (a citizen or subject of a foreign country) at birth:
If you were born in the United States and both of your parents were exclusively U.S. citizens at the time of your birth, you were, without doubt, free of foreign influence at birth -- you were, without doubt, not a foreign citizen at birth and not under any foreign legal or political jurisdiction at birth. On the other hand, if you were born outside of the United States or if either one of your parents was not a U.S. citizen exclusively when you were born, you might have acquired foreign nationality, in addition to U.S. citizenship, at birth.
The only way to guarantee that the president does not acquire any foreign nationality at birth, is to require that the president be born in the United States, of parents who are both citizens of the United States exclusively.
Summary: On September 4, 1787, the Constitutional Convention adopted the presidential "natural born citizen" provision. The stated purpose of this provision was to exclude "foreigners" from the presidency. Since "natural born citizen" pertains only to one's status at the time of one's birth, the only "foreigners" that the provision could have possibly excluded were persons who were "foreigners" (foreign citizens or subjects) at birth.
According to Black's Law Dictionary, the word "foreigner" has both a municipal meaning and an international meaning. In the municipal sense, a "foreigner" in a city is a person who is not a citizen of that city (see Question 22: English citizenship). In the international sense, the word "foreigner" had a broad and widely-inclusive meaning: it could refer to "any one owing allegiance to a foreign state or sovereign".
FOREIGNER. In old English law, this term, when used with reference to a particular city, designated any person who was not an inhabitant of that city. According to later usage, it denotes a person who is not a citizen or subject of the state or country of which mention is made, or any one owing allegiance to a foreign state or sovereign. (Henry Campbell Black, A Dictionary of Law, First Edition, 1891, p.506)
In 2009, the Berkeley Journal of International Law published a comprehensive historical analysis of the words "foreigner" and "alien", as used in English and American legal writings during the late eighteenth century. The author, Anderson Berry, found that:
...the overwhelming majority of sources available to the drafters of the judicial bill [of 1789] define an "alien" as an individual who: 1) is foreign-born, and 2) resides in a sovereign's territory other than the one where he was born. A "foreigner" is defined as an individual who: 1) is foreign-born, or more specifically, is a foreign citizen or subject, or 2) is a foreign-born individual residing extraterritorially [outside the sovereign's territory]. (Berry, pp.337-8)
During the Constitutional Era (1786-1800):
The word "foreigner," when used in contradistinction to "alien," focused on one's nationality or allegiance rather than one's residence. In order to qualify as a "foreigner" (according to Berry's and Black's definitions), one only needed to be a citizen or subject of a foreign country. (The distinction between "alien" and "foreigner" is further discussed in Question 13: English subject).
There is nothing in Berry's or Black's definition of "foreigner" that imposes any requirement or makes any assumption about the place of one's birth. Foreign-born children were foreigners. But, if a child was born in the United States and acquired foreign nationality at birth, such child also met Berry's and Black's definitions of "foreigner".
Minor v. Happersett: In Minor v. Happersett (1875), children born on U.S. soil were divided into two classes: those whose parents were U.S. citizens, and those whose parents were not. Curiously, the Supreme Court used the word "foreigner" in a discussion that was solely and exclusively about children born in the United States.
According to the Court, the members of the first class (U.S.-born children of U.S.-citizen parents) were not foreigners; they were "distinguished from" foreigners. Nevertheless, the fact that the discussion was about U.S.-born children only, and the fact that the word "foreigner" appeared at all in this context, leads us to suspect that children born in the United States, of non-U.S.-citizen parents, may have been "foreigners" in some (if not all) cases.
...it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. (Minor v. Happersett, 1875, boldface emphasis added)
Senator Howard's Asyndeton: During the 1866 Congressional debates over the 14th Amendment, the distinction between "foreigner" and "alien" had become blurred. Nevertheless, it was still possible for a child, even if born on U.S. soil, to acquire "foreigner" status at birth: "persons born in the United States" were, in some instances, "foreigners" (see Appendix 8: Senator Howard's Asyndeton):
This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. (Congressional Globe: Senate, 39th Congress, 1st Session, 1866, p.2890, center column, boldface emphasis added)
Nationality vs. National Origin: The word "foreigner" (in the international, rather than municipal, context) can refer to either one's nationality or one's national origin:
In 1608, the term "alien born" could refer to either a person of foreign birth (origin) or a person of foreign allegiance (nationality):
An alien born is of foreign birth or foreign allegiance, and is also called peregrinus (foreigner), alien, exotic, stranger, etc. A stranger is a subject who is born outside the land, that is, outside the king's power. (Coke(1608), p.204, footnote 151)
In Vattel's Law of Nations (1758) (see Question 26: Law of Nations), one's "country" is either:
As Vattel explained, you can change your nationality but not your national origin.
The term, country, seems to be pretty generally known: but as it is taken in different senses, it may not be unuseful to give it here an exact definition. It commonly signifies the State of which one is a member [one's current nationality]: in this sense we have used it in the preceding sections; and it is to be thus understood in the law of nations.In a more confined sense, and more agreeably to its etymology, this term ["country"] signifies the state, or even more particularly the town or place where our parents had their fixed residence at the moment of our birth [national origin]. In this sense, it is justly said, that our country [national origin] cannot be changed, and always remains the same, to whatsoever place we may afterwards remove. (Vattel, § 122)
In Christian Wolff's Jus Gentium (1749), one's "native country" (the country of one's national origin) is established at birth and can never change. It is defined by one's citizenship at the time of birth, not the place of one's birth:
A native country is defined as a place, namely, a land or city, in which one's parents have a domicile, when he is born... (Wolff, § 141)Since your native country depends upon birth, moreover, since what has been done cannot be undone, your native country remains your native country, even if you establish your domicile outside of it, or abandon it, or even if you are driven out of it. So England or France remains the native country of an Englishman or a Frenchman, even if he has established a domicile for himself outside of England or France, intending never to return to England or France. (Wolff, § 144)
When a (foreign-born) immigrant becomes a naturalized U.S. citizen, he relinquishes his foreign nationality. But he does not relinquish his national origin; he remains a "foreigner by birth":
Foreigner: A person born in a foreign country, or without [outside of] the country or jurisdiction of which one speaks. A Spaniard is a foreigner in France and England. All men not born in the United States are to them foreigners, and they are aliens till naturalized. A naturalized person is a citizen; but we still call him a foreigner by birth. (Webster: foreigner, 1828)
Thus, it appears that the word "foreigner" had a broad and inclusive meaning, which in some cases included persons who were U.S. citizens.
Summary: In the late eighteenth century, if you were a citizen or subject of a foreign country, you were a "foreigner". If you acquired, at birth, citizenship in both the United States and a foreign country, you met the definition of "foreigner" (a foreign citizen or subject) at the time of your birth. The fact that you acquired foreign nationality at birth can never change, even if, in adulthood, you renounce your foreign allegiance and become a citizen of the United States exclusively [33].
Since natural born citizenship pertains only to one's status at the time of one's birth, the Constitutional "natural born citizen" provision, by itself, does not exclude presidential candidates on the basis of their current nationality. At most, the natural born citizen provision excludes persons only on the basis of their national origin (their citizenship at the time of birth). Changing the presidential eligibility requirement from "born a citizen" to "natural born citizen" does not provide any additional protection against foreign influence -- it does not reduce the number of persons who may serve as president -- unless "natural born citizen" means a person who was not a "foreigner" (citizen or subject of a foreign country) when she or he was born.
While running for President in 2008, Barack Obama claimed that he is a "natural born citizen" according to the meaning and intent of the 14th Amendment. His "Fight the Smears" website stated:
Lie: Obama Is Not a Natural Born Citizen.
Truth: Senator Obama was born in Hawaii in 1961, after it became a state on August 21st, 1951. Obama became a [natural born] citizen at birth under the first section of the 14th Amendment. (Fight the Smears -- June 2008)
This argument -- that President Obama is a "natural born citizen" according to the 14th Amendment -- is examined here:
Purpose of the 14th Amendment: Prior to the 14th Amendment, each State had the right to determine the citizenship of children born within its borders. The Federal government was responsible for establishing uniform rules of naturalization, by which foreign-born immigrants became U.S. citizens. But the status of a child born on U.S. soil was determined, not by any national [federal] law enacted by Congress, but solely by the laws of the State in which the child was born.
Perhaps the first most important thing to understand about national [federal] birthright is that there was no written national birthright rule applicable within the States prior to the year 1866. One will look in vain to find any national law on the subject prior to this year, or even any mention of the right to citizenship by birth under the United States Constitution.One reason for the absence of an early written national birthright rule is that States had decided for themselves who were their citizens by virtue of being born within the limits of the State. Prior to the 14th amendment, citizens of the United States were strictly defined as the citizens of each State. (Madison (2007))
Citizenship laws varied from State to State. In some States, all free white children born within the State (except the children of vagrants and foreign ambassadors) were, by State law, citizens of that State [34].
According to the U.S. Constitution, each State must recognize and accept the citizenship of citizens of other States [31]:
The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States. (U.S. Constitution, Article IV, Section 2)
But, in Scott v. Sandford (1856), the Supreme Court ruled that a State need not recognize the citizenship of another State's black citizens. If a State were to grant State citizenship, at birth, to a black child born within that State, none of the other States need recognize the child's citizenship.
One of the purposes of the 14th Amendment citizenship clause was to overturn the Supreme Court's ruling in Scott v. Sandford. The 14th Amendment defined federal (United States) citizenship and prohibited any State from discriminating against federal citizens, including those who were black or formerly slaves.
Section 1 [of the 14th Amendment] formally defines citizenship and protects a person's civil and political rights from being abridged or denied by any state. This represented the overruling of the Dred Scott decision's ruling that black people were not, and could not become, citizens of the United States or enjoy any of the privileges and immunities of citizenship. (Wikipedia: 14th Amendment)
Citizenship at Birth vs. Natural Born Citizenship: The 14th Amendment Citizenship Clause states:
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. (Constitution - Amendment 14)
14th Amendment citizens are U.S. citizen according to the 14th Amendment citizenship clause. There are two, and only two, categories of 14th Amendment citizens:
The States and the federal government must recognize, as a U.S. citizen, any person who is a 14th Amendment citizen (i.e., any person who is either a 14th Amendment citizen by birth or a 14th Amendment citizen by naturalization). The status of all other persons (such as persons born overseas) is left to the states and Congress to decide [35]. Congress and the states retain the right to grant or deny citizenship to persons who are not 14th Amendment citizens [36].
The 14th Amendment citizenship clause only mentions citizens. It does not mention natural born citizens. The term "natural born citizen" does not appear anywhere in the 14th amendment. In Minor v Happersett (1875), the Supreme Court indicated that the meaning of "natural born citizen" is not found in the U.S. Constitution:
The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. (Minor v Happersett, 1875)
When Minor v. Happersett was decided in 1875, the 14th Amendment (adopted in 1868) was already part of the Constitution. Therefore, if "natural born citizen" is not defined in the Constitution, it is not defined in the 14th Amendment.
The 14th Amendment "Natural Born Citizen" Argument: Some Obama eligibility supporters have argued that, even though the 14th Amendment does not explicitily define "natural born citizen", the 1866 Congressional Record shows that the framers and sponsors of the 14th Amendment understood and intended "14th Amendment citizen by birth" to be synonymous with "natural born citizen".
In U.S. v. Wong Kim Ark (1898), the Supreme Court hinted that, although "citizen" and "natural born citizen" are not explicitly defined in the Constitution, the 14th Amendment citizenship clause implicitly defines them:
The Constitution of the United States, as originally adopted, uses the words "citizen of the United States," and "natural-born citizen of the United States." ... The Constitution nowhere defines the meaning of these words, either by way of inclusion or of exclusion, except insofar as this is done by the affirmative declaration that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States." (U.S. v. Wong Kim Ark, 1898)
The 14th Amendment "Natural Born Citizen" Argument can be summarized as follows:
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. (U.S. v. Wong Kim Ark, 1898)
Objections: Birthers raise two objections to this line of reasoning:
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. (Marbury v. Madison, 1803)
All persons -- even foreign ambassadors with diplomatic immunity -- are subject to U.S. legal and territorial jurisdiction while they are in the United States. If the word "jurisdiction", in the 14th Amendment, is interpreted to mean territorial and legal jurisdiction rather than political jurisdiction, then all persons born or naturalized in the United States are automatically under U.S. jurisdiction at the time of their birth or naturalization. This would mean that the phrase, "subject to the jurisdiction thereof," is superfluous and without effect.
In the Fourteenth Amendment, there are two requirements: birth or naturalization in the United States and within the jurisdiction of the United States. If all persons who are born in the United States were ipso facto born within its jurisdiction, then the jurisdiction clause would be rendered superfluous. But a singular requirement of a written constitution is that no interpretation can render any part of the constitution to be without force or meaning. (Erler, pp.191-192)
According to Chief Justice Marshall, we cannot interpret the Constitution in a manner that renders a portion of the Constitution to be without effect. The jurisdictional requirement in the 14th Amendment citizenship clause has no force or meaning, unless the word "jurisdiction," as used in the 14th Amendment, means something more than the mere territorial and legal jurisdiction to which all persons are subject while on U.S. soil [37].
President Obama publicly admits that his citizenship status at birth was "governed" by the laws of a foreign country (FactCheck.org, as quoted by Obama's 'Fight the Smears' website). Since his citizenship status at birth was subject to foreign jurisdiction, it was not subject to full and complete U.S. jurisdiction. Therefore, President Obama does not qualify for citizenship-at-birth under the 14th Amendment as explained and clarified in 1866 by the Framers of the 14th Amendment.
President Obama may have acquired U.S. citizenship, at birth, by modern-day policy, but he did not acquire U.S. citizenship from the 14th Amendment, according to its originally intended meaning.
In summary, the 14th Amendment confers citizenship, at birth, to children who are born in the United States and are subject to U.S. jurisdiction at the time of birth. The 14th Amendment does not explicitly define natural born citizenship. The term "natural born citizen" does not appear anywhere in the 14th Amendment.
According to the 1866 Congressional Record, the framers of the 14th Amendment intended "14th Amendment citizen by birth" to be synonymous with "natural born citizen". On that basis, one might argue that Obama is a "natural born citizen", since he was born in the United States and was subject to U.S. jurisdiction at birth.
Birthers reject this argument, claiming that (a) it is not consistent with the Supreme Court opinion in Marbury v. Madison (1803), and (b) it is not consistent with the originally-intended meaning of "jurisdiction" as used in the 14th Amendment.
On April 9, 1866, Congress passed the Civil Rights Act of 1866, which stated:
All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States (1866 Civil Rights Act)
Two months later, Congress finalized the wording of the 14th Amendment and presented it to the States for ratification:
The United States Congress proposed the Fourteenth Amendment on June 13, 1866 and on July 9, 1868, three-fourths of the states (28 of 37) had ratified the amendment. (Wikipedia: Fourteenth Amendment)
The 14th Amendment states:
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. (Constitution - Amendment 14)
Since Congress proposed the 14th Amendment only two months after it passed the Civil Rights Act of 1866, it seems unlikely that the meaning of "subject to the jurisdiction thereof" (in the 14th Amendment) would contradict the meaning of "not subject to any foreign power" (in the 1866 Civil Rights Act).
The 1866 Congressional debates confirm that the two citizenship clauses -- the one in the 14th Amendment, and the one in the 1866 Civil Rights Act -- were intended to have the same meaning and effect.
Senator Doolittle proposed adding the words "excluding Indians not taxed" to the 14th Amendment citizenship clause, to bring it into conformity with the 1866 Civil Rights Act. Senator Howard explained that the proposed change was unnecessary. Native American Indians are subject to the jurisdiction of their respective tribes; Indian tribes are foreign nations; anyone who is subject to the jurisdiction of a foreign nation is not subject to U.S. jurisdiction in the 14th Amendment sense; consequently, the U.S.-born children of Native American Indians are already excluded from 14th Amendment citizenship by birth:
Mr. DOOLITTLE. I presume the honorable Senator from Michigan does not intend by this amendment to include the Indians. I move, therefore, to amend the amendment -- I presume he will have not objection to it -- by inserting after the word "thereof" the words "excluding Indians not taxed." The amendment would then read:All persons born in the United States, and subject to the jurisdiction thereof, excluding Indians not taxed, are citizens of the United States and of the States wherein they reside.Mr. HOWARD. I hope that amendment to the amendment will not be adopted. Indians born within the limits of the United States, and who maintain their tribal relations, are not, in the sense of the [14th] amendment, born subject to the jurisdiction of the United States. They are regarded, and always have been in our legislation and jurisprudence, as being quasi foreign nations. (Congressional Globe, Senate, 39th Congress, 1st Session, p.2890)
The primary framers of the 14th Amendment citizenship clause, Sen. Jacob Howard and Sen. Lyman Trumbull, explained that the word "jurisdiction", as used in the 14th Amendment, means full and complete U.S. jurisdiction, i.e., not subject to any foreign power:
Mr. TRUMBULL. ... The provision is, that "all persons born in the United States, and subject to the jurisdiction thereof, are citizens." That means "subject to the complete jurisdiction thereof."... What do we mean by "subject to the jurisdiction of the United States?" Not owing allegiance to anybody else. That is what it means. (Congressional Globe, Senate, 39th Congress, 1st Session, p.2893)
Mr. HOWARD: ... I concur entirely with the honorable Senator from Illinois [Trumbull], in holding that the word "jurisdiction," as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, coextensive in all respects with the constitutional power of the United States, whether exercised by Congress, by the executive, or by the judicial department; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now. (Congressional Globe, Senate, 39th Congress, 1st Session, p.2895)
In 1873, the Supreme Court (in the Slaughter-House Cases) affirmed that the U.S.-born children of foreign citizens are not subject to complete U.S. jurisdiction, therefore do not acquire 14th Amendment citizenship by birth:
'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.' ... The phrase, 'subject to its jurisdiction' was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States. (Slaughter-House Cases, 1873)
In 1884, the Supreme Court (in Elk v. Wilkins) likewise affirmed that a child, born in the United States, acquires 14th Amendment citizenship by birth only if such child, when born, owes "no allegiance to any alien power":
The main object of the opening sentence of the fourteenth amendment was to settle the question, upon which there had been a difference of opinion throughout the country and in this court, as to the citizenship of free negroes, (Scott v. Sandford, 19 How. 393;) and to put it beyond doubt that all persons, white or black, and whether formerly slaves or not, born or naturalized in the United States, and owing no allegiance to any alien power, should be citizens of the United States and of the state in which they reside. (Elk v. Wilkins, 1884)
You are a 14th Amendment citizen only if (a) you were born or naturalized in the United States, and (b) the United States had complete jurisdiction over you at the time of your birth or naturalization:
The persons declared to be citizens are "all persons born or naturalized in the United States, and subject to the jurisdiction thereof." The evident meaning of these last words is not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction and owing them direct and immediate allegiance. And the words relate to the time of birth in the one case, as they do to the time of naturalization in the other. Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterwards except by being naturalized... (Elk v. Wilkins, 1884)
Native American Indians, even when born on U.S. soil, are subject to tribal jurisdiction, hence are not subject to full and complete U.S. jurisdiction. Consequently, Native American Indians, born on U.S. soil, are not 14th Amendment citizens by birth:
Indians born within the territorial limits of the United States, members of, and owing immediate allegiance to, one of the Indian tribes, (an alien though dependent power,) although in a geographical sense born in the United States, are no more 'born in the United States and subject to the jurisdiction thereof,' within the meaning of the first section of the fourteenth amendment, than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States, of ambassadors or other public ministers of foreign nations. (Elk v. Wilkins, 1884)
In 1885, nearly two decades after the 14th Amendment was ratified, Thomas F. Bayard, while serving as the United States Secretary of State under President Grover Cleveland, ruled that the son of German immigrants, though born in the United States, was not a U.S. citizen as per the 14th Amendment. Since his parents were foreign citizens at the time of his birth, the boy was, at birth, "subject to a foreign power" and therefore "not subject to the jurisdiction of the United States" (The Nation, Vol.59, No.1521, August 23, 1894, p.134).
In 1898, the Supreme Court, in U.S. v. Wong Kim Ark, ruled that Mr. Wong had acquired 14th Amendment citizenship by birth, even though his parents, at the time of his birth, were Chinese immigrants not citizens of the United States. In order to arrive at this ruling, the Supreme Court had to ignore (deem "not admissible") the transcripts of the 1866 Congressional debates, in which the framers and sponsors of the 14th Amendment had explained the meaning of "jurisdiction" as used in the 14th Amendment.
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 ... as the equivalent of the words 'within the limits and under the jurisdiction of the United States'... Doubtless, the intention of the Congress which framed and of the States which adopted this Amendment of the Constitution must be sought in the words of the Amendment, and the debates in Congress are not admissible as evidence to control the meaning of those words. (U.S. v. Wong Kim Ark, 1898, boldface emphasis added).
The 1866 Congressional Record shows that the framers of the 14th Amendment and the congressmen who passed the 14th Amendment understood "jurisdiction" to mean exclusive political jurisdiction. Birthers argue that, even though the Supreme Court has the authority to settle matters of law, it does not have the power to change the facts of American history. It is an undisputed fact, based on the 1866 Congressional transcripts, that the term "jurisdiction," as used in the 14th Amendment, was originally intended to mean full and complete jurisdiction (i.e., not subject to any foreign power); and the Supreme Court cannot change this fact (see Question 11: Wong Kim Ark).
Full and complete jurisdiction was an essential requirement for 14th Amendment citizenship by birth. The 14th Amendment granted citizenship to the U.S.-born children of emancipated slaves because they were subject to full and complete U.S. jurisdiction; their political ties to their ancestral countries of origin had, over many generations, disappeared entirely. Native American Indians were subject to tribal jurisdiction, hence were not subject to full and complete U.S. jurisdiction. Consequently, the 14th Amendment did not confer citizenship to Native American Indians, even though they were, in nearly all cases, born in the United States.
On his web site, President Obama asserts that (a) his father was a British subject, and (b) in 1961, the citizenship status of children of British subjects was "governed" by the British Nationality Act of 1948. If Obama's citizenship status at birth was "governed" by the laws of a foreign country, how could he, at birth, be subject to full and complete U.S. jurisdiction?
The modern-day consensus opinion is:
This line of thinking arises, in part, from Justice Gray's reasoning in U.S. v. Wong Kim Ark (1898). Wong Kim Ark was born in the United States in 1873. His parents were Chinese immigrants and permanent legal residents of the United States, but were not U.S. citizens. In U.S. v. Wong Kim Ark (1898), the Supreme Court ruled, in a 6 to 2 decision, that Wong acquired U.S. citizenship at birth:
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[s] 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. (Horace Gray, Majority Opinion, U.S. v. Wong Kim Ark, 1898)
The Wong Kim Ark ruling does not directly apply to Barack Obama's presidential eligibility, for three reasons:
In the majority opinion, Justice Horace Gray cited sources which seem to suggest natural born citizenship requires something more than mere birth on U.S. soil. For example, he quoted the following from Minor v. Happersett (1875):
At common law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children, born in a country of parents who were its citizens, became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further, and include as citizens children born within the jurisdiction, without reference to the citizenship of their parents. As to this class, there have been doubts, but never as to the first. For the purposes of this case, it is not necessary to solve these doubts. (Minor v. Happersett (1875), as quoted in U.S. v. Wong Kim Ark (1898))
Justice Gray also quoted from an article, by Horace Binney, which used the term "natural born" in connection with a child of a U.S. citizen, but not in connection with a U.S.-born child of an alien. In Binney's opinion, both children were U.S. citizens, but only the U.S.-born child of a citizen was labeled "natural born":
The child of an alien, if born in the country, is as much a citizen as the natural born child of a citizen, and by operation of the same principle. (Binney (2nd ed.), as quoted in U.S. v. Wong Kim Ark (1898))
The Court's Reasoning: Even though the Court did not hold (or rule) that natural born citizenship is determined by birthplace alone, Justice Gray's reasoning seems to support that conclusion.
All persons born in the allegiance of the King are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England. ... We find no warrant for the opinion that this great principle of the common law has ever been changed in the United States. It has always obtained here with the same vigor, and subject only to the same exceptions, since as before the Revolution. (Justice Swayne, as quoted by U.S. v. Wong Kim Ark, 1898)
Considering the circumstances surrounding the framing of the Constitution, I submit that it is unreasonable to conclude that "natural-born citizen" applied to everybody born within the geographical tract known as the United States, irrespective of circumstances, and that the children of foreigners, happening to be born to them while passing through the country, whether of royal parentage or not, or whether of the Mongolian, Malay or other race, were eligible to the Presidency, while children of our citizens, born abroad, were not. (C.J. Fuller, Dissenting Opinion, U.S. v. Wong Kim Ark, 1898)
Why would Justice Fuller have mentioned "natural born citizen" in his dissenting opinion, unless he believed that the majority's reasoning, when carried to its logical conclusion, affected the term's meaning?
Based upon the language of Article II, Section 1, Clause 4 and the guidance provided by Wong Kim Ark, we conclude that persons born within the borders of the United States are "natural born Citizens" for Article II, Section 1 purposes, regardless of the citizenship of their parents. (David J. Dreyer, Ankeny v. Indiana, 2009, boldface emphasis added) [39]
Based on these and other considerations, some Obama eligibility supporters have argued that Justice Gray's reasoning, when carried to its logical conclusion, establishes that natural born citizenship is determined by birthplace alone, without regard to parental citizenship.
Problems with Justice Gray's Reasoning: Four facts directly impugn the Supreme Court's reasoning in U.S. v. Wong Kim Ark:
In his written opinion, Justice Gray admitted that his understanding of the word "jurisdiction," as used in the 14th Amendment, was based on presumption, not direct evidence. Justice Gray dismissed, as "not admissible", the transcripts of the 1866 congressional debates, in which the Framers explained the meaning of "jurisdiction" in the 14th Amendment.
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 ... as the equivalent of the words 'within the limits and under the jurisdiction of the United States'... Doubtless, the intention of the Congress which framed and of the States which adopted this Amendment of the Constitution must be sought in the words of the Amendment, and the debates in Congress are not admissible as evidence to control the meaning of those words. (U.S. v. Wong Kim Ark, 1898, boldface emphasis added).
The Supreme Court did not consider evidence showing that the intended meaning of "jurisdiction" was full and complete jurisdiction, i.e., not subject to any foreign power. (For a discussion of the originally intended meaning of "jurisdiction" in the 14th Amendment, see Question 10: Jurisdiction). According to one commentator, the Court's refusal to consider such evidence was "inexcusable":
A refusal to consider reliable evidence of original intent in the Constitution is no more excusable than a judge's refusal to consider legislative intent. (Justice John Paul Stevens, as quoted by Madison(2006))
Horace Binney published three editions of his article titled "The Alienigenae of the United States". The first two editions were privately published in December 1853. The Third (Final) Edition was published in the American Law Register in February 1854.
All three editions cited the Naturalization Act of 1790, which (when quoted correctly) states:
And the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided, that the right of citizenship shall not descend to persons whose fathers have never been resident in the United States: (Naturalization Act of 1790; boldface emphasis added).
The first two editions of Binney's article quoted the 1790 Act incorrectly:
[T]hat the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States shall be considered as natural born citizens -- with a proviso, that the right of citizenship shall not descend to persons who had never been resident in the United States. (Misquote of Naturalization Act of 1790, in Binney (2nd ed.), p.21, boldface emphasis added).
In the erroneous text, foreign-born children do not receive U.S. citizenship solely by descent from their parents. The citizenship of such children depends on their subsequent residence in the United States. Based on the erroneous text, Binney added a footnote asserting that descent, by itself, is never sufficient to confer U.S. citizenship at birth:
The right of citizenship never descends in the legal sense, either by the common law, or under the common naturalization acts. It is incident to birth in the country, or it is given personally by statute. The child of an alien, if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle. (Binney (2nd ed.), footnote, p.22).
Justice Gray cited Binney's footnote, both in the Opinion of the Court and in the Court's ruling. But Binney's footnote was factually incorrect, in large part because it was based on a misquote of the 1790 Naturalization Act. In the final edition of Binney's article, the 1790 Naturalization Act was cited correctly and the erroneous footnote was deleted. Binney's footnote, though erroneous and though deleted from the final version of Binney's article, nevertheless became one of the cornerstones of Justice Gray's reasoning in U.S. v. Wong Kim Ark (The Mr. Binney Funeral Humiliates the Reputation of the United States Supreme Court).
In his reasoning, Justice Gray misrepresented four prior Supreme Court rulings. None of these four rulings supported the jus soli principle that Justice Gray was contending:
Justice Gray misrepresented all four of the above-mentioned Supreme Court rulings. None of them supports his contention that birthplace alone confers federal citizenship at birth (See Appendix 5: Wong Kim Ark reasoning).
Furthermore, Justice Gray cited Justice Curtis' opinion in Scott v. Sandford (1857), but failed to mention that Justice Curtis' opinion was a dissenting opinion, not the actual Opinion of the Court. Justice Gray wrote:
In Dred Scott v. Sandford (1857) 19 How. 393, Mr. Justice Curtis said:"The first section of the second article of the Constitution uses the language, 'a natural-born citizen.' It thus assumes that citizenship may be acquired by birth. Undoubtedly, this language of the Constitution was used in reference to that principle of public law, well understood in this country at the time of the adoption of the Constitution, which referred citizenship to the place of birth.' 19 How 60 U.S. 576And, to this extent, no different opinion was expressed or intimated by any of the other judges. (Justice Gray, Opinion of the Court, U.S. v. Wong Kim Ark, 1898)
Justice Gray gave the impression that, in Scott v. Sandford, all of the other judges agreed with Curtis, that "natural born citizen" status is determined by birthplace alone. But this impression is factually incorrect. Justice Daniel, concurring with the majority in Scott v. Sandford, characterized the 1797 English-language Law of Nations definition of natural born citizen ("those born in the country of parents who are citizens") as unexceptionable (beyond criticism or objection). (Justice Daniel, Concurring Opinion, Scott v. Sandford, 1857).
In Scott v. Sandford (1857), there were two different opinions concerning the meaning of "natural born citizen" -- Justice Curtis' dissenting opinion, and Justice Daniel's concurring opinion:
Since Gray stated that none of the other justices in the Dred Scott case expressed a different opinion than Curtis did in his dissent, it is obvious that Gray's statement only applies to general citizenship, and not to the definition of those who fall into the class of natural-born citizens. The majority in Dred Scott did, in fact, express a completely different opinion than Curtis on the issue of who was an Article 2 Section 1 natural-born citizen. Gray's use of the words, "to this extent" -- with regard to the dissent by Curtis -- indicates that the extent to which the holding in Wong Kim Ark applies is to the definition of "citizenship", not to the definition of who is a natural-born citizen eligible to be President (Supreme Court Precedent).
Justice Gray quoted a North Carolina state supreme court opinion which seemed to blur the distinction between "citizen" and "subject":
Before our Revolution, all free persons born within the dominions of the king of Great Britain, whatever their color or complexion, were native-born British subjects; those born out of his allegiance were aliens. ... Upon the Revolution, no other change took place in the law of North Carolina than was consequent upon the transition from a colony dependent on an European king to a free and sovereign state. ... British subjects in North Carolina became North Carolina freemen; ... and all free persons born within the state are born citizens of the state. ... 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 the 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.' (Justice Gaston, State v. Manuel (1838) 4 Dev. & b.20,24-26, as quoted in U.S. v. Wong Kim Ark).
When the thirteen colonies gained independence from Great Britain, some of the newly-formed states based their citizenship laws on the jus soli principle of English common law. In North Carolina, for example, "all free persons born within the state are born citizens of the state."
But the Federal government understood that, although English subjecthood could be acquired, at birth, from the place of one's birth, English citizenship was acquired, by birth, only through inheritance from one's father (see Question 22: English citizenship). Prior to 1898, the Supreme Court had never established that (except by state citizenship law) a child of an alien father was a U.S. citizen merely by being born on U.S. soil (The McCreery v. Somerville Funeral).
The Supreme Court's ruling in U.S. v. Wong Kim Ark -- that the U.S.-born children of permanently-resident Chinese immigrants are 14th Amendment citizens -- is U.S. law. But the Court's reasoning in that case was riddled with misrepresentations and factual errors, hence is not a sound basis on which to argue for President Obama's eligibility.
English Common Law: In U.S. v. Wong Kim Ark, the Court's reasoning was based largely on the English common law "rule" that, generally speaking, children born on English soil were, at birth, English natural-born subjects, regardless of whether their parents were subjects or aliens. According to the majority's opinion, this "rule" of English common law was "in force" when the U.S. Constitution was being written and thereafter "continued to prevail" in the United States:
It thus clearly appears that by the law of England for the last three centuries, beginning before the settlement of this country, and continuing to the present day, aliens, while residing in the dominions possessed by the crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, and the jurisdiction of the English sovereign; and therefore every child born in England of alien parents was a natural-born subject, unless the child of an ambassador or other diplomatic agent of a foreign state, or of an alien enemy in hostile occupation of the place where the child was born. The same rule was in force in all the English colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the constitution as originally established. (Page 169 U. S. 658, U.S. v. Wong Kim Ark, 1898)
In his dissenting opinion, Justice Fuller argued that the majority was factually incorrect on this point. Regarding the extent to which English common law had influenced the Framers of the Constitution, the minority and majority disagreed, not over a matter of law, but over a matter of American history:
And it is this rule, pure and simple, which it is asserted determined citizenship of the United States during the entire period prior to the passage of the act of April 9, 1866, and the ratification of the Fourteenth Amendment, and governed the meaning of the words "citizen of the United States" and "natural-born citizen" used in the Constitution as originally framed and adopted. I submit that no such rule obtained during the period referred to, and that those words bore no such construction... (Justice Fuller, Dissenting Opinion, Wong Kim Ark, 1898)
When the original thirteen colonies became independent States, they chose to retain aspects of English common law for their own convenience. States retained their existing system of government and laws, and modified it as they saw fit, rather than create a whole new system "from scratch." But English common law did not "continue to prevail" at the Federal or national level (Madison(2006)).
George Mason (1725-1792), called the "Father of the Bill of Rights" and considered one of the "Founding Fathers" of the United States, is widely quoted as saying:
The common law of England is not the common law of these states. (Debate in Virginia Ratifying Convention, 19 June 1788)
In 1884, the following commentary appeared in the prestigious American Law Review:
In Wheaton v. Peters, the Supreme Court say: "It is clear there can be no common law of the United States. The Federal government is composed of twenty-four sovereign and independent states, each of which may have its local usages, customs and common law. There is no principle which pervades the Union and has the authority of law, that is not embodied in the constitution or laws of the Union. The common law could be made a part of our Federal system only by legislative adoption." (Collins)
In a recent speech to the Federalist Society, Supreme Court Justice Antonin Scalia confirmed that English common law did not "control" at the national or Federal level after the United States gained its independence from Great Britain:
The common law is gone. The federal courts never applied the common law and even in the state courts it's codified now. (Audio/Video: Justice Scalia speech, Nov 22, 2008)
Chester Arthur: Wong Kim Ark's circumstances, though different from Barack Obama's, were similar to those of Chester Arthur, the 21st President of the United States. Mr. Wong and President Arthur were born in the United States. When each was born, his father was a permanent legal U.S. resident but not a U.S. citizen.
Chester Arthur became vice president in 1880, and became president after James Garfield was assassinated in 1881. At the time, the general public seemed unaware that, when Chester Arthur was born in 1829, his father, William Arthur, was a British subject and not a U.S. citizen (Historical Breakthrough - Chester Arthur).
In 1884, President Arthur admitted that there were doubts concerning the citizenship of U.S.-born persons (such as himself) whose parents intended to become naturalized U.S. citizens but had not yet done so:
Our existing naturalization laws also need revision. ... Section 2172, recognizing the citizenship of the children of naturalized parents, is ambiguous in its terms... An uniform rule of naturalization, such as the Constitution contemplates, should, among other things, clearly define the status of persons born within the United States subject to a foreign power and of minor children of fathers who have declared their intention to become citizens... (Chester Arthur, 1884, as quoted by Long)
Prior to Chester Arthur's death in 1886, there were two cases in which an elected Federal official was found to be constitutionally ineligible to the office he was holding: Senator Albert Gallatin (1793), and Senator James Shields (1849). In both cases, the ineligible official was removed from office, and every official action that he took while in office was nullified and erased. Thus, in 1898, if the general public had learned of Chester Arthur's dual citizenship at birth, and if the ensuing public hearings had determined that he was ineligible, the legitimacy of his judicial appointments might have been called into question.
During his three-year presidency, Chester Arthur made 19 judicial appointments: two to the Supreme Court, four to United States circuit courts, and thirteen to the United States district courts. In 1882, he appointed Samuel Blatchford and Horace Gray to the U.S. Supreme Court. President Arthur also appointed David Josiah Brewer to the U.S. 8th Circuit Court in 1884. In 1889, President Harrison appointed Brewer to the U.S. Supreme Court.
Blatchford died in 1893. When the Wong Kim Ark case was decided in 1898, two members of the Supreme Court -- Horace Gray and David Brewer -- had been Arthur appointees at some point during their careers. Both voted with the majority in the Wong Kim Ark case.
The Supreme Court did not rule that Wong was a natural born citizen. But according to some Obama eligibility supporters, the Court's reasoning seems to imply that all children born in the United States (except the children of foreign diplomats and alien enemies) are natural born citizens.
Was the Supreme Court's reasoning in U.S. v. Wong Kim Ark influenced by a desire to implicitly grant natural born citizenship posthumously to Chester Arthur, so as to retroactively legitimize his presidency and thereby protect the legacies of his judicial appointees? (Wrotnowski supplemental brief regarding Chester Arthur).
Summary: In Wong Kim Ark, the Supreme Court made a ruling that was based on two assertions: 1) that the jus soli principle of English common law "continued to prevail under the Constitution" and controlled the meaning of U.S. citizenship at the Federal level, and 2) that, in the 14th Amendment, "jurisdiction" means territorial and legal jurisdiction, not exclusive political jurisdiction. The validity of both assertions has been questioned by multiple sources [40].
Julia Lynch was born in New York in 1819. At the time of her birth, her parents were not U.S. citizens -- they were British subjects visiting the United States. Shortly after Julia's birth, the Lynch family returned to their home in Ireland, where Julia remained until adulthood.
In Lynch v Clarke (1844), a New York State court ruled that Julia was a New York citizen at birth. At the time, each State decided, for itself, who were and who were not its citizens. Any free white person who was born a citizen of any State, according to the laws of that State, was automatically a citizen of the United States [31].
The New York State court did not rule that Julia Lynch was a natural born citizen. The meaning of "natural born citizen" in the Federal Constitution is strictly a Federal matter, which has nothing to do with Julia's State citizenship under New York State law. Nevertheless, Vice-Chancellor Lewis Halsey Sandford, who presided over this case, expressed his personal opinion, or dicta, that Julia Lynch was a U.S. natural born citizen:
After an exhaustive examination of the law, the Vice-Chancellor said that he entertained no doubt that every person born in within the dominions and allegiances of the United States, whatever the situation of his parents, was a natural-born citizen; and added, that this was the general understanding of the legal profession, and the universal impression of the public mind. (Cases on Constitutional Law - Part 2, pp.581-582)
An article in the New York Legal Observer elaborated:
The only standard which then existed, of a natural born citizen, was the rule of the common law, and no different standard has been adopted since. Suppose a person should be elected President who was native born, but of alien parents, could there be any reasonable doubt that he was eligible under the constitution? I think not. The position would be decisive in his favor that by the rule of the common law, in force when the constitution was adopted, he is a citizen." (Dicta from Lynch v. Clarke (1844), cited by Article in New York Legal Observer, pp.246-247).
Fifteen years earlier, William Rawle (1829) had expressed the same personal opinion -- that natural born citizenship is determined by birthplace alone:
Therefore every person born within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural born citizen in the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity. (Rawle)
In 1854, Secretary of State William Marcy expressed his unofficial "impression" that children born in the United States, of alien parents, are natural born citizens:
Although, in general, it is not the duty of the Secretary of State to express opinions upon points of law, and doubts may be entertained of the expediency of making an answer to your inquiries an exception to this rule, yet I am under the impression that every person born in the United States must be considered a citizen, notwithstanding one or both of his parents may have been alien at the time of his birth. This is in conformity with the English Common Law, which law is generally acknowledged in this country; and a person born of alien parents would, it is presumed, be considered such natural born citizen, in the language of the Constitution, as to make him eligible to be President. (Marcy)
In his dissenting opinion in Dred Scott v. Sandford (1856), Supreme Court Justice Curtis expressed his view that birthplace alone confers natural born citizenship:
The first section of the second article of the Constitution uses the language, "a natural-born citizen." It thus assumes that citizenship may be acquired by birth. Undoubtedly, this language of the Constitution was used in reference to that principle of public law, well understood in this country at the time of the adoption of the Constitution, which referred citizenship to the place of birth. (Curtis, J., Dissenting Opinion).
In 1862, Abraham Lincoln's Attorney General, Edward Bates, wrote that, as a general rule, children born in the United States are U.S. citizens by birth. Mr. Bates implied that such children are natural born citizens as well:
And our Constitution, in speaking of natural born citizens, uses no affirmative language to make them such, but only recognizes and reaffirms the universal principle, common to all nations, and as old as political society, that the people born in a country constitute the nations, and, as individuals, are natural members of the body politic.If this be a true principle, and I do not doubt it, it follows that every person born in the country is, at the moment of birth, prima facie a citizen; and he who would deny it must take upon himself the burden of proving some great disfranchisement strong enough to override the "natural born" right recognized by the Constitution... In every civilized country the individual is born to duties and rights -- the duty of allegiance and the right of protection: and these are correlative obligations, the one the price of the other, and they constitute the all sufficient bond of union between the individual and his country, and the country he is born in is, prima facie, his country. (Bates, p.12).
In his Political History of the United States (1864), Edward McPherson repeated Attorney General Bates' words regarding citizenship and natural born citizenship (McPherson, p.380).
In 1866, George Bancroft expressed the same viewpoint -- that all persons born on U.S. soil are natural born citizens:
...everyone who saw the first light on the American soil was a natural-born American citizen (Bancroft, p.201)
In 1983, Judge Richard Cudahy (U.S. Court of Appeals for the Seventh Circuit) expressed his personal opinion, or dicta, that US-born children of illegal immigrant parents are "natural born citizens":
Petitioner, Sebastian Diaz-Salazar, entered the United States illegally in 1974 and has been living and working in Chicago since that time. ... The petitioner has a wife and two children under the age of three in Chicago; the children are natural-born citizens of the United States. (Diaz-Salazar v. I.N.S., 1983)
Opposing Viewpoints: Various "authorities" (including, but not limited to, those cited above) have expressed the opinion that birth within the United States is, by itself, sufficient to confer U.S. citizenship at birth and presumably natural born citizenship as well. (For a more complete list of these authorities, see Natural Born Quotes). Throughout U.S. history, other authorities have expressed a different opinion -- that you are a natural born citizen only if your parents were U.S. citizens at the time of your birth.
In 1789, two years after the Constitution was adopted, David Ramsay argued that a child naturally receives federal (United States) citizenship at birth only if the child's parents were U.S. citizens at the time of the child's birth. Anyone can acquire U.S. citizenship artificially either by state law or by naturalization statutes enacted by Congress. Anyone who acquires state citizenship according to state law is automatically a citizen of the United States [31]. But, in the absence of an applicable state or federal law, you do not automatically receive federal (U.S.) citizenship at birth unless your parents were U.S. citizens when you were born:
[Birthright citizenship] ... is confined exclusively to the children of those who were themselves citizens. ... The citizenship of no man could be previous to the declaration of independence, and, as a natural right, belongs to none but those who have been born of citizens since the 4th of July, 1776. ... From the premises already established, it may be farther inferred, that citizenship, by inheritance, belongs to none but the children of those Americans, who, having survived the declaration of independence, acquired that adventitious character in their own right, and transmitted it to their offspring. (Ramsay)
Ramsay's comments were made in connection with a dispute over William Smith's eligibility to serve as a U.S. representative from South Carolina. Despite their disagreement on the eligibility issue, Smith agreed with Ramsay that you naturally receive, at birth, the citizenship of your parents, particularly your father:
Vattel says, "The country of the father is that of the children, and these become citizens merely by their tacit consent." (William Loughton Smith, as quoted in The Documentary history of the first Federal elections, 1788-1790, Volume 1, pp.178)
In 1811, the U.S. State Department ruled that James McClure was a U.S. citizen, not by birth, but by statutory naturalization (Publius Enigma). McClure was born in South Carolina on April 21, 1785. At the time of his birth, his parents were not U.S. citizens; they became naturalized U.S. citizens in 1786, a year after their son was born. James McClure would have acquired U.S. citizenship at birth if he had been born in a state, such as Virginia, which conferred state citizenship to anyone born within its borders. At the time, anyone who acquired state citizenship under state law was automatically a citizen of the United States [31]. But McClure was born in a state (South Carolina) which did not confer state citizenship, at birth, to children of alien parents. In the absence of an applicable state citizenship law, federal (United States) citizenship is conferred, at birth, only to persons born in the United States, of parents who are U.S. citizens:
Mr. Rodman hints, that it would have been sufficient for James McClure to have been born in the United States -- he is mistaken. The law of the United States recognizes no such claim. The law of Virginia, of 1792, does -- for, "all free persons born within the territory of this commonwealth," is deemed a citizen. The law of Virginia considers him as a son of the soil. An alien, as well as a citizen, may beget a citizen -- but the U. States' act does not go so far. A man must be naturalized to make his children such. ("Case of James McClure", The Alexandria Herald, Vol. I, No. 37, October 7, 1811, page 2, left-most column)
Secretary of State James Monroe ruled that James McClure received U.S. citizenship retroactively from the Naturalization Act of 1802, which granted citizenship to anyone who, during childhood, was living with his/her parents when they became naturalized U.S. citizens. James McClure -- having been born in the United States, of non-U.S.-citizen parents -- was not a U.S. citizen by birth; he became a naturalized U.S. citizen by statute (Apuzzo, 2012).
In 1845, an article entitled "Massachusetts and South Carolina", appearing in The New Englander, explained that, in the U.S. Constitution, the term "natural born citizen" means a U.S. citizen not owing allegiance, at birth, to any foreign state. According to the article, all adult U.S. citizens are presumed to owe allegiance to the United States exclusively, but a natural born citizen owes exclusive allegiance from the time of her or his birth:
The expression 'citizen of the United States' occurs in the clauses prescribing qualifications for Representatives, for Senators, and for President. In the latter the term 'natural born citizen' is used, and excludes all persons owing allegiance by birth to foreign states; in the other cases the word 'citizen' is used without the adjective, and excludes persons owing allegiance to foreign states, unless naturalized under our laws. ("Massachusetts and South Carolina", The New Englander, Volume 3, 1845, p.414)
In 1859, Attorney General Jeremiah Sullivan Black clarified the distinction between a native and a naturalized citizen. All adult U.S. citizens are presumed to owe allegiance to the United States exclusively. The native is a citizen who never owed allegiance to any sovereignty other than the United States. Only a native (i.e., natural born citizen) may serve as President.
There can be no doubt that naturalization does, pro facto, place the native and adopted citizen in precisely the same relations with the Government under which they live, except so far as the express and positive law of the country has made a distinction in favor of one or the other. ... Here none but a native can be President. ... A Native and a Naturalized American can go forth with equal security over every sea and through every land under heaven, including the country in which the latter was born. ... They are both of them American citizens, and their exclusive allegiance is due to the Government of the United States. One of them never did owe fealty elsewhere, and the other, at the time of his naturalization, solemnly and rightfully, in pursuance of public law and municipal regulations, threw off, renounced and abjured forever all allegiance to every foreign prince, potentate, State and sovereignty whatever, and especially to that sovereign whose subject he had previously been. (Black)
In 1866, during a speech before the U.S. House of Represenatives, John Bingham (1815-1900), the father of the 14th Amendment, said that a natural born citizen is one who is born in the United States, of parents not owing allegiance to any foreign sovereignty:
[I] find no fault with the introductory clause [of the 1866 Civil Rights Act], which 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. (Congressional Globe, 39th, 1st Sess.(1866), p.1291, center column)
In 1884, an article by George Collins, appearing in the American Law Review (1884), criticized the Lynch v. Clark ruling:
In Lynch v. Clark, the vice-chancellor held that the common-law doctrine -- that the place of birth and not the nationality of the father determined the political status of the child -- was applicable to the United States, constituted a part of the jurisprudence thereof, and that accordingly a person born within the United States, whose father at the time of such birth was an alien, was a citizen of the United States. This case, aside from its fallacious and unsound reasoning, can not be upheld upon principle. It is well settled that the common law is not part of the jurisprudence of the United States. ... Birth [in the United States] ... does not ipso facto confer citizenship, and it is essential in order that a person be a native or natural born citizen of the United States, that his father be at the time of the birth of such person a citizen thereof, on in case he be illegitimate, that his mother be a citizen thereof at the time of such birth. (Collins)
In 1894, The Nation magazine reported an opinion by Thomas Bayard, who was U.S. Secretary of State under Grover Cleveland. In Bayard's opinion, the U.S.-born child of alien parents was not subject to U.S. jurisdiction at the time of its birth, therefore was not a U.S. citizen at birth:
In 1885, Secretary Bayard decided that the son of a German subject, born in Ohio, was not a citizen under the statute or the Constitution, because "he was on his birth 'subject to a foreign power,' and 'not subject to the jurisdiction of the United States'" (The Nation, Vol.59, No.1521, August 23, 1894, p.134, near bottom of right-most column)
In 1896, an article by Percy A. Bridgham, appearing in the Boston Daily Globe, defined native born as "born within the United States," and natural born as "born of parents who are U.S. citizens". In Bridgham's opinion, one did not need to be native-born in order to be natural-born. His understanding, at the time, was that all post-1787-born Presidents were both native-born and natural-born; the United States has never had a President who was strictly natural-born (natural-born only, without also being native-born).
The fact that the Constitution says "natural" instead of native shows to my mind that the distinction was thought of and probably discussed. A natural born citizen would be one who by nature, that is by inheritance, so to speak, was a citizen, as distinguished from one who was by nativity or locality of birth a citizen. ...It seems to me that if the founders of the government had meant to confine the presidency to such of its citizens as were born upon the soil of the country, they would have used the word "native," which is a much more apt word than natural. ...
A comparison of the meanings of native and natural as given by Webster bears me out in my opinion of the intent of the constitution. The very first definition of natural is "fixed or determined by nature," the nationality of a child born abroad of American parents is fixed by the nature of things and not by the locality of birth. I do not find that our courts have ever passed upon the meaning of the word natural in connection with citizenship, so we must take its ordinary meaning. (Percy A. Bridgham, People's Lawyer, Boston Daily Globe, November 9, 1896. See also The Boston Globe: "native born" does not equal "natural born" for Presidential eligibilty)
Also in 1896, the New York Tribune published an article, questioning the eligibility of Mr. Shurmann, the Labor Party presidential candidate. Mr. Schurmann was born in the United States, of non-U.S.-citizen parents:
Is he [Mr. Shurmann], under these circumstances, "a natural-born citizen" in the sense implied by the fifth clause of Art. II. of the Constitution? Various Attorney-Generals of the United States have expressed the opinion that a child born in this country of alien parents, who have not been naturalized, is, by the fact of birth, a native-born citizen entitled to all rights and privileges as such, and the State Department has always acted on this presumption in deciding upon questions of this nature brought before it. There is, however, no United States statute containing any provision on the subject [of natural born citizenship], nor have any judicial decisions ever been made in regard to it. It is at best an open question, and one which should have made Mr. Schurmann's nomination under any circumstances an impossibility. (New York Tribune 1896: Those born of non-citizen parents may not be eligible for POTUS)
In 1904, Alexander Porter Morse argued that parental citizenship is essential to natural born citizenship; one cannot be a natural born citizen unless one's parents were citizens at the time of one's birth:
At the time of the adoption of the Constitution, immigration was anticipated and provisions for naturalization would immediately follow the establishment of the government. Those resident in the United States at the time the Constitution was adopted were made citizens. Thereafter the president must be taken from the natural-born citizens. If it was intended that anybody who was a citizen by birth should be eligible, it would only have been necessary to say, "no person, except a native-born citizen"; but the framers thought it wise, in view of the probable influx of European immigration, to provide that the president should at least be the child of citizens owing allegiance to the United States at the time of his birth. (Morse)
In 1916, attorney Breckinridge Long argued that Republican presidential candidate Charles Evans Hughes was not eligible to serve as president. Hughes was born in the United States, but at the time of his birth, his father was not a U.S. citizen. In Long's Legal Analysis, a U.S.-born child of a non-citizen father is not a natural born citizen of the United States:
It must be admitted that a man born on this soil, of alien parents, enjoys a dual nationality and owes a double allegiance. A child born under these conditions has a right to elect what nationality he will enjoy and to which of the two conflicting claims of governmental allegiance he will pay obedience. Now if, by any possible construction, a person at the instant of birth, and for any period of time thereafter, owes, or may owe, allegiance to any sovereign but the United States, he is not a "natural born" citizen of the United States. If his sole duty is not to the United States Government, to the exclusion of all other governments, then, he is not a "natural born" citizen of the United States. (Long)
Roots of the Dispute: When the original thirteen colonies became independent states, some of them (for example, Virginia) retained the jus soli principle of English common law. In these jus soli states, any white person born within the borders of the state (other than the child of a vagrant, slave or foreign diplomat) was a citizen of that state. Anyone who became a citizen of any state was automatically a citizen of the United States [31].
At issue, however, is federal citizenship, not state citizenship. If you did not receive state citizenship at birth from any state, under what circumstances would the federal government still recognize you as a citizen of the United States? Regarding this question, there has been (and still is) a dispute between:
The dispute arises, in part, from differing understandings of our nation's founding principles. Those who believe that the Founding Fathers were guided by English common law tend to believe that the jus soli principle governs the meaning of "natural born citizen" in the Federal Constitution. Those who believe that the Founding Fathers were guided by European political theorists, such as Vattel, tend to believe that the meaning of "natural born citizen" is constrained by the jus sanguinis principle. (See Question 27: Root of "Natural Born Citizen" debate).
The dispute is also fueled, in part, by the ambiguous meaning of "natural born" in English law.
The dispute is, in part, between those who believe that the term "natural born" should be understood according to its general meaning (which includes nearly everyone born within the realm) and those who believe that "natural born" should be construed according to its specific meaning (which excludes children of alien parents). (See Question 19: Natural Born Subject).
The Supreme Court has yet to settle this dispute. At this time, there remains unresolved "doubts" regarding the natural born citizenship of U.S.-born children of a non-citizen parent [41].
Case Law: Although some authorities, throughout history, have expressed the opinion that birth on U.S. soil is, by itself, sufficient to confer United States citizenship (as opposed to State citizenship), there is no pre-Civil War case law, other than Lynch v. Clarke, supporting that viewpoint:
Lynch v. Clarke [1844] is the only antebellum [pre-Civil War] decision (and apparently the only reported case in our history) that clearly finds that jus soli per Calvin's Case determines United States citizenship. Whatever light the case provides, though, should be adjusted by the fact that it is the unreviewed opinion of a single state-court judge and that shortly thereafter, in Ludlum v. Ludlum, that state's highest court, all justices concurring, spoke differently, saying that birthright citizenship depended on parentage rather than the "boundaries of the place." (Mayton)
A later New York State case, Munro v. Merchant (1858), contains this summation:
A child born in this state of alien parents, during its mother's temporary sojourn here, is a native born citizen.
The summation, however, does not reflect the actual ruling in the Munro v. Merchant case. The Court said that if (emphasis on the word "if") Lynch v. Clarke were law, it would be relevant to the plaintiff's citizenship at birth. But, in Munro v. Merchant, the Court was not required to decide (therefore, did not decide) the plaintiff's citizenship at birth.
In Lynch v. Clarke, (1 Sand. Ch. R. 583,) the question was precisely as here, whether a child born in the city of New York of alien parents, during their temporary sojourn there, was a native born citizen or an alien; and the conclusion was, that being born within the dominion and allegiance of the United States, he was a native born citizen, whatever was the situation of the parents at the time of the birth. That case, if law, would seem to be decisive of the present question, But, admitting the plaintiff to be an alien, the cases already cited show that the terms "heirs or assigns," in the 9th article of the treaty, is not to be confined to the immediate descendants, but is to be extended indefinitely till the title comes to a citizen. (Munro v. Merchant, Reports of cases in law and equity in the Supreme Court of the State of New York, 1858, p.400)
Summary: Throughout U.S. history, various authorities have expressed the viewpoint that birthplace alone determines federal citizenship. Except for Lynch v. Clarke (1844), case law does not support this viewpoint. In Lynch v. Clarke, Vice-Chancellor Sandford ruled that Julia Lynch was a New York State citizen at birth, even though her parents were not citizens at the time of her birth. In his dicta, the Vice-Chancellor expressed his (non-legally-binding) opinion that Miss Lynch, in addition to being a citizen, was also a natural born citizen. The fact that Miss Lynch was deemed to be a natural born citizen according to a State judge's dicta does not necessarily mean that she was a natural born citizen under the Federal Constitution (see Question 28: Statutory natural born citizens).
Prior to the American Revolution, the population of England and its colonies was divided into three categories: foreigners, aliens, and subjects [42]. The difference among them was their allegiance.
Allegiance -- sometimes called ligeance and, at other times, also called obedience -- was faith, loyalty and service that someone owed to the king, in return for the king's governance and protection [44].
Eighteenth-century subjects were further divided into denizens and natural-born subjects (Blackstone).
Some, but not all, subjects of the English king were also citizens of an English city or town [18]. For information about the word "citizen" as it was used in England and its colonies before the American revolution, see Question 22: English citizenship.
Natural-born subjects had property and inheritance rights; aliens and foreigners did not. A denizen was "in a kind of middle state between an alien, and natural-born subject" (Blackstone). The differences among foreigners, aliens, denizens and natural-born subjects are summarized here:
For "denizen", it is not to be forgotten, was originally the common term for a subject as distinguished from an alien. This is made abundantly clear by the course of legislation. The term is so used, for instance in 34 Edw. 3 c. 18 and 38 Edw. 3 c. 2. Only later, as for instance in 1 Ric. 3 c. 9, is the distinction between "subjects" and "persons not born under the King's obeisance", the latter being subdivisible into those made "denizens" and those not so made. (Parry)
According to Lord Coke's Report on Calvin's Case (1608), an alien became a "denizen" in one of three ways: (a) by a public or private act of Parliament, (b) by letters patent issued by the king, or (c) by military conquest of the alien's home country [49].
[The] denization of an alien may be effected three manner of wayes: by Parliament, as it was in 3 Hen. 6. 55. in Dower; by letters patents, as the usual manner is; and by conquest, as if the King and his subjects should conquer another Kingdome or dominion ... (Coke(1608), p.178)
By the time the U.S. Constitution was written in 1787, the word "denizen" referred only to aliens who became English subjects by acts of the king. Aliens who became subjects by acts of Parliament were no longer called "denizens"; instead, they were called "natural-born subjects" [50].
Aliens: Early in English history, aliens had some property and inheritance rights, but over time, those rights evaporated. By the end of the 15th century, aliens were no longer permitted to possess English real estate, other than a house or apartment for personal habitation [45]. According to William Blackstone's Commentaries (1765-1769), you may obtain a permanent license to live and work on permanent English property (such as land) only if you owe permanent allegiance to the English king.
An alien born may purchase lands, or other estates: but not for his own use, for the king is thereupon entitled to them. If an alien could acquire a permanent property in lands, he must owe an allegiance, equally permanent with that property, to the king of England, which would probably be inconsistent with that which he owes to his own natural liege lord: ... (Blackstone)
But in other respects, there was little difference between subjects and aliens:
In respect of personal rights, the alien, so long as he remains on British soil, is in the same position as the Queen's subjects. The Courts in this country are open to him... (Cockburn, p.149)
Aliens had many of the same obligations as subjects:
All friendly resident aliens incurred all the obligations of subjects (The Angelique (1801) 3 Ch Rob App 7). An alien, coming into a colony also became, temporarily a subject of the Crown, and acquired rights both within and beyond the colony, and these latter rights could not be affected by the laws of that colony (Routledge v Low (1868) LR 3 HL 100; 37 LJ Ch 454; 18 LT 874; 16 WR 1081, HL; Reid v Maxwell (1886) 2 TLR 790; Falcon v Famous Players Film Co [1926] 2 KB 474). (Allegiance)
In England and its colonies, aliens were expected to take, or at least comply with, the Oath of Allegiance (see England's Oaths, 1642):
And the oath of allegiance may be tendered to all persons above the age of twelve years, whether natives, denizens, or aliens, either in the court-leet of the manor, or in the sheriff's tourn, which is the court-leet of the county. (Blackstone)
When the thirteen colonies became the original thirteen States, they continued to require aliens to take an oath of allegiance:
While all States could be said to have recognized birth within the State as a means of conferring State citizenship to all persons, it is important to realize these States also required of aliens who desired to become domiciled within their limits to first renounce any allegiances to other governments and pledge their allegiance solely to the State. (Madison(2007))
Aliens were sometimes referred to as subjects (although in such contexts, the word "subject" could simply mean "person"). For example:
An Alien is a subject that is born out of the ligeance of the king, and under the ligeance of another ... (Coke(1608), p.204, boldface emphasis added)
In Blackstone's Commentaries, subjects and aliens were collectively referred to as "the people" of England (Blackstone). "The people" included aliens but did not include foreigners [46].
Nevertheless, in this Tutorial and in most of the sources cited by this Tutorial, an 18th-century English "subject" was someone who owed permanent allegiance to the English king. Aliens and foreigners were not subjects in that sense.
Foreigners: In modern-day usage, the words alien [47] and foreigner are sometimes regarded as synonymous and are used interchangeably. Both words refer to foreign nationals who owe allegiance to a foreign government. But, when the U.S. Constitution was being written, there were important legal differences between the two (Berry):
The distinction between "alien" and "foreigner" is relevant to the Obama eligibility issue. When President Obama was born, his father, Obama Senior, did not have legal permanent resident status; he was in the United States temporarily on a student visa. Strictly speaking, the President's father was a foreigner, not an alien.
In U.S. v. Wong Kim Ark (1898), the Supreme Court ruled that children born in the United States, of parents who are aliens (permanently-domiciled legal residents), acquire U.S. citizenship at birth. The Court did not rule on the status of children born in the united States, of parents who are foreigners (in the United States temporarily or illegally).
Subjects: All English subjects, except persons made denizens by the king, were natural-born subjects in the eyes of the law. But, even though all subjects (except denizens) bore the same "natural-born subject" label, they were not treated equally. Some could vote in Parliamentary elections; others could not. Some could hold public office; others could not. Some could become "citizens" of an English city or town; others could not. Some were "free"; others were "unfree" (indentured servants or villeins). Some paid single customs; others were required to pay aliens' duties. Some were barred from certain professions or trades. Women subjects could inherit only if there was no male heir. And the list of inequities goes on.
Nevertheless, in 18th century England and its colonies, all subjects (at least in principle) had a right to acquire and possess English real-estate, although this right was curtailed or restricted in some cases. In contrast, aliens and foreigners had no such right.
Summary: The population of England and its colonies was divided into three categories: foreigners, aliens and subjects. Subjects owed permanent allegiance to the king; aliens owed temporary (local) allegiance; and foreigners did not owe any allegiance.
There were two kinds of English subjects: denizens and natural-born subjects:
There were two kinds of natural-born subjects: those who were natural-born subjects by birth, and those who were natural-born subjects by act of Parliament.
Subjects had property and inheritance rights (although these rights were sometimes curtailed); aliens and foreigners did not. Aliens were permitted to own movable personal property, but were not allowed to hold fixed non-movable English real estate other than a house or apartment for personal habitation.
In 1787 (when the U.S. Constitution was being written), an individual became an English "subject" in one of three ways:
Persons who became subjects by acts of the king were called "denizens" (in the specific sense) [55]. Person who became subjects either by birth or by acts of Parliament were called "natural-born subjects" (Bacon, Francis, p.649).
As a result of a landmark English court decision in 1608 (see Question 15: Calvin's Case), all English subjects were divided into two categories: subjects born (subjects by natural law) and subjects made (subjects by human action or man-made law):
Every subject is either natus, born, or datus, given or made (Coke (1608), p.206)
Persons who acquired English subjecthood by birth were called subjects born. They were subjects "by nature and birthright" (Coke(1608), p.177). All other English subjects received their subjectood artificially from Parliament or the king. They were called subjects made.
The distinction between subjects born and subjects made somewhat resembled the distinction between cives nati (citizens born) and cives facti (citizens made) in ancient Roman civic law (Appendix 6: Roman Citizenship). It also parallels the distinction between eunuchi qui ... nati (eunuchs who were born that way) and eunuchi qui facti (eunuchs who were made that way) in the Latin Vulgate (Matt 19:12).
Subjects born: Thomas de Littleton (1407-1481) believed that, by English law, all children born on English soil were subjects born, regardless of whether their parents were subjects or aliens. In his commentary on Littleton's work (titled Coke Upon Littleton), Lord Coke reiterated Littleton's opinion that birthplace alone determined one's legal status at birth:
If an Alien commeth into England and hath issue two sonnes, these two sonnes are Indigenae subjects borne, because they are borne within the Realme. (Coke (1628), p.630)
But, in 1608, England's highest court gave a more narrow and precise definition of subject born. The court ruled that, by natural law, a child is subject born only if it meets two requirements at birth: a birthplace requirement (the child must be born within the king's realm), and a parental obedience requirement (the child's parents must be under the "actual obedience" [54] of the king).
There be regularly (unless it be in special cases) three incidents to a subject born. 1. That the parents be under the actual obedience of the King. 2. That the place of his birth be within the King's dominion. And, 3. The time of his birth is chiefly to be considered; for he cannot be a subject born of one kingdom that was born under the ligeance of a King of another kingdom, albeit afterwards one kingdom descend to the King of the other. (Coke (1608), p.208)
Giles Jacob's New Law Dictionary (1782) was "the most widely used English law dictionary" during the time period in which the Constitution was written (Berry, pp.350-1). Jacob defined "subject born" as someone who was born within the king's realm, of parents who were under the king's actual obedience (allegiance):
There are two incidents regularly that are necessary to make a subject born: first, that his parents, at the time of his birth, be under the actual obedience of the king; Secondly, that the place of his birth be within the king's dominions. (Jacob (1782), p.40, Aliens)
Subjects made: If you are not subject born, you may become an English subject (subject made) artificially by statute (a public act of Parliament), petition (a private act of Parliament) or denization (an act of the king):
...all children, born out of the king's ligeance [territory], whose fathers (or grandfathers on the father's side) were natural-born subjects, are now deemed to be natural-born subjects themselves to all intents and purposes; unless their said ancestors were attainted, or banished beyond sea, for high treason; or were at the birth of such children in the service of a prince at enmity with Great Britain. (Blackstone)
A law, enacted in 1604, declared English-born children of alien parents to be "denizens" (in the general sense) [55]. At the time, persons made "denizens" by acts of Parliament (as opposed to persons made "denizens" by acts of the king) were deemed to be natural-born subjects:
To place the Children, born within this Realm, of foreign Parents, in Degree for the first Birth or Descent only, as Aliens made Denizens, and not otherwise. (House of Commons Journal, Volume 1, 21 April 1604)
Foreign-born children of English fathers, and English-born children of alien parents, were naturalized, at birth, by "the law of England" (as distinguished from "the law of nature"):
Furthermore as the law of England must favor naturalization as a branch of the law of nature, so it appears manifestly, that it doth favour it accordingly. For it is not much to make a subject naturalized by the law of England: it should suffice, either place or parents. If he be born in England it is no matter though his parents be Spaniards, or what you will: on the other side, if he be born of English parents it skilleth not though he be born in Spain, or in any other place of the world. In such sort doth the law of England open her lap to receive in people to be naturalized; which indeed sheweth the wisdom and excellent composition of our law ... (Bacon, Francis, pp.664-665, boldface emphasis added)
... that Garsome Wroth, born in Germany, shall be taken and reputed the Queen's natural-born subject (Parry).
Subjecthood by petition was available only to Christians who took the Oath of Supremacy and Oath of Allegiance (see English Oaths, 1642). Naturalization had a retroactive effect. When someone became a naturalized subject, all of his children received property and inheritance rights, even if they were born prior to the act of naturalization.
Naturalization [by petition] cannot be performed but by act of parliament: for by this an alien is put in exactly the same state as if he had been born in the king's ligeance; except only that he is incapable, as well as a denizen, of being a member of the privy council, or parliament, &c. No bill for naturalization can be received in either house of parliament, without such disabling clause in it. Neither can any person be naturalized or restored in blood, unless he hath received the sacrament of the Lord's supper within one month before the bringing in of the bill; and unless he also takes the oaths of allegiance and supremacy in the presence of the parliament. (Blackstone)
A denizen is an alien born, but who has obtained ex donatione regis [by royal gift or charter] letters patent to make him an English subject: a high and incommunicable branch of the royal prerogative. A denizen is in a kind of middle state between an alien, and natural-born subject, and partakes of both of them. He may take lands by purchase or devise, which an alien may not; but cannot take by inheritance: for his parent, through whom he must claim, being an alien had no inheritable blood, and therefore could convey none to the son. And, upon a like defect of hereditary blood, the issue [children] of a denizen, born before denization, cannot inherit to him; but his issue [children] born after, may. A denizen is not excused from paying the alien's duty, and some other mercantile burdens. And no denizen can be of the privy council, or either house of parliament, or have any office of trust, civil or military, or be capable of any grant from the crown. (Blackstone)
As a general rule, persons made denizens by royal prerogative had fewer rights than persons who were naturalized by acts of Parliament:
... the King by his Letters Patents may make a denizen, but cannot naturalize him to all purposes, as an Act of Parliament may do; neither can Letters Patents make any inheritable in this case, that by the common Law cannot inherit. (Coke(1608), p.181)
Summary: According to English law, an individual became an English subject in one of three ways:
If you became an English subject either by birth or by an act of Parliament, you were a "natural-born subject" in the eyes of the law (see Question 19: Natural-born subject). If you were endenized by the king, you were "in a kind of middle state between an alien, and natural-born subject" (Blackstone); you were an English subject but not a natural-born subject.
According to Lord Coke's understanding of natural law, every English subject was either born or made.
In Calvin's Case (1608), England's highest court found that, in some instances, man-made laws enacted by Parliament did not exactly coincide with natural law. Not everyone who was an English subject by man-made law was an English subject according to natural law; and not all subjects by natural law were subjects according to English law. The court ruled that England must recognize subjects by natural law, even when they are not subjects by man-made English law (see discussion of Calvin's Case which appears next).
Calvin v. Smith (1608), also known as the Case of the Post-Nati of Scotland, was an historic lawsuit in which England's highest court made a distinction between subjects born (those who are English subjects by natural law) and subjects made (those who are English subjects by human action or man-made law).
According to man-made English law at the time, all children born on English soil (except the children of foreign diplomats and alien enemies) were natural-born subjects of the English king (the jus soli principle). Children born in a foreign country, of English fathers, were also English natural-born subjects (the jus sanguinis principle).
Robert Calvin was born in a foreign country (Scotland). His parents were not English; they were foreigners (Scots) who never became naturalized English subjects. Under English law, there was no way Robert could have acquired English "subject" status at birth.
In 1608, England's highest court ruled that, even though Calvin was an alien according to the man-made laws of England, he was nevertheless an English subject by natural law. A child is a subject of the king by natural law if two requirements are met at the time of the child's birth:
When Calvin was born, James Charles Stuart was king of both Scotland and England. Calvin was born within James' realm, of parents who were under James' actual obedience. Consequently, Calvin was a subject of King James by natural law. Calvin was "naturalized" [96] at birth, not by any human action or man-made law, but by Nature herself, i.e., "by procreation and birth right" (Coke(1608), p.200).
Natural law predates man-made written law:
This Law of Nature, which indeed is the eternal Law of the Creator, infused into the heart of the creature at the time of his creation, was two thousand years before any Laws written, and before any Judicial or Municipal Laws. (Coke(1608), p.196)
It hath been proved before, that ligeance or obedience of the inferior to the superior, of the subject to the Sovereign, was due by the Law of Nature many thousand years before any Law of man was made: Which ligeance or obedience (being the onely mark to distinguish a subject from an alien) could not be altered; therefore it remaineth still due by the Law of Nature. (Coke(1608), pp.197-8)
The Court ruled that, if you are the king's subject by natural law, you naturally have property rights throughout all of the king's dominions. Since Calvin was a subject of King James by natural law, Calvin was a subject in all territories ruled by King James, including England.
This was the focal issue of Calvin's Case (i.e., whether allegiance was a bond of subjection institutionalised by the law of the kingdom or archetypal submission grounded upon the law of nature). ... At any rate, the overwhelming majority of the judges (twelve out of fourteen) and Lord Chancellor Ellesmere concurred in the opinion that allegiance was grounded upon the law of nature; and therefore it ought not be confined within the kingdom of England. Accordingly it was decided that plaintiff Robert Calvin -- even though he was born out of the kingdom of England -- must not be regarded as an alien in England. (Kim (2000), pp.180-181)
Facts of Calvin's Case: James Charles Stuart was born in Scotland in 1566. His father, Henry Stuart, also known as Lord Darnley, was born in England in 1545, and was an English subject by birth.
James became king of Scotland in 1567, when he was 13 months old, and remained king of Scotland until his death in 1625.
Queen Elizabeth I of England died in 1603, at which time James inherited the English throne. Scotland and England were separate countries, each with its own parliament and its own set of laws. Nevertheless, from 1603 to 1625, James Stuart was king of both countries simultaneously. He was both King James I of England and King James VI of Scotland [57].
Robert Calvin [58] was born in Scotland in 1606, of Scottish parents [59], and was heir to some property in England. When Calvin -- an infant at the time -- was denied access to his English inheritance, his guardians filed a lawsuit on his behalf [60]. This lawsuit is known today as "Calvin's Case".
The defendants argued that Calvin did not have property rights in England. Under English law, only English subjects were permitted to inherit English real estate. Even though Scotland and England were ruled by the same king, they remained separate countries. As far as England was concerned, Scotland was a foreign country, and English law did not extend English inheritance rights to subjects of foreign countries.
In 1608, the Court of the King's Bench, in a 12-to-2 decision, ruled that, when two countries are governed by the same king, a subject in one country is automatically a subject in the other, but only if subjecthood was conferred by natural law. If a person was naturalized in a particular country, according to the (man-made) laws of that country, he was a subject in that country only and not anywhere else [61].
Since Calvin was born in Scotland, of Scottish parents, he was, at birth, a Scottish subject by natural law. Therefore the Court ruled that, by natural law, Calvin had property and inheritance rights in all of the Scottish king's dominions, including England.
Sir Edward Coke wrote a comprehensive Report explaining the court's decision. Coke's Report first appeared in the American Colonies in 1658 (Banks, pp.816-817), and remained authoritative well into the mid-19th century [62]. The Framers of the U.S. Constitution were undoubtedly aware of Coke's Report regarding Calvin's Case [63].
Historical Background: The Romans occupied Britannia from 43 AD to roughly 410 AD. After the fall of the Roman Empire, monastic scriptoriums in Britain preserved Roman literature and law.
The legendary King Arthur purportedly ruled England around 500 AD.
In 1066, William II of Normandy (also known as William the Conqueror) invaded and conquered England (see Norman Conquest of England). William introduced the Norman Feudal System into Britain at that time. Under this system, an individual ("subject") may obtain a perpetual right to work and live on a parcel of land, and may bequeath this right to his heirs, as long as he and his heirs continued to fulfill their obligations of fealty and obedience to their landlord and to their king.
From 1066 through 1204, whoever was king of England was also king over portions of France, including Normandy.
John Lackland was king of England from 1199 until his death in 1216. During his reign, he mismanaged and eventually lost his French territories. In 1204, King Philip II of France "liberated" Normandy and other parts of France from English rule.
After 1204, up to 1517 (the start of the Protestant Reformation), nearly all "aliens" in England were Frenchmen, many of whom were born in portions of France that England had once governed. During this time period, England believed it still had a legal right to its lost French territories, even though it was no longer in actual possession of them.
It is clear that in the fourteenth century a Frenchman is still in effect the only alien. And, as the King [of England] was de jure king of most of France, the return to his true allegiance of a repented traitorous baron and his doing of homage may indeed have been in Maitland's phrase "naturalisation enough"... Perhaps, however, this distinction was immaterial at a time when the only aliens likely to be encountered were those coming from the lost empire. (Parry)
It is not clear exactly how subjects were distinguished from aliens during this period of English history. Apparently, all children born outside of England were deemed to be aliens (except, perhaps, children whose parents were English royalty, diplomats or high-ranking military officers). But this did not necessarily mean that all persons born on English soil were Engish subjects. Henry de Beaumont, for example, was considered an alien, even though he was born in England. His mother was English, but his father was alien.
Who was an alien is less clear than that there thus developed a distinction between subject and alien. It is generally taken to be a necessary implication of the case of Eiyas de Rabayn (1290) that the jus soli alone applied. ... But it may be doubted whether the case shows more than that one born out of England was not a subject; it is not necessary authority for the proposition that anyone born in England was not an alien. ...... Henry de Beaumont's ... mother was probably English since his father, John de Beaumont ... was an alien; ... although born in England, Henry must have been considered an alien and thus incapable of taking by descent whatever grant of lands his father received. ...
Thus, though it is possible to agree that the rule was that allegiance, and therefore nationality, was attributed at birth, it may be doubted whether it has been established that, prior to the seventeenth century, such attribution was either exclusively jure soli or jure sanguinis, or that allegiance was necessarily indelible. (Parry)
During the 1200s and 1300s, you could -- even if you were foreign-born -- inherit English real estate from a deceased English relative, as long as you could prove (a) your age, (b) your parents' marital status at the time of your birth, and (c) your relation to the deceased. Your proof had to be in the form of eye-witness testimony and official church records. If you could not provide such proof, you would forfeit your inheritance either to the king or to a local landlord.
If there was a dispute regarding your inheritance, a trial (assize) would take place where the disputed property was located. During such trial, the matter would be decided by a "jury" comprised of eye-witnesses with first-hand knowledge of the issues under dispute.
If you were born in a foreign country, you had a serious problem. The curator of your birth and baptismal records, and the eye-witnesses to your age, parent's marital status and blood relation, were most likely located in the foreign country in which you were born. Foreigners could not serve as jurors nor could they provide sworn testimony on your behalf.
...a foreign-born person was left with no adequate means to defend himself from allegations regarding under-age or proximity of blood. The inquest, which had to be taken in the birthplace, was impossible because the king's writ could not run beyond the sea. ... The obvious result is that a foreign-born heir would be defenseless against a lord who would refuse to allow the inheritance. If there was no one else to claim the inheritance, the fief would fall back on the lord as his escheat. (Kim (2000), p.111)
By the late thirteenth century, we have clear evidence that foreign-birth was treated as fatal to any claim based on inheritance. The expression alienigena was often used in this connection. First and foremmost, it was a factual description referring to a person's foreign birth or provenance. (Kim (2000), p.113)
In principle, foreign-born persons were permitted to inherit English real-estate, but as a practical matter, they were often unable to do so because they couldn't prove their legitimacy as heirs; evidence of their legitimacy was often located in a foreign country (their country of birth), beyond the reach of an English inquest.
In 1351, Parliament enacted a series of procedural reforms making it somewhat easier for foreign-born persons to defend their inheritance in England. Under the new rules, if you could prove that your parents were within the king's faith and ligeance at the time of your birth, you would receive the same procedural rights as someone who had been born on English soil:
All children heirs who will henceforth be born out of the ligeance [territory] of the king, provided that, at the time of birth, their fathers and mothers are, and will be, of the faith and ligeance [loyalty and obedience] of the king of England, [shall] have and enjoy the same benefit and advantage of having and carrying the inheritance within the said ligeance ... in the future. (Statute De Natis ultra Mare, 1351, as quoted by Kim (2000), p.121)
The statute De Natis ultra Mare did not say that foreign-born children of English parents were Englishmen. The statute merely said that foreign-born children of English parents will be treated as English-born for inheritance purposes. Persons born abroad were still aliens, even if their parents were English-born.
The [year book] case of 1474, for example, allows the possibility to interpret that a foreign-born child who has successfully claimed the inheritance relying on the statute De Natis ultra Mare would still need the king's letters patent in order to be engaged in other common law transactions such as purchase or gift of land. In spite of the statute which allowed inheritance, foreign-born children seem to have remained aliens unless and until they specifically obtained the king's letters patent enabling them to operate like subjects. (Kim (2000), p.157)
According to Thomas de Littleton (1407-1481), birthplace alone determined whether someone was born an alien or an Englishman. The allegiance of one's parents, at the time of one's birth, was irrelevant to one's legal status at birth:
In his Tenures (c. 1450-60), [Littleton] defined aliens as those 'born out of the liegance of our lord the king...'. He further elaborated that 'born out of the liegance' meant 'born in such country as is out the king's liegeaunce...' Statutes enacted in the Tudor years [1485-1603] were in complete agreement with Littleton's definition in that alien status was defined by birthplace only. (Kim (2000), p.149).
Littleton never mentioned the parents' allegiance in defining alien status. (Kim (2000), p.156).
But Littleton, whose specialty was English real-estate, appears to have oversimplified English law:
If any warning against the drawing of hasty deductions from the scanty precedents down to the seventeenth century is required, it is provided by the entirely misleading picture of the law of alienage given by Littleton. The mediaeval lawyers followed up the implications of the alien's inability to hold land by denying him a real action. This led Littleton, following the natural instinct of the property lawyer to regard his department as the whole law, to deny him both real and personal actions. But it is doubtful if this ever was the law. And, even if it were the common law, it was not the whole law. To maintain otherwise would be to ignore the long history of the foreign merchants in England. (Parry)
Prior to 1541, persons born in a foreign country were, as a general rule, aliens. The few exceptions to this rule were foreign-born children of English royalty, diplomats and high-ranking military officers; such children were regarded as English subjects. In 1541, Parliament passed a naturalization act which, for the first time, granted "subject" status to foreign-born children of ordinary Englishmen. Children which were born overseas, of English fathers, shall be:
...from henceforth reputed and taken king's natural subject as lawful persons born within the Realm of England. (Statute 33 Henry VIII c.25, as quoted by Kim (2000), p.158)
The Naturalization Act of 1541 did not change the definition of "natural subject". In the actual or literal sense, you were a natural subject only if you were a lawful person born on English soil [98]. Parliament merely decreed that the foreign-born children of English fathers shall be "reputed and taken" to be natural subjects. In other words, such children shall be deemed natural subjects by law, even though they were not natural subjects in fact.
In 1604, Parliament clarified the status of English-born children of alien parents. Such children automatically received statutory "denizen" status at birth:
To place the Children, born within this Realm, of foreign Parents, in Degree for the first Birth or Descent only, as Aliens made Denizens, and not otherwise. (House of Commons Journal, Volume 1, 21 April 1604)
At the time, persons who were made denizens by an act of Parliament (as distinguished from persons who were made denizens by an act of the king) were deemed to be natural-born subjects (see Question 20: English-born children of alien parents). Thus, by the time Calvin's Case was decided in 1608, nearly everyone born on English soil was a subject by English law, regardless of whether the parents were subjects or aliens.
The Court's Ruling: In Calvin's Case (1608), England's highest court ruled that you were subject born (a subject by natural law) if you met two requirements at birth: a birthplace requirement (you were born in territory of which the king is in actual possession), and a parental obedience requirement (your parents were under the actual obedience, or ligeance, of the king) [54]:
There be regularly (unless it be in special cases) three incidents to a subject born. 1. That the parents be under the actual obedience of the King. 2. That the place of his birth be within the King's dominion. And, 3. The time of his birth is chiefly to be considered; for he cannot be a subject born of one kingdom that was born under the ligeance of a King of another kingdom, albeit afterwards one kingdom descend to the King of the other. (Coke (1608), p.208)
Calvin met the birthplace requirement. He was born in Scotland, which was, at the time, in King James' actual possession.
Regarding the parental obedience requirement, Lord Coke noted that children born on English soil, of alien parents, were deemed to be natural-born subjects by a law that Parliament had enacted four years earlier. Therefore, Calvin ought to be a natural-born subject even more so, given that he was "born under the natural and absolute ligeance of the king":
... [an alien friend] owed to the King a local obedience, that is, so long as he was within the King's protection: which local obedience, being but momentary and incertain, is strong enough to make a natural subject; for if he hath issue [a child] here, that issue [child] is a natural born subject: a fortiori [so much the more so] he that is born under the natural and absolute ligeance of the King (which as it hath been said, is alta ligeantia [high allegiance]) as the plaintiff in the case in question was, ought to be a natural born subject; for localis ligeantia est ligeantia infima et minima, et maxime incerta [local allegiance is something mean and small, and extremely uncertain]. (Coke(1608), p.179, boldface emphasis added)
Francis Bacon (1561-1626), an attorney who represented the plaintiff in Calvin's Case, explained that the phrases "born within" and "born under" are figures of speech referring to the allegiance of a child's parents at the time of the child's birth. To be "born within [or under] the allegiance of the English king" was a metaphor referring to:
...children whose parents were at the time of their birth at the faith and obeisance of the king of England. (Bacon, Francis, pp.652-653)
James became king of Scotland in 1567. Calvin was born around 1606. Calvin's parents were Scots and were probably under 39 years of age when Calvin was born -- which would mean that they were born in Scotland at a time when James was already king of Scotland. Thus Calvin's parents, from birth, owed natural and absolute ligeance to King James. Consequently Cavin met the parental obedience requirement -- his parents, at the time of his birth, were under the "actual obedience" of the king.
The Court therefore ruled that Calvin was subject born (a subject by natural law) and, as a result, his property rights naturally extended throughout all of the king's territorial possessions.
Summary: In Calvin's Case (1608), England's highest court made a distinction between subjects born (subjects by natural law) and subjects made (subjects by human action or man-made law). The main difference between the two kinds of subjects was their allegiance to the king. Subjects born owed natural allegiance; subjects made owed acquired allegiance. Subjects born had property rights in all countries governed by the same king. The property rights of subjects made were limited to the particular country in which subjecthood was conferred [61].
Robert Calvin was born in Scotland, of Scottish parents, at a time when James Stuart was king of both Scotland and England simultaneously. English law did not confer English "subject" status to persons born in a foreign country, to foreigner (non-English) parents. Nevertheless, England's highest court ruled that Calvin was a subject of King James by natural law. Therefore, by natural law, Calvin's property rights were not limited to Scotland, but extended throughout James' dominions, including England.
The 17th-century word ligeance is generally understood to mean "allegiance" to one -- and only one -- sovereign exclusively.
In his Report on Calvin's Case, Lord Coke defined four kinds of ligeance (allegiance) -- natural, acquired, local and legal [70]. (The four will be discussed later under this Question 16). The first type of allegiance is natural allegiance, which is the kind of allegiance that imbues subjects born:
There is found in the law four kinds of ligeances: the first is, ligeantia naturalis, absoluta, pura, et indefinita [natural, absolute, pure and unlimited allegiance], and this originally is due by nature and birthright, and is called alta ligeantia [high allegiance] and he that oweth this is called subditus natus [subject born]. (Coke(1608), p.177)
In his Commentaries, William Blackstone described "natural allegiance" as an obligation that a child (if subject born) acquires at birth. This "natural allegiance" is exclusive: you cannot owe natural allegiance to more than one sovereign:
Indeed the natural-born subject of one prince, to whom he owes allegiance, may be entangled by subjecting himself absolutely to another; but it is his own act that brings him into these straits and difficulties, of owing service to two masters ... And this maxim of the law proceeded upon a general principle, that every man owes natural allegiance where he is born, and cannot owe two such allegiances, or serve two masters, at once. (Blackstone)
In Lord Coke's Report, the term ligeantia (ligeance), when not explicitly qualified, refers specifically to natural ligeance:
Ligeantia in the case in question is meant and intended of the first kind of ligeance, that is, of ligeance natural, absolute, &c., due by nature and birth-right. (Coke(1608), p.181)
According to Lord Coke, (natural) ligeance is:
...the onely mark to distinguish a subject from an alien (Coke(1608), p.225).
In the factual or natural-law sense, subjects owe (natural) ligeance to the king; aliens do not. As discussed later in this Tutoral, aliens who become English subjects by naturalization or endenization are not "real" subjects; they are merely deemed to be subjects by a "fiction of law".
The word "ligeance" derives from "liege" which implies exclusive loyalty to one, and only one, sovereign. In feudal society, a man (vassal) may owe fealty (loyalty) to multiple lords. But the word liege refers to unqualified fealty to one lord exclusively:
There is nothing in feudal theory or practice to prevent a man from having more lords than one. In such a case he owes fealty to both; he is ad fidem utriusque domini. But he can owe liege fealty (ligeantia) to one only. He can have two lords, but not two liege lords. This was a fundamental maxim of feudalism. Unus et idem duorum dominorum homo ligius esse non potest. ...But as feudalism grew and prospered, ... it became clear that there was no liege fealty possible or lawful, save that which was due to the king himself. He was the only liege lord because he was the supreme lord of all. His claim of fidelity and obedience was above all others. All faith or fealty which a man owed to any other lord was subject to that which he owed to his lord the king. ... So it came about that allegiance took on its modern meaning, and came to signify exclusively the fidelity due from a subject to his king, he being the only person by whom fidelity of so absolute a sort could be lawfully demanded. (Salmond, pp.51-52)
Lord Coke described the difference between feudal homage and liege homage. A serf may owe feudal homage to any number of lords, but owes liege homage (ligeance) to one lord exclusively:
Homage in our book is twofold, that is to say, Homagium Ligeum [Liege Homage], and that is as much as ligeance, of which Bracton speaketh, lib. 2. c. 35. fol. 79, Soli Regi debet' sine dominio, seu servitio [it is owed to the King alone, without lordship or service], and there is Homagium feodale [feudal homage] which hath his original by tenure. In Fit. Nat. Brev. 269, there is a writ for respiting of this later homage (which is due ratione feodi sive tenurae:) Sciatis quod respectuamus homagium nobis de terr' et tenementis quae tenentur de nobis in capite debit' [by reason of fee or tenure: Know ye that we have respited the homage due to us from the lands and tenements which are held of us in chief]. But Homagium ligeum, i.e. Ligeantia [ligeance], is inherent and inseparable, and cannot be respited. (Coke(1608), p.182)
The relationship between the king and his (natural) subjects is a liege relationship:
And these several parts, I will in this Report pursue in such order as they have been propounded: and first de Ligeantia. ... Ligeance is a true and faithful obedience of the subject due his Sovereign. This ligeance and obedience is an incident inseparable to every subject; for as soon as he is born he oweth by birth right ligeance and obedience to his Sovereign. ... Subjects are called liege people: and in the acts of Parliament ... the King is called the liege Lord of his Subjects. (Coke(1608), pp.175-176)
In Lord Coke's and Blackstone's understanding, natural ligeance is allegiance to one, and only one, sovereign exclusively from the time of birth.
History of Ligeance: The word ligeance originally referred to the unqualified faith, loyalty and obedience that a tenant owes his liege lord. Later in English history, ligeance also referred to land belonging to one's liege lord. One's tie to one's liege lord became synonymous with one's tie to one's liege lord's land:
Before ligeance was employed to refer to a tract of land, the term had already been used to refer to a certain quality of interpersonal relationship. Glanvill, for instance, used the term to explain the pre-eminent relationship between a tenant and his 'liege' lord. Also, the treaty between Henry II and William, king of Scots (the Treaty of Falaise, 1174) ... indicates that the term was used to refer to the relationship of fidelity rather than a piece of land. ... Bracton also uses the term to refer to something other than a geographical tract.... But in the late thirteenth century, we begin to see that the territorial extent of the King's legitimate power is also called ligeance. According to fourteenth century legal terminology, out of the ligeance (hors de la ligeance) could mean 'out of England'. Likewise, within the ligeance (deinz la ligeance) often meant 'within England'. ... It appears that the term was used in an ambivalent manner by the early fourteenth century. In other words, the term carried a certain amount of ambiguity with it. (Kim (2000), pp.137-139)
Two examples illustrate the confusing dual meaning of ligeance.
Serjeant Shardlow, the attorney for the defense, argued that Philip's father's parents (Philip's grandparents) were married in England, did homage to the English king, and died in the king's homage. Therefore, Philip's father, though born in a foreign country, was nevertheless born within the king's ligeance (loyalty and obedience).
Shardlow used the dual meaning of ligeance to circumvent English inheritance laws. His strategy worked, but only temporarily. The judge ruled in Philip's favor, but the ruling was overturned on appeal. Philip eventually forfeited his inheritance to the king. (Kim (2000), p.139).
All children heirs who will from henceforth be born out of the ligeance [territory] of the king, provided that, at the time of the birth, their fathers and mothers are, and will be, of the faith and ligeance [loyalty and obedience] of the King of England, [shall] have and enjoy the same benefits and advantages of having and carrying the inheritance within the said ligeance ... (Statue De natis ultra mare, 1351, as quoted by Kim (2000), p.121)
In the fifteenth century, Thomas de Littleton (1407-1481) understood ligeance to mean territorial extent only. The wording of statutes enacted during the sixteenth century suggested that anyone born in a foreign country was ipso facto an alien:
In his Tenures (c. 1450-60), [Littleton] defined aliens as those 'born out of the liegance of our lord the king...'. He further elaborated that 'born out of the liegance' meant 'born in such country as is out the king's liegeaunce...' Statutes enacted in the Tudor years [1485-1603] were in complete agreement with Littleton's definition in that alien status was defined by birthplace only. (Kim (2000), p.149).
But the meaning of ligeance began to undergo a transformation during the late sixteenth-century Elizabethan succession debates.
Elizabethan Succession Controversy: When Queen Elizabeth I of England (1533-1603) reached age 30, it became apparent that she was not likely to marry or have children. Various commentators published pamphlets -- called Elizabethan Succession Tracts -- in which they debated who were, and who were not, eligible to inherit the English throne at the end of Elizabeth's reign.
The debate helped to forge a consensus of legal opinion that a child's personal status at birth -- whether subject or alien -- was properly based on the faith, obedience and loyalty of the parents at the time of the child's birth, not the territory in which the child was born. The English word allegiance (a variation of ligeance) first appeared in the Elizabethan Succession Tracts.
In Certaine Errours Uppon the Statute, the Protestant author depicts ligeance as an exclusive bond "swallowing up all others":
All promises bind the parties. But the author of 'Certaine errours...' sees that there is an important difference in their binding power. The author explains thatone tenaunt maie be of divers Lordes fees and homage.In other words, the bond of fidelity created by homage does not prevent the parties from engaging themselves in other similar bonds of fidelity with third parties. But,
legiaunce...is the bonde of faith swallowinge up all others, and the greatest among creatures, religion to the Creator reserved, due by the lawe of god and nacions from the subject to the prince... [A] tenure or oath of homage ableth not an aliann to be a subject of the legiaunce of England nor to be a person capable of inheritance like an English mann.According to the Protestant author, nationality is a question of this 'bonde of faith swallowinge up all others.' Even if Mary Stuart was the chief homager of the king of England and, therefore, could rely on the bond of trust created by the homage, that would not make her any less alien. The contractual bond of trust (fidelitatis connexio) is 'instituted' by the parties in accordance with the (positive) law of the kingdom. It arises and disappears as a result of the parties' own doing. The bond of legiaunce, on the other hand, transcends the parties' own will or action. It is 'ordained' by the 'lawe of god and nacions'. ... Our author concludes his argument with the following remark: 'One God, one king, one legiaunce'. This is the most revealing explanation of the meaning of allegiance understood by sixteenth century lawyers. (Kim (2000), pp.172-3)
By the time Calvin's Case was decided in 1608, the English legal community had already reached a consensus of opinion that one's ligeance at the time of one's birth, not the place of one's birth, determined one's legal status (whether subject or alien) at birth. Moreover, ligeance is an exclusive relationship between a sovereign and his subjects, instituted, not by human action or choice, but by Nature herself.
By the time of Calvin's Case, it was no longer sensible to doubt that allegiance was the decisive criterion of a person's legal status. ... The bond of faith thus became the pivotal element of legal reasoning. (Kim (2000), p.178)
Ligeance in Calvin's Case: The ruling in Calvin's Case reflected the prevailing viewpoint that one's birthplace, by itself, did not confer subjecthood; that without some measure of parental obedience or allegiance, it was impossible (by natural law or man-made law) for a child to be an English subject at birth, even if such child was born on English soil. In his Report on Calvin's Case, Lord Coke quoted -- often word-for-word -- directly from the Elizabethan Succession Tracts.
...any place within the king's dominions may make a subject born, but any place within the king's dominions without obedience can never produce a natural subject. (Coke(1608), p.208)
...it is nec coelum, nec solum [neither sky nor soil], but ligeantia [allegiance] and obedientia [obedience] that make the subject born (Coke(1608), p.179)
In 1608, the English court (in Calvin's Case) defined (natural) ligeance as a personal relationship between a king and his (natural) subjects, whereby the king governs and protects his (natural) subjects, and his (natural) subjects owe the king their faith, loyalty and service.
...ligeance is the mutual bond and obligation between the King and his subjects, whereby subjects are called his liege subjects, because they are bound to obey and serve him; and he is called their liege lord, because he should maintain and defend them. (Coke(1608), p.176)... This word ligeance is well expressed by divers several names or synonymia which we find in our books. Sometimes it is called the obedience or obeisance of the subject to the King... Sometimes ligeance is called faith... (Coke(1608), p.176)
...ligeance, and faith and truth which are her members and parts, are qualities of the mind and soul of man... (Coke(1608), p.182)
...it followeth, that seeing the King's power, command, and protection extendeth out of England, that ligeance cannot be local, or confined within the bounds thereof. (Coke(1608), p.188)
...ligeance is a quality of the mind, and not confined within any place... (Coke(1608), p.188)
Later in English history, the territorial meaning of "ligeance" re-emerged. In the British Nationality Act of 1772, British-controlled territory was called "ligeance". Nevertheless, when Calvin's Case was decided in 1608, ligeance meant the bond of faith between a (natural) subject and his sovereign, not the subject's place of birth.
Four Kinds of Ligeance: In his Report, Lord Coke defined four kinds of ligeance -- natural, acquired, local, and legal:
There is found in the law four kinds of ligeances [allegiances]:the first is, ligeantia naturalis, absoluta, pura, et indefinita [natural, absolute, pure and unlimited allegiance], and this originally is due by nature and birthright, and is called alta ligeantia [high allegiance] and he that oweth this is called subditus natus [subject born].
The second is called ligeantia acquisita [acquired allegiance], not by nature but by acquisition or denization, being called a denizen, or rather donaizon, because he is subditus datus [subject made by gift].
The third is ligeantia localis [local allegiance] wrought by the law, and that is when an alien that is in amity cometh into England, because as long as he is within England, he is within the King's protection; therefore so long as he is there, he oweth unto the King a local obedience or ligeance, for that the one (as it hath been said) draweth the other.
The fourth is a legal obedience, or ligeance which is called legal, because the municipal laws of this realm have prescribed the order and form of it; and this to be done upon oath at the Torn or Leet. (Coke(1608), pp.177-8, boldface emphasis added)
To repeat a point made earlier, the word ligeance (ligeantia), as used in Lord Coke's Report, refers specifically to natural ligeance, unless otherwise indicated by modifier, qualifier or context.
Ligeantia in the case in question is meant and intended of the first kind of ligeance, that is, of ligeance natural, absolute, &c., due by nature and birth-right. (Coke(1608), p.181)
Only the first three kinds of allegiance -- natural, acquired, and local -- were associated with subjecthood.
An alien's local ligeance was a legal construct "wrought by the law" (Coke(1608)). True (natural) ligeance was an exclusive relationship with one and only one sovereign. Since aliens already owed (natural) ligeance to the sovereign of their home country, they could not owe such ligeance to the English king.
Hence it became necessary to distinguish between two sorts of allegiance -- that which is personal, permanent, and absolute, as being due from natural subjects, and that which is merely local, temporary and qualified, as being due from aliens by reason of their residency, and which in the strict theory of feudalism is not truly allegiance at all. (Salmond, p.52)
Nevertheless, local ligeance is enough to confer "natural-born subject" status to children of aliens. In 1604, Parliament enacted a law, granting statutory "denizen" status to English-born children of alien parents:
To place the Children, born within this Realm, of foreign Parents, in Degree for the first Birth or Descent only, as Aliens made Denizens, and not otherwise. (House of Commons Journal, Volume 1, 21 April 1604)
In his Report on Calvin's Case, Lord Coke explained that "denizens" (by acts of Parliament) should be regarded as "natural-born subjects":
Now what a Subject born is, appeareth at large by that which hath been said de ligeantia [by natural allegiance]: and so likewise de subdito dato [a subject by reason of gift], of a donaison [gift]; for that is the right name, so called, because his legitimation is given unto him; for if you derive denizen from deins nee [born within], one born within the obedience or ligeance of the King, then such a one should be all one with a natural born subject. (Coke(1608), p.208)
In other words, the Engish-born children of alien parents are, by English law, granted the status or title of "natural-born subject":
Concerning the local obedience, it is observable, that as there is a local protection on the King's part, there is a local ligeance on the subject's part. ... Sherley, a Frenchman, ... owed to the King [of Engand] a local obedience, that is, so long as he was within the King's protection: which local obedience, being but momentary and incertain, is strong enough to make a natural subject; for if he hath issue [child] here, that issue [child] is a natural born subject (Coke(1608), p.179)
Summary: When children were born on English soil, their legal status at birth depended on their parents' ligeance.
A widely-held belief is that the jus soli principle of English common law (the notion that one's birthplace alone determines one's legal status at birth) came from Calvin's Case:
Calvin's Case led to what is today known in international law as the jus soli, the rule under which nationality is acquired by the mere fact of birth within the territory of a state. (Price, p.77)
In his Report on Calvin's Case, Lord Coke indirectly referenced a statute, enacted in 1604, granting "denizen" status to English-born children of alien parents. At the time, persons made "denizens" by an act of Parliament (as distinguished from persons made denizens by acts of the king) were deemed to be natural-born subjects (see Question 20: English-born children of alien parents).
...for he [an alien friend] owed to the King a local obedience, that is, so long as he was within the King's protection: which local obedience, being but momentary and incertain, is strong enough to make a natural subject; for if he [an alien friend] hath issue [a child] here, that issue [child] is a natural born subject (Coke(1608), p.179)
As a consequence of the 1604 law (which predated Calvin's Case by four years), nearly all children born within the king's realm -- regardless of whether their parents were subjects or aliens -- were natural-born subjects in the eyes of the law. Hence, in English law, there was the outward appearance that, with few exceptions, birthplace alone was sufficient to confer "natural-born subject" status.
Jus Soli before Calvin's Case: Prior to Calvin's Case, birthplace alone was sometimes depicted as conferring English "subject" status at birth. In a commentary by John Rastell (c.1475-1536), anyone born on English soil, regardless of whether his parents were English or alien, was English:
Alien is he of whom the father is born, and he himself also born, out of the ligeance [territory] of our lord the king; but if an alien come and dwell in England which is not of the king's ememies and here has issue [child], this issue [child] is not alien but English; also if an Englishman go over the sea with the king's license and there has issue [child], this issue [child] is not alien. (Expositiones terminorum (1527), as quoted by Kim (1996), spelling modernized for readability)
According to Thomas de Littleton (1407-1481), birthplace alone determined whether someone was a subject or alien by birth:
In his Tenures (c. 1450-60), [Littleton] defined aliens as those 'born out of the liegance of our lord the king...'. He further elaborated that 'born out of the liegance' meant 'born in such country as is out the king's liegeaunce...' Statutes enacted in the Tudor years [1485-1603] were in complete agreement with Littleton's definition in that alien status was defined by birthplace only. (Kim (2000), p.149).
In 1628, Sir Edward Coke (1552-1634) wrote a commentary on Littleton's work. Coke's commentary, often referred to as Coke upon Littleton, reiterated Littleton's viewpoint that all children born on English soil were "subjects born", regardless of whether their parents were subjects or aliens:
If an Alien commeth into England and hath issue two sonnes, these two sonnes are Indigenae subjects borne, because they are borne within the Realme. (Coke (1628), p.630)
Allegiance supplants birthplace: In Calvin's Case (1608), allegiance (also called ligeance and obedience), rather than birthplace, became the new criterion of English nationality at birth (see Question 16: Ligeance). Regardless of where you were born, you were not an English subject at birth unless your parents were within the king's allegiance (obedience) at the time of your birth.
...any place within the king's dominions may make a subject born, but any place within the king's dominions without obedience can never produce a natural subject. (Coke(1608), p.208)
...it is nec coelum, nec solum [neither sky nor soil], but ligeantia [allegiance] and obedientia [obedience] that make the subject born (Coke(1608), p.179)
Nearly all children born on English soil were English subjects, only because nearly all children born on English soil were born of parents who were within the king's allegiance. The children of alien parents acquired subjecthood at birth only because aliens owed local allegiance to the king. If parents did not owe any allegiance (obedience) at all, there was no way -- either by natural law or by man-made law -- that their children could acquire English subjecthood at birth, regardless of the children's birthplace.
Et si desit obedientia non adjuvet locus [And, if obedience is lacking, the place does not help]. (Coke(1608), p.224)
Jus soli after Calvin's Case: At first glance, the English common law "rule" (during the 1600s and 1700s) appears to have been jus soli -- subjecthood determined by birthplace alone. Nearly all children born on English soil were, at birth, natural-born subjects, regardless of whether their parents were subjects or aliens.
By the Common Law of England, every person born within the dominions of the Crown, no matter whether of English or of foreign parents, and, in the latter case, whether the parents were settled, or merely temporarily sojourning, in the country, was an English subject, save only the children of foreign ambassadors ... or a child born of a foreigner during the hostile occupation of any part of the territories of England. (Cockburn, p.7)
But the underlying principle of Calvin's Case was that the allegiance of one's parents, not the place of one's birth, was the primary criterion of one's legal status at birth.
The fundamental principle of the common law with regard to English nationality was birth within the allegiance, also called "ligealty," "obedience," "faith," or "power" of the King. The principle embraced all persons born within the King's allegiance and subject to his protection. Such allegiance and protection were mutual -- as expressed in the maxim protectio trahit subjectionem, et subjectio protectionem -- and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance, but were predicable of aliens in amity so long as they were within the kingdom. Children, born in England, of such aliens were therefore natural-born subjects. But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the King's dominions, were not natural-born subjects because [they were] not born within the allegiance ... of the King. (U.S. v. Wong Kim Ark, 1898)
As a general rule, children born on English soil were English natural-born subjects. But there were exceptions to this rule. While characterizing these exceptions as "unimportant", Albert Venn Dicey (1835-1922) acknowledged that the underlying reason for these exceptions was that subjecthood stemmed from allegiance, not the place (locality) of one's birth:
The exceptional and unimportant instances in which birth within the British dominions does not of itself confer British nationality are due to the fact that, though at common law nationality or allegiance in substance depended on the place of a person's birth, it in theory at least depended, not upon the locality of a man's birth, but upon his being born within the jurisdiction and allegiance of the king of England; and it might occasionally happen that a person was born within the dominions without being born within the allegiance, or, in other words, under the protection and control of the crown. (Dicey, p.741, as quoted in U.S. v. Wong Kim Ark, 1898)
Blackstone's Commentaries: Sir William Blackstone (1723-1780) is best known for a series of lectures that he gave at Oxford University from 1765 through 1769. These lectures were later consolidated and published as Commentaries on the Laws of England, which became immensely popular and influential in the American colonies (Blackstone in America).
Blackstone did not always distinquish between persons who actually were natural-born subjects in fact, and persons who were deemed to be natural-born subjects by law. For example, in the first edition of his Commentaries, he erroneously states that foreign-born children of English fathers are natural-born subjects:
By several more modern statutes, these restrictions are still farther taken off: so that all children, born out of the king's ligeance, whose fathers were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes, without any exception, unless their said fathers were attainted, or banished beyond seam for high treason; or were then in the service of a prince at enmity with Great Britain. (William Blackstone, Commentaries: Book 1, Chapter 10, First Edition, underlining added)
In a later edition, the error was corrected:
But by several more modern statutes, these restrictions are still further taken off: so that all children, born out of the king's ligeance, whose fathers (or grandfathers by the father's side) were natural-born subjects, are now deemed to be natural-born subjects themselves to all intents and purposes; unless their said ancestors were attainted, or banished beyond sea, for high treason; or were at the birth of such children in the service of a prince at enmity with Great Britain. (Blackstone, underlining added)
Nevertheless, the error reveals Blackstone's tendency to blur the distinction between actual natural-born subjects, and persons to whom Parliament had granted the status or position of "natural born subject" either by statute or by naturalization.
In his Commentaries, Blackstone defined "natural-born subjects" as persons who are:
born within the dominions of the crown of England, that is, within the ligeance, or as it is generally called, the allegiance of the king (Blackstone)
Thus Blackstone gave two definitions of natural-born subject:
By using the connector "that is," Blackstone implied that the two definitions were equivalent; and in most cases, they were. With few exceptions, all children born on English soil -- even if their parents were aliens -- were, to some degree, born within the king's ligeance.
The children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such. In which the constitution of France differs from ours; for there, by their jus albinatus, if a child be born of foreign parents, it is an alien. (Blackstone, boldface emphasis added)
In Systematical View of the Laws of England (published in 1777), Richard Wooddeson pointed out that Blackstone's comments regarding the children of alien parents were not entirely correct. Wooddeson wrote:
The issue [child] of an alien, born within the realm, are accounted [considered as, or deemed to be] natural subjects: in which respect, there is not, (tho sir William Blackstone supposes the contrary) any difference between our laws and those of France. In each country birth confers the rights of naturalization. (Wooddeson, p.386, underlining added)
While it was true that children born within the king's dominions, of alien parents, were natural-born subjects, such children were natural-born subjects by naturalization, not by birth. They were natural-born subjects only because Parliament, by a law enacted in 1604, had deemed them so.
In 1608, Francis Bacon, an attorney for the plaintiff in Calvin's Case, explained that English-born children of alien parents (as well as foreign-born children of English parents) are naturalized, at birth, by the law of England:
Furthermore as the law of England must favor naturalization as a branch of the law of nature, so it appears manifestly, that it doth favour it accordingly. For it is not much to make a subject naturalized by the law of England: it should suffice, either place or parents. If he be born in England it is no matter though his parents be Spaniards, or what you will: on the other side, if he be born of English parents it skilleth not though he be born in Spain, or in any other place of the world. In such sort doth the law of England open her lap to receive in people to be naturalized; which indeed sheweth the wisdom and excellent composition of our law ... (Bacon, Francis, pp.664-665, boldface emphasis added)
If foreign-born and naturalized subjects are not "real" natural-born subjects (they are merely deemed to be natural-born subjects), and if English-born children of alien parents are (according to Bacon and Wooddeson) naturalized at birth, then, by the process of elimination, the only "true" natural-born subjects (those who are natural-born subjects by nature, rather than by act of Parliament) are those born on English soil, of English parents.
Summary: The observable effect of English law was the jus soli principle. All children born on English soil (except the children of foreign diplomats and alien enemies) were, by Engish law, natural-born subjects. However, the underlying principle of English law was jus ligeantia (you acquired "natural-born subject" status at birth only if your parents, at the time of your birth, were within the king's allegiance).
Lord Coke's judgment did not affirm the jus soli as such; he did not lay down the principle that mere birth within the realm conferred the status of a subject, and then qualify it by two exceptions: what he did was to lay down a different principle, that what constitutes the person a subject at birth is the fact of his birth within the king's allegiance, and this carried with it the consequence that the two excepted classes were not subjects, because they were not born within the allegiance of the king. (Ross, p.7)
Children -- regardless of their birthplace -- acquired English subjecthood at birth only if they were "born within the allegiance of the king". According to Francis Bacon (1561-1626), the phrase "born within the allegiance of the king" was a figure of speech, referring to:
...children whose parents were at the time of their birth at the faith and obeisance of the king of England. (Bacon, Francis, pp.652-653)
Strictly speaking, allegiance is exclusive loyalty to one, and only one, sovereign. Since aliens already owe allegiance to the sovereign of their home country, they cannot owe actual allegiance to the English king. They can, at most, only owe local allegiance, "which is not truly allegiance at all" (Salmond, p.52)
All children born on English soil -- regardless of whether their parents were subjects or aliens -- were deemed to be natural-born subjects by man-made law (hence the jus soli principle), but according to Lord Coke's Report, only subjects born -- persons who were born within the king's dominions, of parents owing actual obedience (allegiance) to the king -- were English subjects by natural law.
In Calvin's Case, the English Court did not rule that all children born on English soil were English subjects. The children of foreigners and alien enemies, even if such children were born on English soil, were not subjects of the English king. Presumably, these children were, at birth, subjects of the (foreign) prince to whom their (alien) parents owed permanent allegiance.
"Alien enemies" included the following:
...for if enemies should come into the realm, and possess a town or fort, and have issue [child] there, that issue [child] is no subject to the King of England, though he be born upon his soyl, and under his meridian, for that he was not born under the ligeance of a subject, nor under the protection of the King. (Coke(1608), p.179)
Mrs. Amin lived in Iraq and owned a house in London, which she rented out. The rent was paid to Mr. Brown, an English solicitor, as agent for Mrs. Amin. Mrs. Amin's case was that Mr. Brown had used the rent money to refurbish the house without instruction from her. In his defense, Mr. Brown did not claim that he was entitled to carry out works on the house. Instead, he raised several arguments as to Mrs. Amin's right to bring the claim at all, including that she had no standing to sue because she was an Iraqi citizen and therefore an enemy alien.Justice Collins concluded that this disability of enemy aliens continues to be "part of the rules of English law relating to the traditional laws of war ... [but] that there is no warrant for extending it to modern armed conflict not involving war in the technical sense." Accordingly, since he accepted the U.K. government's position that its use of force against Iraq was authorized by a combination of UN Security Council resolutions, Justice Collins held that the United Kingdom was not at war with Iraq and therefore that Mrs. Amin could not be an enemy alien.
Although Amin establishes that the procedural rule on enemy aliens still exists, it might also be taken as evidence that the rule will seldom apply. International law now prohibits what Justice Collins described as "war in the technical sense." (Knop)
Christianity being part and parcel of the law of England, those who did not profess it could not have the rights of Englishmen but, whether born within the king's allegiance or not, must be aliens, nor could they be alien friends, but must be regarded as alien enemies, even though they might be here under the special permission of the king. Lord Coke, in his report of the judgment of the Exchequer Chamber in Calvin's case, thus lays down the law: "All infidels are in law perpetui inimici, perpetual enemies (for the law presumes not that they will be converted, that being remota potentia, a remote possibility), for between them, as with the devils, whose subjects they be, and the Christian there is a perpetual hostility, and can be no peace ..." (Henriques, p.186)
Lord Coke's opinions regarding Jews were discarded during the 1800s. But during the 1600s and 1700s, lawyers were uncertain whether English Law conferred subjecthood and property rights to children born in England, of non-Christian parents.
The capacity of Jews to hold land or other real property in England was ... for a long time a question of serious doubt among lawyers. If all Jews, whether born within the realm or not, were aliens and perpetual enemies of the king, then they were incapable of holding land, for until the year 1870 no alien could hold land in England. ... Even as late as 1830 there were those who thought that this alleged incapacity [of Jews to hold real property in England] still existed, for Mr. Blunt, in his excellent History of the Jews in England, published in that year, is unable to resist this conclusion, and in the same year that unrivalled Master of Real Property law, Lord St. Leonards, then Solicitor-General, [asked] for a declaratory law to resolve all doubts as to the power of Jews to hold landed property in fee... ...he had himself been dissuaded some years before from buying some landed property of a Jew by Sir Samuel Romilly who had given it as his opinion that he could not obtain a good title from a Jew. (Henriques, pp.191-192)
Coke seems to have understood the phrase "aliens in amity" to exclude more than hostile enemy soldiers, more even than the subjects of foreign sovereigns with whom the English monarch was at war. Although it could not have been his intention to exclude from the meaning of "aliens in amity" any alien who was in England in violation of English immigration law -- there were no such laws -- Coke did make certain other relevant statements with an apparently similar meaning.He explained that an alien was either a friend (amicus) or an enemy (inimicus) at birth, and could become a friend only if there was a "league" between the alien's sovereign and that of England. If an alien's sovereign was "in league" with the English sovereign, the alien was a friend (amicus) and could enter England without "license" of the English sovereign. The implication is that if an alien requiring a "license" came into England without one, he would be regarded as not "in amity". Thus, his children born in England would not be born "within the allegiance." (Wood)
Birthplace alone did not confer "natural-born subject" status to anyone. In order to acquire "natural-born subject" status at birth, a child had to be born of parents who owe allegiance to the king. Alien enemies did not owe allegiance to the king. Consequently, their children -- even if born on English soil -- did not acquire English subjecthood at birth.
Alien enemies were not limited to foreign invaders. The term "alien enemy" referred to a much larger collection of people, which included non-Christians, illegal immigrants and citizens/subjects of a foreign country not "in league" with England. At any time, an alien's status could change from "friend" to "enemy", as a result of international events outside of the alien's control. If your parents were deemed "alien enemies" at the time of your birth, you did not acquire "natural born subject" status at birth, even if you were born in England.
When the U.S. Constitution was being written, every English subject was either a denizen [50] or a natural-born subject.
The term "natural-born subject" was used in an imprecise manner [65]. According to Francis Bacon (1561-1626), a person became a natural-born subject either "by birth, or by act of parliament" (Bacon, Francis, p.649). Thus the term "natural-born subject" had both an actual meaning and a legal meaning [94]. Some people actually were natural-born subjects by birth. Others received, from Parliament, the status or legal position of a natural-born subject; they were deemed to be natural-born subjects in law, but were not natural-born subjects in fact.
All English subjects -- except persons made denizens by the king -- were natural-born subjects in the eyes of the law (see Appendix 2). Generally speaking, "natural-born subjects" included:
Fiction of Law: In 1608, Judge Yelverton (one of the judges who decided Calvin's Case) explained that no act of Parliament -- no law passed by Parliament, and no naturalization performed by Parliament -- could transform anyone into an actual subject. Parliament may naturalize people and thereby deem them to be subjects, but could never make them subjects in fact.
A parliament may make a man to be accompted as naturalised, and conclude every man to say but that he is so, but it can never make a man to be so indeede (Yelverton, as quoted by Galloway, p.157).
A series of English legal cases -- Foster v. Ramsey (1656), Collingwood v. Pace (1661-1664), and Craw v. Ramsey (1669-1670) -- reaffirmed Yelverton's conclusion. Naturalization, whether by statute or by petition, is a fiction of law which has no effect except in countries which choose to go along with that fiction:
The law clearly held that naturalization equated an alien and a natural-born subject. Yet as Chief Justice Vaugham noted, native Irishmen were natural English subjects, although aliens naturalized in Ireland were not."The reason is, that naturalization is but a fiction of law, and can have effect but upon those consenting to that fiction: therefore it hath the like effect that a man's birth hath, where the lawmakers have power, but not in other places where they have not. Naturalizing in Ireland gives the same effect in Ireland as being born there, so in Scotland as being born there, but not in England, which consents not to the fiction of Ireland or Scotland, nor to any but her own."A legal fiction could not in any absolute sense make an alien a natural-born subject, for this would mean that he would have "two natural princes, one where he was born and the other where naturalized." The idea was absurd as the supposition that a man could have "two natural fathers, or two natural mothers." (Kettner, pp.41-42)
In his Law Dictionary (1771), Cunningham reiterated that "naturalization" (an act of Parliament which transforms an alien into a natural-born subject) is a "fiction of law" which has no effect except in countries consenting to that fiction:
Naturalizing in Ireland is of no effect as to England; for naturalization is but a fiction of law, and can have effect but upon those only consenting to that fiction; therefore it has the like effect as a man's birth hath, where the law-makers have power, but not where they have not. Naturalizing in Ireland gives the same effect in Ireland as being born there; so in Scotland as being born there; but not in England, which consents not to the fiction of Ireland or Scotland, nor to any but her own. (Cunningham, p.97, in section entitled "Aliens")
Parliament may enact laws which "naturalize" certain children as soon as they are born. Foreign-born children of English fathers, and English-born children of alien parents, are naturalized at birth. They acquire subjecthood, at birth, by (man-made) English law, not by natural law.
Furthermore as the law of England must favor naturalization as a branch of the law of nature, so it appears manifestly, that it doth favour it accordingly. For it is not much to make a subject naturalized by the law of England: it should suffice, either place or parents. If he be born in England it is no matter though his parents be Spaniards, or what you will: on the other side, if he be born of English parents it skilleth not though he be born in Spain, or in any other place of the world. In such sort doth the law of England open her lap to receive in people to be naturalized; which indeed sheweth the wisdom and excellent composition of our law ... (Bacon, Francis, pp.664-665, boldface emphasis added)
From the 1500s through the 1700s, Parliament did not say that naturalized persons actually were natural-born subjects. On the contrary, Parliament -- in its public and private acts of naturalization -- consistently said that naturalized persons were "taken," "reputed," "adjudged" and/or "deemed" to be natural-born subjects. They were granted the position of natural-born subject by law, but Parliament never said that naturalized subjects were natural-born subjects in fact.
For example, during Queen Elizabeth's reign (from 1558 to 1603), Parliament approved a Bill of Naturalization, granting German-born Garsome Wroth the status of a natural-born subject. The Bill did not say that Mr. Wroth actually is a natural-born subject; it merely said that he shall be "taken and reputed" to be such:
... that Garsome Wroth, born in Germany, shall be taken and reputed the Queen's natural-born subject (Parry).
When aliens emigrated to England and lived there continuously for more than 20 years, they were "reputed" to be natural subjects, even though they were not English subjects by birth [67].
...in 1576, a royal decree ordered that people who have lived in England for more than twenty years could be "reputed natural subjects of the realm," as long as their linquistic capacities, religion, and customs did not contradict this assumption. (Herzog, p.183)
The Act of Anne (1708) conferred "natural born subject" status to foreign-born children of English parents:
By the 7 Ann. it is enacted that "the children of all natural-born subjects, born out of the ligeance [territory] of her majesty, her heirs and successors, shall be deemed, adjudged and taken to be natural-born subjects of this kingdom, to all intents, constructions and purposes whatsoever." (Cunningham, p.96, in section entitled "Aliens")
The Act did not say that foreign-born children of English parents actually were natural-born subjects. Such children were merely deemed to be natural-born subjects [68].
The Act did not say in terms that the foreign-born child of natural born parents ... was himself a natural born subject. It said that he was to be "deemed and adjudged" to be such, albeit "to all intents, constructions and purposes whatsoever". (Parry)
In 1604, Parliament passed a law granting statutory denizen status to children born on English soil, of alien parents. These children were made denizens by an act of Parliament, not by an act of the king.
To place the Children, born within this Realm, of foreign Parents, in Degree for the first Birth or Descent only, as Aliens made Denizens, and not otherwise. (House of Commons Journal, Volume 1, 21 April 1604, boldface emphasis added)
These children were, in effect, naturalized at birth. Like other naturalized subjects, they were deemed to be natural-born subjects by law. But they were not "true" natural-born subjects. They had fewer rights than English-born children of English parents (see Question 20: English-born children of alien parents).
In his report to Congress (1967), Dowdy recognized a difference between natural-born subjects in fact and natural-born subjects by law. Only those persons who were born within the king's realm were "true" natural-born subjects; all other natural-born subjects were "naturalized" by Parliament, either by statute or by private acts of naturalization:
No child born outside of the dominion of the King was ever a true "natural-born subject." They were naturalized subjects. It is true that by the naturalization acts under which they had become naturalized subjects had "deemed" them to be natural-born subjects (despite the fact that they were not so in fact), and the very fact that these were "deemed" to be natural-born by the naturalization act reveals that the true "natural-born" subjects were those born within the dominion of the King without the necessity of a naturalization law to "deem" them to be in law what they were not in fact. (Dowdy)
In Dowdy's reasoning, Parliament would deem certain children to be natural-born subjects only if such children were not already natural-born subjects in fact. When children acquired English subjecthood by natural law, there was no need for any man-made law to confer subjecthood to them.
Cunningham's definition of "natural-born subject": Timothy Cunningham's Law Dictionary (1771) was the only law dictionary that James Madison ordered for the Continental Congress. It was one of the most popular comprehensive English dictionaries of the late eighteenth century, and was found in many personal libraries, including those of Thomas Jefferson and John Adams. It was contemporaneously used by various American Supreme Courts for clarification of legal terms. (Berry, pp.347-8).
Under the "Aliens" section of his Law Dictionary, Cunningham defined "natural-born subject" as one who is born within the king's realm, of parents who are under the king's "actual obedience":
All those are natural born subjects, whose parents, at the time of their birth, were under the actual obedience of our king, and whose place of birth was within his dominions. (Cunningham, p.95, in section entitled "Aliens")
The exact same definition of "natural-born subject" is found in Matthew Bacon's A New Abridgment of the Law, Volume 1, published in 1736. (Bacon, Matthew, p.77).
In Cunningham's Law Dictionary, other categories of persons were deemed or taken to be natural-born subjects. They were natural-born subjects by law but were not natural-born subjects in fact.
By the 7 Ann. it is enacted that "the children of all natural-born subjects, born out of the ligeance [territory] of her majesty, her heirs and successors, shall be deemed, adjudged and taken to be natural-born subjects of this kingdom, to all intents, constructions and purposes whatsoever. (Cunningham, p.96, in section entitled "Aliens")
He that is born within the King's ligeance, is called sometimes a denizen, quasi deins nee, viz. born within, and thereupon in latin is called indigena, the king's liegeman, for ligeus is ever taken for a natural-born subject; ... (Cunningham, p.97, in section entitled "Aliens")
Jacob's definition of "subject born": When the U.S. Constitution was being written, Giles Jacob's New Law Dictionary (1782) was "the most widely used English Law dictionary" (Berry, pp.350-1). Jacob defined "subject born" (a natural-born subject by birth, as oppoosed to a natural-born subject by act of Parliament) as anyone born within the king's realm, of parents who are under the king's "actual obedience":
There are two incidents regularly that are necessary to make a subject born: first, that his parents, at the time of his birth, be under the actual obedience of the king; Secondly, that the place of his birth be within the king's dominions. (Jacob (1782), p.40, Aliens)
Both Cunningham and Jacob understood that the English-born children of alien parents were statutory denizens [50]:
...if one born out of the king's allegiance, come and dwell in England, his children begotten here, are not aliens, but denizens. (Cunningham, p.95, in section entitled "Aliens")
... And if one born out of the king's obedience come and reside in England, his children, begotten and born here, are not aliens but denizens. (Jacob (1782), Aliens)
Summary: During the eighteenth century, the term "natural-born subject" referred to two distinct classes of persons: subjects born and subjects made:
All English subjects (except persons made denizens by the king) were regarded as natural-born subjects, regardless of how or when they acquired their subjecthood. Nearly all children born on English soil, regardless of whether their parents were subjects or aliens, were natural-born subjects in the general sense. But, in the factual or natural-law sense, the term "natural born" referred only to subjects born -- persons who were born within the king's realm, of parents who were under the king's "actual obedience" [54].
According to a law that Parliament enacted in 1604 and which was still in effect when the U.S. Constitution was written, the English-born children of alien parents were "denizens" [55]:
To place the Children, born within this Realm, of foreign Parents, in Degree for the first Birth or Descent only, as Aliens made Denizens, and not otherwise. (House of Commons Journal, Volume 1, 21 April 1604)
This 1604 statute remained in effect until it was temporarily superseded by the General Naturalization Act in 1709.
In the Privy Council, whose members were well aware of the debates within the Corporation of London, further arguments against granting English-born children of foreign parents full recognition as English subjects were put forward.Here, it was argued, a child of alien parents should not be regarded as English, because
"he cannot be a perfect loyal subject for that he hath no genealogie of native English but all foreign and strangers unto whom (as to his kindred) nature bindeth him".Thus, allegiance through descent was put forward as an argument by which territorial allegiance to the land and the ruler of one's birthplace were superseded by the allegiance to the birthplace of one's father and mother, because children of Strangers
"retain an inclination and kind affection to the countries of their parents".The prerequisites of citizenship and the terms of acquisition were frequently debated and amended over the next few decades both at a national and a local level. The issue was eventually resolved by a compromise agreed in 1604, which lasted until the passing of the General Naturalization Act in 1709. English-born children of foreign parents were made denizens, that is citizens with limited legal rights particularly in terms of property-ownership and inheritance patterns (Esser, p.238)
The General Naturalization Act in 1709 was repealed in 1712, thereby reviving the 1604 Act and extending its life well into the eighteenth century.
According to the law passed in 1709, the naturalized had to take the oath of allegiance, and partake of the sacrament before witnesses, who signed a certificate to that effect. In addition, all the children of naturalized parents were to be considered natural-born subjects. When the Tories finally gained control of Parliament in 1712, they succeeded in having the law repealed, but the results were not overthrown, for the repeal was not intended to invalidate naturalizations already granted. (Carpenter, p.293)
Several eighteenth-century American and English legal sources indicate that the 1604 law was still in effect when the U.S. Constitution was being written.
John Cowell's The Interpreter of Words and Terms was first published in 1607 and, over the next two centuries, underwent several revisions and reprints. It was a popular legal dictionary in the late eighteenth century, though rarely cited in American legal writings (Berry, p.352). Cowell's Interpreter states that the English-born children of alien parents are "denizens".
...if one born out of the King's allegiance, come and dwell in England, his Children begotten here, are not Alien, but Denizens. (Cowell, Interpreter, 1701 edition, as quoted by Berry, p.353. This statement also appears in Cowell, Interpreter, 1727 edition, under the section titled "Alien").
The 1604 law -- that English-born children of alien parents are denizens -- is repeated in four other eighteenth-century sources: Viner, Cunningham, Jacob and Johnson (Berry, p.353). These four sources are described here:
[Viner's Abridgement] was well received and respected in England and the Colonies, and continues to be "an invaluable work of reference." "[A] lot of American law," Professor Goebel concludes, "came out of [Mathew] Bacon's and Viner's Abridgments," and Viner's, in particular, was located in "many colonial law libraries," including John Adams's personal collection.Although the various House and Senate records do not refer to Viner's Abridgment, the Supreme Courts of Pennsylvania, New Jersey, and Maryland relied on Viner's various volumes countless times in the years surrounding the ratification of the Constitution. U.S. Supreme Court justices, including Oliver Ellsworth's court, also cite to "Vin. Abr." numerous times. (Berry, pp.344-5)
Along with using Blackstone's Commentaries, James Madison ordered a copy of Cunningham's Law Dictionary for the Continental Congress. In fact, the only dictionary he ordered was Cunningham's. Although referred to as a "dictionary," Cunningham's work is more similar to Viner's Abridgment than a concise collection of definitions.This compilation of English common and statutory law and definitions has been considered "[t]he first dictionary which aimed at completeness as regards [to] legal terms." It was one of the most popular comprehensive English dictionaries of the late eighteenth century, and was found in many personal libraries, including those of Thomas Jefferson and John Adams. Like the Commentaries and Viner's Abridgment, Cunningham's Law Dictionary was also contemporaneously used by various American Supreme Courts for clarification of legal terms. (Berry, pp.347-8)
Although Jacob has been dismissed by some modern commentators as a writer of "undistinguished works," he was one of the most prolific and widely recognized compilers of legal texts in the late eighteenth century. His dictionary could be found alongside the works of Blackstone, Viner, and Cunningham on Jefferson's and Adams's shelves, and was contemporaneously in twice as many law libraries as the second most popular legal lexicon. Jacob's New Law Dictionary may be difficult for commentators to interpret now, but in the early republic it was "the most widely used English law dictionary." Near the turn of the century, various American Supreme Courts cited Jacob's New Law Dictionary, and like Cunningham's Law Dictionary, Jacob's is more than a compilation of words with definitions; it is "a dictionary, an abridgement, and a vocabulary." For Jacob, it was not enough to simply define words, "he strove to put the meaning in context." (Berry, pp.350-1)
But by far the most influential eighteenth century general dictionary was Doctor Johnson's, A Dictionary of the English Language, first published in 1755. According to the publishers of the Octavo edition of Johnson's dictionary -- a digitally scanned version of the 1755 original -- Johnson's dictionary is to English lexicography "what the King James Bible is to the English church." This is well established. But this lexicon was not cited by American Supreme Courts until the nineteenth century, nor was it in use by the Senate or House in the eighteenth century, although it is more than likely eighteenth century readers and writers had access to a copy. (Berry, p.365)
All of the above-listed eighteenth-century sources -- Cowell, Viner, Cunningham, Jacob and Johnson -- reiterated the 1604 law declaring that English-born children of alien parents were denizens.
Coke and Blackstone: In his Report regarding Calvin's Case (1608), Sir Edward Coke wrote that English-born children of alien parents were natural-born subjects:
.. local obedience [the allegiance of an alien friend residing within English territory], being but momentary and incertain, is strong enough to make a natural subject; for if he [an alien friend] hath issue [child] here [in England], that issue [child] is a natural born subject... (Coke(1608), p.179)
Lord Coke did not necessarily contradict the intent and meaning of the 1604 law granting "denizen" status to children born in England, of alien parents. At the time, the term "natural-born subject" had a vague and widely-inclusive meaning (see Question 19: Natural-born subject), and was often used in an imprecise and ambiguous manner [65]. According to Black's Law Dictionary, the word "denizen" was, at one time, synonymous with "natural-born subject":
A denizen, in the primary, but obsolete, sense of the word, is a natural-born subject of a country (Black's Law Dictionary, 1st Edition, 1891, under section titled "Denizen").
In 1604, denization (by Parliament) was synonymous with naturalization:
The most cursory examination of the Calendar of Patent Rolls reveals that there were numerous instances of denization in the fourteenth century. And the objection that these are cases of denization and not naturalisation may be met at this stage of the argument by the brief statement that the distinction, if any, between the two processes was quite unclear and probably non-existent as late as the reign of Elizabeth I (Parry)
What, in short, is the difference between naturalisation and denization? Up to the end of Elizabeth's reign, it has been submitted, there was no difference. (Parry)
Children born on English soil, to alien parents, were denizens. At the time, denizens were naturalized subjects; and naturalized subjects were deemed to be natural-born subjects in the eyes of the law.
William Blackstone's Commentaries, first published in 1765, also stated that English-born children of alien parents were natural-born subjects.
The children of aliens, born here in England, are, generally speaking, natural-born subjects [15], and entitled to all the privileges of such. In which the constitution of France differs from ours; for there, by their jus albinatus, if a child be born of foreign parents, it is an alien [16]. (Blackstone)
In the above-cited text, footnote 16 refers to Richard Wooddeson's Systematical View of the Laws of England (1777), which states:
The issue [child] of an alien, born within the realm, are accounted [considered as, or deemed to be] natural subjects: in which respect, there is not, (tho sir William Blackstone supposes the contrary) any difference between our laws and those of France. In each country birth confers the rights of naturalization. (Wooddeson, p.386)
According to Wooddeson, Blackstone's understanding of French and English law was inaccurate. In both France and England, children born within the realm, of alien parents, received, at birth, "the rights of naturalization". In England, persons who received subjecthood by naturalization were deemed to be natural-born subjects in the eyes of the law, but they were not natural-born subjects in any actual or literal sense.
Denizens: In 1608, Francis Bacon differentiated between "naturalized subjects" and "denizens" [50]. Naturalized subjects were called "natural-born subjects"; denizens were not. But, when the 1604 statute was enacted, there was little substantive difference between denization and naturalization.
Lord Coke argued that "denizens" and "natural-born subjects" should be regarded as "one" under the law:
Now what a Subject born is, appeareth at large by that which hath been said de ligeantia: and so likewise de subdito dato [a subject by reason of gift] of a donaison [gift]; for that is the right name, so called, because his legitimation is given unto him; for if you derive denizen from deins nee [born within], one born within the obedience or ligeance of the King, then such a one should be all one with a natural born subject. And it appeareth before out of the laws of King William the First of what antiquity the making of denizens by the King of England hath been. (Coke(1608), p.208)
Historian Clive Parry points out that the word "denizen", by itself, originally implied full rights:
Simply because "denizen" originally connoted native-born, endenization conveyed full rights. And by using the term "denizen", an Act of Parliament necessarily could imply no more than endenization by letters patent implied. (Parry)
According to the Huguenot Society, naturalization and denization were synonymous during the 1500s and early 1600s [74].
Unless the king's letters patent explicitly curtailed the rights of a denizen, there was (in 1604) little difference between a denizen and a naturalized subject.
It is not, however, to be collected from what Cockburn says: only natural-born subjects have inheritable blood and only Parliament can cause a person to be deemed to be a natural-born subject. The defect of the argument is that the first step in it is a false one: letters patent can also cause a person to be deemed to be a natural-born subject as from their date. So far as concerns his subsequently born children, the denizen is in exactly the same position as the naturalised person. (Parry)
Naturalized at birth: In 1608, Francis Bacon wrote that English law "naturalized," at birth, English-born children of alien parents, as well as foreign-born children of English parents. In both cases, the children were, at birth, natural-born subjects. But their natural-born subjecthood was conferred by statutes enacted by Parliament, not natural law.
Furthermore as the law of England must favor naturalization as a branch of the law of nature, so it appears manifestly, that it doth favour it accordingly. For it is not much to make a subject naturalized by the law of England: it should suffice, either place or parents. If he be born in England it is no matter though his parents be Spaniards, or what you will: on the other side, if he be born of English parents it skilleth not though he be born in Spain, or in any other place of the world. In such sort doth the law of England open her lap to receive in people to be naturalized; which indeed sheweth the wisdom and excellent composition of our law ... (Bacon, Francis, pp.664-665)
In Vattel's understanding, English-born children of foreign parents were "naturalized" at birth. These children became English natural-born subjects, not by natural law, but by a naturalization statute enacted by Parliament in 1604.
Finally, there are states, as, for instance, England, where the single circumstance of being born in the country naturalizes the children of a foreigner. (Vattel, § 214)
English-born children of alien parents were natural-born subjects in the sense that they had property rights. But such children did not have the same economic and municipal rights as did English-born children of English parents. Prior to 1737, English-born children of alien parents could not become "citizens" (freemen) of an English city or town (see Question 22: English citizenship).
When someone was born in England and both of his parents were aliens at the time of his birth, he was deemed a natural-born subject, but nevertheless had to pay aliens' duties:
There is a curious passage in Hale's Treatise Concerning the Customs concerning aliens' customs in the 17th century. He says "If an alien come into England and have issue [child] here, he [the child] is a natural-born subject. Yet ... such a natural-born subject hath been decreed heretofore to pay aliens' duties..." Hargrave, Tracts, vol. I (1787) 210. Cf. the similar tendency to treat the native members of the foreign Protestant congregations as aliens.... The statute 12 & 14 Car. 2, c. 11 furthered the policy by disabling infant children of aliens from trade. (Parry, footnote 327).
Summary: When the U.S. Constitution was written, the law "on the books" was that English-born children of alien parents were statutory denizens. These children were called "natural-born subjects" (in the general sense) because they were naturalized, at birth, by statute. They were deemed natural-born subjects by law, but were not natural-born subjects in fact.
According to Sir Edward Coke's Report regarding Calvin's Case (1608), there are two categories of English subjects: subjects born and subjects made. A child is subject born if it meets two requirements at birth: a parental obedience requirement (the child's parents must be under the "actual obedience" of the king) and a birthplace requirement (the child must be born within the king's dominions).
There be regularly (unless it be in special cases) three incidents to a subject born. 1. That the parents be under the actual obedience of the King. 2. That the place of his birth be within the King's dominion. And, 3. The time of his birth is chiefly to be considered; for he cannot be a subject born of one kingdom that was born under the ligeance of a King of another kingdom, albeit afterwards one kingdom descend to the King of the other. (Coke(1608), p.208)
When the U.S. Constitution was being written, Giles Jacob's New Law Dictionary (1782) was "the most widely used English Law dictionary" (Berry, pp.350-1). Jacob defined "subject born" as anyone born within the king's dominions, of parents who are under the king's "actual obedience":
There are two incidents regularly that are necessary to make a subject born: first, that his parents, at the time of his birth, be under the actual obedience of the king; Secondly, that the place of his birth be within the king's dominions. (Jacob (1782), p.40, Aliens)
In the 1771 edition of his Law Dictionary, Timothy Cunningham defined "natural-born subject" as one who is born within the king's dominions, of parents who are under the king's "actual obedience":
All those are natural born subjects, whose parents, at the time of their birth, were under the actual obedience of our king, and whose place of birth was within his dominions. (Cunningham, p.95, in section entitled "Aliens")
The exact same definition of "natural-born subject" is found in Matthew Bacon's A New Abridgment of the Law, Volume 1, published in 1736. (Bacon, Matthew, p.77).
All English subjects (except denizens by royal charter) were natural-born subjects by law, but only those born within the king's territory, of parents under the king's "actual obedience", were natural-born subjects in fact. (See Question 20: Natural-Born Subjects).
Lord Coke did not define "actual obedience", nor did he explain how "actual obedience" differed from "obedience" in general. However, we can infer the meaning of "actual obedience" by examining the manner in which the words "actual" and "obedience" were used in Lord Coke's writings.
Trope of Speech: Lord Coke occasionally described a country as being under the "actual obedience" of the king. However, the capacity to "obey" the king is found only in living human beings, not in inanimate objects or tracts of land. When speaking of a country as being under the king's "actual obedience", Lord Coke was likely referring to the country's inhabitants, not merely its real estate. In his discussion regarding Samaria, for example, Lord Coke used the term "actual obedience" in reference to the country's people [76].
The name of a place is sometimes used as a metaphor, referring to a person or people associated with that place. In 1608, Francis Bacon wrote:
...for there is no trope of speech more familiar than to use the place of addition [77] for the person. So we say commonly, the line of York, or the line of Lancaster, for the lines of the duke of York, or the duke of Lancaster. So we say the possessions of Somerset or Warwick, intending the possessions of the dukes of Somerset or earls of Warwick. So we see earls sign, Salisbury, Northampton, for the earls of Salisbury and Northampton. And in the very same manner the statute speaks, allegiance of England, for allegiance of the king of England. (Bacon, Francis, pp.652-653)
It appears that Lord Coke sometimes used the name of a country as a figure of speech referring to that country's population [78]. When the king took actual possession of territory, many of the individuals living and working in that territory became the king's subjects. Military conquest of an alien's homeland was one of the means by which an alien could become an English subject [79]. For example, when England conquered Ireland, the Irish people became subjects of the English king [80]. Thus, when Lord Coke spoke of a country as being under the "actual obedience" of the king, he was undoubtedly referring to the country's inhabitants, not merely the country's territory.
Obedience means allegiance: In Lord Coke's writings, "obedience" is a synonym of ligeance, a variation of allegiance:
This word ligeance is well expressed by divers several names or synonymia which we find in our books. Sometimes it is called the obedience or obeisance of the subject to the King. (Coke(1608), p.176)
This bond of allegiance was often understood as the bond of obedience to the king. Tudor statutes, for example, use 'obedience' where later statutes would use the word 'allegiance'. Aliens are those 'borne out of ... the kinges obeisaunce'. Subjects are those 'borne within the kinges Graces Dominions and obeisaunce'. (Kim(1996), p.156)
Lord Coke used obedience and ligeance interchangeably. For example:
Ligeantia est quasi legis essentia [Ligeance is, as it were, the essence of law] (Coke(1608), p.175)
obedientia est legis essentia, [obedience is the essence of the law] (Coke(1608), p.417)
A clue as to the meaning of "actual obedience" is the fact that, when Calvin's Case was decided in 1608, obedience was synonymous with ligeance, from which the word allegiance is derived.
Actual vs. Legal: Lord Coke used the word "actual" in contradistinction to "legal". If the king had a legal right to possess certain territory but was not in actual possession of that territory, children born within that territory were not subjects of the king. A child was subject born only if, at the time of the child's birth, (a) the king was in actual possession of the child's birthplace and (b) the child's parents were under the king's actual obedience:
For the first, it is termed actual obedience, because though the King of England hath absolute right to other kingdoms or dominions, as France, Aquitain, Normandy, &c. yet seeing the King is not in actual possession thereof, none born there since the Crown of England was out of actual possession thereof, are Subjects to the king of England. (Coke(1608), p.208)
The distinction between actual and legal still exists today [94].
According to Lord Coke, possession "in law" is not enough to confer subject born status to a child at birth. The king must be in actual possession of a child's birthplace, at the time of the child's birth, in order for the child to qualify as subject born.
Meaning of Ligeance In Feudalism, there was a difference between fealty and liege fealty. A person may owe fealty (faith and loyalty) to more than one lord simultaneously, but liege fealty, also called ligeance, is exclusive obedience to one, and only one, superior. Originally, "allegiance" was a variation of, and meant the same thing as, ligeance. Under the original meaning of allegiance, an alien may owe fealty, but cannot owe allegiance, to the English king. An alien already owes allegiance to the king of his home country, and (prior to expatriation) cannot owe allegiance to anyone else, at least not in any actual sense.
It is clear that so long as the original feudal significance of the term allegiance persisted, an alien subject could not be said to owe allegiance to the English king. For he already owed it to his own king, and double allegiance was impossible. His true relation to the king of England, in whose dominions he resided, was one of fealty indeed, but not of liege fealty. He was in his faith, but not in his allegiance. The distinction comes out clearly in one of the few passages in which Bracton refers to the matter. He considers the case of a man who owes fealty both to the king of England and the king of France -- who is ad fidem utriusque regis. What shall happen, he asks, if war breaks out between these two countries? Which of his two lords shall this man serve? Brackton's answer is that he must serve in person with that king to whom he owes allegiance (cum eo cui fecit ligeantiam). (Salmond, p.52)
Over time, it became necessary to distinguish between the true allegiance that subjects owed the king in fact and allegiance that aliens were presumed to owe the king by law.
Hence it became necessary to distinguish between two sorts of allegiance -- that which is personal, permanent, and absolute, as being due from natural subjects, and that which is merely local, temporary and qualified, as being due from aliens by reason of their residency, and which in the strict theory of feudalism is not truly allegiance at all. (Salmond, p.52)
In strict Feudal theory, subjects owed actual allegiance (obedience) to the king, and aliens owed allegiance to the king only in a legal sense.
Obedience means subjecthood: Lord Coke often used "obedience" as a synonym of ligeance. By itself, the word ligeance (therefore the word "obedience") implied subjecthood. Lord Coke defined ligeance as a relationship between a subject and his king.
...ligeance is the mutual bond and obligation between the King and his subjects, whereby subjects are called his liege subjects, because they are bound to obey and serve him; and he is called their liege lord, because he should maintain and defend them. (Coke(1608), p.176)Ligeance was "the onely mark to distinguish a subject from an alien" (Coke(1608), pp.197-8). Those who were within the king's ligeance were subjects. Those who were outside of the king's ligeance were aliens. The exception to this rule was "local" ligeance. Persons who owed "local" ligeance to the king were aliens. "Local" ligeance conferred subjecthood to the children of aliens, but did not confer subjecthood to the aliens themselves.
According to Lord Coke's Report on Calvin's Case, there are four kinds of ligeance (therefore, four kinds of "obedience"): natural, acquired, local and legal [70]. When ligeance (obedience) is either "natural" and "acquired", it conforms to the actual definition of ligeance -- an exclusive relationship between a subject and his king. Such ligeance is permanent and confers the right to acquire, hold and bequeath English real estate.
In contrast, "local" ligeance (obedience) was "wrought by the law" (Coke(1608), p.177). It was a legal construct, not an actual one. Persons who owed local ligeance (obedience) to the king were aliens, not subjects. An alien's local ligeance did not confer the right to acquire and hold real estate, except a house or apartment for personal habitation. Local ligeance was temporary; it automatically terminated as soon as the alien departed from the king's territory.
Lord Coke characterized local ligeance as "extremely uncertain":
localis ligeantia est ligeantia infima et minima, et maxime incerta [local allegiance is something mean and small, and extremely uncertain]. (Coke(1608), p.179)
As a general rule, persons who were within the king's ligeance (obedience) were subjects, and subjects, unlike aliens, had the right to acquire and possess land.
Land-based sovereignty: In pre-industrial agricultural societies, people needed land in order to survive. By controlling all of a country's land, the king controlled the country's people and established himself as sovereign over them.
Property...conferred sovereignty. The holder of land often controlled not only the use of that land, but also the activity of its inhabitants. No one "owned" land in the modern [literal] sense. Land was held in a pyramid of proprietorship beginning with the king and reaching down to the lowliest tenant. Each level in the hierarchy was marked by quasi-governmental privileges under which the landholder could determine the destiny of those on the land. ... Before it ceded its position to contract in the nineteenth century, property was the real and symbolic foundation of all liberties... And property law was the foundation of the common law (Hulsebosch, pp.9-10)
Serfs were peasants who worked his lord's land and paid him certain dues in return for the use of land, the possession (not the ownership) of which was heritable. The dues were usually in the form of labor on the lord's land. ... A serf was one bound to work on a certain estate, and thus attached to the soil, and sold with it into the service of whoever purchases the land. (Definition of Serfs)
The king's sovereignty over people was based on his control of the land on which the people lived and worked.
Latin obedientia: Lord Coke used the English word "obedience" and its Latin root, obedientia, interchangeably.
obedientia est legis essentia [obedience is the essence of the Law] (Coke(1608), p.417)
...it is nec coelum, nec solum [neither sky nor soil], but ligeantia and obedientia that make the subject born (Coke(1608), p.179)
In The Interpreter of Words and Terms (1607), John Cowell did not define the English word "obedience", but did define its Latin counterpart, obedientia. According to Cowell, obedientia had a general meaning and a specific meaning. In general, obedientia was anything that a superior required of his subordinate. But in a more specific (or "restrained") sense, obedientia was a figure of speech meaning "rent" -- a service or payment that an individual rendered to a landlord, in return for use of the landlord's land:
Obedientia was a Rent, as appears out of Roger Hoveden, parte poster. annal. fuor. ... In the Common Law, it is used for an Office or Administration of an Office; and thereupon the word Obedientiales is used in the Provencial Constitutions, for those which have the Execution of any Office under Superiours... It may be that some these offices called Obedientia, consisted in the Collection of Rents or Pensions, and that therefore those Rents were by a metonymy, called Obedientia, quia colligebantur ab obedentialibus.But Obedientia, in a general Acceptation of the Word, signifies every thing that was enjoined the Monks by the Abbot: And, in a more restrained Sense, the Cells or Farms which belonged to the Abbey, to which the Monks were sent, vi ejiesdeni obedientiae, either to look after the Farms, or to collect the Rents which were likewise called Obedientia. (Cowell)
In the restrained sense, obedientia (obedience) implied a land-based relationship between a subordinate and his superior. Obedientia (obedience) was that which a subordinate owed to his superior, in return for use of the superior's land. Only subjects were permitted to hold land, therefore only subjects could owe obedientia (in the restrained sense) to the king.
"Under Obedience" in the Bible: The Geneva Bible was first published in 1560 and again in 1599. Among Protestants, prior to 1611, it was the de facto standard English-language translation of the Bible.
The King James Version (KJV) was published in 1611, and eventually supplanted the Geneva Bible among English-speaking Protestants (Geneva Bible History).
Both Bibles -- the Geneva Bible and the KJV -- are linguistic "time capsules" containing samples of early seventeenth-century English-language usage. They offer clues as to the meaning of "under actual obedience" during the time period in which Calvin's Case was decided.
In the 1599 edition of the Geneva Bible, the term "under obedience" (without the word "actual") appears in 1 Timothy 3:4. This verse specifies that a man should not be permitted to serve as a church bishop unless he:
...can rule his own house honestly, having children under obedience with all honesty. (1 Timothy 3:4, in Geneva Bible: 1 Timothy, boldface emphasis added)
In the Geneva Bible, the term "under obedience" is an English translation of the Greek word hypotage, which means "the act of subjecting" or "obedience, subjection". The KJV always translates hypotage as "subjection" (Strong's Concordance: G5292).
The term "under obedience" also appears in the KJV translation of 1 Corinthians 14:34.
Let your women keep silence in the churches: for it is not permitted unto them to speak; but [they are commanded] to be under obedience, as also saith the law. (1 Corinthians 14:34, KJV, 1 Corinthians 14, boldface emphasis added)
In the KJV, "under obedience" is the English translation of hypotasso. The word hypotasso appears forty times in the Greek New Testament. In eight instances, the KJV translates hypotasso using words or phrases which imply or connote submission, but in all other cases, the KJV translates hypotasso using words or phrases which imply or connote subjection (see Strong's Concordance: G5293).
In the Geneva Bible, hypotasso, as used in 1 Corinthians 14:34, is translated as "to be subject":
Let your women keep silence in the Churches; for it is not permitted unto them to speak, but they ought to be subject, as also the Law saith. (1 Corinthians 14:34, Geneva Bible: 1 Corinthians, boldface emphasis added)
In both Geneva and KJV bibles, the English term "under obedience" implied or connoted subjection. When one Bible translated a Greek word as "under obedience", the other translated the same Greek word in the same verse as "subjection" or "to be subject". If "under obedience" implied subjection, we may surmise that "under actual obedience" also implied subjection, perhaps even more so. If persons who were "under obedience" to the king were subject to the king, it is not inconceivable that persons who were under the actual obedience of the king were subjects of the king.
Aftermath: During the decades following Calvin's case, some native-born Scotsmen, presumably born after 1603, applied for English naturalization or denization. If Calvin's Case had granted automatic English subjecthood to all postnati Scottish subjects (Scottish subjects born in Scotland after 1603), why did some postnati Scottish subjects seek English subjecthood through lengthy and costly legal procedures? Weren't these postnati Scottish subjects already English subjects as per Calvin's Case (assuming, of course, that their parents were not foreign diplomats or alien enemies)? [81]
One possible answer is that Calvin's Case did not confer English subjecthood to all postnati Scots. It conferred English subjecthood only to postnati Scotsmen whose parents were under the "actual obedience" of the king. If you were born in Scotland but, at the time of your birth, your parents were not under the king's "actual obedience", you might have been a Scottish subject by Scottish law, but you were not a Scottish subject by natural law, hence you were not eligible for automatic English subjecthood at birth.
Presumably, aliens were not under "actual obedience". Consequently their Scottish-born children were not subjects born, thus did not receive automatic English subjecthood at birth. If these children wished to become English subjects in later life, they had to go through the conventional naturalization or denization process in England.
Summary: In order to be subject born, a child had to meet two requirements at birth: a birthplace requirement (the child had to be born within the king's dominion), and a parental obedience requirement (the child's parents had to be under the "actual obedience" of the king).
In order for a child to meet the parental obedience requirement, the king must be in actual possession of the child's birthplace at the time of the child's birth. Thus, there was a connection between the king's "actual possession" of territory and the "actual obedience" of parents who were residing and giving birth within that territory.
The king was in "actual possession" of a country only if he physically occupied and controlled the country's territory. However, the king, by himself, as an individual, could not possibly occupy and control an entire nation. When we speak of the king as being in actual possession of a country, we mean that the king's subjects were physically occupying and controlling the country's real-estate, on the king's behalf. The king was in actual possession of territory through his subjects. These subjects included two classes of people:
The terms "actual possession" and "actual obedience" appear to have been inseparably intertwined. The king could not have been in actual possession of territory unless his subjects, who were under his actual obedience, were occupying and controlling the territory for him. On the other hand, the king's subjects could not be under the "actual obedience" of the king (and their children could not be subjects born), unless the king was in "actual possession" of the land on which they were living and working. Thus "actual possession" and "actual obedience" were different sides of the same coin. They were facets of a land-based relationship between the king and his subjects. Only English subjects could have been part of a land-based relationship with the king, because only his subjects (not aliens) had the right to hold real-estate within his realm.
During the 1700s, Western Europe was divided into kingdoms, each ruled by a monarch. Within each kingdom, there were one or more local communities, referred to as towns, villages, boroughs or cities.
Persons who owed permanent allegiance to the monarch were called "subjects". Many of these subjects were also members of a local community, located within the monarch's realm. They lived and worked in a community and participated in the community's local government. The members of such communities were called "citizens" (also referred to as freemen).
The relationship between monarchies and local communities varied from kingdom to kingdom. In 18th century England and its colonies, an Englishman could be both a subject of the king and a citizen of an English city.
In England and its colonies prior to the American Revolution, the inhabitants of an Engish city were divided into two groups: freemen and foreigners.
In his Commentaries (1765-1769), William Blackstone used the word "subject" to refer to members of the English nation, and the word "citizen" to refer to the freemen of an English city. This passage, from Blackstone's Commentaries, illustrates how the English words "citizen" and "foreigner" were used in an urban context prior to the American Revolution:
In some cases, the sheriff of London's certificate shall be the final trial: as if the issue be, whether the defendant be a citizen of London or a foreigner, in case of privilege pleaded to be sued only in the city courts. (Blackstone's Commentaries, Book 3, Chapter 22, emphasis added)
An English citizen was not the same thing as an English subject [18]. Subjecthood was a vertical relationship between an individual (subject) and a sovereign (king) who protected the individual and ruled over him. Citizenship was a horizontal relationship between the individual (citizen) and his fellow citizens. Within a city, the citizens of that city shared civic responsibility and collectively govern themselves through their elected representatives.
Prior to the American Revolution, the inhabitants of England and its American colonies were divided into two groups: "foreigners" (in the international sense) and "the people". The people owed allegiance to the king; foreigners did not.
The "people" were further divided into "subjects" and "aliens". Subjects owed permanent allegiance to the king; aliens owed temporary (local) allegiance to the king. Aliens were sometimes called "strangers".
Every English "subject" was either free or unfree. Unfree subjects were sometimes called serfs, bondmen/bondwomen, indentured servants, or villeins.
Unfree subjects were not slaves. Although slavery was permitted in the English colonies, it was not permitted in England itself. In England, unfree subjects had legal rights that slaves did not have:
One may be a villein in England, but not a slave. (Sir John Holt, Chief Justice of King's Bench, 1701, as quoted in Banks, pp.812-3)
Villeins were subjects. As subjects, they had the right to "hold real or personal property" (Banks, p.815).
In England, your servile status (free or unfree) at birth depended on the status of your father at the time of your birth. In this respect, the English common law somewhat resembled Roman Civil Law (see Appendix 6: Roman Citizenship). If your father was "free" when you were born, you were "free" at birth. If your father was not "free" at the time of your birth, your status at birth was "unfree".
...Sir Edward Coke, in one of the great treatises on the English common law, the four volume Institutes of the Laws of England, wrote that if a bondman or serf (villein) marries a free woman, their children would be villeine [unfree], but if a bondwoman (niefe) married a free man, their children would be free. According to Lord Coke, the English common law rule, that the status of the child follows the father, is grounded in the notion of marital unity. Under common law the legal identity and status of a wife merged with that of her husband; they became one in the eyes of the law, and that one was the husband. Therefore, the legal status of the father naturally governs the legal status of the child. ...But Lord Coke's statement only governs the status of a legitimate child of a freeman and bondwoman. ...
Coke acknowledges that some judges have mistakenly held that an "illegitimate" child of a bondwoman is a villeine, and thus unfree. The correct rule, he writes, is that a child born to unwed parents is a child of no one (quasi nullius filius), because the child cannot be heir to anyone. Thus this child is not a villeine unless the child places her/himself in bond before a court. (Banks, pp.815-16)
There were various ways by which a subject's status could change from free to unfree, or from unfree to free. But a subject's status at birth was the status of his father, except that an illegitimate child (a child with no legally-recognized father) was "free" by default.
Within a city, free subjects were further divided into "freemen" (citizens) and "foreigners" (non-citizens). English freemen (citizens) had certain rights and privileges, called Freedom of the City, which foreigners (non-citizens) did not have. These rights and privileges included "economic" freedom (the right to conduct business or practice a trade in the city) and "political" freedom (the right to vote and hold public office).
Indeed, the importance of the freedom, i.e., the status of citizen, must not be underestimated... The citizen -- or freeman, as he was designated throughout the colonial period -- considered his citizenship a more highly prized right than does the average citizen of the present day. ...the title of freeman was not an empty one. Not only did it possess for him profound political significance, but it was the condition of his economic independence. Unless one were a freeman, he did not posses the right of suffrage, nor was he eligible to election to public office. Furthermore, non-freemen were not permitted to practice trades or carry on any business whatsoever. (Seybolt, p.3)
The all-important dividing line among townsmen was between freemen and non-freemen. Freedom of the city involved both privileges and obligations set down in local ordinances and enforced in the Lord Mayor's Court. The effect of these ordinances was to provide the freemen, or citizenry, with a virtual monopoly over both political and economic affairs. Only freemen could hold civic office and only freemen could vote in municipal and parliamentary elections. (John Evans, as quoted by Luu, p.60)
Noah Webster's American Dictionary (1828) defined "citizen" as:
The native of a city, or an inhabitant who enjoys the freedom and privileges of the city in which he resides; the freeman of a city, as distinguished from a foreigner, or one not entitled to its franchises. (Webster's Dictionary: citizen, 1828)
In 18th-century England, most English subjects did not have suffrage (the right to vote). In rural areas, a subject could vote only if he possessed property that produced at least 40 shillings per year of revenue. In a city or town (borough), a subject could vote only if he was a freeman ("citizen") of that city or town:
There were two types of seats in the Commons: county and borough, the latter meaning that the constituency was a particular town. Typically, the right to vote was earned, for county constituencies, by owning land valued at forty shillings per year. In "freeman boroughs," one could vote by being a "freeman," in other words by being granted the town's "freedom" -- the right to carry on one's trade within its walls. (Olsen, p.6)
There were several ways to become a citizen of an English city. The three most important were: birth, apprenticeship, and redemption.
Apprenticeship was the most-frequently-used pathway to urban citizenship:
In sixteenth century London, for example, it has been estimated that 90 per cent of Londoners became citizens through apprenticeship (Withington, p.29)Most literature of local citizenship in England during the early modern period [1500-1800] focused on London. In it, freeman is the equivalent of citizen. ...London historians tell us that during most of the early modern period, citizenship was mainly identified with apprenticeship and the exercise of a specific trade, craft, or occupation. Most admissions to freedom were acquired on the basis of apprenticeship... (Herzog, p.178)
In Colonial American cities and towns, every young person who was not of "independent living" was either (a) an apprentice engaged in learning and mastering a trade, or (b) a bondsman, i.e., serf or slave (Seybolt, p.4). Those who successfully completed their apprenticeships became, in adulthood, citizens of their town or city.
In England, you were eligible for apprenticeship only if, at the time of your birth, your parents were free English subjects. Prior to 1737, aliens and their children were barred from apprenticeship; the only way they could become freemen was through redemption:
A primary qualification for apprenticeship was that a boy or girl should be of free condition and not a villein. ...no "foreigner" should be enrolled as an apprentice unless he first swore that he was a free man and not a serf, and later serf is defined as the son of a man who was a serf at the time the boy was born. We may take this to mean that if a villein became of free condition by residence, his sons born subsequently were eligible for apprenticeship, but that sons born previously, even if they became of free condition themselves, were excluded as having the taint of servile origin. ... From 1483 onwards the apprenticeship of alien-born children was frequently forbidden alike by company and City ordinance. (British History Online: Apprenticeship).Until 1737, London's statutes forbade the sons of foreigners, even those born in the kingdoms to naturalized parents, to become freemen by apprenticeship; they could obtain recognition as freemen only through redemption. (Herzog, p.182)
In 1707, every freeman in New York City was required to take an oath, swearing that he will not take, as an apprentice, any child whose parents were either aliens (not English subjects) or bondmen (non-free):
Ye shall Swear, That ... Ye shall take no Apprentice, but if he be free-born (that is to say) no Bond-man's Son, nor the Son of an Alien ... (Oath of a Freeman of the City of New York, 1707, as quoted by Seybolt, p.11).
In summary, there was a difference between a "subject" of the English king and a "citizen" of an English (or colonial American) city or town.
Subjects were politically passive members of English society. They had inheritance and property rights, but as a general rule, they did not activity participate in the government's decision making process. Most subjects could not vote or hold public office. Subjecthood, by itself, did not confer a "free" status; some subjects were serfs or villeins. The parental requirements for English subjecthood were minimal. It did not matter whether your parents were subjects or aliens, or free or unfree. As long as your parents were within the allegiance of the king at the time of your birth, you were, if born on English soil, an English natural-born subject.
Citizens, on the other hand, were politically active members of English society. They were free. They could vote and hold public office. The parental requirements of English citizenship were more stringent than those of English subjecthood. Throughout much of English history, you were eligible for apprenticeship (the primary means of acquiring citizenship) only if your father was a free subject (not a bondman and, prior to 1737, not an alien). You could claim citizenship by birth only if your father was a citizen at the time of your birth.
When the U.S. Constitution was written, continental (mainland) western Europe was comprised of states, each ruled by a strong individual leader or king. Embedded within each state were local communities (towns and villages). As a general rule, anyone who established his permanent residence (domicile) within a community, and possessed property in the community, was a "member" or "citizen" of that community:
Comparing practices in England, France, Germany, and northern Italy, Susan Reynolds concludes that a common heritage indeed existed in medieval Western Europe. ... In both towns and villages, community members were typically adult male heads of households who resided permanently in the jurisdiction. (Herzog, pp.170)
As a general rule, an individual living under an eighteenth-century western European monarchy was both (a) a "subject" of a king, and (b) a "citizen" of a local community.
...an important group of historians argues that the citizenship regime that evolved in Western Europe from the eleventh to the thirteenth century persisted with slight modification to the eighteenth century. According to this view, municipal communities continued to be associations of free individuals during the early modern period [1500-1800]. ... Community members -- usually identified as resident heads of households possessing property -- were allowed to use communal land and could actively participate in [local] decision making. Rather than changing, in the early modern period local citizenship was simply overshadowed by the appearance and consolidation of kingdoms. ... Although still members and citizens, individuals were now instituted first and foremost as subjects. (Herzog, pp.170-171)
The relationship between subjecthood and citizenship varied throughout Europe:
According to most historians of France, by the sixteenth century the subjection of local communities to the king was complete. Instead of a territory composed of different local communities, France became a kingdom. One consequence of this development was that the status and rights of people were no longer determined by reference to their local membership. Instead, they were determined by their relationship to the monarch. ... Because of this process the king obtained a monopoly over the classification of people as natives or foreigners, which had earlier been exercised by local communities, and he had gained control over alien property (droit d'aubain), which had earlier belonged to local lords. (Herzog, p.191).
An individual was a native Frenchman, with inheritance rights, if (a) he was born in France, (b) at least one of his parents was French at the time of his birth, and (c) after his birth, he lived continuously in France:
Historians agree that for the purpose of inheritance a person was French if he or she resided in the territory and had been born there to at least one French parent. This definition required the combination of two conditions: descent and birth in the territory. (Herzog, p.192)
If a child was foreign-born of French parents, or was French-born of alien parents, the child's legal status depended on the child's and its parents' residence:
In the time of the ancien regime [1650-1789], the criterion of residence was very important: when recognition of French nationality could only be based upon French parents giving birth abroad or foreign parents giving birth in France, the parlements required that current and future residence be established in the kingdom. This was a sign of personal allegiance, both present and future, to the king. (Weil, p.79)
Birthplace alone was not enough to confer French nativeness or nationality. A child, born in France, was not a French native unless some other requirement -- a residence requirement or a parental nationality requirement -- was also met. According to some historians, the notion that jus soli prevailed in eighteenth-century France is an oversimplification [85].
Under the Old Regime, no such thing as Dutch citizenship existed. The state, i.e., the Dutch Republic, was a federation composed of seven sovereign provinces. These provinces did not have citizens either, at least in the formal sense. Citizenship in the Dutch Republic was a local, more specifically an urban phenomenon. There was nothing unusual about this: urban citizenship was the norm throughout early modern Europe. (Prak)
In some local Dutch communities, citizenship was based on the jus soli principle, while in other communities, the jus sanguinis principle prevailed:
In the 18th century, in the Dutch Republic, there was no national civil law which united the whole population. Each town had its own civil law stipulating citizen rights and obligations, based on the citizenship model of the Roman Republic. Citizenship law of the burghers was still restricted to only the town's population, and completely excluded the people of the countryside.The rights of citizenship were based on the principle of jus soli, signifying that rights would be granted to all those born on the territory. However, this was not applied uniformly and in some cities as for example in Nijmegen, citizenship could be acquired only by jus sanguinis. (Wikipedia: Dutch Nationality)
In Germany, ... the criterion for many centuries was ... the fact of residence in the territory, or of residence with official permission (Ross, p.2)
Later in German history, jus sanguinis became the rule of German citizenship at birth.
...the German definitions of citizenship are more closely and fundamentally related to heritage and nationalism and jus sanguinis. (Dellolio)
...different communities belonging to the same state each maintained its separate communal institutions, statutes, councils, and officers and its own citizenship criteria. The inhabitants of each community were considered a separate group and were treated as foreigners in other jurisdictions. (Herzog, p.177)
As a general rule, local citizenship was acquired either by birth or by integration into the community. A child was a citizen by birth if it was born within the community and at least one of its parents was a citizen.
Persons became citizens either by birth or by statutory process. Under the formulation articulated by Bartolus, and apparently followed in the Italian cities of the thirteenth and fourteenth centuries, a citizen by birth -- civis ab origine -- was one who had been born within the territory of the state and to at least one parent who was already a citizen of the state. (Price, p.124).
Those who were not citizens by birth could become citizens by integrating into the community.
...Venice, Florence, Pescia, Rome, Brescia, Torino, and Mantova stressed the importance of residence, integration, and reputation for the purpose of obtaining citizenship. (Herzog, p.175)
The Italian "fiscal" court (regia camera della sommaria) was responsible for collecting federal taxes. Since tax rates varied according to citizenship, the fiscal authorities were required to decide who were citizens and who were not. Local communities could establish their own citizenship rules, but the court decided how those rules should be applied for taxation purposes.
...the fiscal court...was the body responsible for tax collection. Tax collection depended on citizenship, and so the court was often charged with distinguishing citizens from non-citizens. ... Local citizenship criteria would continue to exist, yet there would be a single body responsible for determining how these criteria would be applied so that, in spite of local differences, people could attain recognition as citizens of the kingdom. ... It meant that the power to recognize people as citizens was no longer only in municipal hands but now, because of the involvement of the court, was shared between the municipality and the king. (Herzog, p.177)
The fiscal court did not have the power to grant citizenship to anyone or to revoke anyone's citizenship. However, if a taxpayer wanted to pay lower taxes, he had to prove that he was a citizen of his local community. In general, if you were a permanent legal resident of an Italian community, you were deemed an Italian citizen for taxation purposes.
Beginning in the mid-sixteenth century and especially through the seventeenth, the court generally held that permanent residence was the principle method for citizenship acquisition. Residence had to be accompanied by an animus permanendi, that is, by a wish to remain in the jurisdiction "for good" and by the promise to establish a stable home in the territory. This wish could be orally attested to, or it could be deduced by observing the behavior of petitioners. (Herzog, p.172-173)
...over time and especially in the seventeenth and eighteenth centuries, Castilian and then Spanish nativeness became associated with local citizenship. People were natives, or became natives, once they established, with the intent to remain permanently, residence in a community located on Spanish territory, or once they gave other proofs of their wish to tie themselves to such community. ... Indeed, like citizenship, nativeness operated on the margins of formal declarations... People obtained it, or lost it, because of the way they behaved rather than because of birth or royal recognition. (Herzog, p.66)
...in Castile, the native born were required to integrate into the community if they wished to obtain recognition as citizens, whereas in Italy birth appears to have granted this status automatically. (Herzog, p.175)
In summary, when the U.S. Constitution was being written, there was no uniform citizenship "rule" that prevailed throughout continental (mainland) western Europe. Quite often, when children were born in a particular place, they were not regarded as natives, subjects or citizens of that place unless some other requirement -- parental residence, parental nationality, parental allegiance or continued residence -- was also met.
During the eighteenth century, two influential European writers -- German philosopher Christian Wolff (1679-1754) and Swiss philosopher Emmerich de Vattel (1714-1767) -- published works in which they discussed, among other things, the "natural law" pertaining to a child's citizenship at birth.
Christian Wolff: In 1749, Christian Wolff published a book, written in Latin, titled Jus Gentium ("Law of Nations"). There was no English-language translation of Jus Gentium when the U.S. Constitution was being written. The first English translation of Jus Gentium appeared in 1934.
There was a French translation of the Jus Gentium in 1757-8 and the Institutiones was translated into both German and French, but American libraries have generally had nothing but the Latin text which repelled modern students. (Wright, p.554).
Wolff's writings were not widely-read in the English colonies in America. But in Europe,
Christian Wolff was perhaps the most influential writer on international law of the eighteenth century. His influence flowed not only from his reputation in other fields -- mathematics, philosophy and theology --, from the voluminousness of his writings, from the notoriety of his philosophical controversies, but also from the logic, completeness and definiteness of his treatise on international law, first published in 1749, as the ninth volume of his Jus Naturae et Gentium. ... [Wolff] carried on the tradition of the Grotian school which rested international law upon the two legs of natural law and voluntary law. (Wright, pp.552-3)
In Jus Gentium, Wolff explained several concepts pertaining to nationality:
For excerpts from a modern-day English translation of Wolff's Jus Gentium, see Appendix 1.
Vattel's Influence: In 1758, four years after Wolff's death, Swiss philosopher Emmerich de Vattel (1714-1767) published Droit des Gens (which also means "Law of Nations"). Droit des Gens was written in French and was based largely on Wolff's work. An English-language translation was published in 1759.
Despite its critics, Vattel's Droit des Gens was immensely popular, especially in America [19].
The extraordinary thing about the enthusiastic acceptance of Vattel's work was that neither Vattel the man, nor the work itself, seemed worthy of it. That is, Vattel was very much an epigone and in no way the intellectual equal of men like Wolff and Liebnitz whose influence, in this field at least, he surpassed. In addition, it is the consensus of scholars that the intrinsic value of Vattel's work was not at all proportionate to the success achieved by it. (Ruddy, p.177)
According to C. Van Vollenhoven, an outspoken critic of Vattel:
...the most disheartening fact of all is that Vattel was enormously successful. The man, who as a thinker and a worker, could not hold a candle to Grotius, was so favored by fortune that the second stage of the Law of Nations (1770-1914 speaking roughly again) may be safely called after him. (Vollenhoven, as quoted in Ruddy, p.178)
Likewise, in 1913, Professor Fenwick remarked:
A century ago not even the name Grotius was more potent in its influence upon questions relating to international law than that of Vattel. Vattel's treatise on the law of nations was quoted by judicial tribunals, in speeches before legislative assemblies, and in the decrees and correspondence of executive officials. It was the manual of the student, the preference work of the statesman and the text from which political philosophers drew inspiration. Publicists considered it sufficient to cite the authority of Vattel to justify and give conclusiveness and force to statements as to the proper conduct of a state in international relations. (Charles G. Fenwick, "The Authority of Vattel", VII American Political Science Review (Baltimore, 1914), p.395, as quoted in Ruddy, p.178)
According to John Basset Moore, Vattel was
...more widely read and quoted than any other writer on the law of nations. (Moore, as quoted in Ruddy, p.178)
Vattel's widespread acceptance and influence is reflected in the number of translations and editions of his work:
There were between 1758 and 1834 twenty French editions of Droit des Gens. There were between 1759 and 1834 ten translations of his work in England, and from 1796 until 1872 eighteen translations, or reprints of translations, published in the United States. Between 1820 and 1836 there were six translations of Vattel into Spanish, one into German in 1760, and one into Italian in 1805. These facts are put into greater perspective if one considers that Grotius, who had been reprinted or translated fifty times between 1625-1758, went through only one more edition (1773) and one more translation (1853) during the hundred years after Vattel's publication. (Ruddy, pp.178-179)
In U.S. courts, Vattel was cited more frequently than all of his predecessors combined. The following chart represents the results of Professor Dickinson's survey of American legal cases from 1789 through 1820:
| Citations in Pleadings | Court Citations | Court Quotations | |
|---|---|---|---|
| Grotius | 16 | 11 | 2 |
| Pufendorf | 9 | 4 | 8 |
| Bynkershoek | 25 | 16 | 2 |
| Vattel | 92 | 38 | 22 |
Vattel's work appeared prominently in American colleges and universities:
James Wilsons' lectures on jurisprudence in 1790, which gave "the first American presentation of the principles of the law of nature and of nations" followed Vattel very closely. In addition, when Jefferson inaugurated the study of the Law of Nature and of Nations at William and Mary College in 1779, the text from then until 1841 was Vattel's. Vattel was also the text at Dartmouth College from 1796-1828. (Ruddy, p.179-180)
The Declaration of Independence and U.S. Constitution contain concepts and ideas which came from Vattel [19].
Vattel is still cited in modern times. In 2008, the U.S. Supreme Court quoted Vattel's Law of Nations regarding civilian access to military weaponry (Footnote 10, page 14, in District of Columbia et al. v. Heller, 2008).
In 2009, Joe Wolverton, II wrote an article listing Vattel as among the "four forgotten influences" on the Founding Fathers:
The fourth of the Four Horsemen of American liberty is Emmerich de Vattel. Although last in this list of forgotten influences, it can be claimed, without exaggeration, that it is Vattel's interpretations and writings on the subject of the proper constitution of government that was most influential on the Founders of the American Republic. As a matter of fact, Thomas Jefferson, indisputably one of the lead framers of our nation's government, ranked Vattel's seminal The Law of Nations, or the Principles of Natural Law as highly as similar treatises by Grotius and Pufendorf. Further proof of Vattel's impression on the Founders is the fact that Vattel's interpretations of the law of nature were cited more frequently than any other writer's on international law in cases heard in the courts of the early United States, and The Law of Nations was the primary textbook on the subject in use in American universities. (Wolverton)
Vattel's Thesis: According to Vattel, the people living in a state consist of inhabitants, perpetual inhabitants, and citizens (roughly analogous to foreigners, aliens and subjects). Inhabitants are those who are living in the state temporarily. Perpetual inhabitants are those who have established a permanent "fixed residence" or "settlement" within that state. A citizen is a perpetual inhabitant who is also a full-fledged member of the state. One cannot be a citizen of a state unless one is also a perpetual inhabitant of that state. The status -- whether "citizen" or "perpetual inhabitant" -- of a child, at birth, is the status of its father at the time of its birth.
Here are some excerpts, organized by subject, from an English translation of Vattel's Law of Nations:
In a more confined sense, and more agreeably to its etymology, this term signifies the state, or even more particularly the town or place where our parents had their fixed residence at the moment of our birth. In this sense, it is justly said, that our country cannot be changed, and always remains the same, to whatsoever place we may afterwards remove. A man ought to preserve gratitude and affection for the state to which he is indebted for his education, and of which his parents were members when they gave him birth. But as various lawful reasons may oblige him to choose another country, -- that is, to become a member of another society; so, when we speak in general of the duty to our country, the term is to be understood as meaning the state of which a man is an actual member; since it is the latter, in preference to every other state, that he is bound to serve with his utmost efforts. (Vattel, § 122)
...for, naturally, it is our extraction, not the place of our birth, that gives us rights... (Vattel, § 216)
As soon as the son of a citizen attains the age of manhood, and acts as a citizen, he tacitly assumes that character; his obligations, like those of others who expressly and formally enter into engagements with society, become stronger and more extensive: but the case is very different with respect to him of whom we have been speaking. ... A citizen may therefore quit the state of which he is a member, provided it be not in such a conjuncture when he cannot abandon it without doing it a visible injury. ... Every man has a right to quit his country, in order to settle in any other, when by that step he does not endanger the welfare of his country. But a good citizen will never determine on such a step without necessity, or without very strong reasons. It is taking a dishonourable advantage of our liberty, to quit our associates upon slight pretences, after having derived considerable advantages from them; and this is the case of every citizen, with respect to his country. (Vattel, § 220)
Summary: During the eighteenth century, several European authors had published their theories regarding natural law and the law of nations. The work of one such author, Emmerich de Vattel, was popular and influential in the English colonies in America, especially after they gained their independence from Great Britain.
Three points regarding citizenship emerge from Vattel's writings:
When the thirteen colonies gained their independence and became the original thirteen States, they did not create a new system of laws and government "from scratch". Instead, each State retained its existing government and laws, and modified them as necessary. Some states retained elements of English common law, including the jus soli principle and the doctrine of perpetual allegiance.
But to what extent did English common law "continue to prevail" at the Federal or national level?
According to one school of thought, since State and Federal governments and laws were patterned after English government and law, English notions of subjecthood and nationality must have persisted under the U.S. Constitution. According to an opposing school of thought, European political and natural law theory, including but not limited to Vattel's Law of Nations, guided the Founding Fathers as they wrote the Declaration of Independence and the U.S. Constitution.
A book titled A Treatise On the Law Of Citizenship In The United States was published in 1891, well after the 14th Amendment was ratified (1868) but well before the Supreme Court ruled in U.S. v. Wong Kim Ark (1898). According to the book's author, Prentiss Webster (1851-1898), differences of opinion regarding citizenship are largely due to differences of opinion regarding our nation's founding principles.
Webster cites expatriation as an example of a citizenship-related controversy.
In Ainslie vs. Martin (1812), the Massachusetts Supreme Court ruled that U.S. citizens do not have a right to terminate their U.S. citizenship and become naturalized citizens of another country:
This claim of the commonwealth to the allegiance of all persons born within its territory may subject some persons, who, adhering to their former sovereign, and residing within his dominions, are recognized by him as his subjects, to great inconvenience, especially in time of war, when the opposing sovereigns claim their allegiance. But the inconvenience cannot alter the law of the land. Their situation is not different in law, whatever may be their equitable claims, from the situation of these citizens of the commonwealth who may be naturalized in the dominion of a foreign prince. The duties of these persons arising from their allegiance to the country of their birth remain unchanged and unimpaired by their foreign naturalization. For by the common law no subject can expatriate himself. (Ainslie vs. Martin (1812), as quoted in Webster, p, 78)
But, in Murray vs. McCarthy (1811), a Virginia court affirmed the right of U.S. citizens to expatriate themselves from the United States, provided that they do so according to law:
It is believed that the right of emigration or expatriation is one of those inherent rights, of which, when men enter into a state of society, they cannot by any compact deprive or divest their posterity. But although municipal laws cannot take away or destroy this right, they may regulate the manner and prescribe the evidence of its exercise, and in the absence of the regulations juris positivi, the right must be exercised according to the principles of law. (Murray vs. McCarthy (1811), as quoted in Webster, p, 79)
The Massachusetts court denied the right of expatriation, but the Virginia court did not. According to Webster, these differing opinions regarding citizenship were due to differing understandings of the Founding Fathers' political philosophy:
By what processes of reasoning these two opinions so diametrically opposed were reached is to be explained by this: that in the first, the common law was believed to be the guide to the declaration of independence and the constitution of the United States, while in the second the reason is from the principles as laid down by the founders of the government and based on the natural law of man. ... The first recognized the English common law as the guide to the American form of government, while the second recognized the government to be founded on the natural law of man. (Webster, p. 79)
As a general rule, those who believe that English common law guided the forming of the U.S. government, tend to also believe that English common law guided the Founding Father's understanding of citizenship. Likewise, those who believe that western European political and natural law theorists, such as Vattel, influenced the Declaration of Independence and U.S. Constitution, tend to also believe that those same theorists influenced the early American meaning of "citizen".
Under English common law, any child born on English soil (except the child of a foreign ambassador or alien enemy) was a natural-born subject, and English natural-born subjects owed perpetual allegiance to the king. Therefore, if you believe that English common law guided the formation of the U.S. national government, you are likely to also believe that U.S. citizenship was based on the jus soli principle, and that U.S. citizens did not have the right of expatriation.
On the other hand, European political and natural law theorists, such as Vattel, taught that children, at birth, acquire citizenship by descent from their fathers, and that expatriation is a basic human right. Thus, if you believe that European theorists influenced the Founding Fathers as they wrote the Declaration of Independence and the U.S. Constitution, you are likely to also believe that the Founding Fathers' understanding of citizenship included the jus sanguinis principle and the right of expatriation.
The differences between English common law and European political theory are summarized in Appendix 3.
After gaining independence, the original thirteen States retained aspects of English common law, including the "rule" which granted citizenship to children of alien parents who, though not yet citizens, had sworn an oath of allegiance to the State and had established permanent legal residence, or domicile, within the State:
While all States could be said to have recognized birth within the State as a means of conferring State citizenship to all persons, it is important to realize these States also required of aliens who desired to become domiciled within their limits to first renounce any allegiances to other governments and pledge their allegiance solely to the State. Therefore, a child born to domiciled parents was "born within the allegiance" of the State even if the parents had not yet been naturalized. (Madison(2007))
However, the early framers of the Federal government seemed disinclined to follow the English understanding of sovereignty and allegiance.
John Jay's notion of "popular sovereignty" reflects European political theory more than English common law:
[T]he sovereignty of the nation is in the people of the nation, and the residuary sovereignty of each State in the people of each State. ...[A]t the Revolution, the sovereignty devolved on the people; and they are truly the sovereigns of the country, but they are sovereigns without subjects (unless the African slaves among us may be so called) and have none to govern but themselves; the citizens of America are equal as fellow citizens, and as joint tenants in the sovereignty. ...
Sovereignty is the right to govern; a nation or State-sovereign is the person or persons in whom that resides. In Europe the sovereignty is generally ascribed to the Prince; here it rests with the people; there, the sovereign actually administers the Government; here, never in a single instance; our Governors are the agents of the people, and at most stand in the same relation to their sovereign, in which regents in Europe stand to their sovereigns. (Chief Justice John Jay, Chisholm v.Georgia, 1793)
According to an article appearing in the Michigan Law Review, the English concept of "subject" was not the same as the Republican concept of "citizen":
Both Jay and Wilson's opinions suggest that usage in the founding era reflected a significant conceptual distinction between the words "subject" and "citizen" -- a distinction that was strongly associated with the ideas about the nature of sovereignty. The term "citizen" reflects the notion that individual citizens are sovereign in a republic, whereas the term "subject" reflects feudal and monarchical conceptual of the monarch as sovereign and the individual as the subject, owing a duty of allegiance and duty to the monarch. This conceptual distinction may be relevant to the original understanding of the phrase "natural born citizen" which was used instead of "natural born subject," the phrase that served as a term of art in English legal usage. The notion of a natural born subject may reflect a feudal understanding of political obligation: those born in the kingdom owed a natural duty of allegiance to their king and were his natural subjects. Given a republic theory of popular sovereignty, citizens are sovereign and the notion of a "natural born subject" would be anathema. (Solum, p.10)
Thomas Jefferson rejected the English common law notion of perpetual allegiance, and affirmed each individual's right of expatriation:
That our citizens are certainly free to divest themselves of that character, by emigration and other acts manifesting their intention and may then become the subjects of another power and be free to do whatever the subjects of that power do. (Thomas Jefferson, as quoted by Webster, p.76)
If we carry Webster's reasoning a step further, the philosophical system that controlled the original meaning of "natural born citizen" was probably the same system that guided the Founding Fathers as they wrote the Declaration of Independence and the U.S. Constitution.
If the Framers of the Constitution were guided by English common law, it's likely that the original meaning of "natural born citizen" was also based on English common law which included the jus soli principle. This would mean that anyone born in the United States (except the child of an ambassador or alien enemy) is at least a U.S. citizen at birth, if not a natural born citizen.
On the other hand, if the Founding Fathers were guided by European political and natural law theorists, such as Vattel, the original meaning of "natural born citizen" probably included the jus sanguinis principle; in which case, you cannot be a U.S. natural born citizen unless your father was a U.S citizen at the time of your birth.
Seven years after A Treatise On the Law Of Citizenship In The United States was published, the U.S. Supreme Court decided the case of U.S. v. Wong Kim Ark.
In the Wong Kim Ark case, the difference of opinion among the justices was rooted in their differing understandings of America's history and founding principles. The split decision in Wong Kim Ark illustrated Webster's main point: that one's understanding of Constitutional citizenship reflects one's belief as to which philosophical system -- English common law, or European political and natural law theory -- guided the framers of the U.S. Constitution.
Three years after the U.S. Constitution was adopted, Congress enacted the Naturalization Act of 1790. The Act granted U.S. citizenship, at birth, to foreign-born children of American parents:
And the children of citizens of the United States, that may be born beyond the sea, or out of the limits of the United States, shall be considered as natural born citizens (Naturalization Act of 1790, boldface emphasis added)
The 1790 Act did not say that foreign-born children of American parents are natural-born citizens. It merely said that such children shall be considered as natural born citizens.
In contrast, the 14th Amendment citizenship clause states, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens ...". The 14th Amendment does not say that such persons are considered as citizens or declared to be citizens. Instead, the Amendment says that such persons are citizens.
Is there a distinction between persons who actually are natural born citizens in fact and persons who are considered as or deemed to be natural born citizens by statute or law?
Such a distinction existed in eighteenth-century English law. When aliens were naturalized by Parliament, they did not become natural-born subjects in any factual or literal sense. Instead, they were "taken and reputed" to be natural-born subjects [66]. Likewise, the Act of Anne did not say that foreign-born children of English fathers are natural-born subjects. The Act merely said that such children shall be "deemed and adjudged" to be natural-born:
The Act did not say in terms that the foreign-born child of natural born parents ... was himself a natural born subject. It said that he was to be "deemed and adjudged" to be such, albeit "to all intents, constructions and purposes whatsoever". (Parry)
In the statutory sense, all English subjects (except persons made denizens by the king) were called natural-born subjects (see Question 19: Natural-born subject). Naturalized subjects and foreign-born children of English fathers were deemed to be natural-born subjects by law. Likewise, in American law, all American citizens, regardless of whether they are naturalized or natural born, have the same rights. There might be a Constitutional difference between naturalized citizens and natural born citizens, but there is no statutory difference between the two. In the statutory sense, all American citizens are considered the same as natural born citizens:
In any case, the Supreme Court long has rejected the notion that naturalized citizens may or should possess rights different from those of other citizens under the law: ... "[The naturalized citizen] is distinguishable in nothing from a native citizen, except so far as the constitution makes the distinction. The law makes none." (Craig v US -- Ruling US Court of Appeals 10th Circuit, 2009).
For purposes of this Tutorial, the difference between Constitutional and statutory natural born citizens is defined as follows:
Currently, there is no Federal law that explicitly defines "natural born citizen" or explicitly confers "natural born citizenship" to anyone. However, the mainstream news media sometimes understands and interprets Federal law as implicitly granting "natural born citizen" status to certain individuals at birth [17]. For purposes of this Tutorial, if a person is deemed a "natural born citizen" pursuant to a statute, we refer to such person as a "statutory natural born citizen".
A statutory natural born citizen is not necessarily the same thing as a Constitutional natural born citizen. The U.S. State Department warns against confusing the two concepts:
...the fact that someone is a natural born citizen pursuant to a statute does not necessarily imply that he or she is such a citizen for Constitutional purposes (U.S. Department of State Foreign Affairs Manual -- 7 FAM 1130, page 9)
If we were to define "natural born citizen" to mean anyone who is a "citizen at birth", our definition of "natural born citizen" would be statutory because it would depend on the statute or law which defines "citizen at birth". Under existing law, all children born in the United States (except the children of foreign diplomats) are "citizens at birth". Therefore, under existing law, almost all children born in the U.S. -- including children of illegal immigrants -- could be regarded as statutory natural born citizens.
At least one lower-court judge has expressed his opinion that the US-born children of illegal-immigrant parents are "natural born citizens". We understand his use of the term "natural born citizen" as statutory, not Constitutional:
Petitioner, Sebastian Diaz-Salazar, entered the United States illegally in 1974 and has been living and working in Chicago since that time. ... The petitioner has a wife and two children under the age of three in Chicago; the children are natural-born citizens of the United States. (Diaz-Salazar v. I.N.S., 1983)
H.R.1940, also known as the Birthright Citizenship Act of 2007, would change the existing law so that it would no longer grant "citizenship at birth" to children of illegal immigrants. If Congress were to pass H.R.1940, it would alter the meaning of "citizen at birth", and therefore would alter our statutory definition of natural born citizen. If H.R.1940 were enacted, the U.S.-born children of illegal immigrants could no longer be regarded as statutory natural born citizens.
If Barack Obama was born in Hawaii, he could be regarded as a statutory natural born citizen. But a statutory natural born citizen is not necessarily a Constitutional natural born citizen.
Not necessarily. The only proper and legitimate means of changing the Constitution is the Constitutional Amendment process. Congress cannot change the Constitution by simply passing a law. Nor can the Constitution be changed by someone's understanding or interpretation of an existing law.
Neither Congress nor society can change the meaning of the Constitution by redefining a word or term that the Constitution uses. As the U.S. State Department has warned (see Question 28: statutory natural born citizens), we cannot assume that "natural born citizen" by modern-day statute or modern-day word usage is the same thing as "natural born citizen" in the Constitution.
Understandably, some Americans question the wisdom of "enforcing the law" and "upholding the Constitution" when the specific provision being upheld or enforced seems to be an antiquated technicality. As long as Barack Obama is doing his job as president, why should his parents' citizenship matter? Obama was elected president, not his parents. His parents passed away many years ago, so how is their citizenship relevant? Is enforcing a parental citizenship requirement really worth the horrific political chaos and unimaginable governmental disruption that might result if Obama were found to be ineligible?
Obama eligibility questioners make three points:
The original purpose of the "natural born citizen" provision was to protect the presidency from foreign influence. A President might pose a national security risk if she or he was born with foreign ties or allegiance:
If we decide to ignore the natural born citizen provision, we open the door to the possibility of a person with strong ties to foreign nations -- possibly stronger than to our own -- to be the sole commander of our military men and women who protect us. And they also deserve our protection -- AT ALL COSTS -- from such a treasonous scenario. (The Dangerous Precedent Set by Obama being President)
Edwin Vieira, one of this nation's leading Constitutional scholars, warns that Obama's questionable eligibility, if left unresolved, could become precedent and justification for unraveling Constitutional authority in the future:
If Obama turns out to be nothing more than an usurper who has fraudulently seized control of the Presidency, not only will the Constitution have been egregiously flouted, but also this whole country could be, likely will be, destroyed as a consequence. And if this country is even credibly threatened with destruction, every American will be harmed -- irretrievably, should the threat become actuality -- including those who voted or intend to vote for Obama, who are also part of We the People. Therefore, in this situation, any and every American must have "standing" to demand -- and must demand, both in judicial fora and in the fora of public opinion -- that Obama immediately and conclusively prove himself eligible for "the Office of President." (Vieira, italics and boldface are as they appear in the original)
As of October 2012, there have been over 175 legal challenges to Barack Obama's eligibility to serve as President. For a comprehensive list of these challenges, see Birther Case List.
Eligibility challenges fall into two categories: direct (quo warranto), and indirect (collateral). A direct challenge seeks to have President Obama removed from a state ballot or removed from office. An indirect challenge does NOT seek the President's removal from office or from any ballot; it merely asks a court to invalidate a specific presidential action (a law that Obama had signed or an executive order that Obama had issued), on the basis that the action is illegal because Obama is not holding office legally.
Nearly all birther lawsuits have been direct challenges to Obama's eligibility. At the time of this writing, indirect challenges have been rare.
Most lawsuits directly challenging Obama's eligibility have been either denied without comment or dismissed on technicalities. In a few cases, a judge has expressed the opinion (usually in the form of non-legally-binding dicta) that persons born in the United States, of alien parents, are "natural born citizens".
Motions Denied Without Comment. In two cases, Donofrio v. Wells and Wrotnowski v. Bysiewicz, the Supreme Court denied the plaintiffs' motions without comment. However, the Court did not dismiss the underlying lawsuits. Both lawsuits are still "alive" today and could be further pursued, if the plaintiffs so choose.
Lawsuits Dismissed for Technical Reasons. In the vast majority of cases, the courts have given three reasons for dismissing birther lawsuits: lack of factual basis, lack of jurisdiction, and lack of standing:
In an interview (September 15, 2012), Attorney Orly Taitz explains her decision to focus on the "birthplace/birth certificate" issue, while ignoring the "dual citizenship/natural born citizen" question:
A lot of people file an objection and discuss only the meaning of "natural born Citizen." Keep in mind that the commissions are not judges, and they will not rule to remove someone from the ballot because of a different interpretation of a "natural born" statute. It's ludicrous to believe that they will do it, because they know that the public will not accept it. The public is not going to go into a deep discussion as to the meaning of the term. Most of the complaints that I have seen are very short on facts and evidence. When I present my case, I present 30 documents that indeed show that it's all a forgery. This is something that the public can appreciate and understand, and their elected officials will be more willing to do something about it. (Orly Taitz, as quoted in Post & Email Interview Sept. 15, 2012, subscription required).
At this time, there are no verified facts which directly impugn President Obama's birth in Hawaii. There are reasons to suspect that the President might have been born overseas, but suspicions are not facts. Presently, there are no facts which directly refute Obama's official birth narrative. Consequently, when birther lawsuits are based solely on the "birthplace" issue, they invariably fail for lack of factual basis.
In one case which was based solely on Obama's purported foreign birth, a judge found insufficient factual basis to proceed:
Plaintiff presents nothing but conjecture and subjective belief to substantiate the basis for her claims (Judge Xavier Rodriguez, as quoted in Order Denying Orly Taitz's Recusal)
The Terry Lakin court martial is another example of a case in which an Obama eligibility questioner raised the "birthplace" issue while ignoring the "dual citizenship" issue. Lieutenant Colonel (LTC) Lakin disobeyed orders that he deemed to be illegitimate because they emanated from a purportedly ineligible Commander in Chief. During his defense, LTC Lakin did not present the fact of Obama's foreign nationality at birth. Instead, Lakin's defense focused on uncertainty regarding the President's birthplace. A military court ruled that his "uncertainty" did not relieve LTC Lakin of his obligation to obey orders ('Birther' Dismissed from Army for Refusing Deployment, Sentenced to Six Months in Prison).
In Farrar et al. v. Obama, the plaintiffs asserted:
...that Mr. Obama maintains a fraudulently obtained social security number, a Hawaiian birth certificate that is a computer-generated forgery, and that he does not otherwise possess valid U.S. identification papers. Further, Plaintiffs submit that Mr. Obama has previously held Indonesian citizenship, and he did not use his legal name on his notice of candidacy, which is either Barry Soetoro or Barack Obama Soebarkah. (Farrar et al. v. Obama, 2012)
In that case, an administrative court judge found that "the testimony of the witnesses, as well as the exhibits tendered, to be of little, if any, probative value, and thus wholly insufficient to support Plaintiffs' allegations." (Farrar et al. v. Obama, 2012)
There may very well be a legitimate role for the judiciary to interpret whether the natural born citizen requirement has been satisfied in the case of a presidential candidate who has not already won the election and taken office. However, on the day that President Obama took the presidential oath and was sworn in, he became President of the United States. Any removal of him from the presidency must be accomplished through the Constitution's mechanisms for the removal of a President, either through impeachment or the succession process set forth in the Twenty-Fifth Amendment. Plaintiffs attempt to subvert this grant of power to Congress by convincing the Court that it should disregard the constitutional procedures in place for the removal of a sitting president. The process for removal of a sitting president -- removal for any reason -- is within the province of Congress, not the courts. ... Therefore, the Court finds that it lacks jurisdiction... (US District Judge David O. Carter, Barnett v. Obama, October 29, 2009, pp.24-25)
The best dream team of lawyers ... may bring all the law suits they like for the best possible reasons in favor of the most perfectly possible plaintiffs with undeniable standing as to injury in fact and causality, but the courts do not have the authority -- under the Constitution -- to remove a sitting President. Those law suits will fail and they should fail. ... Nowhere in the Constitution does it give the Judicial Branch the power to remove a sitting President. (Leo Donofrio, Quo Warranto Legal Brief -- Part 2).
There is one exception to the general rule. The DC District Court has Congressional authority to hear an eligibility challenge regarding any appointed or elected official who holds a Federal office located within the District of Columbia. It appears the DC District Court is the only court which might have jurisdiction over a direct (quo warranto) challenge to President Obama's eligibility:
The writ of quo warranto must be brought within the District of Columbia because President Obama holds office within that district. The quo warranto provision codified in the District of Columbia Code provides, "A quo warranto may be issued from the United States District Court for the District of Columbia in the name of the United States against a person who within the District of Columbia usurps, intrudes into, or unlawfully holds or exercises, a franchise conferred by the United States or a public office of the United States, civil or military." D.C. Code §§ 16-3501 - 16-3503. Should a person other than the Attorney General of the United States or the United States Attorney wish to bring a quo warranto claim, that person must receive leave of court to do so. Id. at § 16-3502. This leave of court must be granted, accordingto the text of the statute, by the District Court for the District of Columbia. ......while this Court [the U.S. District Court for the Central District of California] can apply the law of other jurisdictions where appropriate, it is precluded from robbing the D.C. court of jurisdiction as to any quo warranto writ against President Obama because the D.C. Code grants exclusive jurisdiction to the District Court for the District of Columbia. Plaintiffs' quo warranto demand is hereby DISMISSED for improper venue. (US District Judge David O. Carter, Barnett v. Obama, October 29, 2009, pp.25-26)
Judge Carter's opinion suggests that, if the President's eligibility is directly challenged before any court other than the DC District Court, such challenge will fail for lack of jurisdiction.
Plaintiffs [Drake and Robinson] argue that the injury they suffered was the deprivation of the right to run for office on a fair playing field against only candidates who meet the constitutional requirements to serve as President. Under this theory, the injury is not that of being deprived the chance to win, but being deprived the chance to compete only against "legitimate" candidates. If the Court accepts this concept of injury, then all candidates would have standing to sue the President on the basis that they wereall injured by having to compete against him in the national election. ...the political candidate plaintiffs are the only category of plaintiffs who potentially satisfy the injury-in-fact requirement... (US District Judge David O. Carter, Barnett v. Obama, October 29, 2009, p.16)
In addition, if a plaintiff has suffered an injury in fact (loss of job, franchise, income, etc.) as a direct result of a presidential action, such plaintiff would have standing to challenge the presidential action on the basis of the President's ineligibility. Such a challenge -- called an "indirect" or "collateral" challenge -- would not seek to remove the President from office. It would merely seek to undo the presidential action which had caused the plaintiff harm or injury. Nevertheless, an indirect challenge would compel a court hearing into the President's "natural born citizen" status. (See Question 37: Quo Warranto).
In order to challenge the eligibility of a sitting President, a plaintiff must (a) have permission from the Justice Department, or (b) have a legal "interest" in the Office of President, or (c) have suffered an injury in fact as a direct result of a presidential action. Otherwise, the plaintiff's challenge to the President's eligibility will invariably fail for lack of standing.
Judicial Commentary: In a few cases, judges have commented on the meaning of "natural born citizen". In every such case, a judge has expressed the opinion that all persons born in the United States (except children of foreign diplomats and alien enemies) are "natural born citizens", regardless of their parents' citizenship. This opinion is largely based on this text from the Supreme Court's opinion in U.S. v. Wong Kim Ark (1898):
It thus clearly appears that by the law of England for the last three centuries, beginning before the settlement of this country, and continuing to the present day, aliens, while residing in the dominions possessed by the crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, and the jurisdiction of the English sovereign; and therefore every child born in England of alien parents was a natural-born subject, unless the child of an ambassador or other diplomatic agent of a foreign state, or of an alien enemy in hostile occupation of the place where the child was born. (U.S. v. Wong Kim Ark, 1898)
In these cases, judges have reasoned that, since everyone born in 18th century England was a natural-born subject, everyone born in the United States must be a natural born citizen. (See Question 11: Wong Kim Ark).
Although not a case deciding eligibility for president, the case of U.S. v. Wong Kim Ark, 169 U.S.649 (1898), discussed the common law of citizenship extensively. ... While the term used in Wong Kim Ark in relation to the English common law is "natural-born subject," there is no apparent distinction between it and "natural born citizen." (Paige v. Obama, 2012)
Summary: The vast majority of eligibility lawsuits have failed because they did not meet factual, jurisdictional and/or standing requirements. In a few cases, judges have commented on the Obama eligibility question. In these few cases, judges have consistently expressed the same opinion -- that, according to the Supreme Court's reasoning in U.S. v. Wong Kim Ark (1898), anyone born on U.S. soil (other than the child of a foreign diplomat or alien enemy) is a natural born ctizen.
If past performance is indicative of future results, it would appear that future lawsuits challenging President Obama's eligibility, even if they meet the standing and jurisdictional requirements, will probably fail unless they either (a) offer new, more concrete evidence of Obama's foreign birth, or (b) show conclusively that the Supreme Court's reasoning in U.S. v. Wong Kim Ark is unsound.
Birthers are divided over the birthplace issue. Some believe President Obama was born outside the United States. Others believe that, when the President's long-form birth certificate is released, it will show conclusively that he was born in Hawaii.
Most birthers, when asked, "Is Barack Obama a U.S. citizen? Was he born in Hawaii? Is he eligible to serve as President?", will generally answer:
"We don't know. That's what we are trying to find out!"
Joseph Farah, a well-known "birther" spokesperson, emphasizes that he is not claiming that President Obama is foreign-born:
I remain absolutely agnostic on the question of whether Obama is constitutionally eligible to serve. I just plain don't know -- and I'm honest enough to say it, over and over again. (Joseph Farah, Who are the real conspiracy theorists?, March 1, 2010)
WorldNetDaily, which routinely reports on the Obama eligibility issue, has never reported that Obama was foreign-born:
WND, meanwhile, has never reported Obama was born outside the U.S. Instead, WND has reported that Obama has not released documentary evidence conclusively proving his place of birth. (WorldNetDaily article, Obama pal slams WND for eligibility reporting, July 21, 2010)
The birthers.org website does not claim that Barack Obama was born in a foreign country. It says there is uncertainty regarding the President's place of birth and calls for a resolution of this uncertainty:
The question of Barrack Hussein Obama, II's actual location of birth is of great concern. Until he releases his vault copy, of the long form birth certificate and supporting evidence such as the hospital records, this issue will haunt him for his entire term in office. (Birther website article: Where in the World Was Obama Born?)
Pamela Barnett, founder of Obama Ballot Challenge, explicitly states, in her book Obama Never Vetted, that she is not claiming that Obama was foreign-born:
I am not making any claims as to where Obama was or was not born because no substantial court-admissible proof of Obama's birth has been produced. (Barnett)
Among the various attorneys and plaintiffs who have filed lawsuits challenging the President's eligibility and/or seeking the release of his original long-form birth certificate, there is no consensus of opinion regarding the President's actual place of birth.
As this Tutorial has pointed out, there are facts which give rise to suspicion and doubt regarding the President's place of birth. However, at the time of this writing, we are not aware of any verified fact that directly challenges Obama's birth in Hawaii.
In at least one case in which a plaintiff's lawsuit was based solely on the birthplace/birth certificate issue, a court found insufficient factual evidence to proceed:
Plaintiff presents nothing but conjecture and subjective belief to substantiate the basis for her claims (Judge Xavier Rodriguez, as quoted in Order Denying Orly Taitz's Recusal)
Birthers generally concede they do not have a "smoking gun" regarding the birthplace issue. They have reasons for suspicion and doubt about the President's place of birth, but they do not have enough solid factual evidence to prove, in court, that Obama was born outside of the United States. At the same time, birthers also point out that there is insufficient information in the public domain to conclusively establish Obama's birth in Hawaii.
Most certainly not! President Obama has stated publicly that his father was not a U.S. citizen. According to the birthers' understanding of American history, if his father was not a U.S. citizen, President Obama cannot be a Constitutional natural born citizen, regardless of where he was born. If President Obama was born in Hawaii, he could be regarded as a statutory natural born citizen, but he would not necessarily be a Constitutional natural born citizen (See Question 28: Statutory natural born citizen).
Regardless of what his birth certificate says, Obama's presidential eligibility will never be settled or resolved, until the Supreme Court decides whether the U.S.-born children of non-U.S.-citizen parents are Constitutional natural born citizens.
The first eligibility lawsuit against Barack Obama was filed by Phil Berg, a lifelong Democrat.
A few days before the Republican National Convention, John McCain's eligibility was challenged in court (California lawsuit questions McCain's Eligibility for Presidency).
In Donofrio v. Wells (October 2008), the plaintiff sought to remove three presidential candidates from the New Jersey ballot during the 2008 presidential election: Democratic candidate Barack Obama, Republican candidate John McCain, and Socialist Workers Party candidate Roger Calero. All three were subject to foreign jurisdiction at birth.
John McCain was born in the Colon Hospital, in Colon, Panama. He was not born in the Panama Canal Zone as widely believed. (See John McCain's short-form Certificate of Live Birth, and long-form birth certificate). McCain was a U.S. citizen at birth, due to the fact that his parents were U.S. citizens. His citizenship status, at birth, was also governed by Panamanian law, due to the fact that he was born in Panama. Although he did not acquire Panamanian citizenship, he did acquire, at birth, right to expedited Panamanian citizenship in later life [90].
Roger Calero was born in Nicaragua. At the time of his presidential candidacy, he was not a U.S. citizen.
From its inception in 1854 and throughout its history, the Republican Party has accommodated presidential candidates whose Constitutional eligibility is uncertain.
At the time, the foreign-born children and grandchildren of British natural-born subjects were deemed to be natural-born subjects by British law. Unless Miles Romney expatriated himself from Great Britain and became a naturalized U.S. citizen, his son (Miles Park Romney) and grandson (Gaskell Romney) acquired British nationality at birth.
We were not able to find any evidence that either Miles Romney or his son, Miles Park Romney, ever petitioned for U.S. naturalization. It appears that Miles Park Romney was born in the United States, of a British father, and was therefore a British subject, not a U.S. citizen, at birth.
Since Miles Park Romney was born and raised in the United States, he may have assumed that he was a U.S. citizen. In later life, when he traveled to Europe, he was listed on the ship's manifest as an American.
Miles Park Romney moved from Illinois to Utah, presumably during the Mormon Migration (1845-1846) when Utah was still part of Mexico. After the Mexican-American War, Mexico ceded Utah to the United States. Under Article VIII of the Hildago Treaty of 1848, Mexican citizens, living in Utah, were eligible for U.S. citizenship. The treaty did not confer U.S. citizenship to non-Mexicans residing in Utah.
The Territorial Act of 1850 did not confer U.S. citizenship to anyone. It did, however, recognize Mexicans who became U.S. citizens under the Hildago Treaty. The Territorial Act gave all Utah residents the right to vote and run for public office in Utah's first election, but in all subsequent elections in Utah, only U.S. citizens were permitted to vote or hold public office.
Utah became an incorporated territory of the United States on September 9, 1850, and became a state on January 4, 1896 (Wikipedia: Utah Territory). Miles Park Romney's son, Gaskell Romney, was born in Utah in 1871, roughly three years after the 14th Amendment was ratified. According to a modern-day interpretation of the 14th Amendment, children born within an incorporated territory of the United States acquire U.S. citizenship at birth:
...the territories to which the Constitution is fully applicable are called "incorporated territories". It has been held that persons born in these territories on or after the date they became part of the United States could claim U.S. citizenship under the 14th Amendment. (7 FAM 1120, p.2)
However, the 14th Amendment was understood differently in 1871, when Gaskell was born. At the time, if children were subject to a foreign power when they were born, they did not acquire U.S. citizenship at birth, even if they were born on U.S. soil (see Question 10: Jurisdiction). Since Gaskell's father (Miles Park Romney) was apparently a British subject, not a U.S. citizen, and since there is no evidence that Gaskell ever petitioned for naturalization, Gaskell's citizenship is in doubt. It appears Gaskell improperly assumed he was a U.S. citizen because he was born within U.S.-controlled territory.
Around 1885, when he was about 14 years old, Gaskell and his parents moved to Mexico and remained there until 1912, when the Mexican Revolution compelled their return to the United States. In 1895, while still in Mexico, Gaskell married Anna Amelia Pratt. The couple's fourth son, presidential candidate George Romney, was born in Mexico in 1907.
The Mexican Nationality Act of 1886 was in effect at the time of George Romney's birth. Since he was born in Mexico, of a non-Mexican father, George acquired deferred Mexican citizenship at birth. He would automatically become a Mexican citizen when he reached adulthood (unless, in adulthood, he made a choice to refuse Mexican citizenship and retain his parents' nationality). Prior to adulthood, George was technically a "foreigner" under 1886 Mexican law:
Children of a foreign father or a foreign mother and an unknown father, born within the national territory, [are foreigners] until they attain the age when, in conformity with the law of nationality of the father or mother, respectively, they should be of age. After the year succeeding that age has elapsed, without their declaring their intention before the political authority of their residence that they follow the nationality of their parents, they shall be considered as Mexicans. (Mexican Nationality Act of 1886, Article 2, subsection II)
Children born in Mexico, of non-Mexican fathers, were Mexican citizens, but only in a deferred sense. Their Mexican citizenship, though acquired at birth, remained suspended until adulthood:
The Mexican Constitution of 1857 provided that aliens who had Mexican sons were to be considered Mexican, unless they manifested the intention to conserve their nationality. It also provided that Mexican citizenship would be lost by reason of serving officially the Government of another State. A law of 1886 provided that sons born in Mexico of an alien father should be considered as Mexicans, unless within one year after reaching majority they should manifest their intention to retain the nationality of their parent before the political authority of the place of their residence. (Pinson v. Mexico, Report of International Arbitral Awards, 19 October 1928, p.328)
The 1886 Mexican law imposed a residency requirement on citizenship. The status of a Mexican citizen would revert to "foreigner" if she or he was absent from Mexico without permission and/or legitimate reason.
Foreigners are ... III. Those absent from the Republic without leave of absence or government commission, or on account of studies, public interest, business, or industrial firm, or the practice of some profession, that may allow ten years to elapse without asking permission to extend their absence. (Mexican Nationality Act of 1886, Article 2)
The 1917 Constitution of Mexico specified that "those born in the territory of the Republic, regardless of the nationality of their parents" are Mexicans by birth. Hence, after 1917, the Mexican citizenship that George Romney had acquired at birth was no longer suspended or deferred. Moreover, under the 1917 Constitution, there was no longer a residency requirement for Mexican citizenship. Mexican citizens did not automatically lose their Mexican citizenship solely because they had established long-term residence outside of Mexico, except in cases in which naturalized Mexican citizens returned to their country of origin and resided there "for five consecutive years".
According to 1967 Congressional testimony, George Romney was "a citizen of Mexico by birth":
It will seem from the foregoing that Mr. George Romney was born in Chihuahua, Mexico of an American born father and by virtue of the birth and citizenship of his father in the United States, George was born with dual citizenship, being a citizen of Mexico by birth and becoming a citizen of the United States at birth automatically by naturalization pursuant to the Act of Congress granting automatic naturalization in such circumstances. This type of American citizenship is a qualified one and requires an election on his part upon arriving at his majority, or within a reasonable time thereafter. ... Mr. Romney appears probably to be a citizen of the United States. (Congressional Record, June 14, 1967, pp. 15875-6)
From 1926 through 1928, George Romney served as a Mormon missionary in England and Scotland. If he traveled to those countries on a U.S. passport, he automatically lost his Mexican citizenship. Article 37 of the 1917 Mexican Constitution states that "Mexican nationality is lost ... by obtaining and using a foreign passport".
Even if George had not used a U.S. passport, he still would have lost his Mexican citizenship when he accepted U.S.-government employment. In 1929 and 1930, George Romney worked for Massachusetts Democratic U.S. Senator David I. Walsh, "first as a stenographer using speedwriting, then ... as a staff aide working on tariffs and other legislative matters" (Wikipedia: George Romney). According to Article 37 of the 1917 Mexican Constitution, an individual loses her/his Mexican citizenship "By serving the government of another country, or accepting ... employment without previous permission of the Federal Congress".
George Romney undoubtedly lost his Mexican citizenship before his son, Mitt Romney, was born in 1947, and well before he (George) ran for the Republican presidential nomination in 1968. Since the citizenship of his father, Gaskell Romney, is uncertain, there exists a possibility that George never acquired U.S. citizenship. But, even if George were a U.S. citizen, his natural born citizen status remains in doubt, due to the fact that he was born in a foreign country.
Mitt's father, George Romney, was born in Mexico in 1907. It is generally assumed that George acquired U.S. citizenship, at birth, by descent from his father, Gaskell Romney, and that Gaskell, in turn, was a U.S. citizen by virtue of birth in Utah in 1871. These assumptions, however, remain in doubt. Gaskell's father, Miles Park Romney, was the U.S.-born son of Miles Romney, a British immigrant. It appears that neither Miles Romney nor his son, Miles Park Romney, were naturalized in the United States. During the 1800s, the U.S.-born children of non-U.S.-citizen fathers did not necessarily acquire U.S. citizenship at birth [92]. If Miles Park Romney was not a U.S. citizen, it is possible that neither his son (Gaskell Romney) nor his grandson (George Romney) was a U.S. citizen.
Gaskell moved to Mexico around 1885, where he remained until 1912, when the Mexican Revolution compelled his return to the United States. Gaskell repeatedly claimed that he was a U.S. citizen and had remained so while in Mexico. In 1938, a Special Claims Commission awarded $9,163 to Gaskell for losses he incurred in Mexico as a result of the Mexican Revolution. Under Commission rules, Gaskell could not have received any such award without swearing that he was a U.S. citizen. Nevertheless, doubts remain regarding Gaskell's citizenship (see Mitt Romney vs natural born citizenship).
Under the Mexican Nationality Act of 1886, you had a right to become a Mexican citizen if you either (a) begat a son which was born in Mexico, or (b) acquired real estate in Mexico. Persons eligible for Mexican citizenship include:
Since Gaskell had acquired property in Mexico and had fathered Mexican-born sons, he was eligible for Mexican citizenship. The deed to property he purchased in Mexico, and the birth certificates of his children born in Mexico, should indicate whether Gaskell became a Mexican citizen while in Mexico. According to an 1868 Bancroft Treaty between the U.S. and Mexico, any U.S. citizen who became a naturalized Mexican citizen automatically lost his U.S. citizenship:
Those citizens of the United States who have been made citizens of the Mexican Republic by naturalization, and have resided, without interruption, in Mexican territory five years, shall be held by the United States as citizens of the Mexican Republic, and shall be treated as such. (Convention Between the United States of America and the Republic of Mexico, 1868, as cited in Davis, p.585).
If Gaskell Romney lost his U.S. citizenship prior to 1907 or had never acquired it in the first place, his son, George Romney, was not a U.S. citizen at birth. On the other hand, if Gaskell (as he claims) was and remained a U.S. citizen while in Mexico, George Romney acquired qualified U.S. citizenship at birth. George's U.S. citizenship was qualified because it required "election" in later life:
George was born with dual citizenship, being a citizen of Mexico by birth and becoming a citizen of the United States at birth automatically by naturalization pursuant to the Act of Congress granting automatic naturalization in such circumstances. This type of American citizenship is a qualified one and requires an election on his part upon arriving at his majority, or within a reasonable time thereafter. (Congressional Record, June 14, 1967, pp. 15875-6)
Prior to 1952, children born with dual citizenship were required to "elect" U.S. citizenship when they became adults:
...there remained one other unavoidable source of plural citizenship: the varying rules adopted by different nations for the acquisition of nationality at birth. The United States had enshrined the jus soli ... meaning that virtually anyone born on American soil is a US citizen. But most European states, the primary source of our 19th century immigration, followed the jus sanguinis, the right of blood, whereby citizenship depends on descent, not the place of birth. Dual nationality often resulted. The State Department had an answer, however, adopting a stance common to several other governments of the day. It insisted that children born with double nationality had to choose one or the other upon attaining majority -- a process known as "election." (Dual Nationality)
George Romney's citizenship status is uncertain. Even if George acquired U.S. citizenship from his father (Gaskell), it remains unclear precisely when or how George fulfilled the U.S. State Department's citizenship "election" requirement. George Romney might not have been a U.S. citizen when his son, Mitt Romney, was born, and therefore Mitt Romney, though a U.S. citizen by virtue of birth in the United States, might not be a natural born citizen (Ballot Challenge to Mitt Romney's Eligibility Filed in Illinois).
Rick's paternal grandfather, Pietro Santorum, emigrated to the United States from Italy in 1923. At the time, his pregnant wife, Maria Santorum, remained in Italy, where she gave birth to their son, Aldo Santorum. Since he was born in Italy, to parents who were Italian citizens, Aldo was a citizen of Italy by birth.
Aldo's father, Pietro, became a naturalized U.S. citizen on April 14, 1930. Shortly thereafter, Pietro brought his family, including his son Aldo, to the United States.
An under-age foreign-born child is eligible for derivative U.S. citizenship when two conditions are met: (a) the child receives legal permanent resident (LPR) status, and (b) one of the child's parents becomes a naturalized U.S. citizen. In modern-day law, the order of the two conditions doesn't matter. But apparently, in 1930, you did not automatically acquire derivative citizenship from a parent unless, at the time of that parent's naturalization, you were already a green card holder living with that parent in the United States:
Parents naturalized before May 24, 1934: You derive citizenship if either parent naturalized prior to your 21st birthday and you held a green card at the time (Getting Citizenship Through Parent's Naturalization).
Since Aldo was not yet living in the United States at the time of his father's naturalization, Aldo's derivative citizenship was not entirely automatic. Nevertheless, Aldo's eligibility for U.S. citizenship was well established in two ways: First, his father properly registered Aldo with the INS on August 23, 1930. Second, Aldo served in the U.S. military from 1942 to 1946. (Santorum's Mom: I Can Document Rick's Eligibility).
Aldo's son, Rick Santorum, was born in Virginia on May 10, 1958. Three years later, on April 17, 1961, Aldo made his U.S. citizenship "official". He renounced his Italian citizenship and applied for a U.S. Certificate of Citizenship (Aldo Santorum Citizenship documents). Aldo had the right to become a U.S. citizen anytime after 1946, but he chose not to exercise that right until three years after his son, Rick Santorum, was born (Rick Santorum Born a Dual-Citizen).
In 1859, Attorney General Jeremiah Black expressed an opinion that a "native" (natural born citizen) is one who "never did owe fealty" to any sovereignty other than the United States (Black). An argument could be made that, even though Bachmann acquired U.S. citizenship at birth and retained her U.S. citizenship throughout her lifetime, she nevertheless lost her "native", or "natural born citizen", status when she became a citizen of a foreign country.
Given its history of accommodating eligibility-questionable presidential candidates, any GOP challenge to President Obama's "natural born citizen" status would be hypocritical.
Quo Warranto (Latin for "By what warrant?") is a judicial hearing for the purpose of determining whether an elected or appointed public official has legal authority to hold the office he or she is currently holding (Charlton). Information regarding the Federal Quo Warranto Statute can be found at these sites:
In a quo warranto action, the burden of proof lies with the public official whose eligibility is being challenged. The office holder is asked to substantiate her or his authority to hold public office. If the office holder cannot or will not do so, he or she is removed from office.
Various states and the District of Columbia have enacted their own quo warranto laws. These non-Federal laws should not be confused with the Federal quo warranto statute.
Congress enacted the Federal quo warranto statute in 1902 and revised it in 1963 to is present form. This statute consists of three sections, labeled 16-3501, 16-3502 and 16-3503 respectively. All three sections are reprinted in Appendix 4.
Section 16-3501 states:
A quo warranto may be issued from the United States District Court for the District of Columbia in the name of the United States against a person who within the District of Columbia usurps, intrudes into, or unlawfully holds or exercises, a franchise conferred by the United States or a public office of the United States, civil or military. The proceedings shall be deemed a civil action.
This section, as written, suggests:
In theory, a quo warranto can remove a sitting president who is found to be ineligible. Attorney Mario Apuzzo has questioned this theory (Quo Warranto and the Kerchner v. Obama). Attorney Leo Donofrio insists the theory is sound (Misconceptions about Quo Warranto).
Direct Challenge: A "direct" quo warranto challenge, if successful, would remove an ineligible elected or appointed Federal official from office.
A "direct" challenge cannot be instituted unless there is an evidentiary fact which directly impugns a person's eligibility to hold the Federal office he or she is currently holding. At the time of this writing, there is only one verified fact that directly challenges Obama's eligibility: his British citizenship at birth. A variety of other facts -- such as his refusal to release his original long-form birth certificate and his grandmother's testimony regarding his birth in Kenya -- give rise to suspicion and doubt, but are not sufficient to support a legal challenge to Obama's eligibility.
When given a substantive evidentiary fact that directly challenges a Federal office holder's eligibility, any of the following may institute a "direct" Federal quo warranto proceeding in the DC District Court.
Since the U.S. Attorney General and the U.S. Attorney for the District of Columbia are Obama appointees, the Justice Department is not likely to institute a "direct" quo warranto action against the President, and is not likely to grant permission to a "third person" wishing to pursue such an action. However, an "interested person" may petition the DC District Court directly, without the Justice Department's permission.
Past and present presidential and vice presidential candidates might qualify as "interested persons". Plausibly, any one of them could bypass the Justice Department, go directly to the DC District Court, and ask for permission to initiate a quo warranto regarding Obama's presidential eligibility.
In Newman v. United States (1915), the Supreme Court expanded the meaning of "interested person". The Court said:
The rule is the same regardless whether the office is elective or appointive. For in neither case is there any intent to permit the public office to be the subject matter of private litigation at the instance of one who has no interest therein which differs from that of every other member of the public. The claim that this construction makes the statute nugatory cannot be sustained, for the statute, as already pointed out, gives a person who has been unlawfully ousted before his term expired a right, on proof of interest, to the issuance of the writ, and there might be cases under the civil service law in which the relator would have an interest and therefore a right to be heard. (Newman v. United States, 1915, boldface emphasis added)
The phrase "cases under the civil service law" might mean that someone like Inspector general Gerald Walpin, who was fired from his civil service job by President Obama, might qualify as an "interested person".
Indirect Challenge: The DC Court of Appeals, in Andrade v. Lauer (1984), said that, if you suffered an "injury in fact" as a direct result of an official action by an ineligible Federal office holder, you may file an "indirect" (or "collateral") challenge against the official action, based on the office holder's ineligibility.
In the Andrade case, the plaintiffs were Government employees who lost their jobs to "reduction in force" ordinances which cut whole departments from the Government budget. The plaintiffs sued alleging those who did the cutting were not Constitutionally qualified to make such decisions in that their appointments violated the appointments clause of the US Constitution.The DC District Court held that the plaintiffs had no standing other than to bring a "direct attack" in quo warranto to remove the alleged usurper. But the DC Court of Appeals reversed and said that plaintiffs, who had suffered real injuries, could bring such an action on a case by case basis if they could prove their injuries in fact (being fired) was caused by a Government official who was not eligible to serve. (Leo Donofrio, Misconceptions about Quo Warranto, 2009)
An "indirect" challenge, if successful, would not remove an usurper from office, but it would undo the usurper's action which had caused harm or injury.
In Bond v. United States (2011), the Supreme Court unanimously ruled that a private citizen has standing to challenge the constitutionality of a Federal law if the private citizen is subject to fine and/or incarceration as a result of such law. For example, if you are found guilty of violating a Federal statute that President Obama had signed into law, you might have standing to ask a Federal court to overturn the statute and invalidate your conviction, on the basis that the statute was signed by a Constitutionally ineligible President:
Applying the Bond decision to a case challenging Obama's eligibility, one would have to be criminally charged or be compelled to pay money under a statute passed by Congress when Obama was President. ... Then one would argue that the law is not valid because it never was presented to a legitimate President for consideration under Article I, Section 7, Clause 2, arguing that Obama is not a legitimate President because he does not meet the requirements of the "natural born Citizen" clause. Hence, one would argue that separation of powers and checks and balances have been violated. Obama's eligibility to be President under the "natural born Citizen" clause would be the basis for the attack against the charging statute. Since the office of the President is a constitutional office, the de facto officer doctrine (that we should treat Obama as the President by fact even though he is not by law) should not be an obstacle to this argument. (Bond v. United States and Standing to Challenge Putative President Obama on His Eligibility to be President)
In an "indirect" challenge, a plaintiff would not seek to have President Obama removed from office. The plaintiff would merely ask a court to invalidate a law or executive action which (a) was signed by President Obama and (b) is causing actual harm or injury to the plaintiff. An "indirect" challenge, by itself, would not end Obama's Presidency, but nevertheless could bring about a judicial hearing into Obama's "natural born citizen" status.
(1) Learn the "core" facts regarding President Obama's eligibility. See (Question 5. In a nutshell, what is the Obama eligibility controversy?).
(2) Avoid -- and encourage others to avoid -- mischaracterizing the birther controversy as being solely about Obama's birthplace and birth certificate. In general, birthers do not claim that Obama was foreign-born. They merely point out that there is uncertainty regarding the President's place of birth. Of greater importance is the fact that, regardless of his place of birth, Obama acquired foreign citizenship, at birth, by descent from his father. This fact, verified by Obama's own public admission, directly challenges the President's natural born citizenship and Constitutional eligibility.
(3) Inform your elected representatives, both Federal and State, of the facts which give rise to doubts concerning the President's eligibility to hold office. Advise your elected representatives that, whenever there are facts indicating a violation of the Constitution, their oath to uphold the Constitution requires a timely investigation and resolution of those fact.
(4) Ask your U.S. senators and U.S. representatives to enact Federal legislation requiring future presidential and vice presidential candidates to establish their eligibility prior to running for office. An example of such legislation is H.R.1503, the purpose of which is:
To amend the Federal Election Campaign Act of 1971 to require the principal campaign committee of a candidate for election to the office of President to include with the committee's statement of organization a copy of the candidate's birth certificate, together with such other documentation as may be necessary to establish that the candidate meets the qualifications for eligibility to the Office of President under the Constitution. (H.R.1503)
(5) Ask your State representatives to support State legislation barring from the State ballot any presidential or vice presidential candidate who fails to conclusively establish his or her eligibility to hold office. Examples of such State legislation include Nebraska Legislative Bill 654 and Arizona HB2480.
(6) If you know persons, businesses or states which have suffered "concrete and particularized injury" (loss of job, franchise, income or investment) as a direct result of an official action by President Obama, or if you know any persons who face fine or incarceration for violating a law that President Obama had signed, let them know they may have standing to challenge the official action or law, on the basis of the President's ineligibility. See Benefiting from Obama's Ineligibility.
(7) If you have access to presidential and vice presidential candidates, let them know they may have standing, as "interested persons", to petition the DC District Court for permission to begin a quo warranto challenge to President Obama's eligibility. The petitioner does not need to believe that the President is ineligible; he or she only needs to believe that "clearing the air" of uncertainty surrounding the President's eligibility is in the nation's best interest. After filing a petition, the petitioner's direct personal involvement in the matter would end; the lawyers would take over from there.
(8) Stay informed. From time to time, these sites (listed in alphabetical order) provide news, commentary and information regarding the Obama eligibility controversy, and the various eligibility lawsuits currently in progress:
(9) If you are a person of religious faith, pray for resolution of the Obama presidential eligibility controversy.
These excepts, from an English translation of Jus Gentium, illustrate Christian Wolff's mid-eighteenth-century understanding of international law regarding citizenship:
|
Domicile is defined to be a fixed dwelling in some place with intention of remaining there permanently. In the native vernacular it is called die Behausung [the housing]. Since for establishing a domicile the intention is required of remaining permanently, a domicile is not understood to be fixed, unless the intention of remaining permanently is adequately declared, either expressly or impliedly, therefore one does not have domicile in a place where he lives for the purpose of some business. Nevertheless, since any one is allowed to change his intentions as long as he does nothing contrary to the right of another, a domicile can be changed, that is, it is not of itself unchangeable. So an ambassador, though he lives for many, nay, very many, years with his family at some court, and possess his own home in the city, does not nevertheless on this account have domicile there. Likewise, he who for the purpose of trade dwells anywhere for a long time does not nevertheless have domicile there, but remains a foreigner. Natural domicile is defined as that which any one acquires by birth, in the place where his father had domicile. That is called acquired domicile which any one has established for himself on his own will. Therefore any one is supposed to retain his natural domicile as long as he has established none for himself by his own will, or has not abandoned it. A vagabond is defined as one who has no domicile anywhere. And so vagabonds live now in one place, now in another, nevertheless have no intention of remaining anywhere permanently. However, since one is supposed to retain his natural domicile as long as he has established none for himself by his own will, vagabonds also are usually supposed to retain their domicile. But since nothing prevents any one from leaving his natural domicile and from being able to have the intention of remaining permanently in no particular place, vagabonds do not retain their natural domicile, if they leave it with the intention of remaining permanently in no particular place. So swindlers, thieves, gamblers, actors, wandering doctors, and beggars are usually classed as vagabonds. Thence it happens that the word vagebonds, in German specifically Landstreicher [land-rovers] or Landlauffer [land-runners], some disgraceful significance usually attaches. Nevertheless there is no reason why even those who live an honourable kind of life, may not now and then be vagabonds. Indeed the Apostles, who established nowhere a domicile for themselves, were vagabonds. Likewise for sake of trade a merchant can live now in one place, now in another, and have a domicile nowhere; then he is therefore enumerated among the vagabonds. A native country is defined as a place, namely, a land or city, in which one's parents have a domicile, when he is born, the reference being to the nation or some particular corporation of a nation, to which the land or city belongs. In the native vernacular, we say with the broader meaning das Vaterland [Fatherland], the narrower die Vaterstadt [Father-city], as the land or city in which our fathers dwelt from whom we have derived our stock. Moreover, the place of birth, which is the place in we have been born, differs from native country. When any one is born in his native country, a thing which usually happens, the place of birth is synonymous with native country especially in the stricter significance, but if any one is born on a journey or in a foreign land, where his parents are living on account of some business, his native country differs from his place of birth. It is to be noted besides that the place of birth is to be considered without reference to the nation to which be belongs, and therefore it gives no right to one born in that place. It is not without reason that the native land is discussed in the law of nations, since on it depend certain rights, which men do not enjoy unless they have this native land. Therefore, since these rights belong to anyone because he is born of parents who have domicile either in this territory or this city or in this district, this is the reason why native country admits the broader and narrower significance. Moreover, since those rights are established by the will of men, although they are in harmony with natural law, they are not natural rights but simply positive rights, and therefore are not necessary rights nor are they the same in all nations. Moreover, since the place of birth confers no right, of itself it deserves no attention at all in the law of nations, except in so far as it is considered a native country through a caprice of speech. Since a native country is a place where the parents have domicile at the time of one's birth, moreover, since vagabonds have no domicile anywhere, he who is born of parents who are vagabonds has no native country, except so far as vagabonds are supposed to have retained their natural domicile, consequently the native country of the parents is considered their native country also. So those who are born of Gipsies have no native country, just as their parents do not. Since your native country depends upon birth, moreover, since what has been done cannot be undone, your native country remains your native country, even if you establish your domicile outside of it, or abandon it, or even if you are driven out of it. So England or France remains the native country of an Englishman or a Frenchman, even if he has established a domicile for himself outside of England or France, intending never to return to England or France. Foreigners dwelling in alien territory or staying there remain citizens or subjects of their own nation. For since foreigners dwelling in alien territory or staying there have not departed from their own nation with the intention of changing their domicile, since rather they have the intention of returning to their own nation, they remain members also of their own state, consequently citizens or subjects of their own nation. It is undoubtedly one thing to depart from a society, even such as a state is, and to declare by that deed itself that one does not desire to be a member of that society, but it is another thing to go away for some time from a place in which the society has its abode. Absence from the place of domicile can deprive no one of the right which he has in it, nor free him from the obligation by which he is bound therein. Nor does it make any difference that a foreigner, so long as he dwells in alien territory or stays there, becomes a temporary citizen; for the obligation by which one is bound as a temporary citizen in alien territory is limited to certain actions alone for a certain time, and this detracts in no respect from the obligation by which any one is bound as a citizen to his nation and from the right which belongs to him in it. ... Since foreigners living in alien territory or staying there remain citizens or subjects of their own nation, the obligation by which they are bound by their own nation is not terminated, nor are citizens or subjects deprived of the right which they enjoy with the same, for the reason that they live for some time in alien territory or stay there on account of some business, and consequently if a citizen injures a fellow citizen in alien territory and the offender returns to his own people, he can be punished there according to the laws of the place and compelled to repair the loss. |
The following table shows four ways by which a person could become an English subject during the late 1700s -- the time period in which the U.S. Constitution was being written.
Two centuries earlier, during the reign of Queen Elizabeth I of England, the word "denizen" referred to anyone who became an English subject through any artificial means, i.e., by statute, act of parliament or king's charter [50]. But by 1787, "denizen" had taken on a more precise and limited meaning. It referred only to aliens who became English subjects by royal prerogative -- either letters patent issued by the king, or the king's military conquest and subjugation of the alien's home country. In the table below, we use the narrower meaning of "denizen", since it was the meaning that was in effect when the U.S. constitution was being written.
| Methods of Subjecthood Acquisition | ||||
|---|---|---|---|---|
| Birth | Statute | Naturalization | Denization | |
| General description: | Subjecthood conferred, at birth, to children who were (a) born on English soil, of parents who were under "actual obedience" of the king; or (b) in special cases, born in foreign countries, of English parents who were royalty or in the king's diplomatic or military service. | The Act of Anne (1708) granted subjecthood, at birth, to foreign-born children of civilian (non-royalty, non-military, non-diplomatic) English fathers. A law, enacted in 1604, granted denizen status, at birth, to English born children of alien parents. | Subjecthood granted to alien adults by a private act of Parliament. | Subjecthood granted to alien adults by (a) letters patent issued by the king, or (b) military conquest of the alien's home country. |
| Subjecthood conferred by... | Natural law | Parliament | Parliament | The King |
| When was subjecthood acquired? | At birth | At birth | In adulthood | In adulthood |
| Were subjects "born within the allegiance of the king"? | Yes (by natural law) | Yes (by statute) | No | No |
| Were subjects referred to as "natural-born subjects": | Yes | Yes | Yes | No |
| Could subjects hold public office (if they met other requirements): | Yes | Yes | No | No |
| Did subjects owe natural (perpetual) allegiance to the king? | Yes (natural allegiance acquired at birth) | Yes (English law ignores any foreign allegiance acquired at birth) | Yes (natural allegiance conferred by Parliament) | No (the king may place time limits on denization) |
| Did subjects owe exclusive allegiance to the king? | Yes (allegiance is exclusive at birth) | No (a child might acquire foreign allegiance at birth by descent from its parents, although England ignored such foreign allegiance) | Yes (naturalized subjects and denizens must renounce all foreign allegiances) | |
Throughout American history, there has been a difference of opinion regarding our nation's founding principles. On one hand are those who believe that English common law guided the writing of the Declaration of Independence and the U.S. Constitution. On the other hand are those who believe that the Founding Fathers were guided by European political theorists such as Vattel.
As a general rule, those who think that are nation's founding was based on English common law tend to believe that anyone born in the United States is a "natural born citizen". Those who think that European political theory guided the Framers of the Constitution tend to believe that one cannot be a natural born citizen of the United States unless one's parents were U.S. citizens at the time of one's birth.
The differences between English and European political theories are summarized in the table below.
| English Common Law | European Political Theory | |
|---|---|---|
| Form of government: | Monarchy | Republic |
| Members of the nation or state were called: | Subjects | Citizens |
| Most important right of membership was: | The right to inherit, hold and bequeath real property. | The right to vote. |
| Who is sovereign? | The king is sovereign. He governs the people, who owe him their allegiance. | The people (citizens) are sovereign. They govern themselves, through their elected representatives. |
| Government's authority comes from: | The divine right of kings. | The consent of the people. |
| Natural law theory is documented by: | Coke's Report on Calvin's Case (1608) | Vattel's Law of Nations (1758) |
| What is allegiance? | Allegiance is an unequal relationship between a king and his people. The king is superior; his people are inferior. The king rules and protects his people, and his people are obligated to serve and obey the king. | Allegiance is an equal relationship among citizens, who share sovereignty equally among themselves. Citizens owe their service, loyalty and obedience to each other. |
| The nature of allegiance is: | Perpetual. Allegiance between a subject and his king is a permanent bond which cannot be terminated, except with the king's permission. At birth, natural-born subjects are obligated, for the rest of their lives, to serve and obey the king. | Volitional. Allegiance is a compact that people choose to enter into. They remain in this compact only as long as they so choose. |
| What is the natural law regarding legal status at birth? | Subjecthood at birth depends on a combination of birthplace (jus soli) and parental allegiance. Children are "true" natural subjects if born in the king's territory, of parents who are within the king's "actual obedience". | Citizenship at birth depends on paternal citizenship only (jus sanguinis). A child acquires, at birth, the citizenship of its father, regardless of the child's place of birth. |
| Do members have the right of expatriation? | No. The English common law doctrine of "perpetual allegiance" denies the right of expatriation. A natural-born subject acquires, at birth, a permanent lifelong obligation to serve and obey the king. This obligation cannot be discharged without the king's permission. | Yes. In time of peace, citizens have a right to "quit" their country and become citizens of some other country, provided that such action does not endanger anyone else. |
The following is from the District of Columbia Code; Division II: Judiciary and Judicial Procedure; Title 16: Particular Actions, Proceedings and Matters; Chapter 35: Quo Warranto; Subchapter 1: Actions Against Officers of the United States:
A quo warranto may be issued from the United States District Court for the District of Columbia in the name of the United States against a person who within the District of Columbia usurps, intrudes into, or unlawfully holds or exercises, a franchise conferred by the United States or a public office of the United States, civil or military. The proceedings shall be deemed a civil action.
(Dec. 23, 1963, 77 Stat. 602, Pub. L. 88-241, § 1; July 29, 1970, 84 Stat. 562, Pub. L. 91-358, title I, § 145(n); 1973 Ed., § 16-3501; 1981 Ed., § 16-3501.)
The Attorney General of the United States or the United States attorney may institute a proceeding pursuant to this subchapter on his own motion or on the relation of a third person. The writ may not be issued on the relation of a third person except by leave of the court, to be applied for by the relator, by a petition duly verified setting forth the grounds of the application, or until the relator files a bond with sufficient surety, to be approved by the clerk of the court, in such penalty as the court prescribes, conditioned on the payment by him of all costs incurred in the prosecution of the writ if costs are not recovered from and paid by the defendant.
(Dec. 23, 1963, 77 Stat. 602, Pub. L. 88-241, § 1; July 29, 1970, 84 Stat. 562, Pub. L. 91-358, title I, § 145(n); 1973 Ed., § 16-3502; 1981 Ed., § 16-3502.)
If the Attorney General or United States attorney refuses to institute a quo warranto proceeding on the request of a person interested, the interested person may apply to the court by certified petition for leave to have the writ issued. When, in the opinion of the court, the reasons set forth in the petition are sufficient in law, the writ shall be allowed to be issued by any attorney, in the name of the United States, on the relation of the interested person on his compliance with the condition prescribed by section 16-3502 as to security for costs.
(Dec. 23, 1963, 77 Stat. 602, Pub. L. 88-241, § 1; July 29, 1970, 84 Stat. 562, Pub. L. 91-358, title I, § 145(n); 1973 Ed., § 16-3503; 1981 Ed., § 16-3503.)
Source: Michie's Legal Resources.
Among politicians and members of the mainstream news media, the consensus of opinion is that anyone born on U.S. soil (other than the child of a foreign diplomat or alien enemy) is a natural born citizen. This consensus opinion is based, not on any Supreme Court ruling, but largely on Justice Gray's reasoning in U.S. v. Wong Kim Ark (1898).
Provided below is an excerpt from Leo C. Donofrio, Esq., Amicus Brief (Jan. 23, 2012, pp.31-39), explaining that Justice Gray's reasoning relied heavily on misrepresentations of prior Supreme Court decisions. Justice Gray cited four Supreme Court cases purportedly showing that the jus soli principle of English common law controlled the meaning of federal (United States) citizenship prior to the 14th Amendment. However, none of those four cases supports Justice Gray's contention.
Prior to Wong Kim Ark, the Supreme Court had consistently maintained that children born on U.S. soil acquire, at birth, their fathers' citizenship. Not one U.S. Supreme Court decision (prior to Wong Kim Ark) had established the English common law rule of jus soli citizenship.
|
E. Citizenship Cases Prior To Adoption of the 14th Amendment. In 1898, the Supreme Court, in U.S. v. Wong Kim Ark, construed the 14th Amendment's citizenship clause, and determined that all persons born in the U.S. to parents who were domiciled in the country, were, upon their birth, citizens. While Justice Gray's majority opinion indicates that the holding is restricted to citizenship issues after the adoption of the 14th Amendment, the opinion discusses many important citizenship decisions leading up to the Amendment. Unfortunately, Justice Gray made some obvious mistakes with regard to these cases, and other points of authority. As such, the decision of the Court ought to be restricted to its holding. And since we are searching for the framers' intent with regard to the natural born citizen clause, the earliest decisions of the Supreme Court, though superseded by the 14th Amendment, and the accompanying general citizenship holding in Wong Kim Ark, remain relevant to this discussion for their probatory value as to the specific issue now before this Court. i.) Inglis v. Trustees Of Sailor's of Snug Harbor, 28 U.S. 99 (1830). In Wong Kim Ark, Justice Gray discussed this case as follows: In Inglis v. Sailors' Snug Harbor (1830) 3 Pet. 99, in which the plaintiff was born in the city of New York, about the time of the Declaration of Independence, the justices of this court (while differing in opinion upon other points) all agreed that the law of England as to citizenship by birth was the law of the English colonies in America. Mr. Justice Thompson, speaking for the majority of the court, said: 'It is universally admitted, both in the English courts and in those of our own country, that all persons born within the colonies of North America, while subject to the crown of Great Britain, were natural-born British subjects.' Id. 120. Mr. Justice Johnson said: 'He was entitled to inherit as a citizen born of the state of New York.' Id. 136. Mr. Justice Story stated the reasons upon this point more at large, referring to Calvin's Case, Blackstone's Commentaries, and Doe v. Jones, above cited, and saying: 'Allegiance is nothing more than the tie or duty of obedience of a subject to the sovereign under whose protection he is; and allegiance by birth is that which arises from being born within the dominions and under the protection of a particular sovereign. Two things usually concur to create citizenship: First, birth locally within the dominions of the sovereign; and, secondly, birth within the protection and obedience, or, in other words, within the ligeance, of the sovereign. That is, the party must be born within a place where the sovereign is at the time in full possession and exercise of his power, and the party must also at his birth derive protection from, and consequently owe obedience or allegiance to, the sovereign, as such, de facto...' Id. 155... 'Nothing is better settled at the common law than the doctrine that the children, even of aliens, born in a country, while the parents are resident there under the protection of the government, and owing a temporary allegiance thereto, are subjects by birth.' Id. 164." U.S. v. Wong Kim Ark, 169 U.S. 649, 659, 660. All of the above is well and good as a restatement of the English common law principles of allegiance, but Justice Gray completely ignored the actual holding of the majority opinion of the Court in the Inglis case. Instead, he focused on the minority concurring opinions of Justice Johnson, and Justice Story, which only served to mislead from the fact that the holding in this case is exactly opposite to the principles contended for by Justice Gray. The issue in Inglis was whether the plaintiff could inherit land in the United States, and the question turned on whether he was to be considered a British subject, or an American citizen. If British, he could not inherit, but if he was an American, he could. The date of his birth was uncertain, so the court was required to analyze the facts based upon three different birth date scenarios. The Court held that if the plaintiff was born in New York, prior to July 4, 1776, then he was an alien, and could not inherit. On July 4th, 1776, the Colonial army officially took possession of New York, which was, therefore, United States land. But the British managed to take back possession of New York on September 15, 1776. And the Court held that if the plaintiff was born on, or after September 15th, he was also a British alien and could not inherit. But if the plaintiff was born between July 4th, and September 15th, he was born in the United States. And this was the only issue in the case that was directly relevant to the Court's decision in Wong Kim Ark. If, as Justice Gray contended, the general rule in this country had always been that persons born here were recognized as citizens, regardless of the citizenship of their parents, then we would expect that the Supreme Court, in the Inglis case, would have held that the plaintiff -- if born when New York was in possession of the colonial forces -- was a United States citizen at birth. And this is certainly the impression given by Justice Gray's discussion of the case. But that impression is proved false by Justice Thompson's majority opinion of the Court: 1. If the demandant was born before the 4th of July 1776, he was born a British subject; and no subsequent act on his part, or on the part of the state of New York, has occurred to change that character; he of course continued an alien, and disabled from taking the land in question by inheritance. The holding makes clear that, even if born between July 4, 1776, and September 15, 1776, when New York was United States soil, Inglis took the national character of his British father, from birth, and throughout his minority. The Court also stated that the child had a right of disaffirmance after reaching majority. But the opinion does not recognize a dual allegiance at birth. It clearly states that the child was incapable of making an election, and therefore, until he was so capable, he would remain British, having taken his father's national character at birth. By relying so heavily on the minority concurring opinions, rather than the majority holding of the case, Justice Gray made it appear as if the Inglis Court had held that the plaintiff was a U.S. citizen at birth, when, in reality, under all three scenarios, it was held that the plaintiff was born a British subject. Rather than supporting the holding in Wong Kim Ark, the majority opinion in Inglis v. Trustees of Sailor's of Snug Harbor goes directly against it. Justice Gray's faulty analysis was further compounded in Shanks v. Dupont: ii.) Shanks v. Dupont, 28 U.S. 242 (1830). In Wong Kim Ark, Justice Gray discussed this case as follows: "In Shanks v. Dupont, 3 Pet. 242, decided (as appears by the records of this court) on the same day as the last case, it was held that a woman born in South Carolina before the Declaration of Independence, married to an English officer in Charleston during its occupation by the British forces in the Revolutionary War, and accompanying her husband on his return to England, and there remaining until her death, was a British subject, within the meaning of the treaty of peace of 1783, so that her title to land in South Carolina, by descent cast before that treaty, was protected thereby. It was of such a case that Mr. Justice Story, delivering the opinion of the court, said: 'The incapacities of femes covert, provided by the common law, apply to their civil rights, and are for their protection and interest. But they do not reach their political rights, nor prevent their acquiring or losing a national character. Those political rights do not stand upon the mere doctrines of municipal law, applicable to ordinary transactions, but stand upon the more general principles of the law of nations.' Id. 248. This last sentence was relied on by the counsel for the United States, as showing that the question whether a person is a citizen of a particular country is to be determined, not by the law of that country, but by the principles of international law. But Mr. Justice Story certainly did not mean to suggest that, independently of treaty, there was any principle of international law which could defeat the operation of the established rule of citizenship by birth within the United States: for he referred (page 245) to the contemporaneous opinions in Inglis v. Sailors' Snug Harbor, above cited, in which this rule had been distinctly recognized, and in which he had said (page 162) that 'each government had a right to decide for itself who should be admitted or deemed citizens.' U.S. v. Wong Kim Ark, 169 U.S. 649, 660-661. In point of fact, there was never an established rule of citizenship by simple birth in the United States. What was "distinctly recognized" in the Inglis case was the general English common law rule, that birth within the King's realms, even to alien parents, made one a natural-born subject. But this general common law rule was definitely not "distinctly recognized" by the Court in Inglis as having been adopted by the United States, since it was held that the child followed the condition of his father at birth, and throughout his minority. Furthermore, in Shanks v. Dupont, Justice Gray again ignored the holding of the majority opinion of the Court, which directly opposed his analysis. The issue in Shanks was similar to the Inglis case, turning on whether Ann Scott was British or American. Justice Story delivered the opinion of the Court: Ann Scott was born in South Carolina, before the American revolution; and her father adhered to the American cause, and remained and was at his death a citizen of South Carolina. There is no dispute that his daughter Ann, at the time of the revolution, and afterwards, remained in South Carolina until December 1782. Whether she was of age during this time does not appear. If she was, then her birth and residence might be deemed to constitute her by election a citizen of South Carolina. If she was not of age, then she might well be deemed under the circumstances of this case to hold the citizenship of her father; for children born in a country, continuing while under age in the family of the father, partake of his national character, as a citizen of that country. Shanks v. Dupont, 28 U.S. 242, 245 (1830). Justice Gray's opinion from Wong Kim Ark failed to quote this passage, where the Supreme Court -- on the same day they decided Inglis -- held again, that children, at birth, and throughout their minority, take the national character of the father. The holding in Shanks further calls into question Justice Gray's analysis in Wong Kim Ark. The tandem cases of Shanks and Inglis are consistent in their reflection of early American citizenship law, which did not uniformly follow the English common law rule of jus soli. iii.) Levy v. McCartee, 31 U.S. 102, 109 (1832) "Again, in Levy v. McCartee (1832) 6 Pet. 102, 112, 113, 115, which concerned a descent cast since the American Revolution, in the state of New York, where the statute of 11 & 12 Wm. III. had been repealed, this court, speaking by Mr. Justice Story, held that the case must rest for its decision exclusively upon the principles of the common law, and treated it as unquestionable that by that law a child born in England of alien parents was a natural-born subject; quoting the statement of Lord Coke in Co. Litt. 8a, that 'if an alien cometh into England, and hath issue two sons, these two sons are indigenae, subjects born, because they are born within the realm'; and saying that such a child 'was a native-born subject, according to the principles of the common law, stated by this court in McCreery v. Somerville, 9 Wheat. 354.'" U.S. v. Wong Kim Ark, 169 U.S. 649, 662. There is absolutely nothing in Levy v. McCartee that concerns the citizenship status of a relevant party. The decision turned upon statutes in New York that had incorporated older English statutes. The issues strictly concerned New York law. And the case has absolutely no bearing on the issue of federal citizenship. It provides no support at all for the holding in U.S. v. Wong Kim Ark. iv.) McCreery v. Somerville, 22 U.S. 354 (1824). One of the foundational building blocks for Justice Gray's opinion in U.S. v. Wong Kim Ark is the case, McCreery v. Somerville, 22 U.S. 354 (1824), to which Justice Gray made a flawed assumption based upon his failure to acknowledge a judicially recognized misquote. Justice Gray failed to inform his opinion in Wong Kim Ark with the fact that the U.S Supreme Court had questioned the McCreery opinion in 1881, just prior to Justice Gray having joined the Court. In Sullivan v.Burnett, 105 U.S. 334 (1881), the Court stated: "This view is controverted by the plaintiffs on the authority of McCreery's Lessee v. Somerville, 9 Wheat. 354, where this Court had occasion to determine the meaning of the statute of 11 & 12 William III. c. 6,... We remark in reference to that case that the English statute is not accurately quoted in the opinion of the Court, as an examination of 10 British Stat. at Large 319 (Pickering's Ed.) will show. but without deciding that the words omitted ought to have produced a judgment different from that rendered, we are of opinion that the present case is not governed by McCreery's Lessee v. Somerville." Sullivan v. Burnett, 105 U.S. 334, 340-341. (Emphasis added.) Justice Story's misquote would not have changed the outcome of the case. However, the correct citation to the statute would have prevented the following assumption made by Justice Gray in Wong Kim Ark: "In McCreery v. Somerville (1824) 9 Wheat. 354, which concerned the title to land in the state of Maryland, it was assumed that children born in that state of an alien who was still living, and who had not been naturalized, were 'native-born citizens of the United States'; and without such assumption the case would not have presented the question decided by the court, which, as stated by Mr. Justice Story in delivering the opinion, was 'whether the statute applies to the case of a living alien ancestor, so as to create a title by heirship, where none would exist by the common law, if the ancestor were a natural-born subject.' Id. 356." U.S. v. Wong Kim Ark, 169 U.S. 649, 661. (Emphasis added.) We have, in the passage above, a very misleading quote. Justice Gray cites to pg. 356 of McCreery at the end of the passage wherein he placed quotes around 'native-born citizens of the United States'. But no such quote appears on pg. 356 of the McCreery opinion. In fact, the Court's opinion in McCreery nowhere states that the plaintiff was a U.S. citizen, native-born or otherwise. The headnote and facts agreed upon by the parties call the plaintiff a citizen, but these are not part of the Court's opinion, and are not law. Since the plaintiff's ancestor was alive, the Court held that the plaintiff could not inherit from him. And this would have been the holding regardless of the plaintiff's citizenship status. Having determined that the plaintiff couldn't inherit from that particular ancestor, the Court never reached the direct issue of her citizenship. And a thorough review of the facts and the British statute construed in McCreery reveals that the Court, contrary to Justice Gray's unfounded assumption, would not have been required to determine she was a native-born citizen of the U.S. in order for her to inherit. Gray's assumption is culled from this passage in McCreery: "The only point, therefore, is whether the statute applies to the case of a living alien ancestor, so as to create a title by heirship where none would exist by the common law, if the ancestor were a natural born subject." McCreery v. Somverville, 22 U.S. 354, 355-356. The Court's use of "the only point" is the basis for Gray's assumption. The title to the statute in question is: "An act to enable his Majesty's natural-born subjects to inherit the estate of their ancestors, either lineal or collateral, notwithstanding their father or mother were aliens." Id. 356. With regard to the title, Justice Story also stated, "The title is not unimportant, and manifests an intention merely to remove the disability of alienage." Justice Gray's analysis assumed the title to the act meant that it pertained only to "natural-born subjects". And if that were true, then Gray's assumption would be fair. This is because "the only point" stated in McCreery was whether the plaintiff could inherit despite the ancestor being alive. If the plaintiff's citizenship were in question, then there would have been more than one point to decide. Therefore, if the statute applied only to natural-born subjects, the Court's opinion in McCreery could be said to have recognized the plaintiff as a native-born citizen of the U.S., despite her being born here to an alien father. But, in true actuality, the statute specifically refers to natural-born subjects as well as "subjects within any of the King's realms or dominions". In the United Kingdom, "subjects within any of the King's realms or dominions", pertains to resident aliens. These are persons permanently domiciled within the UK who are neither natural-born nor naturalized. A "natural-born subject" is a subject wherever he goes in the world, but a resident alien is only a subject of the United Kingdom when he is actually in the King's realms. Therefore, Gray's assumption is misplaced, since the plaintiff in McCreery was within the statute regardless of whether she was considered by the Court to be a U.S. citizen or a resident alien. Since the Court's opinion doesn't mention the citizenship status of the plaintiff, it should not have been assumed by Justice Gray that the McCreery Court had assumed the plaintiff was a U.S. citizen rather than a resident alien. Justice Story's reference in McCreery to "the only point", while being correct, does not establish that the Court assumed the plaintiff to be a native-born citizen. Regardless, if the Court in McCreery did make the assumption attributed to it by Justice Gray, that assumption was unfounded according to the relevant statute, which, as the Supreme Court noted in Sullivan v. Burnett, had been misquoted by Justice Story. The Supreme Court's opinions in McCreery, Shanks, Inglis, and Levy, provide no genuine support for Justice Gray's opinion in Wong Kim Ark. In fact, prior to Wong Kim Ark, there is not one U.S. Supreme Court decision that establishes the English common law rule of jus soli citizenship. Justice Gray simply overruled every prior decision of the Supreme Court that ran against his analysis, while making it appear as if those cases supported his argument. |
In 18th century England and its colonies, a subject was a person who owed permanent allegiance to the English Crown. In some cases, a subject of the English king was also a citizen of an English city or town.
All persons born within English territory (except the children of foreign ambassadors and alien enemies) were English subjects at birth, regardless of whether their parents were English or alien. But in England, the only way a person could acquire citizenship at birth was to be born of a citizen father. In this respect, 18th century English municipal "citizenship" resembled Roman citivas.
civitas, plural Civitates, citizenship in ancient Rome. Roman citizenship was acquired by birth if both parents were Roman citizens (cives), although one of them, usually the mother, might be a peregrinus ("alien") with conubium (the right to contract a Roman marriage). Otherwise, citizenship could be granted by the people, later by generals and emperors. (Encyclopedia Britannica: civitas)
The U.S. State Department recognizes that the jus sanguinis principle (the notion that you inherit citizenship at birth from one or both of your parents) comes from ancient Roman law:
Jus sanguinis (the law of the bloodline) [is] a concept of Roman or civil law under which a person's citizenship is determined by the citizenship of one or both parents. (U.S. State Department Foreign Affairs Manual: 7 FAM 1100)
Acquisition of U.S. citizenship by birth abroad to a U.S. citizen parent is governed by Federal statutes. Only insofar as Congress has provided in such statutes, does the United States follow the traditionally Roman law principle of "jus sanguinis" under which citizenship is acquired by descent (U.S. State Department Foreign Affairs Manual: 7 FAM 1130)
In ancient Rome, there were two categories of citizens: cives nati (citizens born) and cives facti (citizens made). The Latin term cives nati can also be translated as "sons of citizens" or "children of citizens". In Latin, cives is a variation of civis, which means "citizen"; and nati means "sons" (see natus). According to the 1.97FC Latin Dictionary, nati can also mean "children" (Latin-English Dictionary 1.97FC, search for "natus, nati N"). According to William Smith's Dictionary of Greek and Roman Antiquities, the term cives nati refers to children who receive citizenship, at birth, by descent from their legally-married parents:
Children born of a legitimum matrimonium (i.e., lawful wedlock between two persons in possession of conubium) were cives nati. (Smith (1898), p.171)
You were cives nati (a Roman citizen by birth) if, at the time of your birth, (a) your parents were legally married to each other, (b) your father was a Roman citizen, and (c) your mother possessed conubium (the right to enter into marriage under Roman law). If a woman was a Roman citizen, she had conubium automatically. If she was an alien (peregrinus), she could apply for and receive conubium by special grant. It appears that, if you were a legitimate Roman citizen by birth, you were most likely born of legally-married parents both of whom were Roman citizens; the place of your birth was irrelevant.
The Romans occupied Britannia from 43 AD to roughly 410 AD. After the fall of the Roman Empire, monastic scriptoriums in Britain preserved Roman literature and law. It is therefore not surprising that the word "citizen", as used in 18th century English language and law, showed signs of Roman influence.
Here is a brief summary of Roman civil law regarding citizenship:
|
In Roman law, the presence or absence of conubium (the legal capacity to engage in a civil law marriage; cf. Hebrew qiddushin) determines various aspects of the personal status of a union's offspring -- legitimacy, citizenship, and free or slave status in particular. Only persons with conubium can enter into a iustum matrimonium -- a lawful marriage contracted according to the ius civile, or Roman civil law, and legitimacy is the by-product of the legal concept of iustum matrimonium. Thus, the offspring of a union that is not valid in Roman law is -- naturally -- illegitimate. Furthermore, if the partners to a marriage possess conubium so that the marriage is valid under the Roman Civil Law, then the laws of status of the ius civile apply. Under ius civile, children follow the status of the father at the time of conception. They will be Roman or non-Roman, free or slave in accordance with the status of the father. If either (or both) of the partners to a marriage does not possess conubium so that the marriage is not valid under ius civile, then the personal status of the offspring is determined by ius gentium. Ius gentium has two meanings: (1) the law applicable to all peoples incuding Romans, somewhat like natural law; and (2) law governing the relations of Rome with foreigners who do not have access to ius civile. Under ius gentium, children follow the status of the mother at the time of birth. They will be Roman or non-Roman, free or slave in accordance with the status of the mother. An intermarriage between persons both possessing conubium (e.g., a Roman and a non-Roman possessing conubium by special grant) would be a valid marriage according to Roman civil law. The offspring would be legitimate and its citizenship would follow the status of the father: (a) if the father was Roman, the offspring would be Roman An intermarriage involving a person without conubium (e.g., a Roman and a non-Roman lacking conubium) would not be a civil law marriage. The offspring would be illegimate and under ius gentium (law applying to all peoples), it would follow the status of the mother: (c) if the mother was non-Roman then the child would be an illegimate non-Roman. Thus the union of a Roman women with foreigners lacking conubium (case d) produced illegitimate Romans (just as the union of Jewish women with foreigners lacking conubium [i.e., Gentiles] was understood by many early authorities to produce illegitimate Israelites, or mamzers). This was altogether undesirable. Better that the offspring should be non-Romans than illegitimate Romans. |
Alexander McLeod (1773-1833) emigrated to the United States in 1792, graduated with honors from Union College in 1798, and shortly thereafter entered the Presbyterian Church ministry. In a sermon published in 1815, he explains why one's political allegiance derives from one's parents, not from one's place of birth.
|
I readily admit, that there is something in the idea of native country, which is intimately connected with the doctrine of allegiance. It is not, however, the spot of earth, upon which the chid is born, that connects him with the national society; but the relation of the child's parents to that society. In the ordinary concerns of life there is no need of such minute distinctions; and there is too little discrimination, exercised by the greater part of men, to be able to understand it. Even statesmen are not always wise; and designing men find it their interest to keep up a confusion of ideas upon important subjects. In the present discussion, nevertheless, it is necessary, that I distinctly state to you the true bond, which connects the child to the body politic. It is not the inanimate matter of a piece of land, but the moral relations of his parentage. Let a child be born within the walls of a church, this does not make him a church member; but if the parent or parents be in connexion with the church, so is the offspring. Visible society, as it is provided for in the constitution of human nature, naturally seeks to perpetuate its own existence, by conferring upon children the membership of their parents. Each citizen too is supposed to reserve for his offspring the benefits of society. The Governor of the universe approves this provision. Thus it is, that the country of the father is that of the child, and not because he happened to be born in its territory. Residence produces an attachment. Education cherishes affection of the scenes of early life; but only moral relations lay the foundation for moral obligation. It is the enjoyment of the privileges of society, that lays the foundation for obedience to its authority. It follows from this, that protection being the end of civil government, the sovereign has no other claim upon the allegiance of the subject, than what arises from the protection which he affords. As is the protection which I ask and receive, so the the fealty which I owe. If I ask none, I am under no allegiance: If I receive none, I have nothing to return. It is the very essence of despotism to claim authority over me without an equivalent. By the law of nature alone, children follow the condition of their fathers, and enter into all their rights. The place of birth produces no change in this particular -- for it is not naturally the place of birth that gives rights, but extraction. Children born at sea -- out of the country -- in the armies of the state, -- in the house of its ministers at a foreign court, are reputed native citizens. Every man, born free, may examine whether it be convenient for him to join in the society for which he was destined by birth. If he finds that it be of no advantage to him to remain in it, he is at liberty to leave it. Vattel, Sec.216-220. |
In English grammar, a "list" of two or more "items" (words, clauses, phrases, etc.) appearing consecutively in the same sentence can be written in one of three ways: (1) in proper form, (2) as a polysyndeton, or (3) as an asyndeton.
When you go to the grocery store, get milk, eggs, butter and bread.
Proper form is used when each item in a list is important, but not especially emphasized.
When you go to the grocery store, get milk and eggs and butter and bread.
A polysyndeton is used when each item in the list is individually important and especially emphasized.
When you go to the grocery store, get milk, eggs, butter, bread.
An asyndeton is used when the items of the list are not individually emphasized; instead, what is important is the general sense of the list, or a concluding statement that occurs afterwards (Figures of Speech: Asyndeton and Polysyndeton).
Here are some well-known asyndetons. Each asyndeton is a list of items without a conjunction.
An asyndeton (a list with no conjunction) has two effects: (1) it suggests that the list might be incomplete; and (2) it may imply a measure of synonymity or relatedness among the the last two (or only two) items comprising the list:
Asyndeton ... leaves an impression that the list is not complete. ... In an asyndeton with two phrases, there can be a feeling of parallelism, synonymity or emphasis. (Rhetorical Devices: Asyndeton)
The lack of the "and" conjunction gives the impression that the list is perhaps not complete. ... In certain cases, the omission of a conjunction between short phrases gives the impression of synonymity to the phrases, or matters the latter phrase appear to be an afterthought or even a substitution for the former. (A Handbook of Rhetorical Devices: Asyndeton)
The presence of a conjunction ("and" or "or") implies completeness:
If your sentence contains three nouns in a list and you want to imply that there are only three, do not use an asyndeton. The sentence, "I like roses, lilies, and tulips," conveys that there are only three flowers that you like, and this is what they are. The sentence, "I like roses, lilies, tulips," implies that you like more than just these three flowers. (Using Conjunctions)
The presence of a conjunction may also imply (incorrectly) that the items in a list are separate and unrelated.
Asyndeton is also an excellent way to convey a parallel or synonymity between two phrases. For example, saying, "She's amazing and a miracle worker," implies that miracle workers are not amazing. However, if you say, "She's amazing, a miracle worker," you draw a parallel between amazing and miracle worker. They become equated with each other. (Using Conjunctions)
The sentence, "She's amazing, a miracle worker," does not imply that the terms "amazing" and "miracle worker" are exactly equivalent or absolutely identical. It merely suggests that the terms have some measure of synonymity, that they share something in common, that their meanings overlap in some way, to some extent.
In an inclusive list (a list of items that are included in an action or group), the missing conjunction in an asyndeton is often "and":
One of the most common forms of asyndeton is the omission of the word "and" in a list. ... Asyndeton is popular in speeches, where the 'and' in a list is often missed out. (Collected Information: asyndeton)
The most common form [of asyndeton] is the omission of "and", leaving only a sequence of phrases linked by commas... (Oxford Reference: asyndeton, as quoted by answers.com: asyndeton)
In an exclusionary list (a list of excepted or excluded categories), the missing conjunction is likely to be "or". Consider, for example, the highlighted text (asyndeton) in this sentence:
A private Singles Club denies membership to persons who are married, under 21, parents, but admits everyone else.
The above sentence could be construed to mean that an individual is denied membership only if she or he belongs to all three of the exclusionary categories; in other words, you are excluded only if you are married, under 21 and a parent. But it is more likely that (a) the club denies entrance to persons who belong to any one of the exclusionary categories; and (b) there might be other categories of persons whom the club might also exclude.
In 1866, Senator Jacob Howard, a member of the Joint Committee which drafted the 14th Amendment, gave this brief summation of the jurisdictional clause in the 14th Amendment:
This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. (Congressional Globe: Senate, 39th Congress, 1st Session, 1866, p.2890, center column, boldface emphasis added)
Senator Howard's summation is of interest because it uses the word "foreigner" in connection with persons who are born in the United States. It suggests that, in some instances, "persons born in the United States" are foreigners.
In Senator Howard's summation, the highlighted text is an asyndeton consisting of two phrases:
The first phrase contains its own embedded asyndeton ("foreigners, aliens"). Thus we have an asyndeton within an asyndeton.
Although asyndetons may convey a "feeling" or "impression" of synonymity, it is unlikely that Senator Howard understood the words "foreigner" and "alien" as referring only to persons who "belong to families of ambassadors or foreign ministers". Nor is it likely that the words "foreigner" and "alien" were intended to be superfluous, that the only U.S.-born children excluded from citizenship were those belonging to families of foreign ambassadors or diplomats.
According to other comments that Senator Howard has made regarding citizenship and jurisdiction, a child born in the United States, of parents (whether diplomats or not) who owe allegiance to a foreign government, is not subject to complete U.S. jurisdiction, and therefore does not acquire 14th Amendnment citizenship at birth.
Mr. TRUMBULL. ... The provision is, that "all persons born in the United States, and subject to the jurisdiction thereof, are citizens." That means "subject to the complete jurisdiction thereof."... What do we mean by "subject to the jurisdiction of the United States?" Not owing allegiance to anybody else. That is what it means. (Congressional Globe, Senate, 39th Congress, 1st Session, p.2893, boldface emphasis added)
Mr. HOWARD: ... I concur entirely with the honorable Senator from Illinois [Trumbull], in holding that the word "jurisdiction," as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, coextensive in all respects with the constitutional power of the United States, whether exercised by Congress, by the executive, or by the judicial department; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now. (Congressional Globe, Senate, 39th Congress, 1st Session, p.2895)
In the Slaughter-House Cases (1873), the Supreme Court understood that the intent of the 14th Amendment jurisdictional clause was to exclude, from U.S. citizenship, the U.S.-born children of parents who are "citizens or subjects of foreign States", regardless of their diplomatic status:
The phrase, 'subject to its jurisdiction' was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States. (Slaughter-House Cases, 1873)
Likewise, in Elk v. Wilkins (1884), a person born on U.S. soil, to parents who owe allegiance to an "alien power," is no more a U.S. citizen than the U.S.-born child of a foreign ambassador:
Indians born within the territorial limits of the United States, members of, and owing immediate allegiance to, one of the Indian tribes, (an alien though dependent power,) although in a geographical sense born in the United States, are no more 'born in the United States and subject to the jurisdiction thereof,' within the meaning of the first section of the fourteenth amendment, than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States, of ambassadors or other public ministers of foreign nations. (Elk v. Wilkins, 1884)
If Senator Howard's asyndeton is understood in a manner consistent with his other comments from the Senate floor and with the Supreme Court's commentary in the Slaughter-House Cases and Elk v. Wilkins, then at least some "persons born in the United States," whose parents were neither ambassadors nor diplomats, were foreigners or aliens.
| [01] | There is a difference between the date on which the Constitution was adopted and the date on which it was ratified. The Constitution was adopted on September 17, 1787. The thirteen States ratified the Constitution on June 21, 1788 (Wikipedia: U.S. Constitution). | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [02] | Article II Section 1 of the U.S. Constitution 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. All persons who were U.S. citizens when the Constitution was adopted (in 1787) were exempt from the "natural born citizen" requirement. They could serve as president, even if they were not natural born citizens. However, no one alive today qualifies for this exemption. If you were born after 1787, you must be a natural born citizen in order to be Constitutionally eligible to serve as president. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [03] | In 2008, the Michigan Law Review published an article titled, "Originalism and the Natural Born Citizen Clause", by Professor Lawrence B. Solum. The article contains this text:
What was the original public meaning of the phrase that establishes the eligibility for the office of President of the United States? There is general agreement on the core of its meaning. Anyone born on American soil whose parents are citizens of the United States is a "natural born citizen." Anyone whose citizenship is acquired after birth as a result of naturalization is not a natural born citizen. (Solum, p.1) An earlier draft of the same article contained this text: What is the legal significance of what we can call "the natural born citizen clause"? There is general agreement on the core of settled meaning. Anyone born on American soil whose parents are citizens of the United States of American [sic] is a "natural born citizen." Anyone whose citizenship is acquired after birth as a result of "naturalization" is not a "natural born citizen." But agreement on these paradigm cases does not entail that the clause has a clear meaning. (Lawrence B. Solum, Originalism and the Natural Born Citizen Clause, as quoted by Why Did Lawrence B. Solum Miss A Critical Point in the Natural Born Citizen Issue?) In 2010, Professor Solum published a revised article (SSRN-id1263885.pdf), in which he expressed his opinion that the U.S.-born child of only one U.S.-citizen parent is a natural born citizen. For further discussion of Professor Solum's articles, see Scrubbing of America. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [04] | A poll by Wenzel Strategies, conducted in June, 2009, showed widespread public uncertainty regarding Barack Obama's eligibility to serve as president:
...a WorldNetDaily/Wenzel Strategies poll in June showed that 49% -- essentially half of all American adults -- are not convinced that Obama meets the qualifications for the presidency! ... The polling data shows this is not just a Republican fetish. Even among Democrats, almost one in every four -- 23% -- said they were either troubled by these questions about Obama or that he should definitely release all records about the circumstances of his birth, including his long-form birth certificate -- if one exists -- to put this question to rest once and for all. Even among independent voters, 52% said the same thing. (Fritz Wenzel, Poll Stories of the Year 2009, December 21, 2009) A Public Policy poll (August 25, 2009) found that, in Arkansas, 55 percent of respondents doubted or disbelieved that the President was born in Hawaii. 31 percent believed President Obama was not born in the United States, and another 24 percent said they weren't sure. In a New York Times/CBS news poll of 1,580 adults, conducted from April 5 to 12, 2010: 58 percent said Mr. Obama was born in the United States. That leaves a significant minority who said they thought he was born in another country (20 percent) or said they did not know (23 percent). (Obama and the 'Birthers' in the Latest Poll, April 21, 2010) A survey of 400 Republican Primary voters, published on February 15, 2011, found that 28% of respondents believe that Obama was born in Hawaii. 51% of respondents do not believe that Obama was born in Hawaii, and 21% are unsure. (National 2012 Republican Poll, February 15, 2011). After President Obama released his long-form birth certificate (on April 27, 2011), public skepticism concerning his eligibility increased. A poll, published on August 30, 2011, found that 65 percent of South Carolinian Republicans are uncertain of President Obama's citizenship status at birth (Public Policy Polling: 65% of South Carolina Republicans Doubt Obama is Eligible to be President of the United States). A poll taken in September 2012 indicates that 40% of voters in general, and 73% of Republicans, are uncertain of President Obama's birthplace (The Birthers Aren't Going Anywhere). | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [05] | In Minor v. Happersett (1875), the Supreme Court made two distinct rulings:
The Nineteenth Amendment mitigated the voting rights ruling. The States still have a right to decide who may or may not vote, but as a result of the Nineteenth Amendment, the States may no longer discriminate on the basis of sex. (As a result of other laws, States are also barred from discriminating on the basis of age and race). The Nineteenth Amendment did not affect the Court's citizenship ruling. The citizenship ruling, in Minor v. Happersett, remains the law of the land today (Minor v. Happersett is Binding Precedent). In Ex Parte Lockwood (1894), the Supreme Court affirmed that the citizenship ruling in Minor v. Happersett was indeed a ruling, not mere dicta: In Minor v. Happersett, 21 Wall. 162, this court held that the word 'citizen' is often used to convey the idea of membership in a nation, and, in that sense, women, if born of citizen parents within the jurisdiction of the United States, have always been considered citizens of the United States, as much so before the adoption of the fourteenth amendment of the constitution as since;... (Ex Parte Lockwood, 1894, boldface emphasis added). In the Supreme Court's citizenship ruling, all children born in the United States were divided into two classes:
Members of the first class are definitely, without doubt, U.S. citizens by birth. But the Court had doubts concerning the citizenship, at birth, of members of the second class. ...it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. (Minor v. Happersett, 1875) The Supreme Court applied the term "natural born citizen" only to members of the first class. The Court did not explicitly exclude the second class from natural born citizenship. Nevertheless, the principle of Expressio unius est exclusio alterius ("the express mention of one thing excludes all others") appears to limit the definition of "natural born citizen" to members of the first class only (Minor v. Happersett is Binding Precedent). In 1904, Frederick Van Dyne, assistant solicitor for the U.S. Department of State, gave a grammatical clarification of the Minor v. Happersett text. Each individual member of the "natural born citizen" class was born of parents, both of whom were U.S. citizens: The decision in this case [Minor v. Happersett] was that a woman [singular] born of citizen parents [plural] was a citizen of the United States ... (Van Dyne, p.13) In U.S. v. Wong Kim Ark (1898), Justice Gray similarly clarified the Minor v. Happersett grammar, explaining that Mrs. Minor was a U.S. citizen because both of her parents were U.S. citizens when she was born: The decision in that case was that a woman [singlular] born of citizen parents [plural] within the United States was a citizen of the United States ... (U.S. v. Wong Kim Ark, 1898). Since natural born citizenship is acquired only at birth and cannot be acquired in later life, and since natural born citizens are "distinguished from" aliens or foreigners, it appears that a natural born citizen is one who is not a "foreigner" (foreign citizen) at birth: a person who acquires foreign nationality at birth might be a U.S. citizen by modern-day policy, but such a person is not a natural born citizen. In U.S. v. Wong Kim Ark (1898), the Supreme Court did not expand the meaning of "natural born citizen" as given in Minor v. Happersett. In Wong Kim Ark, the Court ruled that, when Chinese immigrants are permanent legal residents domiciled and doing business in the United States, their U.S.-born children are U.S. citizens. The Court did not rule that such children were natural born citizens (see Question 11: Wong Kim Ark). | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [06] | Every post-1787-born president, except Chester Arthur and Barack Obama, was born in the United States, of parents who were both U.S. citizens (Citizenship Status of U.S. Presidents). However, being born in the United States, of U.S.-citizen parents, does not, by itself, guarantee against foreign nationality at birth.
For example, in Fitch v. Weber (1847), an Englishman emigrated to the United States, renounced his British nationality, swore exclusive allegiance to the United States, became a naturalized U.S. citizen, married an American woman, and settled permanently in the United States. However, through no fault of his own, he was not fully expatriated from Great Britain. Consequently, his children and grandchildren -- though born in the United States, of U.S.-citizen parents -- were born with dual nationality. They were British subjects, as well as U.S. citizens, at birth. Presidents James Buchanan, Andrew Johnson, Woodrow Wilson and Herbert Hoover were born in the United States. Nevertheless, their citizenship status at birth has been questioned ('President?' Chester Arthur et. al. -- Why they aren't precedent for Obama's Eligibility). As best we can determine so far, these four presidents did not acquire foreign nationality from their parents.
At the time of this writing, we are not aware of any post-1787-born U.S. president (other than Chester Arthur and Barack Obama) who had acquired foreign nationality at birth. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [07] | Since his "natural born citizen" status is in doubt, President Obama cannot legally swear that he is constitutionally eligible to serve as President. A person can swear only to that which he or she knows to be fact. One cannot swear to something that one knows to be uncertain or in doubt.
"An unqualified statement of that which one does not know to be true is equivalent to a statement of that which he knows to be false." People v. Von Tiedeman, 52 Pac. 155, 157, 120 Cal. 128. (Judicial and Statutory Definitions of Words and Phrases, Volume 6, page 5306). As a Harvard law graduate and a former Constitutional law professor, President Obama must know that there is doubt concerning the "natural born citizen" status of persons (such as himself) who were U.S.-born of a non-U.S.-citizen father. Consequently, when he makes a sworn statement declaring as fact that he is a "natural born citizen", he does so falsely (Obama is Guilty on at least one count of false swearing). | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [08] | The Barack Obama's circumstances after his birth are not deemed relevant to his Constitutional eligibility to serve as president. Children who acquire U.S. citizenship at birth do not lose their U.S. citizenship merely because they and/or their parents subsequently acquire citizenship in a foreign country, even if such foreign country does not recognize dual citizenship.
It has long been a recognized principle in this country that, if a child born here is taken during minority to the country of his parents' origin, where his parents resume their former allegiance, he does not thereby lose his citizenship in the United States provided that, on attaining majority he elects to retain that citizenship and to return to the United States to assume its duties. (Perkins v. Elg, 1939) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [09] | Ten of the first twelve presidents of the United States were eligible to serve as president because they were citizens when the U.S. Constitution was adopted in 1787. They were exempt from the natural born citizen requirement.
All U.S. presidents after Zachary Taylor were born after 1787. They were not exempt from the "natural born citizen" requirement. They had to be natural born citizens in order to be eligible to serve as president. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [10] | In the birthers' view, in order for you to meet the parental citizenship requirement, your parents must be U.S citizens at the time of your birth. But your parents do not need to be natural born citizens.
It does not matter where your parents were born. It does not matter how your parents became U.S. citizens. They could have acquired their citizenship by birth. They could have, as immigrants, acquired U.S. citizenship through naturalization. At one time in American history, a woman's citizenship was that of her husband. For you to be a natural born citizen, both of your parents must be U.S. citizens at the time of your birth, but they need not be natural born citizens. When immigrants from foreign countries become naturalized U.S. citizens and subsequently give birth to children in the United States, these children are natural born citizens and could someday serve as president. The fact that your parents were of foreign origin and/or ethnicity does not disqualify you from the presidency, as long as your parents were U.S. citizens when you were born. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [11] | Tim Adams, a former senior elections clerk for Honolulu, claims that, during the 2008 presidential election, he learned that Barack Obama does not have a true hospital-generated birth certificate (Affidavit by Tim Adams, Jan 20, 2011). According to Adams, Obama's birth either (a) was registered as an "unattended birth" (a birth which did not take place in a hospital and was not attended by a physician or midwife), or (b) took place outside of Hawaii (YouTube: Tim Adams interview).
In 1961, forty-two births were registered in the State of Hawaii as "unattended births". Of these forty-two births, 4 babies were white and 38 were non-white. (See page 205 in Vital Statistics of the United States, 1961, Volume 1).
In the table above, column headings are as follows:
Vital Statistics of the United States, 1961, Volume 1 (cited above) indicate that, in 1961, unattended births occurred throughout the State of Hawaii -- in both metropolitan and nonmetropolitan counties, and in both rural and urban areas. Obama's birth announcement, which was published in the local Honolulu newspapers, lists his parents' address as 6085 Kalanianaole Highway, which is located in Honolulu County. Honolulu Country is the State of Hawaii's only metropolitan country. It consists of the entire island of Oahu. All other counties in the State of Hawaii are classified as nonmetropolitan. In 1961, unattended births of white and non-white babies occurred in both urban and rural portions of Honolulu County. The absence of an original birth certificate leaves open the possibility, but does not prove, that President Obama was born in a foreign country. The President may lack a true hospital-generated birth certificate because his birth in Hawaii was unattended. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [12] | These sources suggest that Barack Obama might have been born in Kenya:
In 1991, a brochure published by his literary agent, Acton & Dystel, stated that Barack Obama was born in Kenya: Barack Obama, the first African-American president of the Harvard Law Review, was born in Kenya and raised in Indonesia and Hawaii. (Obama's Literary Agent in 1991 Booklet) The information in the brochure most likely came from Obama himself (Evidence Obama Born In Kenya Goes Beyond 1991 Brochure). In a speech before the Kenyan National Assembly, James Orengo, the Kenyan Minister for Lands, indicated that President Barack Obama was born in Kenya: If America was living in a situation where they feared ethnicity and did not see itself as a multiparty state or nation, how could a young man born here in Kenya, who is not even a native American, become the President of America? It is because they did away with exclusion. (National Assembly Official Report, Thursday, 25th March 2010, p.31) During the second half of 1961, the U.S. Immigration and Naturalization Service (INS) issued a Certificate of U.S. Citizenship to a child which was born in East Africa, of a U.S.-citizen parent. There is speculation that the child was Barack Obama Jr.: ...an American consular officer issued a single Certificate of Citizenship to only one passenger arriving in the U.S. from the Kenyan region of Africa between July and December of 1961. The record shows demographic and status classifications for a passenger who was explicitly recorded at the INS Arrival Inspection Station as an individual being born to a U.S. citizen parent arriving from the Kenyan region of Africa between July 1st and December 31st, 1961. (INS doc found: U.S. Certificate issued to one East African-born child of U.S. citizen in 1961) According to hand-written "line records" in the British National Archives (BNA), a child was born in Kenya in 1961, to a father named "Burack" or "Biraq" Obama, possibly a reference to Barack Obama Sr.: The books containing hand written line records of vital events attributed to Obama are contained in Series RG36 of the Family Records section in the Kew branch of the BNA. The hand written line records first discovered in 2009, indicate several events were registered to the name Barack Obama (appears to be handwritten and spelled "Burack" and "Biraq") beginning in 1953 and include two births recorded in 1958 and 1960, a marriage license registration in 1954 and a birth in 1961. ... To date, Barack Obama II is the only known alleged son of Obama Sr. born after 1960 and before the independence of Kenya became official in 1963. ... The line records do not specify the identity or names of the children, only gender. However, the line records are associated with index numbers of actual microfilm copies of certificates, licenses and registration applications filed in the archives. According to researchers, Obama's line records were discovered in Series RG36, reference books. Not surprisingly, when researchers specifically requested access to the relevant microfilm for the Obama birth registrations, they were told that the records were currently held under an outdated "privileged access" status, meaning researchers were denied access under Chapter 52, Sections 3 and 5 of the British Public Records Act of 1958. (Obama's Kenyan Birth Records Discovered in British National Archives; see also British National Archives show a son was born to Obama Sr. in 1961 in Kenya) For a complete list of evidence indicating that Obama might have been born in Kenya, see Catalog of Evidence. All of this "evidence" is anecdotal and circumstantial in nature. None of it conclusively proves anything. Nevertheless, the "evidence" has raised suspicion and doubt concerning President Obama's birthplace. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [13] | These sources suggest that Barack Obama might have been born in Canada:
In September 1961, roughly a month after Barack Obama's birth, Stanley Ann Dunham was living in an apartment in Seattle and was attending classes at the University of Washington (Confirmed: Stanley Ann Dunham began studies in September 1961, not August). As the wife of a British subject, she could have received government-subsidized maternity care in Vancouver, British Columbia, a mere 2.5-hour drive from Seattle, across an open border. There is some speculation that [Stanley Ann] Dunham left Hawaii and gave birth to Obama in Washington State (or perhaps British Columbia, Canada) at a facility for unwed mothers -- and then decided to keep the baby. She then would have returned to Hawaii and registered the child's birth there, claiming the child was born at home in Honolulu. (Had Obama been born in Washington State, Dunham would have had no need to later register his birth in Hawaii, but had he been born in Canada her doing so would have been understandable.) (Fredrick) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [14] | Birthers cite four similar, but not identical, definitions of "natural born citizen": Emerich Vattel, John Bingham, Jeremiah Black, and the 14th Amendment. In each definition, you are a "natural born citizen" only if you meet two conditions at birth. First, you must be born in the United States. Second, you must meet an additional requirement at the time of your birth. Each of the four definitions specifies a different additional requirement.
Generally speaking, birthers say you are a "natural born citizen" only if you were born in the United States and, at the time of your birth, you met at least one of the following additional requirements:
The above-listed four definitions of "natural born citizen" are roughly equivalent. Except in a few special cases, someone who conforms to any one of the above definitions also conforms to the other three. In addition to the above, there is a 5th definition of "natural born citizen," which does not require birth on U.S. soil. In 1896, Percy A. Bridgham argued that birthplace is irrelevant to natural born citizenship: if you were born of U.S.-citizen parents, you are a natural born citizen, regardless of where you were born: I do not think there can be the slightest doubt but [that] the son of a citizen of the United States born while his parents are temporarily away from home is eligible to the presidency. ... A natural born citizen would be one who by nature, that is by inheritance, so to speak, was a citizen as distinguished from one who was by nativity or locality of birth a citizen. ... A comparison of the meanings of native and natural as given by Webster bears me out in my opinion of the intent of the Constitution. The very first definition of natural is "fixed or determined by nature," the nationality of a child born abroad of American parents is fixed by the nature of things and not by the locality of birth. I do not find that our courts have ever passed upon the meaning of the word natural in connection with citizenship, so we must take its ordinary meaning. (Percy A. Bridgham, People's Lawyer, Boston Daily Globe, November 9, 1896) In 1904, Alexander Potter Morse made a similar argument. Parental citizenship alone, regardless of birthplace, determines natural born citizenship: The question is often asked: Are children of citizens of the United States born at sea or in foreign territory, other than the offspring of American ambassadors or ministers plenipotentiary, natural-born citizens of the United States, within the purview of the constitutional provision? After some consideration of the history of the times, of the relation of the provision to the subject-matter and of the acts of congress relating to citizenship, it seems clear to the undersigned that such persons are natural-born, that is, citizens by origin; and that, if otherwise qualified, they are eligible to the office of president. In respect to the citizenship of children of American parentage, wherever born, the principle of ius sanguinis seems to be the American principle; that is to say, the law of hereditary, rather than territorial allegiance, is recognized ... (Morse) All of the above-described five definitions of "natural born citizen" are in agreement on one point: if your father was a foreign citizen, not a U.S. citizen, at the time of your birth, and if, when you were born, you acquired foreign nationality by descent from your father, you are not a natural born citizen. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [15] | On April 10, 2008, the U.S. Senate expressed a non-legally-binding opinion that John McCain is a natural born citizen, eligible to serve as President. The Senate's opinion was based, in part, on the belief that John McCain was born on a U.S. military base in the Panama Canal Zone.
Whereas John Sidney McCain, III, was born to American citizens on an American military base in the Panama Canal Zone in 1936 (Senate Resolution 511) However, according to his long-form birth certificate and short-form Certificate of Live Birth, John McCain was born in the City of Colon, which is part of Panama itself. Colon was never a part of the Panama Canal Zone, and was never under U.S. administration. It was always under exclusive Panamanian sovereignty and jurisdiction. Senator McCain acquired U.S. citizenship, at birth, by descent from his parents. Even if he had been born on a U.S. military base, he did not acquire U.S. citizenship by virtue of birth "in" the United States. According to the U.S. State Department Foreign Affairs Manual, a U.S. military base located in a foreign country is not U.S. soil for citizenship purposes: Despite widespread popular belief, U.S. military installations abroad and U.S. diplomatic or consular facilities abroad are not part of the United States within the meaning of the 14th Amendment. A child born on the premises of such a facility is not born in the United States and does not acquire U.S. citizenship by reason of birth. (U.S. Department of State Foeign Affairs Manual, 7 FAM 1100, August 21, 2009, p.5) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [16] | The Constitution includes the 14th Amendment. If "natural born citizen" is not defined in the Constitution, it is not defined in the 14th Amendment. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [17] | On a handful of occasions, a federal judge has expressed his own personal opinion, or dicta, that all persons born on U.S. soil are natural born citizens. But to this day, no federal court has held a hearing regarding the meaning of "natural-born citizen," and no federal court has ruled as to the meaning of "natural born citizen", based on evidence presented at such a hearing. A Wall Street Journal article, published in 2009, understands and interprets Federal law as conferring natural born citizen status to certain children at birth:
Someone born overseas and after 1986, but otherwise in identical circumstances to Obama, would be a natural-born citizen thanks to a law signed by President Reagan. (James Taranto, It's Certifiable, Wall Street Journal, July 30, 2009) However, the notion -- that anyone who acquires U.S. citizenship at birth is a "natural born citizen" -- is an assumption, not settled law. Contrary to what the Wall Street Journal article implies, the term "natural born citizen" does not appear in any existing Federal statute (Wall Street Journal Caught Spreading False Legal Propaganda Via James Taranto). | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [18] | In 1576, Bodin's Republique made a distinction between "subjects" and "citizens". All citizens were subjects, but not all subjects were citizens. In ancient Greece, freed slaves were subjects but not citizens:
...every Citizen is a subject, ... But every subject is not a Citizen... ...the enfranchised (freed) slaves in Greece were not admitted to be Citizens, although that they were of the same country, and natural subjects. (Bodin (as translated by Knolles), p.48) During the Early Modern Period (1500-1800), the concept of local or municipal citizenship existed throughout Western Europe. In Italy, for example, citizens of a city, like subjects of a king, submitted to a higher authority: Above all, citizenship implied the subjection of the individual to a sovereign power or to a municipal authority. According to this view, most early modern Italian cities attributed a great deal of importance to citizenship, and citizenship continued to be an essential prerequisite for obtaining many rights. (Herzog, p.176) Citizens and subjects differed as to the nature of the authority they submitted to. Subjects were governed by a king. Citizens governed themselves through their elected representatives: Roman citizens were men bound to one another by the personal bond of fellow-membership of one body; but British subjects are men bound, not to one another, but to a common superior. The term citizen connotes the privilege of common membership of one state; but the term subject connotes the burden of a common subjection to one lord and king. (Salmond, p.49) The distinction between "subject" and "citizen" persisted in America after its independence. For example, Caleb Cushing (1800-1879) served as U.S. Attorney General from 1853 to 1857. In his opinion, Native American Indians were "subjects" of the United States but not "citizens": In 1856, the question came before the Attorney General, Mr. Cushing, as to whether Indians were citizens of the United States, and as such, were entitled to the privilege of preempting our public lands. He gave it as his opinion that they were not citizens, but domestic subjects, and therefore not entitled to the benefit of the act. (Stanton, pp.409-410) In Attorney General Cushing's opinion, "subjects" are governed by someone else, a separate sovereignty, an individual or group of which the subjects are not a part. "Citizens," on the other hand, govern themselves through their elected representatives. Citizens are their own sovereignty. Subjects are ruled by a government; citizens are the government. The simple truth is plain that the Indians are the subjects of the United States, and therefore are not, in mere right of home-birth, citizens of the United States. The two conditions are incompatible. The moment it comes to be seen that the Indians are domestic subjects of this Government, that moment it is clear to the perception that they are not the sovereign constituent ingredients of the Government. This distinction between citizens proper, that is, the constituent members of the political sovereignty, and subjects of that sovereignty, who are not therefore citizens, is recognized in the best authorities of public law. (Attorney General Cushing, as quoted in Congressional Globe, Senate, 39th Congress, 1st Session, p.2895) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [19] | "Vattel's The Law of Nations was the most influential book on the law of nations for 125 years following its publication." (Trout). Vattel's work was especially influential in America. See, for example: | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [20] | Nearly a century prior to Vattel, "natives" and "indigenes" were defined as those born in a society, of parents who are its citizens. In 1673, German political philosopher Samuel von Pufendorf defined "citizens" as the society's original founders and their descendants. Thus, in Pufendorf's view, natives or indigenes were those born in a society, of parents who were, or were descended from, the society's original founders.
A State or Government being thus constituted, the Party on whom the Supreme Power is conferr'd, either as it is a single Person, or a Council consisting of select Persons, or of All in General, is called a Monarchy, Aristocracy, or a Free State; the rest are looked upon as Subjects or Citizens, the Word being taken in the most comprehensive Sense: Although, in Strictness of Speech, some call only those Citizens, who first met and agreed together in the forming of the said Society, or else such who succeeded in their Place, to wit, House-holders or Masters of Families. French philosopher Denis Diderot (1713-1784) rejected Pufendorf's definition of "citizen". In Diderot's opinion, outsiders who join the society and become a part of it are as much citizens as the descendants of the society's original founders: Diderot chose to make his point about the quality of the citizen in the state by replying to Puffendorf distinction between the descendants of those who founded the state, the only ones who could claim the status of citizen, and the others. Diderot qualified this distinction as "frivole" and asserted that all members of the community are equally noble in so far as they are citizens; the status of 'nobility,' in fact equality here, derives from sharing in the right to the position of magistrate in the community. (Veluca, p.15) Jean Jacques Burlamaqui (1694-1748) argued that citizenship belongs, at birth, not only to the children of "the first founders of states" but also to the children of "all those who afterwards became members thereof": If by an express covenant, the thing admits of no difficulty. But, with regard to a tacit covenant, we must observe, that the first founders of states, and all those, who afterwards became members thereof, are supposed to have stipulated, that their children and descendants should, at their coming into the world, have the right of enjoying those advantages, which are common to all the members of the state, provided nevertheless that these descendants, when they attain to the use of reason, be on their part willing to submit to the government, and to acknowledge the authority of the sovereign. (Burlamaqui, paragraph IX) Although the meaning of "citizen" seems to have evolved over time, the meaning of "native" or "indigene" has not. For nearly a century prior to Vattel, you were a "native" or "indigene" of a society if you were born in the society, of parents who were "citizens" of that society. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [21] | It is well established that the term "natural born citizens" appeared in the 1797 English translation of Vattel's Law of Nations. According to one report, the term "natural born citizen" also appeared in an earlier English translation of Vattel's work (English Editions of the Law of Nations). This report has not been independently verified.
The Library of Congress contains a copy of an English-language translation of Vattel's Law of Nations, published in 1787, for Messrs. Berry and Rogers. Someone (who asked to remain anonymous) recently visited the Library of Congress and took these photos: Vattel, Law of Nations (1787), Book 1, Cover Page These photos show the use of "indigenes", not "natural born citizens", in the 1787 edition. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [22] | According to Myth of Alumni, the Latin alumnum refers to persons raised and educated by someone other than their biological parents. But according to Latin-English Dictionary 1.97FC, alumnum can also mean "native", in which case, alumnum urbis refers to a native of a city. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [23] | On July 26, 1781, the Continental Congress considered a proposed "treaty of amity and commerce, between his Most Christian Majesty [of France] and the United States". Two months later, French troops helped the United States defeat Lord Cornwallis' British army at Yorktown, thereby, in effect, ending the Revolutionary War militarily. (Two years later, The Paris Peace Treaty of 1783 ended the Revolutionary War officially).
The 1781 "treaty of amity and commerce" between France and the United States contained 29 articles. Article III contained this text (in French): Les consuls et vice consuls respectifs ne pourront etre pris que parmi les sujets naturels de la puissance qui les nommera. Tous seront appointes par leur souverain respectif, et ils ne pourront en consequence faire aucun trafic ou commerce quelconque ni pour leur propre compte, ni pour le compte d'autrui. (Article III, Journals of the Continental Congress 1774-1789: Friday, July 27, 1781, boldface emphasis added) At the time, Charles Thomson translated Article III as follows: The respective Consuls and Vice Consuls shall only be taken from among the natural born subjects of the power nominating them. They shall all be appointed by their respective Sovereign, and in Consequence of such appointment they shall not exercise any traffic or commerce whatsoever either on their own account, or on account of any other. (English translation, Article 3, Journals of the Continental Congress 1774-1789: Friday, July 27, 1781, boldface emphasis added) The French word naturels, which was rendered as "natives" in English translations of Vattel's Law of Nations, was understood (at least by Thomson) to mean "natural born" in the 1781 treaty. (For further discussion of Thomson's translation, see Mario Apuzzo: Founders knew and accepted Vattel's French "naturels" to mean "natural born"). | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [24] | Obama eligibility supports cite Black's Law Dictionary (1991), which defines "natural born citizens" as:
Persons who are born within the jurisdiction of a national government, i.e. in its territorial limits, or those born of citizens temporarily residing abroad. (Henry Campbell Black, A Dictionary of Law, 6th Ed., 1991, p.1026) According to this definition, virtually anyone who acquires U.S. citizenship at birth, regardless of birthplace, is a natural born citizen. Some Obama eligibility supporters, however, adopt a more narrow and limited definition, whereby a person must be born on U.S. soil in order to qualify as a "natural born citizen". If President Obama was born in Hawaii, he is "natural born" under either definition. In a two-page affidavit, candidate Obama declared, under oath, that he is a "natural born citizen of the United States" (Obama Affidavit 12-13-2007). | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [25] | There is a distinction between WHAT a natural born citizen is, and HOW someone becomes natural born citizen. According to birthers, the defining characteristic that distinguishes natural born citizens from other categories of citizens is exclusive U.S. citizenship at birth. Someone can be, at birth, both a citizen of the United States and a citizen of a foreign country. But a natural born citizen is, first and foremost, someone who is, at birth, a citizen of the United States exclusively.
The primary means of acquiring exclusive U.S. citizenship at birth is to be born in the United States, to U.S.-citizen parents. There are exceptions, of course, but as a general rule, anyone who is born in a foreign country, or is born of a foreign-citizen parent, acquires foreign nationality at birth, hence does not conform to the birthers' understanding of WHAT a natural born citizen is. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [26] | In eighteenth-century English common law, and in American derivative citizenship law (from 1855 to 1922), the legal status of a married woman was that of her husband.
According to Lord Coke, the English common law rule, that the status of the child follows the father, is grounded in the notion of marital unity. Under common law the legal identity and status of a wife merged with that of her husband; they became one in the eyes of the law, and that one was the husband. Therefore, the legal status of the father naturally governs the legal status of the child. In this respect, English common law was different from civil law countries where the status of the child followed the mother. (Banks, pp. 815-6) In eighteenth-century England, when a child was legitimate (born of parents who were married to each other), the status of the child's parents was the same as the status of the child's father. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [27] | There is general agreement that natural born citizenship is acquired only at birth and cannot be acquired after one's birth.
What was the original public meaning of the phrase that establishes the eligibility for the office of President of the United States? There is general agreement on the core of its meaning. Anyone born on American soil whose parents are citizens of the United States is a "natural born citizen." Anyone whose citizenship is acquired after birth as a result of naturalization is not a natural born citizen. (Solum, p.1, boldface emphasis added) In Elk v. Wilkins (1884), the Supreme Court indicated that there are only two sources of U.S. citizenship: birth and naturalization. Those who are not subject to the [complete] jurisdiction of the United States at the time of birth "cannot become so afterwards"; their only pathway to citizenship is naturalization. This section contemplates two sources of citizenship, and two sources only: birth and naturalization. The persons declared [112 U.S. 94, 102] to be citizens are 'all persons born or naturalized in the United States, and subject to the jurisdiction thereof.' The evident meaning of these last words is, not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance. And the words relate to the time of birth in the one case, as they do to the time of naturalization in the other. Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterwards, except by being naturalized, either individually, as by proceedings under the naturalization acts; or collectively, as by the force of a treaty by which foreign territory is acquired. (Elk v. Wilkins, 1884, boldface emphasis added) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [28] | The 12th Amendment, ratified in 1804, made natural born citizenship an eligibility requirement for the Office of Vice President.
But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States. (U.S. Constitution - Amendment 12) Chester Arthur was elected Vice President in 1880. When President James Garfield was assassinated in 1881, Chester Arthur became the first U.S. President, born after 1787, whose parents were not both U.S. citizens at the time of his birth. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [29] | According to the Supreme Court syllabus in McCreery's Lessee v. Somerville (1824), the plaintiffs -- who were born in the United States, of an alien father -- were "native-born citizens" of the United States:
Thus, where "A" died seized of lands in Maryland, leaving no heirs except "B", a brother, who was an alien, and had never been naturalized as a citizen of the United States, and three nieces, the daughters of the said "B", who were native citizens of the United States; it was held that they could not claim title by inheritance through "B", their father, he being an alien and still living. A Supreme Court syllabus is not U.S. law. In McCreery's Lessee v. Somerville, the Supreme Court did not decide the plaintiffs' citizenship. The court ruled that, in Maryland, no one may inherit property from a living ancestor. Therefore, the plaintiffs' U.S. citizenship was irrelevant. Regardless of their citizenship, the plaintiffs cannot inherit from an ancestor who is not yet deceased. Prior to the Wong Kim Ark decision in 1898, no Supreme Court majority opinion had ever declared the U.S.-born children of alien parents to be U.S. citizens in any sense (native-born or natural born). In some instances, a state would confer state citizenship to anyone born within its borders, regardless of parental citizenship. Anyone who became a citizen of any state was automatically a citizen of the United States. But prior to 1898, the Supreme Court had never established that, in the absence of state law, a child of an alien father was a U.S. citizen merely by being born on U.S. soil. (The McCreery v. Somerville Funeral). | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [30] | In 1779, Thomas Jefferson wrote a generic citizenship bill that any State could use. This bill conferred citizenship (or at least made citizenship readily available) to (a) any white person who was born in the State, and (b) any foreign-born child of parents who were citizens of the State at the time of the child's birth.
Be it enacted by the General Assembly, that At least one State -- Virginia -- adopted Jefferson's bill (Madison(2007)). According to Virginia Representative A. Smyth, birthplace alone does not confer state citizenship. In order for a child to acquire state citizenship at birth, the child's parents must be either (a) citizens, or (b) eligible to become citizens. When we apply the term "citizens" to the inhabitants of States, it means those who are members of the political community. The [Roman] civil law determined the condition of the son by that of the father. A man whose father was not a citizen was allowed to be a perpetual inhabitant, but not a citizen, unless citizenship was conferred on him. ... In at least some cases, Virginia (and undoubtedly other states as well) conferred state citizenship to children born within the State, of alien parents. Such children were born with dual nationality. They acquired state citizenship (by virtue of birth within the State) and foreign citizenship (by descent from their parents). | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [31] | Under the U.S. Constitution, the states lost their authority to confer citizenship by naturalization. The Federal government alone -- not the States -- established the rules by which aliens became naturalized citizens. But, prior to the 1866 Civil Rights Act and 14th Amendment, each state retained the right to decide who were, and who were not, its citizens by birth. When the laws of a state conferred state citizenship to a child born within that state, such child was automatically a citizen of the United States.
According to Chief Justice Jospeh Story, "Every citizen of a state is ipso facto a citizen of the United States" (Commentaries on the Constitution of the United States, Volume III, Section 1687). According to William Rawle, "he who was subsequently [after the adoption of the U.S. Constitution] born a citizen of a state, became at the moment of his birth a citizen of the United States" (Rawle). There was no uniform standard regarding state birthright citizenship. Each state had its own rules for conferring state citizenship to persons born in that state: ...there was no uniformity requirement with respect to state citizenship either with respect to native-born persons, recognized as state citizens, or persons admitted to live within the geographic borders of the United States and naturalized as state citizens. (Olson, Titus and Woll, Children Born in the United States...) Children who acquired state citizenship at birth were automatically citizens of the United States: Perhaps the first most important thing to understand about national birthright is that there was no written national birthright rule applicable within the States prior to the year 1866. One will look in vain to find any national law on the subject prior to this year, or even any mention of the right to citizenship by birth under the United States Constitution. James Wilson, one of the framers of the US Constitution, defined a United States citizen as a citizen of any one of the States: ...a citizen of the United States is he, who is a citizen of at least some one state in the Union (Wilson, Chapter XI,"Of Citizens and Aliens") Under the U.S. Constitution, each state must treat, as citizens, persons who are citizens of another state: The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States. (U.S. Constitution, Article IV, Section 2) As a general rue, each State decided, for itself, who were its citizens. However, in Scott v. Sandford (1857), the Supreme Court ruled that, if a State confers citizenship to an alien in a manner contrary to the uniform rules of naturalization established by Congress, the alien would be a citizen of that State only and would not be a citizen of the United States: The Constitution has conferred on Congress the right to establish an uniform rule of naturalization, and this right is evidently exclusive, and has always been held by this court to be so. Consequently, no State, since the adoption of the Constitution, can, by naturalizing an alien, invest him with the rights and privileges secured to a citizen of a State under the Federal Government, although, so far as the State alone was concerned, he would undoubtedly be entitled to the rights of a citizen and clothed with all the rights and immunities which the Constitution and laws of the State attached to that character. (Justice C.J.Taney, Opinion of the Court, Scott v. Sandford, 1857) Nevertheless, as Justice Curtis explained in his dissenting opinion, persons who acquire state citizenship at birth, according to the laws of that state, acquire federal (U.S.) citizenship as well: Chief Justice Taney in the famous case of Dred Scott v. Sandford said that "every person, and every class and description of persons, where were at the time of the adoption of the Constitution recognized as citizens in the several States, became also citizens of the new political body' but not other." Justice Curtis in the same case, admitting the proposition just stated, raised the question whether the federal government has been given the power to determine, "What native-born persons should be citizens of the United States?" After examination of the subject he holds it be a "necessary conclusion" that "those persons born in the several States, by force of their several constitutions and laws, are citizens of the state, are thereby citizens of the United States." (Burdick, p.319) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [32] | In Inglis v. Trustees (1830) and Elk v. Wilkins (1884), the Supreme Court ruled that a child born on U.S. soil, of a father owing allegiance to a sovereignty other than the United States, does not acquire U.S. citizenship at birth. Such a child might receive citizenship at birth from a state statute or a federal naturalization act. But in the absence of such state or federal law, a child acquires citizenship from its father, not its place of birth.
In U.S. v. Wong Kim Ark, Justice Gray mischaracterized the Supreme Court's ruling in the Inglis case. Justice Gray wrote: In Inglis v. Sailors' Snug Harbor (1830) 3 Pet. 99, in which the plaintiff was born in the city of New York, about the time of the Declaration of Independence, the justices of this court (while differing in opinion upon other points) all agreed that the law of England as to citizenship by birth was the law of the English colonies in America. Mr. Justice Thompson, speaking for the majority of the court, said: 'It is universally admitted, both in the English courts and in those of our own country, that all persons born within the colonies of North America, while subject to the crown of Great Britain, were natural-born British subjects.' Id. 120. Mr. Justice Johnson said: 'He was entitled to inherit as a citizen born of the state of New York.' Id. 136. (U.S. v. Wong Kim Ark, 1898) However, the Supreme Court's actual ruling in the Inglis case paints a different picture. The plaintiff was born in New York City during the Revolutionary War. His parents were British subjects who never became U.S. citizens. During the war, control of New York alternated between American and British forces. On July 4, 1776, New York became part of the newly-established United States. On September 15, 1776, the British re-captured New York. The plaintiff's exact birthdate was unknown, but the Court determined it didn't matter. Even if the plaintiff was born in New York while it was in American hands, he did not receive U.S. citizenship at birth. A child born in the United States, of a British father, is a British subject. Such child may, upon reaching adulthood, choose to become an American citizen, but until that time, his "election and character" follows that of his father. If [the plaintiff was] born after the 4th of July 1776, and before the 15th of September of the same year, when the British took possession of New York, his infancy incapacitated him from making any election for himself, and his election and character followed that of his father, subject to the right of disaffirmance in a reasonable time after the termination of his minority; which never having been done, he remains a British subject, and disabled from inheriting the land in question. (Inglis v. Trustees, 1830) In Elk v. Wilkins (1884), the Supreme Court ruled that Elk did not acquire U.S. citizenship at birth, despite the fact that he was born in the United States. In U.S. v. Wong Kim Ark (1898), Justice Gray attempted to limit the Elk v. Wilkins ruling to Native American Indians only: The decision in Elk v. Wilkins concerned only members of the Indian tribes within the United States, and had no tendency to deny citizenship to children born in the United States of foreign parents of Caucasian, African, or Mongolian descent, not in the diplomatic service of a foreign country. (U.S. v. Wong Kim Ark, 1898) However, the actual wording of the Court's opinion in Elk v. Wilkins tells a different story. Children born in the United States acquire U.S. citizenship at birth only if, at the time of birth, they owe "no allegiance to any alien power". Elk was not a U.S. citizen at birth because, at the time of his birth, he owed allegiance to an Indian tribe; and Indian tribes, though dependent on the United States, were (at the time) alien powers. The main object of the opening sentence of the fourteenth amendment was to settle the question, upon which there had been a difference of opinion throughout the country and in this court, as to the citizenship of free negroes, (Scott v. Sandford, 19 How. 393;) and to put it beyond doubt that all persons, white or black, and whether formerly slaves or not, born or naturalized in the United States, and owing no allegiance to any alien power, should be citizens of the United States and of the state in which they reside. (Slaughter-House Cases, 16 Wall. 36, 73; Strauder v. West Virginia, 100 U.S. 303 , 306). In Elk v. Wilkins, there is no indication that the term "alien power" applied only to Native American Indian tribes and not to foreign governments in general. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [33] | In early U.S. history, U.S. citizens were expected to divest themselves of foreign nationality, but were not expected to deny their foreign origin. It was generally presumed that all adult U.S. citizens (natural born or otherwise) were citizens of the United States exclusively. A child might be born with dual citizenship, but when such child became an adult, she or he was expected to renounce one citizenship and hold exclusively to the other. Adult U.S. citizens were, generally speaking, not citizens or subjects of any foreign country.
During naturalization, an alien was expected to "renounce forever all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty whereof such alien may at that time be a citizen or subject." (Naturalization Act of 1795). A child who acquired both U.S. citizenship and foreign citizenship at birth was expected to renounce one or the other upon reaching adulthood. It must be admitted that a man born on this soil, of alien parents, enjoys a dual nationality and owes a double allegiance. A child born under these conditions has a right to elect what nationality he will enjoy and to which of the two conflicting claims of governmental allegiance he will pay obedience. (Long) Some U.S. citizens were of foreign origin. They were born in a foreign country or were citizens or subjects of a foreign country when they were born. Nevertheless, adult U.S. citizens (natural born and otherwise) were presumed to be devoid of foreign nationality. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [34] | When the original thirteen colonies gained their independence and became the original thirteen States, they did not abolish their existing government and laws. Instead of creating a new legal system "from scratch", each State retained the English common law and modified it as necessary. In general, States retained the common law "rule" which granted citizenship to children of alien parents who, though not yet citizens, had sworn an oath of allegiance to the State and had established residence, or domicile, within the State:
While all States could be said to have recognized birth within the State as a means of conferring State citizenship to all persons, it is important to realize these States also required of aliens who desired to become domiciled within their limits to first renounce any allegiances to other governments and pledge their allegiance solely to the State. Therefore, a child born to domiciled parents was "born within the allegiance" of the State even if the parents had not yet been naturalized. (Madison(2007)) As a general rule, any child born within a State, of free white parents domiciled within that State, was a citizen of that State (or could become a citizen by merely swearing an oath of allegiance to that State). | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [35] | According to the transcripts of the 1866 Congressional debates, the phrase "subject to the jurisdiction thereof" in the 14th Amendment is understood to mean "not subject to any foreign power". If you were subject to a foreign power at birth (for example, if your parents were foreign citizens when you were born), you were not a 14th Amendment citizen, even if you were born on U.S. soil. In 1884, President Chester Arthur asked Congress to enact laws clarifying the status of persons who, though born in the United States, were not U.S. citizens under the 14th Amendment:
Our existing naturalization laws also need revision. ... Section 2172, recognizing the citizenship of the children of naturalized parents, is ambiguous in its terms... An uniform rule of naturalization, such as the Constitution contemplates, should, among other things, clearly define the status of persons born within the United States subject to a foreign power and of minor children of fathers who have declared their intention to become citizens... (Chester Arthur, 1884, as quoted by Long) The 14th Amendment merely says that persons "born or naturalized in the United States and subject to the jurisdiction thereof" are citizens. It does not say anything about the citizenship status of other categories of persons. The status of these "other" persons is a matter to be decided by the States and/or by naturalization laws enacted by Congress. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [36] | As written, 14th Amendment merely defines a group of people which the States must recognize as citizens. A State may confer citizenship to other persons as well. A State may confer citizenship to all persons born within it borders, but is not Constitutionally required to do so.
Children born in a foreign country are not 14th Amendment citizens by birth. Nevertheless, Congress may enact laws conferring U.S. citizenship, at birth, to foreign-born children of U.S.-citizen parents. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [37] | When a term, such as "jurisdiction", can be understood either in a general sense or in a more specific sense, we must reject the sense which causes the term to have no effect:
The constitution of the United States is to receive a reasonable interpretation of its language, and its powers, keeping in view the objects and purposes, for which those powers were conferred. By a reasonable interpretation, we mean, that in case the words are susceptible of two different senses, the one strict, the other more enlarged, that should be adopted, which is most consonant with the apparent objects and intent of the constitution; that which will give it efficacy and force, as a government, rather than that, which will impair its operations, and reduce it to a state of imbecility. Of course we do not mean, that the words for this purpose are to be strained beyond their common and natural sense; but keeping within that limit, the exposition is to have a fair and just latitude, so as on the one hand to avoid obvious mischief, and on the other hand to promote the public good. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [38] | For commentary regarding United States v. Low Hong (1919), see Mario Apuzzo, United States v. Low Hong is no precedent on the Question of What is an Article II "Natural Born Citizen", 2009. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [39] | For commentary regarding Judge Dreyer's dicta in Ankeny v. Indiana (2009), see Leo Donofrio, Eligibility Update: Ankeny v. Daniels. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [40] | Multiple sources have raised concerns about the soundness and veracity of the Supreme Court's reasoning in U.S. v. Wong Kim Ark: | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [41] | In Minor v. Happersett (1875), the Supreme Court expressed doubts concerning the citizenship (therefore, the natural born citizenship) of U.S.-born children of a non-citizen parent:
...it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. For the purposes of this case it is not necessary to solve these doubts. (Minor v. Happersett, 1875) In U.S. v. Wong Kim Ark (1898), the Supreme Court partially resolved these doubts, by ruling that the U.S.-born children of permanent legal resident Chinese immigrants are U.S. citizens. To this day, the "natural born citizen" status of U.S.-born children of non-U.S.-citizen parents remains unresolved. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [42] | Vattel similarly divided a country's population into three classes: inhabitants (roughly analogous to "foreigners"), perpetural inhabitants (roughly analogous to "aliens"), and citizens (roughly analogous to "subjects").
The inhabitants, as distinguished from citizens, are foreigners, who are permitted to settle and stay in the country. ... The perpetual inhabitants are those who have received the right of perpetual residence. These are a kind of citizens of an inferior order, and are united to the society without participating in all its advantages. (Vattel, §213). The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. (Vattel, §212). Today, the population of the United States can be divided into three groups: foreigners (foreign diplomats and temporary visitors), aliens (legal permanent residents, i.e., green card holders), and U.S. citizens. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [43] | The word "subject" has a general meaning and a specific meaning. In the general sense, anyone who owes any allegiance to the king is a "subject" of the king. Even aliens are "subjects" in the general sense, because they owe at least local (temporary) allegiance to the king.
An Alien is a subject that is born out of the ligeance of the king, and under the ligeance of another ... (Coke(1608), p.204, boldface emphasis added) In the specific sense, a subject is one "who owes permanent allegiance to the monarch" (Legal definition of "subject"). Aliens and foreigners are not "subjects" in the specific sense. In this Tutorial and in most of the sources cited by this Tutorial, the word "subject" is understood according to its specific meaning, not its general meaning. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [44] | "Protection" included, but was not limited to, the right to defend one's movable and non-movable personal property in English courts. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [45] | In medieval times, subjects and aliens had the same property rights. Both could acquire English real estate and bequeath it to their heirs. But by the end of the 15th century, only subjects, not aliens, could hold land.
Throughout early modern Europe, only natural or naturalized subjects could hold land in each kingdom. Coke listed several reasons for this restriction. First, aliens might discover "the secrets of the realm." Second, "[t]he revenues of the realm (the sinews of war, and ornaments of peace) should [not] be taken and enjoyed by strangers born." Third, alien landholding would "tend toward the destruction of the realm." It might also endanger "justice": juries were drawn from freeholders, and if aliens were allowed to hold land, there might not be enough natural freeholders to fill a jury. At base, the fear was that alien landholders would form a "Trojan horse" ever "ready to set fire on the common-wealth." (Hulsebosch, p.10) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [46] | According to William Blackstone, the "people" consist of aliens and natural-born subjects:
The first and most obvious division of the people is into aliens and natural-born subjects. (Blackstone, boldface emphasis added) Since denizens are in a middle state between aliens and natural-born subjects, we may presume that they too are among the "people" of England. Thus, in England, the "people" consisted of subjects and alien friends, but not foreigners. Blackstone separated the law into four "books": "Book The First" focuses on the "Rights of Persons," what a modem lawyer might call constitutional law. Here he addresses the relationships between masters and servants, parents and children, and husbands and wives. In chapter 10, he specifically addresses the rights "of the People, whether Aliens, Denizens, or Natives," specifying that aliens, not foreigners, "fall under the denomination of the people" who deserve rights within the realm. (Berry, italics are as they appear in the original) In the United States, the "people" are comprised of U.S. citizens only. The words "people of the United States" and "citizens" are synonymous terms, and mean the same thing. They both describe the political body who, according to our republican institutions, form the sovereignty and who hold the power and conduct the Government through their representatives. They are what we familiarly call the "sovereign people," and every citizen is one of this people, and a constituent member of this sovereignty. (Scott v. Sandford, 1856) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [47] | There were two kinds of aliens: alien friends and alien enemies. As a general rule, the word "alien," when not qualified, referred to "alien friends" -- citizens or subjects of a foreign country that was "in league" with England. In contrast, "alien enemies" -- citizens or subjects of a country hostile towards England -- were treated more as foreigners than aliens. Alien friends were regarded as immigrants. Alien enemies were regarded as possible invaders, saboteurs and/or spies. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [48] | While residing on English soil, alien friends were expected to owe local allegiance to the English king. But Lord Coke admitted that such local allegiance was artificially "wrought by the law". The word "allegiance" implies exclusive loyalty to one, and only one, sovereign. Due to their ongoing allegiance to their home countries, aliens cannot owe allegiance to the English king in any true or literal sense. England was willing to overlook and ignore this fact, but only as long as there was no overt conflict between the alien's actual allegiance to his home country and his so-called "local" allegiance to England. If war broke out between England and an alien's home country, the alien would automatically become an "alien enemy", and the king could order his immediate deportation. In other words, an alien's status could, at any moment, change from "friend" to "enemy", or vice versa, as the result of international events outside of the alien's control. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [49] | In 1608, Lord Coke defined "denizen" as anyone who was subject made:
| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [50] | The word "denizen" had a general meaning and a specific meaning. Sir Edward Coke (1552-1634) defined "denizen" (in the general sense) as anyone who acquired English subjecthood by any non-natural means. Francis Bacon (1561-1626) limited his definition of "denizen" only to those who became an English subject "by the king's charter", that is, by letters patent issued by the king.
In Bacon's view, there were four categories or "degrees" of persons: 1) alien enemies, 2) alien friends, 3) denizens, and 4) natural-born subjects. Persons became natural-born subjects either by birth or by acts of Parliament, but not by denization. The first degree of persons ... is an alien enemy; that is, such a one as is born under the obeisance of a prince or state that is in hostility with the king of England. To this person the law giveth no benefit or protection at all ... In Bacon's view, an alien could become an English subject either by naturalization or by denization. Naturalization was an act of Parliament; denization was conferred by letters patent issued by the king. The rights conferred by naturalization were retroactive to the time of birth. Denization was not retroactive; the rights conferred by denization were effective as of the time of denization, but not before. In Bacon's opinion, naturalization conferred "natural-born subject" status but denization (by royal prerogative) did not. By the time the U.S. Constitution was written (in 1787), Lord Coke's general definition of "denizen" had disappeared; only Bacon's specific definition remained. However, when Calvin's Case was decided in 1608, the broader and more inclusive general definition of "denizen" was still in use. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [51] | "Protection" was a matter of English law. The English king was expected to "protect" the people who were within his territory and allegiance. Safe conduct was a matter of international understanding. Foreign countries provided safe-conduct to Englishmen, as long as England provided safe-conduct to foreigners. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [52] | Aliens and foreigners were punished differently for crimes against the king:
By mentioning "alien or foreigner," Cunningham makes the same differentiation Hamilton and Representatives Vining and Stone did. There is a difference: "alien or foreigner." Cunningham differentiates here because although "foreigners" will "be dealt with by martial law," on the other hand, "aliens," "living under the protection of the King ... may be punished only as traitors." An "alien," because of the status as part of "the People," will be punished differently than a "foreigner," but in the same manner as a denizen or citizen/subject. (Berry, p.350) A government may file treason charges against its citizens, subjects and aliens, but not against foreigners. Foreigners may be prosecuted under martial law, but not as traitors: The eighteenth-century commentator Matthew Hale wrote that 'if an alien ... live here and enjoy the benefit of the king's protection and commit a treason, he shall be judged ... as a traitor.' A foreign invader, however, was a belligerent, not a traitor... (Mumford, p.243) In 1867, Great Britain captured some American citizens who had joined the Fenian fight for Irish independence. The Americans were former British subjects who had renounced their ties to Great Britian and had become naturalized U.S. citizens. The British government, citing the British doctrine of perpetual allegiance, classified the men as British subjects and prosecuted them as traitors rather than as foreigners. Outraged by the British action, the U.S. Congress passed the Expatriation Act of 1868, authorizing sanctions against Great Britain. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [53] | According to William Blackstone's Commentaries on the Laws of England (1769), the main difference between "alien" and "foreigner" was residency:
The main difference between "alien" and "foreigner" for Blackstone revolves around residency. An "alien" resides in a sovereign's realm other than the one in which the alien was born, where a "foreigner" can reside as such, but can also reside extraterritorially or simply not deserve or expect protection. (Berry, p.343) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [54] | Lord Coke did not explicitly define "actual obedience". However, we can infer the term's meaning from the manner in which the words "actual" and "obedience" were used throughout Coke's writings.
Lord Coke used the word "actual" in contradistinction to "legal". If the king had a legal right to possess certain territory but was not in actual possession of that territory, children born within that territory were not subjects of the king. A child was subject born only if, at the time of the child's birth, (a) the king was in actual possession of the child's birthplace and (b) the child's parents were under the king's actual obedience (Coke(1608), p.208). The distinction between actual and legal still exists today. You are in actual possession of an object if you have physical custody and control of it. But, if you store an object in a safety deposit box in a bank, you still "possess" the object but only in a legal or constructive sense; you are no longer in actual possession of it. (See Legal Definition of 'Possession'). In Lord Coke's writings, obedience and ligeance (allegiance) are synonymous. The two words are used interchangeably. "Ligeance" derives from "liege", which refers to unqualified loyalty and fidelity to one lord exclusively (see Question 16: Ligeance). Actual ligeance is exclusive allegiance to one and only one sovereign. You cannot owe actual ligeance to more than one king. Only English subjects can owe true ligeance to the English king. An alien owes ligeance to his home country, hence cannot owe ligeance (exclusive loyalty and obedience) to England's monarchy in any real or literal sense. While residing in England, aliens owe "local" ligeance to the English Crown. According to Lord Coke, local ligeance is "wrought by the law" (Coke(1608), p.177). Aliens owe ligeance to the English king only in a legal sense. But since they already owe ligeance to their country of origin, they cannot owe ligeance, therefore cannot owe obedience, to the English king in any actual or literal sense (See Question 21: Actual Obedience). | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [55] | During the early 17th century, the word "denizen" had a general meaning and a specific meaning. In the general sense, all persons who were subjects made (became subjects by artificial means) were called "denizens". Lord Coke's Report on Calvin's Case (1608) used the word "denizen" in the general sense. By the time the U.S. Constitution was written (in 1787), the general definition of "denizen" had become obsolete, and the word acquired a more narrow and precise meaning. In the specific sense, "denizen" referred only to aliens who were made English subjects by acts of the king (letters patent, or military conquest of the aliens' home country). Persons who acquired English subjecthood by statute or naturalization were no longer called "denizens"; instead, they were called "natural-born subjects". | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [56] | In the New Testament (specifically, Acts of the Apostles), there is a conversation between Paul of Tarsus, a first-century Jewish convert to Christianity, and Claudius Lysias, commander (tribunus) of the Antonia Fortress near Jerusalem:
[27] The commander went to Paul and asked, "Tell me, are you a Roman citizen?" In the above Biblical text, the word "born" is an English translation of the Greek gegennema, which derives from genna, which means "birth" but can also mean "descent" (see Strong's Concordance: 1080). Gennea, a variation of genna, is the root of the modern-day English word genealogy, the study of one's descent from one's ancestors. In the Latin Vulgate Bible, Acts of the Apostles, Chapter 22, the Greek word gegennema at the end of verse 28 is translated into the Latin word natus which, when used as a verb, means "born", but when used as a noun, means "son" (male descendant). Paul was born a Roman citizen because he was the son of a father who held Roman citizenship. At the time, to be "born" a Roman citizen was to acquire Roman citizenship, at birth, by descent from one's father. Wikipedia explains Paul's Roman citizenship as follows: Roman citizenship was conferred in a number of ways. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [57] | The King James Version of the Bible, published in 1611, was named after James Charles Stuart who, at the time, was king of Scotland and England (and, incidentally, Ireland as well). | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [58] | The plaintiff in Calvin's Case, Robert Calvin (born in 1606), should not be confused with the Protestant Reformation leader John Calvin (1509-1564). | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [59] | Robert Calvin (aka Robert Colville) was born in Edinburgh, Scotland. His father and grandfather were Scotsmen.
...the Post-Natus was one Robert Colville, then three years old. His exact identity has been question, but there is little doubt that he was the grandson of Lord Colville of Culross, and son of Robert Colville, master of Culross. (Galloway, p.148) There is some mystery about the identity of the plaintiff. He is held to have been Robert Colville, a grandson of Lord Colville of Culross -- Calvin or Colvin being an alternative rendering of Colville. That the plaintiff was indeed Lord Colville's grandson is attested by R.P.C. VIII (1607-10), 557-8; the difficulty is that Lord Colville's "oy" (grandson) there referred to was named James, not Robert, and was born in 1604 (Scots Peerage, II, 557-8). His father, the Master of Colville, was called Robert, and possibly this may have led to confusion. Oy, however, could signify nephew (Scottish National Dictionary, VI, 465); but no known nephew fits the bill. (Ferguson, p.104) According to Lord Coke, Calvin was "born under the natural and absolute ligeance of the king". Coke made the argument that, if children born under "local obedience" are natural-born subjects, then Calvin, who was born under "natural and absolute ligeance", must be a natural-born subject "so much the more so". ...for he [an alien friend] owed to the King a local obedience, that is, so long as he was within the King's protection: which local obedience, being but momentary and incertain, is strong enough to make a natural subject; for if he hath issue [a child] here, that issue [child] is a natural born subject: a fortiori [so much the more so] he that is born under the natural and absolute ligeance of the King (which as it hath been said, is alta ligeantia [high allegiance]) as the plaintiff in the case in question was, ought to be a natural born subject; for localis ligeantia est ligeantia infima et minima, et maxime incerta [local allegiance is something mean and small, and extremely uncertain]. (Coke(1608), p.179, boldface emphasis added) Francis Bacon (1561-1626), an attorney who represented the plaintiff in Calvin's Case, explained that the phrases "born within" and "born under" refer to the allegiance of the child's parents. To be "born within the allegiance of the English king" was a figure of speech, referring to: ...children whose parents were at the time of their birth at the faith and obeisance of the king of England. (Bacon, Francis, pp.652-653) James became king of Scotland in 1567. When Robert Calvin was born in 1606, his parents were probably under 39 years of age, which would mean that they (like their son) were born during King James' reign. Thus Robert Calvin was probably "born under the natural and absolute ligeance of the king", in the sense that, when he was born, his parents owed "natural and absolute ligeance" to King James personally. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [60] | Robert Calvin was born in Scotland, of Scottish parents. When he was denied access to English property that he had inherited, his guardians filed a lawsuit in English Court. That lawsuit is known today as Calvin's Case:
The question in Calvin v. Smith was whether a Scotsman born after James inherited the English throne in 1603 could sue in the common law courts to vindicate title to land located in England. ... Robert Calvin was a Scottish infant born after James I's accession to the English throne. He [Calvin] claimed an inheritance of land in England, and the English possessors of the land blocked his entry. Calvin's guardian brought an action against these men under the assize of novel disseisin, a medieval statute allowing a plaintiff "recently disseised" of land to sue in the common law courts for repossession. The Englishmen's defense was that Calvin had no rightful claim [in England] because he was an alien [not an English subject]. (Hulsebosch, p.10) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [61] | Yelverton, one of the judges who heard Calvin's Case in 1608, noted that a subject by man-made law was not a "real" subject. Parliament may confer subjecthood and deem someone to be a subject, but can never make someone a subject "indeede" (in fact):
A parliament may make a man to be accompted as naturalised, and conclude every man to say but that he is so, but it can never make a man to be so indeede (Yelverton, as quoted by Galloway, p.157). According to Cunningham's Law Dictionary (1771), Calvin's Case did not confer English subjecthood to persons who were naturalized by Irish or Scottish law. Naturalization (by parliamentary action or statute) is merely a "fiction of law" which has no effect except in countries consenting to that fiction. An Irish or Scottish subject acquired automatic English subjecthood at birth only if such person was an Irish or Scottish subject by birth (i.e., by natural law). Naturalizing in Ireland is of no effect as to England; for naturalization is but a fiction of law, and can have effect but upon those only consenting to that fiction; therefore it has the like effect as a man's birth hath, where the law-makers have power, but not where they have not. Naturalizing in Ireland gives the same effect in Ireland as being born there; so in Scotland as being born there; but not in England, which consents not to the fiction of Ireland or Scotland, not any but her own. (Cunningham, section entitled "Aliens") | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [62] | Lord Coke's Report regarding Calvin's Case (1608) was considered authoritative in 1787, the year the U.S. Constitution was written.
Statutory regulation largely superceded Calvin's Case after 1844, but in certain contexts Coke's opinion was still considered authoritative (Kettner, p.7). The common law, as thus enunciated in Calvin's Case, continued in force until 1914... (Ross, p.7). | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [63] | Coke's reports, and his four-volume Institutes of the Lawes of England, were well known and widely read in the American colonies:
His legal texts formed the basis for the modern common law, with lawyers in both England and America learning their law from his Institutes and Reports until the end of the eighteenth century. ... Coke's reputation as one of the most influential jurists in Anglo-American history rests to a significant extent on the central role that his legal writings have had in the development of the modern common law. Of greatest importance have been his thirteen volume series of Reports, and his four volume Institutes of the Lawes of England. Coke's Reports have been described by the legal historian Sir John Baker as "perhaps the single most influential series of named reports." (Wikipedia: Edward Coke) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [64] | Natural allegiance (ligeance) has three core characteristics: it is personal, it is perpetual, and it is exclusive.
| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [65] | The term "natural-born subject" did not have precise or consistent meaning:
...the terms "natural-born" and "naturalized" seem to have been used rather interchangeably in English jurisprudence (Bonner, p.25) ...in 1608 the terms natural-born and naturalized appear to have been used rather imprecisely (Price, p.87) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [66] | During Queen Elizabeth's reign (from 1558 to 1603), aliens who became English subjects by naturalization were "reputed and taken" to be natural or natural-born subjects:
Twelve private Acts are to be found for the reign of Elizabeth I. About half of these provide for the making of the person named "a free denizen" [5 Eliz. No. 20, 8 Eliz. No. 9, 13 Eliz. No. 2, 23 Eliz. No. 3, 43 Eliz. No. 3.]. But in the others the formula is varied, provision being made, for instance, "that Garsome Wroth, born in Germany, shall be taken and reputed the Queen's natural-born subject" [1 Eliz. No. 6.]; "that the Lady Jane Sibilla, wife to the Lord of Wilton, born beyond the Seas, shall be reputed and taken the Queen's natural subject" [18 Eliz. No. 7.]; ... (Parry) Giles Jacob's New Law Dictionary defines "naturalization" as a legal process by which an alien becomes a natural subject in the eyes of the law: Naturalization, (Naturalizatio) Is where a person who is an alien, is made the King's natural subject by act of parliament; whereby one is a subject to all intents and purposes, as if he were born so. (Jacob (1782), Naturalization) An alien who underwent naturalization was put in "exactly the same state" as if he were a subject by birth: Naturalization cannot be performed but by act of parliament: for by this an alien is put in exactly the same state as if he had been born in the king's ligeance; except only that he is incapable, as well as a denizen, of being a member of the privy council, or parliament, &c. (Blackstone) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [67] | Don Hector Nunez was born in Portugal, of Portugese parents. During his youth, he immigrated to England to escape the Inquisition. He was deemed an English natural subject after living in England for more than 20 years. (January 1576, Calendar of State Papers Foreign, Elizabeth, Volume 11: 1575-1577, see entry for Jan 20). In 1588, Nunez provided England with invaluable military intelligence regarding the Spanish Armada's movements (Hutchinson, p.219). | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [68] | Like the Act of Anne, the British nationality acts of 1730 and 1772 did not explicitly say that foreign-born children of British fathers are natural-born subjects. These acts merely said that such children shall be deemed, adjudged, taken and declared to be natural-born subjects, for all intents, constructions and purposes.
...That all Children born out of the Ligeance of the Crown of England, or of Great Britain, or which shall hereafter be born out of such Ligeance, whose Fathers were or shall be natural-born Subjects of the Crown of England, or of Great Britain, at the Time of the Birth of such Children respectively, shall and may, by virtue of the said recited Clause in the said Act of the seventh Year of the Reign of her said late Majesty, and of this present Act (7 Ann. c. 5. s. 3.), be adjudged and taken to be, and all such Children are hereby declared to be natural-born Subjects of the Crown of Great Britain, to all Intents, Constructions and Purposes whatsoever. (British Nationality Act of 1730) ...That all Persons born, or who hereafter shall be born, out of the Ligeance of the Crown of England, or of Great Britain, whose Fathers were or shall be, by virtue of a Statute made in the Fourth Year of King George the Second, to explain a Clause in an Act made in the Seventh Year of the Reign of Her Majesty Queen Anne, for naturalizing Foreign Protestants, which relates to the natural-born Subjects of the Crown of England, or of Great Britain, intitled to all the Rights and Privileges of natural-born Subjects of the Crown of England or of Great Britain, shall and may be adjudged and taken to be, and are hereby declared and enacted to be, natural-born Subjects of the Crown of Great Britain, to all Intents, Constructions, and Purposes whatsoever, as if he and they had been and were born in this Kingdom: ... (British Nationality Act of 1772) The implication was that the "natural-born subject" status of some children was actual and self-evident; no man-made law was needed to specify their legal status at birth. Other children were natural-born subjects only because Parliament had "deemed" and "declared" them so. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [69] | Alien friends were expected to take, or at least comply with, the Oath of Allegiance (see England's Oaths):
Alien friends -- ... i.e. immigrants from a country on friendly terms with the English crown -- were protected by the law, owed temporarily allegiance to the king and were obliged to take the oaths required of subjects. However, their rights fully to participate economically and legally in the host society were restricted. (Esser, p.240) When alien friends took the Oath of Allegiance, they did not necessarily sever their ties to their home countries. They merely promised that, while on English soil, they would "bear faith and true allegiance" to the English king. Such wording implied at least a temporary suspension of competing or conflicting allegiances. Prior to the Civil War, the U.S. Supreme Court declared, as unconstitutional, a South Carolina oath swearing "faithful and true allegiance" to the State of South Carolina, because such oath conflicted with allegiance to the U.S. Federal government: In the case of The State v. Hunt, in South Carolina, in 1835, 2 Hill (S. C), 1, the subject of allegiance, and to whom due under the Constitution of the United States, was profoundly discussed, and it was declared by a majority of the Court of Appeals that the citizens owed allegiance to the United States, and subordinately to the state under which they lived; ... and that we owed allegiance or obedience to both governments, to the extent of the constitutional powers existing in each. While living on English soil, alien friends were within the king's allegiance. They temporarily suspended any aspect of their foreign allegiance that might conflict with their "faith and true allegiance" to the English king. They could resume their foreign allegiance as soon as they departed from English-controlled territory. On the other hand, English subjects -- regardless of how they acquired their subjecthood -- were expected to take, or at least comply with, the Oath of Supremacy, in addition to the Oath of Allegiance. The English Oath of Supremacy included a promise to "utterly renounce and forsake" all foreign "Jurisdictions, Powers, Superiorities, or Authorities". Thus a naturalized English subject did not merely suspend his foreign allegiance; he renounced it entirely. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [70] | Here are Lord Coke's "official" definitions of the four kinds of ligeance (allegiance):
There is found in the law four kinds of ligeances: Those who were born with natural allegiance were subjects born. Those whose allegiance was acquired were subjects made, also referred to as "denizens" (in the general sense of the word). | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [71] | From Timothy Cunningham's Law Dictionary (1771):
Also if one born out the king's allegiance, come and dwell in England, his children begotten here, are not aliens, but denizens (Cunningham, 1771, section titled "Aliens", pp.94-102, italics are as they appear in the original). | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [72] | From Giles Jacob's New Law Dictionary (1782):
And if one born out the king's obedience comes and resides in England, his children begotten and born here, are not aliens but denizens (Giles Jacob, New Law Dictionary, 1782, section titled "Aliens", p.40, italics are as they appear in the original). | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [73] | From Samuel Johnson's A Dictionary of the English Language (1755):
If one born out the king's allegiance, come and dwell in England, his children (if he beget any here) are not aliens, but denizens. (Samuel Johnson, A Dictionary of the English Language (1755), as quoted by Berry, p.365, italics are as they appear in the original) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [74] | According to the Huguenot Society, when Calvin's Case was decided in 1608, there was no statutory difference between "naturalization" and "denization".
It is important to bear in mind what is the real nature of the distinction ... between naturalization and denization. The general explanation given is that naturalization conferred full rights including the most cherished right of all, that of purchasing, holding and transmitting lands; while denization conferred only restricted rights. In especial it did not confer this right as to lands. This explanation is an untrue one for all the period prior to the Stuarts [1603]. Indeed it is an untrue one altogether. (Shaw, p.vi) The only real difference between naturalization and denization was that naturalization was usually done by Parliament, and denization was usually done by the king. "Denization" gained a reputation of conferring "restricted rights" because the king often (but not always) included restrictions in the letters patent that he issued. Parliament, on the other hand, generally did not include such restrictions in its grants of English subjecthood. When the two forms of grant [naturalization and denization] had become stereotyped (from the time of the Stuarts onward) the real distinction between them is that grants of denization originated from the king (or the executive) and were an act of the prerogative or of the executive; while grants of naturalization originated with the parliament and were an act of the legislative. The fact that one grant (denization) came generally to confer only restricted rights while the other (naturalization) conferred full rights was a mere accident and was due to the unfettered nature of the prerogative or the power of the executive. In making his grant of denization by letters patent the king (the executive) could put into the grant what he pleased or keep out of it what he pleased. He could grant the right of paying only natives' or single customs; he could refuse that right and make the denizen pay aliens' duties; he could grant the right to purchase and hold lands; he could withhold that right; he could insist on residence or he could dispense with it; he could restrict the occupation of the denizen so as to forbid him for instance to be a master of a ship; and so on and so on.(Shaw, p.vi) By definition, a denizen is an Englishman with full rights. After transforming an alien into a denizen, the king may, as an after thought, restrict some of these rights. But in restricting these rights, the king does not alter the core meaning of "denizen". But ever and always it must be born in mind that wherever restrictions are found in the prerogative grants they are an after thought. When a person was made a denizen by patent the intention was to make him an Englishman not half an Englishman or three-quarters an Englishman, and the word denizen is never used legally as implying a class of Englishman with restricted rights. (Shaw, p.vii) Except for restrictions that the king might include in his letters patent, there was no intrinsic difference between naturalization and denization. For instance when in the latter half of Elizabeth's reign naturalization Acts specifically so called come into vogue the words naturalization and denization are used as interchangeable and equivalent terms. The first occasion on which the term naturalization is employed is in 1581 (23 Eliz.) but as late as 1601 (43 Eliz.) the term denization is still employed in an Act of parliament. To make a foreigner a denizen or to naturalize him were therefore the same thing and both meant to make him mere [pure] English. (Shaw, p.viii) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [75] | In his Report regarding Calvin's Case, Coke repeatedly used the term "actual obedience" in reference to a city or country of which the king was in actual possession. When the king took actual possession of a city or country, such city or country was said to be under the king's "actual obedience".
| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [76] | Lord Coke noted that, in Biblical times, children born in Samaria were foreigners because the people of Samaria were "not under actual obedience".
Samaria in Syria was the chief City of the ten Tribes: but it being usurped by the king of Syria, and the Jews taken prisoners, and carried away in captivity, was after inhabited by the Panyms. Now albeit Samaria of right belonged to Jurie, yet because the people of Samaria were not under actual obedience, by the judgment of the chief Justice of the whole world they were adjudged Alienigenae, Aliens: For in the Evangelist St. Luke, c. 17, when Christ had cleansed the ten Lepers,Unus autem ex illis (saith the Text) ut vidit quia mundatus esset, regressus est, cum magna voce magnificans Deum, et cecidit in faciem ante pedes ejus gratias agens, et hic erat Samaritanus. Et Jesus respondens dixit, Nonne decem mundati sunt, et novem ubi sunt? Non est inventus qui rediret et daret gloriam Deo nisi hic alienigena. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [77] | An "addition" is a title following a person's name, sometimes indicating the person's place of origin or residence. For example, in the phrase "Queen Elizabeth I of England", England is the place of addition. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [78] | When a king was in actual possession of a country's territory, not every man, woman and child residing in the country was necessarily under the king's "actual obedience". Elsewhere in Coke's Report, we find that certain persons, such as foreign ambassadors and alien enemies, did not owe any allegiance (obedience) to the king. Such persons were not under the king's obedience, and their children, even if born within the king's realm, were not the king's subjects. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [79] | Lord Coke listed "conquest" as one of the means of denization. When a king conquered a country and took actual possession of it, its people became denizens (adopted subjects) of the king.
And this denization of an alien may be effected three manner of wayes: by Parliament, as it was in 3 Hen. 6. 55 in Dower; by letters patents, as the usual manner is; and by conquest, as if the King and his subjects should conquer another Kingdome or dominion, as well Antenati as Postnati, as well they which fought in the field, as they which remained at home for defence of their countrey, or employed elsewhere, are all denizens of the kingdom or dominion conquered. (Coke(1608), pp.178-9, boldface emphasis added) Note that, in 1608, Coke used the word "denizen" in the general sense, referring to anyone who became an English subject by any artificial means. At the time, denization was synonymous with naturalization, and both denizens and naturalized subjects were called "natural-born subjects" in the general sense. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [80] | When England conquered Ireland, the Irish people became English subjects:
...the Irish kept their own native laws, but the Irish and English were nonetheless all subjects who owed a bond of allegiance to the king of England. It is in this context -- to support the argument that English and Irish in Angevin times were all subjects of the same king though they had different national laws -- that Bacon purported to deduce from the historical evidence the proposition of law that the laws of conquered countries remain until the king decides to change them. (Loughton, p.164) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [81] | Some native Scotsmen, presumably born in Scotland after 1603, underwent conventional English naturalization or denization, despite the fact that the ruling in Calvin's Case had supposedly granted automatic English subjecthood to native-born Scotsmen.
What is also curious is that the denization of Scots persists until very late in the [seventeenth] century. It would seem almost impossible that John Thomason, who sought denization in 1661 and was a Scot by birth and an active merchant, should have been born before [1603]. Nor does it seem likely that Robert Creighton, the Dean of Wells, whose name was included in a naturalisation Act in 1663, was an antenatus, though a Scot. The possibility seems even more remote in the cases of John Poston or Paston, a mariner of Fife, endenized in 1668, and John Dicksone, whose grant in 1674 reserved aliens' customs. And it does not follow that they were the only cases of this period since very often the origin of the grantee is not recorded. (Parry) John Thomason's application for denization (1661) reads: Petition to the King from John Thomason praying denization. Is a Scot by birth and a trader between Hamburg and Newcastle, and often transported persons of honour for the late king, epsecially one whom Parliament forbade on pain of death. (Shaw, p.88) John Poston was listed on June 5, 1668, as: John Poston, Fife, Scotland, mariner (Shaw, p.101) John Dicksone's application for denization was recorded on June 20, 1674: John Dicksone of St. Martins in the Fields, native of Scotland: with proviso to pay strangers' customs (Shaw, p.110) In the Naturalization Act of 1663, Robert Creigton was listed as follows: Robert Creigton, Doctor of Divinity and Deane of Wells, born in the Kingdome of Scotland (Shaw, p.90) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [82] | The words "citizen" and "foreigner" had different meanings depending on context. In an urban context, a "citizen" of a city was someone who had certain rights and privileges, called "freedom of the city", and a "foreigner" was someone who was not a citizen of the city in which s/he was visiting or living. This passage, from Blackstone's Commentaries (1765-1769), is an example of how the English words "citizen" and "foreigner" were used in an urban context prior to the American Revolution:
In some cases, the sheriff of London's certificate shall be the final trial: as if the issue be, whether the defendant be a citizen of London or a foreigner, in case of privilege pleaded to be sued only in the city courts. (Blackstone's Commentaries, Book 3, Chapter 22, emphasis added) However, in an international context, a "citizen" of a state was a full-fledged member of that state, and a "foreigner" was a native, subject or citizen of some other state. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [83] | In eighteenth-century English cities and towns, "citizenship by birth", also called "citizenship by patrimony", was available:
...only to the legitimate and natural children of a male (or, since 1976, female) Freeman who were born after their parent's own Freedom admission. (City Freedom Archives) You could claim English municipal "citizenship by birth" if, at the time of your birth, your father was a citizen: It may be assumed that those who claimed the franchise by birth were the sons of well-to-do freemen (Seybolt, p.4) Freedom by patrimony was granted to sons of citizens who requested admission to freedom under the auspices of the guild to which their father belonged. (Herzog, p.178) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [84] | Redemption -- the process of becoming a freeman of a city by paying a fee -- was available only to those who were already "free".
The common law courts also stated that freedom could never be sold. Buying freedom by paying redemption fees was a fiction. Although presented as a purchase, in reality this transaction consisted of formally recognizing that people were already free. Indeed, people who were truly unfree could not purchase their freedom in this way. (Herzog, p.181) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [85] | The conventional theory of French birthright citizenship is that:
According to this theory, the jus soli principle prevailed in France when the U.S. Constitution was being written. In 1869, Alexander Cockburn wrote: By the law of France, anterior to the [French] revolution, a child born on French soil, though of foreign parents, was a Frenchman, as it was termed, jure soli (Cockburn, p.14) According to the majority opinion in U.S. v. Wong Kim Ark (1898), the jus soli principle was the "rule of Europe" prior to the French Revolution: But at the time of the adoption of the constitution of the United States in 1789 [sic], and long before, it would seem to have been the rule in Europe generally, as it certainly was in France, that, as said by Pothier, "citizens, true and native-born citizens, are those who are born within the extent of the dominion of France," and "mere birth within the realm gives the rights of a native-born citizen, independently of the origin of the father or mother, and of their domicile"; and children born in a foreign country, of a French father who had not established his domicile there, nor given up the intention of returning, were also deemed Frenchmen ... In 1972, Patrick Weil wrote that, in France prior to the French Revolution, jus soli "took precedence" over jus sanguinis: ...throughout the ancien regime [1650-1789], the jus soli was the primary requirement for the attribution of French nationality. And although, beginning in the seventeenth century the jus sanguinis could independently be used to access French nationality, it is important not to be mistaken on this point -- birth on French soil still took precedence over birth by French parents (regardless of birthplace) as the legitimate criterion for determining French nationality. However, Weil was careful to point out that no single principle, by itself, conferred French nationality. In eighteenth-century France, the jus soli principle did not act alone; it acted in combination with other principles: Like all other legislation involving nationality, ever since the seventeenth century, the French tradition has been based on a mixture, or a blend -- as in a painting, several colours are mixed to achieve the desired effect. In the case at hand, two of these 'colours' are always mentioned: first, the birthplace, or jus soli ... and second, family blood/ties, or jus sanguinis ... Other historians believe that the importance of jus soli in France, prior to the French Revolution, has been exaggerated. Clive Parry (1954) regards the "conventional theory" as an oversimplification: For, when the parallel history of French law is examined, it is seen that it is oversimplification to say that in France there was a period, before the extension of the kingdom to the whole country, when the Romanesque or barbaric jus sanguinius held sway, followed by a period when the jus soli alone ruled until its reign was ended by the Revolution. The supposition is a false deduction from the rule that originally no one born out of France was a subject. The antithesis of that was not, however, that anyone born in France was such. In the early sixteenth century it was further required that at least one of his parents should he French. Somewhat earlier it was probably required that both parents should be French. And even later there were such curious intermediate rules as that birth in France of parents married in France sufficed, or that, though birth in France of alien parents would exclude the droit d'aubaine if the heirs were descendants, it could not do so if they were ascendants. It was also required, at the time when both French birth and French parentage were demanded of a claimant of nationality, that he should further be a rengicole -- in effect a resident. (Parry) Tamar Herzog (2003) likewise finds that, in eighteenth century France, birthplace was not as important as it has been made out to be: The idea that Frenchness depended on birth in a certain territory was initially linked to the belief that individuals loved the land where they were born. But after the French kings ascertained their sovereignty, the importance of birth diminished. Progressively, emphasis was shifted from territoriality to subjecthood and from community to the king. (Herzog, p.193) At various times in French history, three groups of people were required to pay "alien" taxes.
Naturalized foreigners, and native-born children of foreigners, were Frenchmen by law but were not true native Frenchmen in fact. They had some of the rights of true native Frenchmen, but were nevertheless regarded as "aliens" for taxation purposes: It was also the case in France that letters of naturalization and even birth in the territory could fail to transform foreigners into natives. On different occasions during the seventeenth century, for example, alien taxation was levied on "true" foreigners, "naturalized" foreigners, and native French who descended from foreign families. Stressing the foreignness of these individuals, many of whom were legally French, these decrees explained their taxation was justified because the presence of foreigners on French soil was profoundly illegal and because foreigners "usurped" the privileges of natives. Following this logic, in 1769, campaigns to distinguish true natives from actual (and legal) foreigners were launched. (Herzog, p.195-6) Only "true" native Frenchmen -- those born in France, of at least one French parent -- were exempt from alien taxation. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [86] | Foreign-born children of English non-civilian parents were "special cases". Such children were, at birth, natural subjects of the king, despite the fact that they were not born within the king's realm. At birth, these children owed allegiance to the English king only and did not owe allegiance to any foreign sovereign.
English non-civilian parents included:
According to Vattel, if a parent, while in the diplomatic or military service of his home country, gives birth to a child in a foreign country, the legal status of the child is as though the child had been born in its parent's home country. For the same reasons also, children born out of the country, in the armies of the state, or in the house of its minister at a foreign court, are reputed born in the country; for a citizen who is absent with his family, on the service of the state, but still dependent on it, and subject to its jurisdiction, cannot be considered as having quitted its territory. (Vattel, § 217) On this one point, Vattel agreed with the English law regarding subjecthood. The legal status of a foreign-born child of English non-civilian parents (i.e., parents who were royalty or in the king's military or diplomatic service) was as though the child had been born in England. This point has been cited in support of John McCain's natural born citizenship. McCain was born in a foreign country, of parents who were U.S. citizens in the service of the United States government at the time of his birth. According to Vattel and English law, McCain's legal status at birth was as though he had been born in the United States. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [87] | During a radio interview (May 2, 2010), Gov. Linda Lingle stated, "...we issued a news release at that time saying that the president was, in fact, born at Kapi'olani Hospital in Honolulu, Hawaii". However, the Hawaii Department of Health has never issued any press release identifying Kapiolani hospital as Obama's birthplace. President Obama and his family have, at various times, indicated that he was born in Queen's Hospital. (The Obama File: Where Was Obama Born?).
Gov. Lingle may have inadvertently (and illegally) disclosed the name of the hospital shown on Obama's original birth document; or, she may have merely assumed that Obama was born in Kapiolani Hospital, based on the information available to her at the time. Gov. Lingle did not say she had seen Obama's original birth records. However, she was undoubtedly aware of a letter (January 24, 2009) that President Obama purportedly sent to Kapiolani Medical Center, claiming that he was born there. At the time of this writing, the White House has not confirmed the authenticity of that letter, and Kapiolani Medical Center no longer displays the letter on its website. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [88] | Stanley Ann's mother (President Obama's maternal grandmother) was named Madeline, not Madelyn (The Obama File: Stanley Ann Dunham). | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [90] | John McCain did not acquire Panamanian citizenship at birth:
Today Panama is a country that confers citizenship via jus soli, which if he was born there today would mean that John McCain would not born with only American claims to his allegiance. BUT, in 1936 Panama's sole principle of birthright citizenship was jus sanguinis. Yes, Panama did include in their Constitution an avenue of Panamanian citizenship John McCain could have used, but it was not an automatic birthright. ... The point is that Panama made no claim to John's allegiance at his birth, John was born with only the United States of America having a claim to his allegiance. (The Devil makes some Damned Deals) Nevertheless, John McCain was subject to Panamanian jurisdiction when he was born, and to some extent, remains under Panamanian jurisdiction today. Panama has an internationally-recognized right to enact nationality laws bestowing privileges and benefits retroactively upon persons, such as John McCain, who were born on Panamanian soil. John McCain is potentially a beneficiary of such laws. Similarly, President Obama, though he acquired British nationality by descent from his father, did not acquire Kenyan citizenship at birth. Nevertheless, he was subject to Kenyan jurisdiction when he was born, due to the fact that his father was a Kenyan native. When Kenya gained its independence in 1963, it conferred Kenyan citizenship to Barack Obama, Jr., retroactively. Obama's Kenyan citizenship automatically expired on Aug. 4, 1984. But, in 2010, Kenya adopted a new constitution which conferred citizenship-related rights to persons, such as President Obama, who were born outside of Kenya, to a Kenyan father (Yes, Obama's eligible for president, in Kenya). | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [91] | On April 22, 2011, President Obama asked the Hawaii Department of Health for a copy of his original "long-form" birth certificate (Birth Certificate Correspondence). In response, the Hawaii Department of Health sent a Certificate of Live Birth, which the White House subsequently published on its web site. According to multiple document-forensic experts, Obama's published Certificate of Live Birth is a recently-created artificially-constructed abstract of a birth record, not the image of an actual original 1961-era birth registration (Douglas Vogt's Affidavit and Mara Zebest's Final Report).
On May 22, 2012, the Hawaii State Registrar, Dr. Alvin T. Onaka, confirmed the Certificate's informational content: ... I certify that the information in the copy of the Certificate of Live Birth for Mr. Obama that you attached with your request matches the original record in our files. (Verification of Birth) On September 14, 2012, Dr. Onaka again confirmed that the information shown on Obama's published long-form birth certificate matches information on file in Hawaii (see Verification Documents provided to Kansas Secretary of State). However, Dr. Onaka never said that Obama's published long-form Certificate is the image of an actual original 1961-era birth document. Susan Nordyke was born in Kapiolani Hospital the day after President Obama was purportedly born in the same Hospital. The Nordyke Certificate of Live Birth states that it is "a true and correct copy" of an original birth record. Obama's long-form Certificate of Live Birth makes no such claim. It merely states that it is "a copy or abstract" of information currently on file in Hawaii. It does not claim to be the image of an original source document. Although Obama's published long-form Certificate of Live Birth appears to be an artificial construct recently manufactured on a computer, there is (at this time) no verified fact that directly impugns the long-form's informational content. There are reasons to suspect that President Obama might have been born overseas (see, for example, Arpaio Investigation: Obama Might be Kenyan and U.S. Certificate issued to one East African-born child of U.S. citizen in 1961). There are also reasons (not related to his birth certificate) to suspect that the President was indeed born in the Aloha State (see, for example, Recent WND Inquiries Appear To Have Established Obama's Birth In Hawaii). At this time, there is "no substantial court-admissible proof" of where the President was actually born (Barnett, Chapter 3). Until proven otherwise, this Tutorial assumes that the information shown on President Obama's published long-form birth certificate is factually correct. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [92] | Prior to the 14th Amendment, birth and naturalization were the only two ways by which you could become a U.S. citizen. Naturalization was the only way a foreign-born child could become a U.S. citizen. Congress had passed a law automatically naturalizing, at birth, the foreign-born children of U.S.-citizen parents. Even though such children acquired U.S. citizenship at birth, they were not U.S. citizens by birth. Their U.S. citizenship was the result of naturalization laws enacted by Congress.
Children acquired U.S. citizenship by birth only if (a) they were born in the United States and (b) at the time of their birth:
Anyone who acquired state citizenship under state law was automatically a citizen of the United States. Consider, for example, the case of James McClure. He was born in the U.S., of non-U.S.-citizen parents. If he had been born in a state, such as Virginia, which conferred state citizenship to anyone born within its borders, Mr. McClure would have been a U.S. citizen by birth. But since Mr. McClure was born in South Carolina, which had not enacted any state citizenship laws, he was not a U.S. citizen when he was born. In the absence of an applicable state citizenship law or a federal naturalization law, U.S. citizenship by birth (prior to the 14th Amendment) was conferred only to those born in the U.S., of a U.S.-citizen father. Mr. Rodman hints, that it would have been sufficient for James McClure to have been born in the United States -- he is mistaken. The law of the United States recognizes no such claim. The law of Virginia, of 1792, does -- for, "all free persons born within the territory of this commonwealth," is deemed a citizen. The law of Virginia considers him as a son of the soil. An alien, as well as a citizen, may beget a citizen -- but the U. States' act does not go so far. A man must be naturalized to make his children such. ("Case of James McClure", The Alexandria Herald, Vol. I, No. 37, October 7, 1811, page 2, left-most column) At some point after James McClure was born, his parents became naturalized U.S. citizens, at which time he automatically acquired derivative U.S. citizenship. Consider also the Supreme Court decision in Inglis v. Trustees (1830). The Plaintiff in that case was born in New York City during the Revolutionary War. His parents were British subjects who never became U.S. citizens. During the war, control of New York alternated between American and British forces. The Plaintiff's exact birthdate was unknown, but the Court ruled it didn't matter. Even if the Plaintiff had been born in New York while it was American territory, he would not have received American citizenship at birth. A child born in the United States, of a British father, is a British subject, not an American citizen (Inglis v. Trustees, 1830). | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [93] | This website, Natural Born Quotes, publishes a daunting list of sources expressing the opinion that all persons born on U.S. soil (except the children of foreign ambassadors and alien enemies) are U.S. citizens and presumably natural born citizens as well. After the American Revolution, some states adopted the jus soli principle of English common law. These states granted state citizenship to nearly every free white person born within their borders. But the fact that birthplace alone was sufficient to confer state citizenship does not necessarily mean that birthplace alone conferred federal natural born citizenship. It is often assumed that natural born citizenship is synonymous with citizenship acquired at birth. The validity of this assumption is the crux of the "natural born citizen" debate. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [94] | It is not unusual for an English term to have a factual (natural) meaning and a legal (artificial) meaning, depending on the context in which the term is used. Something deemed to be true by law is not necessarily true in fact, hence the often-heard phrase fiction of law.
For example, the word "possession" has a factual meaning and a legal meaning, depending on context. If you have physical custody and control over an object, you are in actual possession of that object. But if you store the object in a safety deposit box in a bank, you still "possess" the object, but only in a legal or constructive sense, not in any literal or actual sense (Legal Definition of "possession"). The statement, "All underage boys and girls living in my home are my children," is a true statement but is also a misleading statement. It is misleading because it fails to distinguish between my children in fact (my biological offspring) and my children in law (my children by adoption or marriage, and children of whom I am a foster parent). All of the under-age dependents living in my home are my children as a matter of love and law, but not all of them are necessarily my children as a matter of biological fact. Similarly, the statement, "All children born on English soil are English natural-born subjects," is, in most cases, a true statement but is also a misleading statement. It is misleading because it fails to distinguish between (a) persons who actually are natural-born subjects in fact, and (b) persons who have been granted the status or position of a natural-born subject by law. In 18th century England and its colonies prior to the American Revolution, all English subjects (except persons made denizens by the king) were regarded as natural-born subjects. It didn't matter whether you were a subject by birth, by statute or by naturalization -- you were, in any of these three cases, deemed to be a natural-born subject in the legal sense. But, only those persons who were born within the king's realm, of parents owing actual obedience (allegiance) to the king, were actual natural-born subjects. Children born on English soil, to alien parents, were statutory denizens. They were deemed to be natural-born subjects by a "fiction of law", but were not "true" natural-born subjects. Some English-language writings (such as those by Blackstone) did not clearly differentiate between legal and factual natural-born subjects. They tended to reflect the jus soli viewpoint that all persons born on English soil, regardless of the status or condition of their parents, were natural-born subjects. Nevertheless, as documented in this Tutorial, the Framers of the Constitution had relied upon authoritative English sources indicating that:
| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [95] | When the Supreme Court rules whether someone does or does not acquire U.S. citizenship at birth, the ruling cannot establish that someone is natural born citizen; it can, at most, only establish that someone is not a natural born citizen.
These two propositions seem self-evident:
In Inglis v. Trustees (1830) and Elk v. Wilkins (1884), the Supreme Court ruled that a child born on U.S. soil, of a father owing allegiance to a sovereignty other than the United States, does not acquire U.S. citizenship at birth. According to Proposition 1, the Court has, in effect, ruled that such a child is not a natural born citizen. In U.S. v.Wong Kim Ark (1898), the Supreme Court extended U.S. citizenship, at birth, to persons born in the United States, of permanently domiciled alien parents. According to Proposition 2, when a Court grants "citizenship at birth" to classes of persons who were previously not citizens at birth, the Court does not necessary deem those persons to be "natural born citizens". Once the Supreme Court has ruled that certain categories of persons are not natural born citizens, those categories of persons, even if they are subsequently granted U.S. citizenship at birth, can never be regarded as natural born citizens, unless the Supreme Court explicitly rules them to be such. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [96] | The word "naturalize" usually carries a connotation of artificiality; it implies the acquisition of citizenship or subjecthood by human action or man-made law. But in some contexts, "naturalize" simply means "becoming a citizen or subject", without regard to when or how citizenship or subjecthood was conferred. Thus, someone could be naturalized "by procreation and birth right", i.e., by natural law, even though the use of the word "naturalize" in such a context may seem oxymoronic. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [97] | Justice Swayne is quoted as saying:
All persons born in the allegiance of the King are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. (Justice Swayne, as quoted by U.S. v. Wong Kim Ark, 1898) According to Francis Bacon (1561-1626), the phrase "born within the allegiance of the king" is a figure of speech referring to: ...children whose parents were at the time of their birth at the faith and obeisance of the king of England. (Bacon, Francis, pp.652-653) Based on Bacon's understanding of the meaning of the phrase "born within the allegiance," Justice Swayne's statement could be construed as: All persons born of parents who are in the allegiance of the King are natural-born subjects, and all persons born of parents who are in the allegiance of the United States are natural-born citizens. Nearly all children born on English soil were, by English law, deemed to be natural-born subjects at birth, because nearly all such children were born of parents who, by law, owed some measure of allegiance to the English king. Even aliens, while on English soil, owed allegiance (albeit only local or temporary allegiance) to England's monarchy. If parents did not owe any allegiance to the king (for example, if the parents were foreign diplomats or alien enemies), their children -- even if born on English soil -- did not acquire English subjecthood at birth. True allegiance is loyalty, service and obedience to one, and only one, sovereign exclusively. An alien's "local" allegiance is an artificial construct "wrought by the law" (Coke(1608), p.177). Since aliens already owe allegiance to the sovereign of their home country, they cannot owe true allegiance to the English king: Hence it became necessary to distinguish between two sorts of allegiance -- that which is personal, permanent, and absolute, as being due from natural subjects, and that which is merely local, temporary and qualified, as being due from aliens by reason of their residency, and which in the strict theory of feudalism is not truly allegiance at all. (Salmond, p.52) The term "natural born" had both a factual meaning and a legal meaning. Children born on English soil, to English parents, were natural-born subjects in fact. Children born on English soil, of alien parents, were statutory denizens; they were deemed to be natural-born subjects by law, but were not natural-born subjects in any true or literal sense. Given that English-born children were not actual natural-born subjects unless their parents owed actual allegiance to the king, Justice Swayne's statement could be further construed as: All persons born of parents who are in the actual allegiance of the King are actual natural-born subjects, and all persons born of parents who are in the actual allegiance of the United States are actual natural-born citizens. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [98] | The Naturalization Act of 1541 implied that a "natural subject" is a lawful person born within the realm. The term "lawful person" probably referred to someone who was "legitimate", i.e., was born of legally-married parents. The English word "natural" comes from the Latin naturalis, which can mean "by birth" but can also mean "legitimate". In ancient Rome, a natural citizen was one born of legally-married Roman citizens (see Appendix 6: Roman citizenship). In England, marriages were subject to Church cannon law, which (as a general rule) required that at least one of the marriage partners be a resident of the place where the marriage took place:
Before the [Marriage Act of 1753], the legal requirements for a valid marriage in England and Wales had been governed by the canon law of the Church of England. This had stipulated that banns should be called or a marriage licence obtained before a marriage could take place and that the marriage should be celebrated in the parish where at least one of the parties was resident. However, these requirements were [discretionary] rather than mandatory and the absence of banns or a licence -- or even the fact that the marriage was not celebrated in a church -- did not render the marriage void. The only indispensable requirement was that the marriage be celebrated by an Anglican clergyman. (Marriage Act 1753, boldface emphasis added) If a "lawful person" was the product of a marriage that the Church (and therefore England) deemed to be legal, then at least one of the person's parents was probably English. In the case of Rex v. Philip de Beauvais (1321), the defendant argued that his father was born within the ligeance of the king, i.e., was born of parents (Philip's paternal grandparents) who owed ligeance to the King of England. As evidence of his grandparents' ligeance, Philip cited the fact that their marriage had taken place in England (see Question 15: Ligeance). | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| [99] | In Kwock Jan Fat v. White (1920), the "petitioner" (Kwock Jan Fat) was born in Monterey, California. His father, Kwock Tuck Lee, was born in America and was a registered voter in Pacific Grove (the Chinatown district of Monterey) where he lived. From the fact that he was a registered voter, we may infer that Lee (Fat's father) was a U.S. citizen, and Lee's wife, Tom Ying Shee (Fat's mother), was a U.S. citizen by marriage. Based on this information, Edward White, the Commissioner of Immigration, determined that Kwock Jan Fat was a "natural born American citizen". When Fat departed on a trip to China, he was assured that, when he returned, he would be readmitted to the United States.
While Fat was in China, Commissioner White received an anonymous tip that Fat had committed identity fraud, that he was really Lew Suey Chong, who was admitted to this country in 1909, as a son of a Chinese merchant, Lew Wing Tong, of Oakland, California. Consequently, upon his return from China, Fat was barred from reentering the U.S.; and a lawsuit ensued. The Supreme Court found that the anonymous tip was not credible. Moreover, even if it were assumed that Fat's parents were not U.S citizens, they were nevertheless "permanently domiciled" in the United States; in which case, Fat acquired U.S. citizenship at birth, according to U.S. v. Wong Kim Ark (1898). It is not disputed that if petitioner is the son of Kwock Tuck Lee and his wife, Tom Ying Shee, he was born to them when they were permanently domiciled in the United States, is a citizen thereof, and is entitled to [re]admission to the country. United States v. Wong Kim Ark, 169 U.S. 649 , 18 Sup. Ct. 456. (Kwock Jan Fat v. White, 1920). The Supreme Court did not suggest that mere birth on U.S. soil was sufficient to confer U.S. citizenship. The Wong Kim Ark ruling conferred U.S. citizenship to the U.S.-born child of alien parents only if the parents were "permanently domiciled" in the United States at the time of the child's birth. The Supreme Court ruled in favor of Kwock Jan Fact, commenting that: It is better that many Chinese immigrants should be improperly admitted than that one natural born citizen of the United States should be permanently excluded from his country. (Kwock Jan Fat v. White, 1920). |
Special thanks to:
Nevertheless, the information and analysis in this Tutorial are solely the responsibility of the author and do not necessarily reflect the views of those who have offered comments and criticisms.
At age 3, Stephen Tonchen moved from New Jersey, where he was born, to Honolulu, Hawaii, where he spent the remainder of his childhood and adolescent years. In early 1961, he heard reports, on the radio, of an African student, at the University of Hawaii, who had impregnated a white teenage girl. In August 1961, there were reports that the pair were living in Waikiki. Stephen recalls that he and a few friends went to Waikiki hoping to get a glimpse of the celebrity couple, but when they got there, decided to go swimming instead.
After graduating from Punahou School in 1965, Stephen returned to the NorthEast, where he earned a Master's Degree in Operations Research from Rensselaer Polytechnic Institute. His professional experience and expertise is in the design and development of IBM mainframe software using programming languages such as Assembler, C, COBOL and Java. From time to time, he serves as a consultant and/or expert-witness, at the request of attorneys involved in software copyright and trade-secret infringement litigation.
Although he never served in the military, Stephen holds considerable respect for those who have. In 2008, he was incensed by reports of a lawsuit alleging that John McCain, a Vietnam veteran and former POW, is not a natural born citizen, therefore not eligible to serve as president. Stephen recalls telling friends, "This lawsuit is the most stupid thing I have ever heard. John McCain is as much an American citizen as anyone else, perhaps even more so, given the enormity of his sacrifice for his country. It's just plain wrong to deny the presidency to a man of stature, solely because of an archaic technicality."
Stephen dug into the "natural born citizen" issue, hoping to quickly establish, at least for himself, that lawsuits challenging anyone's "natural born citizen" status were frivolous and without merit. He soon learned that there's more to this issue than meets the eye.
Presidential Eligibility Tutorial is a collection of information regarding the meaning of "natural born citizen", with special attention to Barack Obama, the first U.S. president who, when inaugurated, was known to be eligibility-questionable. Hopefully, it will be useful to those interested in this subject matter.
The author of this Tutorial is neither a historian nor a lawyer. Nothing in this document should be construed to be, or used as, legal advice on any matter. If you have comments or questions, please contact us.
This Tutorial is intended to be just that -- a Tutorial. Its purpose is to provide a brief introduction to the Obama presidential eligibility controversy from the birthers' perspective. Readers are encouraged to use this Tutorial as a springboard for their own research.
02/21/2010: This Tutorial was published as a substantial rewrite of an earlier version, dated June 5, 2009.
02/23/2010: Answer to Question 17 was revised to improve clarity
02/24/2010: Footnote 4 added. Other footnote numbers shifted accordingly.
02/25/2010: Minor wording changes and spelling corrections.
02/26/2010: Fixed broken link in Footnote 3. In Question 22, sentence beginning with "At the time of this writing" was revised for clarity.
03/01/2010: New material added to Questions 10, 24 and 26.
03/03/2010: Questions 15 and 24 edited for clarity.
03/04/2010: Question 1 was updated to include new information regarding the meaning of the word "birther".
03/07/2010: All references to the Obama File website have been removed from this Tutorial, solely because that website is now accessible by paid subscription only. The site remains a useful source of information for readers who do not mind paying the subscription fee. Footnotes 17 and 18 were revised for clarity.
03/09/2010: Updated answer to question 23.
03/12/2010: "The Right Side of Life - News" added to list of information sources under Question 28.
03/14/2010: The content of footnote 17 was incorporated into a new and separate question (Question 17). Questions originally numbered 17 through 28 were renumbered as Questions 18 through 29.
03/20/2010: A citation from a Heritage Foundation research paper was added to Section 4.1. Some material in Section 4.4 was transferred to Question 16 and footnote 18, thereby making Section 4.4 a bit more concise. Item 7 was added to Question 29. The list of websites in Item 9 (previously item 8) in Question 29 was sorted into alphabetic order.
03/21/2010: Clarified the definition of "birther" in Question 1.
03/23/2010: A citation to Heritage Foundation research was added to the introduction.
03/25/2010: Footnote 4 was reworded.
03/30/2010: Added a "Lucas Smith Kenyan Birth Certificate" link to footnote 10. Item 9, under question 29, was changed as follows: "Plains Radio Network" was added. The "Obama File" was re-added, since its research library and historical archives are now available to the public, without subscription. The Obama File news section remains accessible by paid subscription only.
04/01/2010: Plains Radio has been removed from the list of sources in Question 29.
05/03/2010: Sections 4.4, 4.5 and 4.6 became questions 16, 17 and 18 respectively. Questions previously numbered 16 through 29 were renumbered as questions 19 through 32. Sections 4.7 and 4.8 were renumbered as 4.4 and 4.5 respectively. The Orly Taitz website (www.orlytaitzesq.com) has been removed from Question 29. Information regarding the difference between "foreigner" and "alien" was added.
05/09/2010: Various grammar and spelling corrections.
05/23/2010: Various grammar and spelling corrections. Added footnotes 18, 19, 21 and 43. Added Appendix 1.
05/28/2010: Footnote 43 revised.
06/08/2010: Question 23 revised. "Right Side of Life" website added back to Question 32. Several new footnotes added.
10/02/2010: New information added, regarding the meaning of "actual obedience", and the definitions of foreigner, alien, and people. The discussions of English common law were broken down into a larger number of questions, each with shorter answers.
10/04/2010: HTML tags were changed to facilitate HTML-to-PDF conversion.
10/05/2010: Added, to Question 19, a citation from Alexander Cockburn's Nationality (1869).
10/08/2010: Added, to Footnote 14, commentary regarding dual citizenship.
11/01/2010: Added new info about French word "naturels" in 1781 Treaty with France.
11/09/2010: Added Maskell citation to question 4. Added Vieira citation to Question 37.
11/10/2010: Added Appendix 4: Federal Quo Warranto Statute
11/12/2010: Added reference to Bobby Jindal. Reinstated link to Orly Taitz's web site, which now appears to be virus-free.
11/28/2010: Reformatted Question 17 for clarity.
11/30/2010: Miscellaneous grammar and wording.
12/07/2010: Added information regarding Hector Nunez.
12/14/2010: Added information regarding statute De natis ultra mare (1351) and the Naturalization Act of 1541.
12/18/2010: Miscellaneous grammar, spelling and working changes
12/19/2010: Added protectourliberty.org to list of information sources
12/26/2010: Correction: Stanley Ann Dunham's mother was named Madeline, not Madelyn. Added information about Hawaii Governor Linda Lingle's radio interview (May 2, 2010). Added citations from Cunningham and Jacob.
03/02/2011: The discussion of Calvin's Case has been divided into two separate questions: 17. What was an English "subject"?, and 18. What was Calvin's Case? Added information regarding the use of the term "native born" in McCreery's Lessee v. Somerville. Added information regarding State Department policy of denying passports to persons not born in an "appropriate medical facility". Added information regarding a revision to Professor Solum's article, in which "parents" (plural) was changed to "parent" (singular).
03/04/2011: Added information about John McCain's legal status, at birth, under Panamanian law.
03/05/2011: Miscellaneous grammar and spelling corrections.
03/10/2011: Added clarifying material to Question 5. Added additional quotes by John Bingham.
03/13/2011: Added citation to article by Percy Bridgam. Made revisions to Question 24.
03/15/2011: Miscellaneous grammar and spelling corrections.
03/16/2011: Added information regarding Republican presidential nominee John Fremont.
04/09/2011: Expanded the citation in Footnote 36. In question 12 (Why has every birther lawsuit been denied/dismised?), added citations from Judge David Carter's ruling in Barnett v. Obama. In question 19 (What is a "natural born subject"?), added Cunningham's definition of "natural-born subject" and Jacob's definition of "subject born". Changed "Fight the Smears" direct links to links to archived/cached images. Correction: the English-born child of an alien father and English mother did not pay aliens' duties. Restructured the answer to Question 24: "What did "actual obedience" mean?" Question 27 ("born within the allegiance") was deleted, and its relevant information was transferred into Question 15 (Wong Kim Ark).
04/27/2011: Updated to reflect the release of President Obama's long-form birth certificate.
05/01/2011: Added a citation to Diaz-Salazar v. I.N.S. (1983), in which Judge Cudahy expressed his opinion that the US-born children of illegal immigrant parents are "natural born citizens".
05/14/2011: Fixed broken links. Miscellaneous grammar and wording changes, particularly in Question 5, Question 38, and footnote 5.
05/19/2011: Added, to Question 36, information regarding Mitt Romney.
05/21/2011: Revised the answer to Question 9, regarding the difference between statutory and Constitutional natural born citizens, so as to include information regarding the Naturalization Act of 1790.
05/25/2011: "Natural born citizen" may have appeared in English translations of Vattel's Law of Nations prior to 1797. (See new footnote 21).
05/27/2011: Miscellaneous wording changes for improved conciseness and clarity.
05/28/2011: Information regarding Mitt Romney (Mitt Romney Not Eligible?) deemed not credible and has been deleted.
05/30/2011: Clarified that Donofrio v. Wells and Wrotnowski v. Bysiewicz were denied without comment, not dismissed.
05/31/2011: Clarified the 18th-century meaning of "foreigner" in question 8.
06/05/2011: When John Jay wrote his letter dated 25 July 1787, he might not have been aware of the "born a citizen" provision in Alexander Hamilton's first draft of the U.S. Constitution. Questions 6 and 7 have been corrected accordingly. Also corrected DOCTYPE, and added HTML copyright comment.
06/16/2011: Added new UPDATE comment. Updated the wording of Question 17: What was an 18th Century English "subject"?
06/23/2011: Rearranged UPDATE comments into descending date/time order. Added information regarding Scott v. Sandford and Supreme Court precedent.
06/29/2011: Added links to reports, by Douglas Vogt and Mara Zebest, regarding Obama's published long-form birth certificate. Added link to Leo Donofrio's analysis of Minor v. Happersett. Included Dean Haskin in list of useful sources. Miscellaneous grammar and wording corrections.
07/02/2011: Updated this Tutorial, specifically the Introduction and Question 4, to reflect Minor v. Happersett precedent.
07/04/2011: Added footnote 91. UPDATE (6/16/2011) deleted; its contents transferred into Footnote 91:
07/09/2011: Made wording changes to footnote 91 to improve clarity and conciseness. Corrected footnote 20: The citations from Pufendorf, Diderot and Burlamaqui spoke of children born in a place, of parents who were citizens of that place. None of the citations specifically addressed the status of a child when one parent was a citizen and the other was not.
07/11/2011: Changed the link to Maskell's memo of April 3, 2009, to point to a searchable PDF version.
07/16/2011: Added link to Mario Rubio's 1975 Petition for Naturalization. Added reference to the Supreme Court decision in Bond v. United States.
08/13/2011: The Andrade v. Lauer was decided by the DC Court of Appeals, not the Supreme Court.
08/29/2011: Changed link pointing to John Jay's letter to George Washington, 25 July 1787. Changed link pointing to "Natural Born Presidency".
11/26/2011: To Footnote 4, added citation to PPP poll dated August 30, 2011. To footnote 5, added information pertaining to "false swearing", and removed redundant information (duplicated elsewhere in the Tutorial) regarding the meaning of "natural-born subject". To footnote 6, added commentary regarding Minor v. Happersett. In Question 16 regarding Julia Lynch, added citation to New York Tribune article (1896) regarding Labor Party presidential candidate, Mr. Schurmann. In question 38: "What can we do?", replaced the substance of item 1 with a referenced to a separate "fact sheet" webpage. Miscellaneous other wording changes for preciseness and clarity.
11/28/2011: Reworded introduction. Changed order of footnotes 5, 6 and 7.
12/01/2011: Added, to Question 6, a reference to the Supreme Court opinion in Kwock Jan Fat v. White.
12/04/2011: Added, to Question 4, a reference to Title 8 Section 1401.
12/10/2011: Clarified the citizenship status of President Obama and that of his father, Barack Obama Senior. Obama Senior was born in Kenya in 1936. At the time, Kenya was a British colony. Therefore Obama Senior was a British subject by birth (due to the fact that he was born within British-controlled territory). When President Obama was born in 1961, he acquired British nationality by descent, because his father was a British subject by birth. When Kenya gained its independence from Great Britain in 1963, President Obama became a citizen of the newly-formed nation.
12/18/2011: Clarified wording in Question 17: What was an English "subject"?
12/20/2011: W3C-validated.
12/23/2011: Commentary regarding Mitt Romney added to Question 36: Partisan Attacks.
12/25/2011: Reference to Mumford added to footnote 52.
12/31/2011: Reference to the James McClure case (1811) added to Question 16: Julia Lynch.
01/24/2012: Added, to questions 14 and 15, information regarding the Birlingame-Seward Treaty of 1868. Added citations to John Salmond's article, "Citizenship and Allegiance". Reworked the answer to Question 24: Actual Obedience, and the portion of Question 36: Partisan Attacks, pertaining to George and Mitt Romney. Added, to Question 36, information regarding Rick Santorum. Added to footnote 21, photos of the 1787 edition of Vattel's Law of Nations, which is on display in the Library of Congress. Added, to footnote 40, Attorney Donofrio's Amicus Brief in Georgia eligibility case.
02/04/2012: Added link to administrative court's final ruling in Georgia eligibility case.
02/07/2012: Added Question 27.
02/10/2012: Added, to Question 36, additional information regarding Mitt Romney's genealogy.
02/27/2012: Added, to Question 12, information regarding Tisdale v. Obama. Added Appendix 5. Added, to Question 15 (Wong Kim Ark), a reference to Appendix 5.
03/13/2012: Added, to Question 36, additional information regarding Rick Santorum.
03/15/2012: Miscellaneous grammar and spelling corrections.
03/20/2012: Fixed broken link. Added, to Footnote 42, a discussion regarding the distinction between "alien" and "subject".
03/22/2012: Miscellaneous wording changes for clarity.
04/02/2012: Added, to footnote 12, information regarding Certificate of Citizenship issued to East-African-born child of U.S.-citizen parent.
04/04/2012: Changed URL of "Natural Born Presidency".
04/06/2012: Transferred Smyth citation to footnote 31. Added Binney citation to Question 7.
04/07/2012: Changed "Natural Born Presidency" to "Citizenship Status of U.S. Presidents".
04/12/2012: Added, to question 12, information regarding Purpura v. Obama.
04/16/2012: In question 5, the number of reasons to doubt Obama's presidential eligibilty was increased from five to eight.
04/20/2012: Corrections to grammer and spelling in questions 5 and 6.
04/22/2012: Added, to section 4.3 in question 4, a link titled Attempts to redefine or amend Article II "Natural born citizen".
05/10/2012: Edited Footnote 14 for clarity.
05/28/2012: Spelling and grammar.
07/15/2012: Replaced Question 6. Nearly all of the original content of Question 6 duplicated material appearing elsewhere in the Tutorial. The new version of Question 6 addresses "weight of authority", which the Tutorial had not previously addressed.
07/23/2012: In Question 6, added reference to Elk v. Wilkins. Corrected the link to Publius Enigma.
08/15/2012: Added, to Question 7, information cited from Burdick and Elliot. Clarified the nature and significance of Hamilton's draft of the Constitution.
08/18/2012: Rearranged questions 19 through 22 so that questions pertaining to Calvin's Case (questions 18 through 20 in the new numbering scheme) appear together.
08/25/2012: In footnote 12, added a link to Dr. Eowyn article.
08/30/2012: In footnote 12, added a link to Breitbart article. In footnote 91, added links to correspondence with Hawaii Department of Health and State Registrar.
09/02/2012: Changed the order of questions 9 through 30 so that they flow more logically. Questions 9 through 12 are now questions 27 through 30. Also, updated question 36 to reflect the fact that Mitt Romney is the 2012 Republican presidential nominee.
10/10/2012: Reversed the order of Questions 15 and 16. What was previously Question 16 is now Question 15. What was previously Question 15 is now Question 16. Added, to Question 36, new information pertaining to Rick Santorum's "natural born citizen" status. Added, to Question 30, Orly Taitz's explanation as to why she deliberately avoids the "natural born citizen" question. Added, to Question 5, references to Inglis v. Trustees (1830) and Elk v. Wilkins (1884). Added footnote 94.
11/07/2012: Added reference to Spelman's translation (1758) of Roman Antiquities. Added reference to Articles of Confederation (1777). Added reference to Wooddenson's Systematical View of the Laws of England (1777).
11/29/2012: Added reference to Paige v. Obama (2012). Added reference to Pamela Barnett's Obama Never Vetted.
12/18/2012: Added reference to Greek/Latin text of Dionysii Halicarnassensis Antiquitatum Romanarum.
12/26/2012: Added, to section 4.4, reference to Eelbeck's translation of Cicero.
12/28/2012: Added links to PDF excerpts from Jacob and Cunningham.
1/01/2013: Added footnote 56 regarding the Apostle Paul's claim to be "born a citizen".
2/12/2013: Added style sheet and colorization. Questions 30 through 33, dealing with President Obama's birth certificate, have become severely out-of-date and were therefore removed. Question 13: "What was an English 'subject'?" was divided into two shorter sections, the second being Question 14: "How did someone become an English 'subject'?". Question 24 regarding the birthplaceonly theory, and Question 25 regarding exclusive allegiance, duplicate information already presented earlier, thus have been removed.
2/18/2013: Added Appendix 8: Senator Howard's Asyndeton. Changed the title.
3/01/2013: Added section titled "About the Author".
3/05/2013: Added Ann Coulter's assertion that Sweetness & Light blog originated the term "birther".
3/12/2013: Fix broken links; grammar/spelling corrections.
3/20/2013: Added references to Ankeny and Tisdale to section 4.1. Added, to footnote 90, information regarding President Obama's Kenyan citizenship.
4/04/2013: Added, to question 36, information regarding Michele Bachmann's Swiss citizenship.
4/10/2013: Added, to question 36, information regarding Andy Martin's dual citizenship at birth.
5/05/2013: Added, to Introduction, a quote from a National Journal article dated 5/1/2013.