Saturday, February 13, 2010
Quotations from the English Common Law
"The first and most obvious division of the people is into aliens and natural-born subjects. Natural-born subjects are such as 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; and aliens, such as are born out of it. Allegiance is the tie, or ligamen, which binds the subject to the king, in return for that protection which the king affords the subject…. Natural allegiance is such as is due from all men born within the king's dominions immediately upon their birth…. The common law indeed stood absolutely so; with only a very few exceptions: so that a particular act of parliament became necessary after the restoration, for the naturalization of children of his majesty's English subjects, born in foreign countries during the late troubles.....The children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such..." William Blackstone, Commentaries on the Laws of England, 1:354, 357--58, 361—62 (1765)
"The strict rule of the common law seems to have been, that none were considered as born under the allegiance, power, or protection of the king; that is to say, none were admissible as natural-born, if they were not born in a place actually possessed, at the time of their birth, either by the king himself, or by some prince subject to him and doing him homage for it; except, first, the children of any subjects beyond' sea, which subjects at the birth of those children should be in the service of the croon (2), as, for instance, ambassadors, their attendants, and others; secondly, the sovereign's children born during the royalty of their parent (3); and thirdly and chiefly, the heir of the crown wherever born. Joseph Chitty, A treatise on the laws of commerce and manufactures, and the contracts relating thereto: with an appendix of treaties, statutes, and precedents, Volume 1, pg. 110 (1824).
"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 Conflict of Laws, pp. 173-177, 741.(cited in U.S. v. Wong Kim Ark, 169 U.S. 649 (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,169 U.S. 649, 658 (1898)
"Thus a Natural subject having a son born in a foreign state; the son was an alien at the Com. law. The stat. 25.E.3. st.2. first naturalized him if both parents were, at the time of his birth, natural subjects; & 7.Ann.c.5. & 4.G.2.c.2l. where the father alone was. So an Alien in England having a child born there, that child is a natural subject. A denizen purchases land. His children born before denization cannot inherit, but those born after may. The state of the father then does not draw to it that of the child, at the Com. law." Thomas Jefferson Notes, Letters of Delegates to Congress: Volume 21 October 1, 1783 - October 31, 1784
Quotations on the Continuation of Common Law Rule of Allegiance and Citizenship in America
"It is an established maxim that birth is a criterion of allegiance. Birth however derives its force sometimes from place and sometimes from parentage, but in general place is the most certain criterion; it is what applies in the United States; it will therefore be unnecessary to investigate any other." James Madison, The Founders' Constitution Volume 2, Article 1, Section 2, Clause 2, Document 6 (1789)
“The people are considered as aliens, born in some foreign country, as inhabitants of some neighbouring state in the union, or natural born subjects, born within the state. It is an established maxim, received by all political writers, that every person owes a natural allegiance to the government of that country in which he is born. Allegiance is defined to be a tie, that binds the subjeft to the state, and in consequence of his obedience, he is entitled to protection… The children of aliens, born in this state, are considered as natural born subjects, and have the same rights with the rest of the citizens.” Zephaniah Swift, A system of the laws of the state of Connecticut: in six books, Volumes 1-2 of A System of the Laws of the State of Connecticut: In Six Book, pg. 163,167 (1795)
"Jared Shattuck having been born within the United States, and not being proved to have expatriated himself according to any form prescribed by law, is said to remain a citizen, entitled to the benefit and subject to the disabilities imposed upon American citizens; and, therefore, to come expressly within the description of the act which comprehends American citizens residing elsewhere. Whether a person born within the United States, or becoming a citizen according to the established laws of the country, can divest himself absolutely of that character otherwise than in such manner as may be prescribed by law, is a question which it is not necessary at present to decide." Chief Justice Marshall, MURRAY V. THE CHARMING BETSEY, 6 U. S. 64 (1804)
"that a man born within the jurisdiction of the common law is a citizen of the country wherein he is born. By this circumstance of his birth, he is subjected to the duty of allegiance which is claimed and enforced by the sovereign of his native land, and becomes reciprocally entitled to the protection of that sovereign, and to the other rights and advantages which are included in the term "citizenship." Garder v. Ward, 2 Mass. 244 (1805).
“The doctrine of the common law is that every man born within its jurisdiction is a subject of the sovereign of the country where he is born, and allegiance is not personal to the sovereign in the extent that has been contended for; it is due to him in his political capacity of sovereign of the territory where the person owing the allegiance as born. Kilham v. Ward (1806), 2 Mass. 236, 265.
"Our statutes recognize alienage and its effects, but have not defined it. We must therefore look to the common law for its definition. By this law, to make a man an alien, he must be born without the allegiance of the commonwealth ; although persons may be naturalized or expatriated by statute, or have the privileges of subjects conferred or secured by a national compact." "This claim of the commonwealth to the allegiance of all persons born within its territories, 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 two opposing sovereigns may claim their allegiance. But the inconvenience cannot alter the law of the land. If they return to the country of their birth, they will be protected as subjects." Ainslie v. Martin, 9 Mass. 454, 456, 457 (1813).
"But the appellant, in this case, was born in Virginia. The laws of the state declare, that every free person born within it, shall be considered a citizen of it, and shall enjoy all the privileges of a citizen, until he relinquishes that character in the manner prescribed by law." Custis v. Lane, 3 Munf. 579 (Va. 1813),
"The place of birth, it is true, in general, determines the allegiance. But, in this case, there was no independent government of Virginia, to which she could owe allegiance at the time of her birth." Barzizas v. Hopkins, 2 Randolph, 270 (1824)
"Natural allegiance is the consequence of being born within the jurisdiction of a particular sovereignty : conventional allegiance is implied, when an individual goes within the jurisdiction of a sovereignty, for the purpose of residing a longer or shorter time as suits his convenience : and Conventional allegiance is expressed, when there is a positive contract between the sovereign or subject, made by the intervention of an oath of allegiance." Willima Charles Jarvis, The Republican: or, a series of essays on the principles and policy of free states, pg. 71 (1820)
"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." McCreery's Lessee v. Somerville, 22 U.S. 9 Wheat. 354 354 (1824)
"It would, therefore, seem more correct to say, that none except those born in America, or who resided here at the declaration of independence, can be said to owe allegiance to this government." Trezevant v. Estate of Henry Osborn, 3 Brev. 29 (1812)(Note, J., concurring)
"If he was not born in the country, or if born abroad, if his parents were not citizens of the United States, not having renounced or forfeited their allegiance, he is a foreigner, and he must conform to the laws which regulate naturalization, before he can hold real estate, or exercise the freedom of election, as a citizen of the country." Commonwealth v. Alger and Hutchinson (1835)
"John, Eve, Chary and Raper, children of the alien John Raper, and natural born citizens ; and Mary and Jane Raper, children of the alien William Raper, and natural born citizens of the U. States...The question was, Whether the whole estate descended to John Jackson, the naturalized brother of the intestate ? or whether the natural born citizens, descendants of his alien sister, Ann Walton, who was yet living, were entitled by descent to one equal Leigh, for the appellants." Jackson v. Sanders, 2 Leigh's Hep. 109. (1830)
"And if, at common law, all human beings born within the ligeance of the King, and under the King's obedience, were natural-born subjects, and not aliens, I do not perceive why this doctrine does not apply to these United States, in all cases in which there is no express constitutional or statute declaration to the contrary. . . . Subject and citizen are, in a degree, convertible terms as applied to natives, and though the term citizen seems to be appropriate to republican freemen, yet we are, equally with the inhabitants of all other countries, subjects, for we are equally bound by allegiance and subjection to the government and law of the land...The better opinion, I should think, was, that negroes or other slaves, born within and under the allegiance of the United States, are natural born subjects, but not citizens. Citizens, under our constitutions nnd laws, mean free inlnbitants, born within the United States, or naturalized, under the laws of Congress." James Kent, COMMENTARIES ON AMERICAN LAW, pg. 258 (1836)
"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 allegiance of the sovereign….That the father and mother of the demandant were British born subjects is admitted. If he was born before 4 Juy, 1776, it is as clear that he was born a British subject. If he was born after 4 July, 1776, and before 15 September, 1776, he was born an American citizen, whether his parents were at the time of his birth British subjects or American citizens. 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." Justice Story, concurring opinion, Inglis v. Sailors' Snug Harbor, 3 Pet. 99, 155,164. (1830)
"First — Persons, who are born in a country, are generally deemed citizens and subjects of that country. A reasonable qualification of this rule would seem to be, that it should not apply to the children of parents, who were in itinere in the country, or abiding there for temporary purposes, as for health, or occasional business. It would be difficult, however, to assert, that in the present state of public law such a qualification is universally established. Secondly — Foreigners, who reside in a country for permanent or indefinite purposes, animo manendi, are treated universally as inhabitants of that country." Jospeh Story, Commentaries on the conflict of laws, pg. 48 (1933)
"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; . The term 'citizen,' as understood in our law, is precisely analogous to the term 'subject' in the common law, and the change of phrase has entirely resulted from the change of government. The sovereignty has been transferred from one man to the collective body of the people, and he who before as a 'subject of the king' is now 'a citizen of the State." State v. Manuel 4 Dev. & Bat. 20, 24-26 (1838)
"Is a human being—a part of the community—born upon your soil, any thing but a citizen ? What else can you make of him ? He is not a slave, he is a freeman born within your jurisdiction—born within the circle of your political privileges. He is a human being. And, I ask, where is the law—where is the principle—where is the standard of motality by which you can determine that he is any thing in the world else than a citizen ? Who is a citizen, if he be not a citizen ? I ask gentlemen in regard to their own rights—how you acquire them ? Do you not take the book and swear that you were born on this soil, or that you weie born on another, but will become a good citizen of this commonwealth? Certainly you do. I ask what else can you make of a human being, but a citizen ? The law is universal—it tells you who is a citizen and who ii not. It tells you that those born in a foreign land, may become eitizens. But, does it not make a difference, between a man born on your soil, and a man admitted to the rights of citizenship ? If it does, tell me how you will establish, that a coloured man is not a citizen, as much so as any body else ? I mean one born in a state of freedom—one born in the United States." John Agg, Proceedings and debates of the Convention of the commonwealth of Pennsylvania, Volume 10, pg. (1838)(statement of Mr. Chauncey).
"Being born upon that territory, though of parents who are not members of the State, invests the infant with the right of membership. The children of English parents born upon our territory, are citizens of the United States. But would the children of native Africans, immigrants to this country, be citizens by birth? The English immigrant, if a "free white person," may be naturalized: the African cannot. Can the offspring of those who are incapable of citizenship become citizens? The free white man, when naturalized, is, ipso facto, clothed with all the immunities and privileges which are enjoyed by the native citizens of the Union, and every component part of it: and with all their rights too, eligibility to the Presidency and Vice-Presidency excepted. The free white man, born within the United States, is entitled to all the privileges, immunities and rights of American citizenship, be his parents of whatsoever nation." State v. Claiborne, , 19 Tenn. 331 (1838).
"Citizen.—A person born within the United States, or who has become naturalized under their laws." Elisha P. Hurlbut, Civil office and political ethics: with an appendix, containing familiar law, pg. 204 (1840)
"The Constitution contains no definition of the character of a Citizen ; but the term is used in plain reference to the Common Law, which is regarded not only as the means or instrument of exercising the jurisdiction conferred by the Constitution, but in many instances must be resorted to as the interpreter of its meaning. At the time the Constitution was adopted, the Citizens of each State, collectively, constituted the Citizens of the United States ; and were either Native Citizens, or those born within the United States, or naturalized Citizens, or persons born elsewhere, but who, upon assuming the allegiance, had become entitled to the privileges, of native Citizens." Wiiliam Duer, A course of lectures on the constitutional jurisprudence of the United States, pg. 231, (1845);
"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. 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… Horace Binney, American Law Register, 2 Amer.Law Reg.193, 203, 204, 206 (February 1854)..(cited in U.S. v. Wong Kim Ark,169 U.S. 649, 665 (1898)
“But the law of France rejects the principle of the English law, and of our own laws, that birth within the limits and jurisdiction of France, makes a Frenchman, or a natural-born citizen or subject of France, absolutely,…" Horace Binney, American Law Register, 2 Amer.Law Reg. 206 (February 1854).
"By the common law, the better opinion always was, although there was a few dicta to the contrary, that children born out of the allegiance of the crown, and under the allegiance of another dominion, were aliens to the former and were subjects to the latter, or not, according to the municipal regulations of the country in which the birth might have happened to take place....I have had sent to me a pamphlet written by one of the most eminent lawywers in the United States, whose fame is known from the northern extreme to the southern boundries of our country, I refer to Horace Binney...He has published an elaborate pamphlet intending to draw attention to the subject to which I have now invited the attention of this house." Rep. Cutting, Cong. Globe, 33rd. Cong., 1st Sess. pg. 170 (1854)
"Citizens are either natives or naturalized aliens. Natives are all persons born within the jurisdiction and allegiance of the United States; 2 Kent's Com. 37. And this, whether born of alien parents or not; Lynch v. Clark, 1 Sandf. Ch. 583. " John Duer, Benjamin Franklin Butler, John Canfield Spencer, The law of real property of the state of New York, pg. 22 (1855)
"Alligience": It is natural, acquired, or local. Natural allegiance is such as is due from all men born within the United States; acquired allegiance is that which is due by a naturalized citizen. It has never been decided whether a citizen can, by expatriation, divest himself absolutely of that character. Bouvier Law Dictionary pg. 100 (1843)
NATIVE CITIZEN. A person born in the United States since the declaration of independence, or before, if he has removed here since that event ; or the child of a citizen born abroad, if his parents have ever resided here. 2 Ililliard's Kcal Prop. 190. Alexander Mansfield Burrill, A new law dictionary and glossary, pg 737 (1851)
NATURAL ALLEGIANCE. In English law. That kind of allegiance which is due from all men born within the king's dominions, immediately upon their birth ; which is intrinsic and perpetual, and cannot be divested by any act of their own. 1 Bl. Com. 370, 371. "2 Kent's Com. 42. In American law. The allegiance due from citizens of the United States to their native or adopted country, and which, it seems, cannot be renounced without the permission of government, to be declared by law. 2 Kent's Com. 43 — 49. Alexander Mansfield Burrill, A new law dictionary and glossary, pg 736 (1851)
"Citizens are either natives, or such persons as have become citizens in accordance with the laws which have been enacted by Congress on the subject of naturalization. Native citizens again are, first, all persons who have been born within the jurisdiction of the United States since the declaration of American Independence, on the 4th of July, 1776 ; and secondly, every person who was a native of the territory of the United States previous to that date, provided he remained in the country afterwards." John Ramsay McCulloch, Vethake, Henry, dictionary, practical, theoretical, and historical, of commerce , Volume 1, pg.27 (1852)
"Citizens are all persons born within the jurisdiction of the United States, or duly naturalized. Aliens are persons born out of the jurisdiction of the United States, and not naturalized." John Frederick Archbold, John Jervis, William Newland Welsby, Thomas Whitney Waterman, A complete practical treatise on criminal procedure, pleading, and ..., Volume 1, pg. 8 (1853)
"Birth binds man by the tie of natural allegiance to his native soil, and such allegiance gives, by the principles of universal law, to the country in which he was born rights unknown to mere voluntary or statutory allegiance." Tobin v. Walkinshaw, Circuit Court, U. S., July Term, 1856
"The Constitution uses repeatedly the terms, " citizen of the United States," but does not define them. Our statute, above referred to, uses the same terms, and also leaves them undefined. It becomes necessary for the court to decide whether the defendant, Maximo M. Ludlam, under the circumstances of his birth and life, is a citizen of the United States within those terms. No case, so far as we are informed, presenting a similar question, has ever been before the courts in this country, state or national, and we are compelled, therefore, to exercise an arbitrary discretion, or to resort for precedents and information to English writers, and the decisions of English courts.......It does not militate against this position, that by the law of England the children of alien parents, born within the kingdom, are hold to be citizens. There are many instances of double allegiance; as for instance, one may owe a natural and permanent allegiance to the country of his birth, and a local and temporary allegiance to the country in which he resides." Ludlam v. Ludlam, 26 NY 356 (1863).
It is hereby enacted by the General Assembly of the State of Vermont:
Sec. 2. The word " citizen," as used in this act, shall be construed to mean a person born within this, or some one of the United States, or naturalized agreeably to the Acts of Congress, or a person who has become a freeman of this State, by virtue of the laws in force before June 26th, 1828. ,
Sec. 3. This act shall take effect from its passage.
Acts and resolves passed by the General Assembly of the State of Vermont pg. 31 (1864)
"By the common law of England, which is in force in this country, and which may be assumed as also the law of all the European states, persons within the jurisdiction of the government, or limits of the territory, are either natives, or aliens. Natives are those born within the national jurisdiction; aliens are born without that jurisdiction. The exception to this almost universal rule, are the foreign-born children of ambassadors, who are assumed to carry with them the jurisdiction of the nation which they represent. As a general principle of the English and American law, all native-born, free persons, of whatever age, sex, and parentage, are citizens." John Norton Pomeroy, Introduction to Municipal Law, pg. 419 (1865)
"As matter of law, does anybody deny here, or anywhere, that the native-born is a citizen, and a citizen by virtue of his birth alone…. Every man by his birth, is entitled to citizenship, and upon the general principle that he owes allegiance to the country of his birth" Senator Morrill, Cong. Globe, 1st Sess. 39th Congress, pt. 1, pg. p. 570 (1866).
"A native citizen, is one born in the United States since the declaration of independence, or before, if he has removed here since that event; or the child of a citizen, born abroad, if his parents have ever resided here." Francis Hilliard, An abridgment of the American law of real property, pg. 212 (1869)
"What is a citizen but a human being who, by reason of his being born within the jurisdiction of a government, owes allegiance to that government?'' Congressman Broomall, Cong. Globe, 1st Sess. 39th Congress, pt. 1, pg. 1262 (1866).
"Passing by questions once earnestly controverted, but finally put at rest by the Fourteenth Amendment of the Constitution, it is beyond doubt that, before the enactment of the Civil Rights Act of 1866 or the adoption of the Constitutional Amendment, all white persons, at least, born within the sovereignty of the United States, whether children of citizens or of foreigners, excepting only children of ambassadors or public ministers of a foreign government, were native-born citizens of the United States." U.S. v. Wong Kim Ark,169 U.S. 649, 674-75 (1898)
"The common law rule upon the subject of citizenship by birth 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 under the articles of confederation, and continued to prevail under the constitution as originally adopted;8 with this qualification, however, that, prior to the adoption of the fourteenth amendment to the constitution, neither the negroes of the African race, who, at the time of the Declaration of Independence, had been imported into this country and sold and held as slaves, nor their descendants, whether they had become free or not, were embraced within the rule." Chrisenberry Lee Bates, Federal Procedure at Law: A Treatise on the Procedure in Suits at Common Law ... pg. 195 (1908).
Quotations Defining Natural Born Citizen in accordance with the English Common Law
"A very respectable political writer makes the following pertinent remarks upon this subject. "Prior to the adoption of the constitution, the people inhabiting the different states might be divided into two classes: natural born citizens, or those born within the state, and aliens, or such as were born out of it." St. George Tucker, BLACKSTONE'S COMMENTARIES (1803)
"His original idea was adverse to the limitation to natural-born citizens, as superfluous; but, as it stood, the terms upon which Louisiana was acquired had rendered a change necessary, for it appeared to him that there was no alternative, but to admit those born in Louisiana as well as those born in the United States to the right of being chosen for President and Vice President." John Quincy Adams, 11/23/1803, ABRIDGMENT OF THE DEBATES OF CONGRESS, FROM 1789 TO 1856, Volume III, John Rivers, pg. 21, (1857)
"The 5th section of the 2d article provides, “that no person except a natural born citizen,” shall become president. A plain acknowledgment, that a man may become a citizen by birth, and that he may be born such." Amy v. Smith, 11 Ky. 326, 340 (Ky. 1822)
"The country where one is born, how accidental soever his birth in that place may have been, and although his parents belong to another country, is that to which he owes allegiance. Hence the expression natural born subject or citizen, & all the relations thereout growing. To this there are but few exceptions, and they are mostly introduced by statutes and treaty regulations, such as the children of seamen and ambassadors born abroad, and the like." Leake v. Gilchrist, 13 N.C. 73 (N.C. 1829)
"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." William Rawle, A View of the Constitution of the United States, pg. 86 (1829)
"From the close of the revolutionary war to the time of the adoption of the constitution of the United States, all persons born in this country became citizens of the respective States within whose jurisdiction they were born, by the rule of the common law, unless where they were prevented from becoming citizens by the constitution or statutes of the place of their birth....The word citizen expresses precisely the same relation to the State which subject does to the king. Indeed for a considerable period after the revolution, the word subject was used as synonymous with citizen. Thus in the declaration of rights in the constitution of Massachusetts, the word subject is several times introduced, where we should now use citizen. So in Mass. St. 1784, c. 72, s. 10, a punishment is enacted for kidnapping "any subject of this Commonwealth, or other person lawfully residing and inhabiting therein." In this passage the word subject can have no other meaning than that ot citizen. 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 on the Constitution, 86." American Jurust and Law Magizene, January, 1834
"That all natural born citizens, or persons born within the limits of the United States, and all aliens subject to the restrictions hereinafter mentioned, may inherit real estate and make their pedigree by descent from any ancestor lineal or collateral..." January 28, 1838, Acts of the State of Tennessee passed at the General Assembly, pg. 266 (1838)
"Upon principle, therefore, I can entertain no doubt, but that by the law of the United States, every person born within the dominions and allegiance of the United States, whatever were the situation of his parents, is a natural born citizen… The term citizen, was used in the constitution as a word, the meaning of which was already established and well understood. And the constitution itself contains a direct recognition of the subsisting common law principle, in the section which defines the qualification of the President… 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. " Lynch vs. Clarke, pg. 250 (NY 1844)
Q. May any person be chosen President of the United States?
A. Not every person; none may be chosen unless he has been born in the United States, or was a citizenwhen the Constitution was agreed to, nor can such a one be chosen if he is less than thirty-five years old, or if he has not resided within the United States for fourteen years. Arthur Joseph Stansbury, Elementary catechism on the Constitution of the United States, pg. 78 (1828)
"Every person, then, born in the country, and that shall have attained the age of thirty-five years, and been fourteen years a resident within the United States, is eligible to the office of president." Lysander Spooner, The Unconstituionality of Slavery, pg. 119 (1845)
"It is the very essence of the condition of a natural born citizen, of one who is a member of the state by birth within and under it, that his rights are not derived from the mere will of the state." The New Englander, Vol. III, pg. 434 (1845)
"A natural (or native) bom citizen of the United States means a person born within the limits of the American Republic;—a citizen of the United States at the time of the adoption of the Constitution denotes a foreigner who was then an inhabitant of the country." Joseph Bartlett Burleigh, The American manual: containing a brief outline of the origin and progress of political power and the laws of nations, a commentary on the Constitution of the United States of North America, and a lucid exposition of the duties and responsibilities of voters, jurors, and civil magistrates, pg. 28 (1850)
"But the law of France rejects the principle of the English law, and of our own laws, that birth within the limits and jurisdiction of France, makes a Frenchman, or a natural-born citizen or subject of France, absolutely,…" Horace Binney, American Law Register, 2 Amer.Law Reg. 208 (February 1854).
"This is called becoming naturalized; that is, becoming entitled to all the rights and privileges of natural born citizens, or citizens born in this country." Andrew White Young, First lessons in Civil Government, pg. 82 (1856).
"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." Justice Curtis, dissenting, Dredd Scott v. Sandford,, 60 U.S. 393 (1857).
"The first section of the second article of the Constitution uses the language, "a natural-born citizen." In 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. At the Declaration of Independence, and ever since, the received general definition has been, in conformity with the common law, that free persons born within either of the colonies were subjects of the King; that by the Declaration of Independence, and the subsequent acquisition of sovereignty by the several States, all such persons ceased to be subjects, and became citizens of the several States, except so far as some of them were disfranchised by the legislative power of the states, or availed themselves, reasonably, of the right to adhere to the British Crown in the civil context and thus to continue British Subjects." John Codman Hurd, THE LAW OF FREEDOM AND BONDAGE IN THE UNITED STATES (1858)
"The Constitution itself does not make the citizens, (it is. in fact,made by them.) It only intends and recognizes such of them as are natural—home-born—and provides for the naturalization of such of them as were alien—foreign-born—making the latter, as far as nature will allow, like the former. ...As far as I know, Mr. Secretary, you and I have no better title to the citizenship which we enjoy than '' the accident of birth'' —the fact that we happened to be born in the United States. 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 do constitute the nation, and, as individuals, are natural members of the body politic." Attorney General Bates, Opinion of Citizenship, (1862)
"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. There are two exceptions, and only two, to the universality of its application. The children of ambassadors are in theory born in the allegiance of the powers the ambassadors represent, and slaves, in legal contemplation, are property, and not persons." Justice Swayne, United States v. Rhodes, 1 Abbott, US 28 (Cir. Ct. Ky 1866)
"The king of England, according to the rule of modern civilization, claimed as his subjects all persons born within his dominions : in like manner every one who first saw the light on the American soil was a natural-born citizen ; but the power of naturalization, which, under the king, each colony had claimed to regulate by its own laws, remained under the confederacy with the separate states." George Bancroft, History of the United States, from the Discovery of the American Continent: The American Revolution., pg. 439 (1866)
"Every person born within the United States, its Territories, or districts, whether the parents are citizens or aliens, is a natural-born citizen of the United States in the sense of the Constitution...Natural-born subjects are such as 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; and aliens are such as are born out of it." ...... "It makes a man a subject in England, and a citizen here, and is, as Blackstone declares, 'founded in reason and the nature of government' … The English Law made no distinction … in declaring that all persons born within its jurisdiction are natural-born subjects. This law bound the colonies before the revolution, and was not changed afterward." Rep. Wilson, 1866 Civil Rights Act debates. 10 Cong. Globe, 39th Cong., lst Sess. 1115, 1117 (1866)
"A Natural Born Citizen." -- Not made by law or otherwise, but born… "Natural Born Citizen" recognizes and reaffirms the universal principle common to all nations, and as old as political society, that the people born to a country do constitute the nation, and, as individual, are natural members of the body politic…Every person born in the country is, at the moment of birth, prima facie a citizen." George Washington Paschal, THE CONSTITUTION OF THE UNITED STATES DEFINED AND CAREFULLY ANNOTATED, pg. 168 (1868)
"The children of aliens, born in America or in England, are entitled to all the privileges of natural-born citizens." William Wetmore Story, Treatise on the Law of Sales of Personal Property, pg. 17 (1871)
"All persons born in the limits and under the actual obedience of the United States were its "natural-born citizens"; and it is in this sense that the phrase is used in section one of article two of the constitution."John Joseph Lalor, Cyclopædia of political science, political economy, and of the political history of the United States, Volume 2, pg. 948 (1883)
"Any person born of an American father, in a place subject to the jurisdiction of a foreign nation, may be a natural-born American citizen, if he claims that privilege when he arrives at the proper age. So, also, any person born of a foreign father in any place subject to the jurisdiction of the United States, may be a natural- born American citizen, if he choose. In these doubtful cases the person may choose the country of his father or the country of his birth. So that a person may be a natural-born citizen of the United States, without being a native of the United States." Albert Orville Wright, AN EXPOSITION ON THE CONSTITUTION OF THE UNITED STATES (31st Ed.) (1888)
"There is no uniform rule among nations by which the nationality of effect of birth a person may be determined from the place of his birth. England and America claim all who are born within their dominions as natural-born subjects or citizens, whatever may have been the parents' nationality." Henry Wheaton, Elements of International Law, 1889 edition.
"Natural-born Citizens, those that are born within the jurisdiction of a national government; i.e., in its territorial limits, or those born of citizens, temporarily residing abroad." William Cox Cochran, The student's law lexicon: a dictionary of legal words and phrases : with appendices, Pg. 185 (1888)
"Citizens are either natural-born or naturalized. One who is born in the United States or under its jurisdiction is a natural-born citizen without reference to the nationality of his parents. Their presence here constitutes a temporary allegiance, sufficient to make a child a citizen." Theordore Dwight, Edward Dwight, Commentaries on the law of persons and personal property, pg. 125 (1894)
"Citizens may be divided into two classes : natural born and alien born. Natural-born citizens are of two kinds: native born—those born of either American or alien parents within the jurisdiction of the United Slates, and foreign born—those born of American parents without the Jurisdiction of the United States." John Clark Ridpath, The standard American encyclopedia of arts, sciences, history, biography, geography, statistics, and general knowledge, Volume 8, pg 3058 (1897).
"I can not but regard the case of Lynch v. Clarke, and the case of Look Tin Sing, decided by Justice Field, as correctly laying down the law which should govern this case. I am of opinion that there can be no reasonable doubt but that under the clause quoted of the 14th amendment, that a child born of foreign parents, residing in the United States, not coming within the exceptions as to children of resident ministers and ambassadors, and Indians sustaining tribal relations, must be held by reason of their birth alone within the United States, to be natural born citizens of the United States." James T. Soutter, et aL vs. Ganie Felicite Lucile Marie Rose Belynde Ange D'Auxy, Illinois Circuit Court (1898)
"CITIZENSHIP BY NATIVITY. All persons born in the United States, except such as are born in foreign embassies or legations and Indians untaxed, are natural-born citizens of the United States." Galliard Hunt, United States Dept. of State, The American passport, pg. 99-100 (1898)
"The children of aliens, born in America or in England, are entitled to all the privileges of natural-born citizens." William Story, Edmund Bennett, A treatise on the law of sales of personal property, pg. 17 (1871).
"The rule of the common law is that citizenship turns upon the place of birth, and that one born within the jurisdiction, even though of alien parents, is a citizen by birth, or, as the Constitution expresses it, a natural-born citizen; and this rule has been very generally recognized and enforced by all the departments of the government." Raleigh C. Minor, Address on the Citizenship of Individuals ..., PROCEEDINGS OF THE AMERICAN SOCIETY FOR INTERNATIONAL LAW (1910)
"Natural Born Citizenship Clause. The clause of the U.S. Constitution barring persons not born in the United States from the presidency." Black's Law Dictionary, eigth edition (1999)
"United States citizens born to parents subject to United States jurisdiction in one of the fifty states are unquestionably natural born citizens. Even the narrowest reading of the Fourteenth Amendment dictates that all current states are in the United States. This is true regardless of parental citizenship, unless a child's parents are protected by the full immunity extended to foreign diplomats and their families, or they are enemy combatants." Sarah Helene Duggin & Mary Beth Collins, 'Natural Born' in the USA: The Striking Unfairness and Dangerous Ambiguity of the Constitution's Presidential Qualifications Clause and Why We Need to Fix It, 85 B.U. L. Rev. 53, 90-91 (2005)
"Under the longstanding English common-law principle of jus soli, persons born within the territory of the sovereign (other than children of enemy aliens or foreign diplomats) are citizens from birth. Thus, those persons born within the United States are "natural born citizens" and eligible to be President. Much less certain, however, is whether children born abroad of United States citizens are "natural born citizens" eligible to serve as President ..."In United States v. Wong Kim Ark (1898), the Supreme Court relied on English common law regarding jus soli to inform the meaning of "citizen" in the Fourteenth Amendment as well as the natural-born-citizenship requirement of Article II, and noted that any right to citizenship through jus sanguinis was available only by statute, and not through the Constitution. " Edwin Meese, et al, THE HERITAGE GUIDE TO THE CONSTITUTION, pg. 190 (2005)
Quotations Conflating "Native" and "Natural Born"
“Under our Constitution, a naturalized citizen stands on an equal footing with the native citizen in all respects, save that of eligibility to the Presidency." Luria v. United States, 231 US 9, 22 (1913)
"Except for eligibility to the Presidency, naturalized citizens stand on the same footing as do native born citizens." United States v. Schwimmer, 279 US 644, 649 (1929)
“Under our Constitution, a naturalized citizen stands on an equal footing with the native citizen in all respects, save that of eligibility to the Presidency” Baumgartner v. United States, 322 US 665, 673 (1944)(quoting Luria v. United States").
“The Constitution of the United States provides as a qualification for the offices of President and Vice-President that the person elected must be a native-born citizen.” Ex Parte Garland, 71 US 333, 395 (1866)(Justice Miller Dissenting).
"The alien, when he becomes a naturalized citizen, acquires, with one exception, every right possessed under the Constitution by those citizens who are native born (Luria v. United States, 231 U.S. 9, 22); but he acquires no more." United States v. Macintosh, 283 US 605, 624 (1931).
"Citizenship obtained through natuvalization is not a second-class citizenship. It has been said that citizenship carries with it all of the rights and prerogatives of citizenship obtained by birth in this country "save that of eligibility to the Presidency." Knauer v. United States, 328 US 654, 658 (1946)
"No man but a native, or who has resided fourteen years in America, can be chosen President." Elliot's Debates --DEBATES IN THE CONVENTION OF THE STATE OF NORTH CAROLINA, ON THE ADOPTION OF THE FEDERAL CONSTITUTION, pg 195-196 (statments of future Supreme Court Justice James Iredell, July 30, 1788).
"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,..." St. George Tucker, BLACKSTONE'S COMMENTARIES (1803)
"As the President is required to be a native citizen of the United States…." James Kent John Melville Gould, Oliver Wendell Holmes, Commentaries on American Law, Vol. 1, pg. 333 (1901)
"Natives are all persons born within the jurisdiction of the United States.....An alien is a person born out of the jurisdiction of the United States. There are some exceptions, however, to this rule, by the ancient English law, as in the case of the children of public ministers abroad, (provided their wives be English women,) for they owe not even a local allegiance to any foreign power. " James Kent, COMMENTARIES ON AMERICAN LAW (1826)
"The president must, by law, be a native born citizen; so that none need aspire to that high calling, but those who might emphatically be termed natural sons of America." Joseph Dennie, John Elihu Hall, The Port Folio, pg. 199, (1822)
"By the provisions of the federal constitution, the President and Vice President of the United States are required to be native-born citizens; and the President is required to cause the laws of the Union to be executed. These high places of power, it was then thought, could not, with safety to the American people, be occupied by any but natural-born citizens" Rep. Russel, Congressional Globe, 24th Cong., 1st Sess. pg 4256 (1836)
"It is not too much to say, that no one, but a native citizen, ought ordinarily to be intrusted with an office so vital [the presidency] to the safety and liberties of the people. But an exception was, from a deep sense of gratitude, made in favor of those distinguished men, who, though not natives, had, with such exalted patriotism, and such personal sacrifices, united their lives and fortunes with ours during the Revolution...." Joseph Story, A Familiar Exposition of the Constitution of the United States, pg. 167 (1840 ed.)
"Citizenship" ....Citizens are either native born or naturalized. Native citizens may fill any office; naturalized citizens may be elected or appointed to any office under the constitution of the United States, except the office of president and vice-president." Bouvier Law Dictionary pg. 265 (1843)
"No person can be elected president who is less than 35 years of age, who is not a native born citizen of the United States, or was not a citizen at the time of the adoption of the constitution of the United Stales..." John Ramsay McCulloch, Daniel Haskel, M'Culloch's Universal Gazetteer: A Dictionary, Geographical, Statistical, and Historical, of the Various Countries, Places, and Principal Natural Objects in the World, pg. 994 (1844)
"Afterwards however, in Convention, the words "natural born citizen" were stricken out, and the word " native" was substituted, as the original words might have left an uncertainty as to the meaning of the Convention, for " natural born citizen" might have had some reference to the manner of birth, while the word " native" would refer more particularly to the place of birth. " Sherman Croswell, R. Sutton, Debates and Proceedings in the New-York State Convention - New York (State) Pg. 148 (1846)
"No person can be President or Vice-president who is not a native-born citizen, of the age of thirty-five years, ...." Richard Swainson Fisher, The progress of the United States of America: from the earliest periods. Geographical, statistical, and historical, pg. 9 (1854)
"The executive power is vested in a president and vice-president; each chosen for a term four years each to be a native born citizen.....Emma Willard, Abridged history of the United States, or, Republic of America, pg. 254 (1856)
"They declared by that solemn compact, that the President of the United States should be a native born citizen, ... Samuel Clagett Busey, Immigration: Its Evils and Consequences pg. 10 (1856)
"Your committee is of opinion that no one can be eligible to discharge, for the time being, the functions of President, unless he be thirty-five years old, and a native born citizen. A Speaker of the House, or a President pro tempore, might not have these qualifications —and if so, he could not act as President in compliance with the Constitution." Sen. Butler, 8/05/1856, Reports of Committees: 30th Congress, 1st Session - 48th Congress, 2nd Session, pg. 4., By United States Congress. Senate, Congress, Published 1856
"One of those principles is that the candidate voted for must be thirty-five years of age; another is that he must have been a citizen of tho United States at the time the Constitution was adopted, or he must be a native-born citizen." Sen. Davis, 2/2/1865 reported in The presidential counts: a complete official record of the proceedings of Congress at the counting of the electoral votes in all the elections of president and vice-president of the United States; pg. 203 (1877)
"It is a singular fact, however, that to-day, under the Federal Constitution, a negro may be elected President, United States Senator, or a member of the lower branch of Congress. In that instrument no qualification for office is prescribed which rejects the negro. The white man, not native born, may not be President, but the native-born African may be." Sen. Henderson, William Horatio Barnes, History of the thirty-ninth Congress of the United States, pg. 387 (1868)
"By the terms of the Constitution he must have been a citizen of the United States for nine years before he could take a seat here, and seven years before he could take a seat in the other House ; and, in order to be President of the United States, a person must be a native-born citizen. It is the common law of this country, and of all countries, and it was unnecessary to incorporate it in the Constitution, that a person is a citizen of the country in which he is born....I read from Paschal's Annotated Consitutuion, note 274: "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. There are two exceptions, and only two, to the universality of its application. The children of ambassadors are, in theory, born in the allegiance of the powers the ambassadors represent, and slaves, in legal contemplation, are property, and not persons. (2 Kent's Com. 3d ed. l ; Calvin's Case, 7 Coke, 1 ; 1 Black. Com. 366; Lynch v. Clark, 1 Sandf. Ch. Rep. 139.)" Sen. Trumbull (author or the Civil Rights Act of 1866), April 11, 1871, Cong. Globe. 1st Session, 42nd Congress, pt. 1, pg. 575 (1872)
"Mr. HOWARD. I have two objections to this amendment. The first is that it proposes to change the existing Constitution in reference to qualifications of President of the United States. If this amendment shall be adopted, then that clause of the Constitution which requires that the President of the United States shall be a native-born citizen of the United States is repealed, and any person who hasbeen naturalized and then become a citizenof the United States will be eligible to the office of President;" The congressional globe, Volume 61, Part 2. pg. 1013 (1869)
"What is the qualification for the office of President? He must be a native-born citizen of the United States and thirty-five years of age. Nothing more!'' Rep. Boutwell, 1/11/69 cited in Great Debates in American History: Civil rights, part 2 Volume 8 of Great Debates in American History: From the Debates in the British Parliament on the Colonial Stamp Act (1764-1765) to the Debates in Congress at the Close of the Taft Administration (1912-1913), United States. Congress, pg. 113 (1913)
"One of the qualifications of President of the United States is that he must be a native born citizen, and incontestibly were it not for this provision a naturalized citizen might, if elected, hold that high position." White v. Clements, Georgia Supreme Court, 1870, Reports of Cases in Law and Equity, Argued and Determined in the Supreme Court of the State of Georgia, in the Year , pg. 256-57 (1870)
"The qualifications for president and vice-president by this clause are made the same. They must, therefore, be native born citizens of the United States, or citizens of the United States at the time of the adoption of the federal constitution, and been fourteen years citizens of the United States, and thirty-five years old." John King, A Commentary on the Law and True Construction of the Federal Constitution, pg. 206, (1871)
"These were natives, or natural-born citizens, as distinguished from aliens or foreigners." Minor v. Happersett, 21 Wall. (U. S.) 162 (1874).
"The President was required to be thirty-five years of age, and native born, or a citizen at the adoption of the Constitution." Richard Hildreth, The History of the United States of America, pg. 521 (1880)
"The President and the Vice-President, (and hence their Electors also), are required, however, to be native-born citizens of the United States. Here we have a clear inclusion of all the States as to their native-born, and a clear Delusion of all foreign-born citizens." Meeds Tuthill, The civil polity of the United States considered in its theory and practice, pg. 83 (1883)
"As the president and vice-president are elected at and for the same time, the right to be chosen to both offices is dependent upon the same conditions (12th amendment). To be eligible, it is necessary to be a native-born citizen of the United States,...Hermann Von Holst, Alfred Bishop Mason, The Constitutional Law of the United States of America" pg. 84 (1887)
"We start from the premise that the rights of citizenship of the native born and of the naturalized person are of the same dignity and are coextensive. The only difference drawn by the Constitution is that only the ‘ natural born’ citizen is eligible to be President. Art. II, s 1." Schneider v. Rusk, 377 U.S. 163 (1964)
"It is well settled that "native-born" citizens, those born in the United States, qualify as natural born." "Native-born citizens are natural born by virtue of the nearly universal principle of jus soli, or citizenship of place of birth." Jill A.Pryor, The Natural-Born Citizen Clause and Presidential Eligibility: An Approach for Resolving Two Hundred Years of Uncertainty, 97 Yale L.J. 881, at 881 and n. 2 (1988)
"Native: A natural-born subject or citizen; a citizen by birth; one who owes his domicile or citizenship to the fact of his birth within the country referred to." Black's Law Dictionary 6th Addition (1994).
"It is now generally assumed that the term "natural born" is synonymous with "native born." "It [therefore] is clear enough that native-born citizens are eligible [for the presidency] and that naturalized citizens are not." There is a general agreement among commentators, whether or not they are advocates of an originalist approach to constitutional interpretation, that "whether someone born of American parents abroad would be considered a natural born citizen" is an open question." Lawrence Freedman, An Idea Whose Time Has Come--The Curious History, Uncertain Effect, and Need for Amendment of the "Natural Born Citizen" Requirement for the Presidency, 52 St. Louis U. L.J. 137, 143 (2007)
Quotations Conflating Natural Born Subject and Natural Born Citizen
Massachesets Legislature using "Natural Born Subject" and "Natural Born Citizen" interchangably in nearly idential naturalization statutes:
Massachusetts Legislature - Chapter 43. AN ACT FOR NATURALIZING MICHAEL WALSH – February 17, 1786 (substantially similar language used in naturalization acts on February 28, 1785, July, 7, 1786, October 29, 1787, and November 21, 1788)….......that Michael Walsh be permitted to take and subscribe the oath of allegiance to this Commonwealth, before two Justices of the Peace, quorum units, of the county where he dwells; and thereupon, and thereafter, he shall be deemed, adjudged and taken to be a citizen of this Commonwealth, and entitled to all the liberties, rights and privileges of a natural born citizen.
Massachusetts Legislature - Chapter 77. AN ACT FOR NATURALIZING William Martin and Others – March 2, 1787 (substantially similar language used in naturalization acts on May 1, 1787, November 16, 1787, June 19, 1788 and February 14, 1789).....…that the aforenamed William Martin naturalized. and Elizabeth his wife, William Moch, John Amory, David /Smith and Elizabeth his wife, and their children, Viz. Moses, Ruth, Mercy, Lendall, David, Elizabeth, Hannah, Dorothy, and Godfrey, William Molton, William Haggett, Thomas Craige, and John Nicholas Rudberg, first taking the oath of allegiance to this Commonwealth, before two Justices of the peace, quorum unus, shall be deemed, adjudged and taken to be free Citizens of this Commonwealth, and entitled to all the liberties, priviledges and immunities of natural born
Proposed Consitution Amendment, Massachusetts Legislature, June 29, 1798, reported in Acts and laws of the Commonwealth of Massachusetts, prg. 211 (1897)
RESOLVE REQUESTING THE SENATORS AND REPRESENTATIVES IN CONGRESS TO PROPOSE AN AMENDMENT TO THE CONSTITUTION PROVIDING, THAT NONE BUT NATURAL BORN SUBJECTS BE ELIGIBLE TO CERTAIN OFFICES.
Whereas it is highly expedient, that every constitutional harrier should be opposed to the Introduction of Foreign Influence, into our National Councils, & that ye Constitution of ye United States should be so amended as to effect and Secure in ye best manner ye great objects for which it was designed :
Resolved that the Senators & Representatives of this Commonwealth in the Congress of the United States, be, and they hereby are requested to use their best endeavours, that Congress propose to the Legislatures of the several States, the following amendment to the Constitution of the United States, viz. "That (in addition to the other qualifications prescribed by said Constitution) no person *hall be eligible as President or Vice President of ye United States nor shall any person he a Senator or Representative in ye Congress of ye United States except a natural born Citizen ; or unless he shall have been a Resident in the United States at ye time of ye declaration of Independence, and shall have continued either to reside within the same, or to be employed in its service from that period to ye time of his election."
"It requires all senators to be thirty years old, and prohibits any but a natural born subject from being president." State v. Foreman, 16 Tenn. 256, 335–36 (1835).
"An alien may, by becoming naturalized, be entitled to all the privileges of natural-born subjects; except that a residence of seven years is required to qualify an alien for a member of Congress, and that no person except a natural born subject can be a governor of a State, or President of the United States." The Law Library, Vol. 84, pg. 50 (1854)
"But the law quce nihil frustra, never casts the freehold upon an alien heir who cannot keep it: even a natural born subject or citizen cannot take by representation from an alien, because the alien has no heritable blood through which a title can be deduced." McClenaghan v. McClenaghan, 20 S.C. Eq. (1 Strob. Eq.) 295 (1847).
"Nor by the common law could a natural born subject or citizen transmit lands by descent to another, immediately, through the blood of an alien." Banks v. Walker, 3 New York Leg. Obs. 340 (1848).
"But the law of France rejects the principle of the English law, and of our own laws, that birth within the limits and jurisdiction of France, makes a Frenchman, or a natural-born citizen or subject of France, absolutely,…" Horace Binney, American Law Register, 2 Amer.Law Reg. 208 (February 1854).
More Recent Cases
"It is not denied that the person who it is claimed is the plaintiff's father is a natural born citizen of the United States, having been born in this country." Lou Goon Hop v. Dulles, 119 F. Supp. 808 (US: Dist. Court, Dist. of Columbia 1954)
"The law of England, as of the time of the Declaration of Independence, was that a person born in that kingdom owed to the sovereign allegiance which could not be renounced. Many early American decisions applied that as the common law in this country. All agreed that every free person born within the limits and the allegiance of a State of the United States was a natural born citizen of the State and of the United States." Perkins v. Elg, 99 F. 2d 408 (US: Court of Appeals, Dist. of Columbia 1938)
“Plaintiff, Sumiye Umeki Yamauchi, is a natural born citizen of the United States, a resident of California, and 936 the daughter and sole heir of the decedent, Kunishige Umeki, who died intestate in December of 1956. Decedent, Kunishige Umeki, was a Japanese national, who entered the United States in 1906, at 18 years of age, and became a resident of California; married a Japanese national, and had two children, both of whom were born in California; and decedent maintained his residence in California continuously until 1942. Sumiye Umeki Yamauchi v. Rogers, 181 F. Supp. 934 - US: Dist. Court, Dist. of Columbia 1960
Petitioners Marian and Lenuta Mustata are citizens of Romania. At the time of their petition, they resided in Michigan with their two minor children, who are natural born citizens of the United States. They legally entered the United States in late 1991 and, shortly thereafter, applied to the Immigration and Naturalization Service ("INS") for asylum. Mustata v. US Dept. of Justice, 179 F. 3d 1017 - US: Court of Appeals, 6th Circuit 1999
"Petitioner, Sebastian Diaz-Salazar, entered the United States illegally in 1974 and has been living and working in Chicago since that time. The Immigration and Naturalization Service moved to deport him in September of 1980, and at an October hearing he was granted voluntary deportation within 90 days….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. INS, 700 F. 2d 1156 - US: Court of Appeals, 7th Circuit 1983
"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. Just as a person "born within the British dominions [was] a natural-born British subject" at the time of the framing of the U.S. Constitution, so too were those "born in the allegiance of the United States natural-born citizens." Ankeny v. GOVERNOR OF STATE OF INDIANA, No. 49A02-0904-CV-353, Ind: Court of Appeals (2009)
The Common Law
JUSTICE SCALIA: I wouldn't -- I don't use British law for everything. I use British law for those elements of the Constitution that were taken from Britain. The phrase "the right to be confronted with witnesses against him" -- what did confrontation consist of in England? It had a meaning to the American colonists, all of whom were intimately familiar with my friend Blackstone. And what they understood when they ratified this Constitution was that they were affirming the rights of Englishmen. So to know what the Constitution meant at the time, you have to know what English law was at the time. And that isn't so for every provision of the Constitution. The one you mentioned -- what does sovereignty consist of? -- that is probably one on which I would consult English law, because it was understood when the Constitution was framed that the states remained, at that time in 1789, separate sovereigns. Well, what were the prerogatives of a sovereign, as understood by the framers of the Constitution? The same as was understood by their English forebears. So that's why I would use English law -- not at all because I think we are still very much aligned legally, socially, philosophically with England. That's not the reason. Cass Sunstein, A Constitution of many minds: why the founding document doesn't mean what it meant before, pg. 200-01 (2009)
"The only principles of law, then, that can be regarded are those common to all the States. I know of none such which can affect this case but those that are derived from what is properly termed "the common law," a law which I presume is the groundwork of the laws in every State in the Union, and which I consider, so far as it is applicable to the peculiar circumstances of the country, and where no special act of legislation controls it, to be in force in each State as it existed in England (unaltered by any statute) at the time of the first settlement of the country. The statutes of England that are in force in America differ perhaps in all the States, and therefore it is probable the common law in each is in some respects different. But it is certain that, in regard to any common law principle which can influence the question before us, no alteration has been made by any statute which could occasion the least material difference, or have any partial effect." Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 435 (1793).
"The same question is presented, therefore, in this respect, which arose in Lynch v. Clark (1 Sandf. Ch. R, 583), where it is, I think, very clearly shown that, in the absence of any statute) or any decisions of our own courts, State or National, on the subject, the question of citizenship can only be determined by reference to the English common law, which, at the time of the adoption of the Constitution of the United States, was, to a greater or less extent, recognized as the law of all the States by which that Constitution was adopted. Ludlam v. Ludlam, 26 NY 356, 360-61 (1863).
"The common law of England, so far as it was applicable to our circumstances, was brought over by our ancestors, upon their emigration to this country. The Revolution did not involve in it any abolition of the common law. It has been adopted or declared in force by the constitutions of some of the states, and by statute in others; and where not explicitly adopted, it is yet considered as the law of the land, subject to modifications and express legislative repeal. The common law of England, applicable to our situation and government, is the law of this country, except where altered or rejected by statute, or varied by local usages, under the sanction of judicial decisions. James Kent, William Hardcastle Browne, Commentaries on American Law, pg. 212 (1894).
"The universal principle (and the practice has conformed to it) has been, that the common law is our birthright and inheritance, and that our ancestors brought hither with them upon their emigration all of it, which was applicable to their situation. The whole structure of our present jurisprudence stands upon the original foundations of the common law." Joseph Story, Commentaries on the Constitution of the United States, pg. 65 (1833).
"it is, nevertheless, true, that the common law, so far as it is applicable to our situation and government, has been recognized and adopted, as one entire system, by the constitutions of Massachusetts, New York, New Jersey, and Maryland. It has been assumed by the courts of justice, or declared by statute, with the like modifications, as the law of the land in every state. It was imported by our colonial ancestors, as far as it was applicable, and was sanctioned by royal charters and colonial statutes. It is also the established doctrine, that English statutes, passed before the emigration of our ancestors, and applicable to our situation, and in amendment of the law, constitute a part of the common law of this country." James Kent, John Melville Gould, Oliver Wendell Holmes, Commentaries on Americican Law Vol 1 pg. 643-44 (1901)
"The constitution of New York, of 1777, declared that such parts of the common law of England, and of the statute law of England and Great Britain, as, together with the acts of the colonial legislature, formed the law of the colony on the 19th of April, 1775, should continue to be the law of .the state, subject, &c. So the common law and statute law of England were referred to in Missouri by the statute of 14th January, 1816, as part of the known and existing law of the territory, so far as the same was consistent with the law of the territory, and which, in a modified degree, was the Spanish law. The common and statute law of England, prior to the fourth year of James I., and of a general nature, were adopted by the convention of Virginia, in 1776, and in 1795 and 1805, by the government of Ohio ; and such is the substance of the statute law of Arkansas. 2 Ark. 206. But the Ohio statute was repealed in 1806. In the Revised Statutes of Illinois, published in 1829, it was declared that the common law of England, and the English statutes of a general nature made in aid of it, prior to the fourth year of James I., with the exception of those concerning usury, were to be rules of decision until repealed. In 1818, the common law was adopted by statute in the State of Indiana, and in 1835, in Missouri, under the same limitations ; and it is understood that the common law and the statute law of England, down to the year 1776, and applicable to their constitution and circumstances, are the law in the states of Mississippi and Georgia. In the latter state the same was declared to be in force by the statute of February 25, 1784. So the common law of England and the statute law of England, prior to 1760, were adopted by statute in Vermont, so far as they were not repugnant to the constitution or statute law of the state. James Kent, John Melville Gould, Oliver Wendell Holmes, Commentaries on Americican Law Vol 1 pg. 643-44 (1901).
"When, therefore, they emerged from the colonial condition into that of independence, the laws which governed them consisted, first, of the common law of England, so far as they had tacitly adopted it as suited to their condition; second, of the statutes of England, or of Great Britain, amendatory of the common law, which they had in like manner adopted; and, third, of the colonial statutes. The first and second constituted the American common law, and by this in great part are rights adjudged and wrongs redressed in the American States to this day." Thomas McIntyre Cooley, Victor Hugo Lane, A treatise on the constitutional limitations which rest upon the legislative ... pg. 53-54 (1903)
"Or as described by Blackstone, whose Commentaries were widely read and “accepted [by the framing generation] as the most satisfactory exposition of the common law of England,” see Schick v. United States, 195 U.S. 65, 69 (1904), ..." Justice Scalia, ROGERS V. TENNESSEE 532 U.S. 451, 472 (2001) (Scalia, dissenting).
"I will refer you to a book which is in every man's hand--Blackstone's Commentaries." James Madison, Debate in Virginia Ratifying Convention18--19 June 1788Elliot 3:499--515
"The right of naturalization was therefore, with one accord, surrendered by the States, and confided to the Federal Government. And this power granted to Congress to establish an uniform rule of naturalization is, by the well-understood meaning of the word, confined to persons born in a foreign country, under a foreign Government. It is not a power to raise to the rank of a citizen any one born in the United States, who, from birth or parentage, by the laws of the country, belongs to an inferior and subordinate class." Chief Justice Taney, Dred Scott v. Sandford, 60 U.S. at 417
"It appears, then, that the only power expressly granted to Congress to legislate concerning citizenship, is confined to the removal of the disabilities of foreign birth." Justice Curtis, Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 478 (1857)
"But what is naturalization? It is the removal of the disabilities of alienage… Congress has power " to establish an uniform rule of naturalization….An alien naturalized is "to all intents and purposes a natural born subject…The power is applicable only to those of foreign birth. Alienage is an indispensable element in the process. To make one of domestic birth a citizen, is not naturalization, and cannot be brought within the exercise of that power. There is an universal agreement of opinion upon this subject." George Washington Paschal, The Constitution of the United States defined and carefully annotated, note 274, (1968) (citing Justice Swayne, United States v. Rhodes, 1 Abbott, US 28 (Cir. Ct. Ky 1866)
"Mr. Madison did not think that Congress, by the constitution, had any authority to readmit American citizens at all. It was only granted to them to admit aliens." Abridgment of the Debates of Congress, from 1789 to 1856: From Gales and Seatons' Annals of Congress; from their Register of debates; and from the official reported debates, by John C. Rives, pg. 556 (1860)
" I maintain that a negro can not be made a citizen by Congress ; he can not be made a citizen by any naturalization laws, because the naturalization laws apply to foreigners alone. No man can shake the legal truth of that position. They apply to foreigners alone; and a negro, an Indian, or any other person born within the United States, not being a foreigner, can not be naturalized; therefore they can not be made citizens by the uniform rule established by Congress under the Constitution, and there is no other rule. Congress has no power, as I said before, to naturalize a citizen. They could not be made citizens by treaty. If they arc made so at all, it is by their birth, and the locality of their birth, and the general operation and effect of our Constitution." Sen. Davis, quoted in History of the thirty-ninth Congress of the United States, William Horatio Barnes, pg. 208, (1868)
Naturalization. An easy mode is provided, by which the disabilities of alienism may be removed, and the qualifications of citizens obtained. The alien is required to declare on oath before a state court of record having common law jurisdiction, or before a circuit or district court of the United States, or before a clerk of either of said courts, two years at least before his admission, of his intention to become a citizen, and to renounce his allegiance to his own sovereign. James Kent, John Melville Gould, Oliver Wendell Holmes, Commentaries on Americican Law Vol 1 pg. 81 (1901)
NATURALIZATION. The act by which an alien is made a citizen of the United States of America. Bouvier Law Dictionary pg. 189 (1843)
ALIEN, persons. One born out of the jurisdiction of the United States, who has not since been naturalized under their constitution and laws. To this there are some exceptions, as this children of the ministers of the United States in foreign courts. See Citizen, Inhabitant. Bouvier Law Dictionary (1856)
Naturalization. That process by which an alien becomes a citizen. Analysis of Civil Government, By Calvin Townsend, pg. 325 (1869)
An alien is one who is born in a foreign country. Analysis of Civil Government, By Calvin Townsend, pg. 325 (1869)
NATURALIZATION. [Lat. naturalizatio.] The act of investing an alien with the rights and privileges of a native or natural-born subject or citizen.* Co. Litt. 129 a. 1 Bl. Com. 374. 2 Kent's Com. 64—67. Alexander Mansfield Burrill, A new law dictionary and glossary, pg 737 (1851)
Alien: In american Law. One born out of the jurisdiction of the United States. Alexander Mansfield Burrill, A new law dictionary and glossary, pg 81 (1871)
"But to return to the subject of alienage—an alien, according to the notion commonly received as law, is one born in a strange country and in a foreign society, to which he is presumed to have a natural and a necessary allegiance." James Wilson, The Works of James Wilson, Vol. II, pg. 291 (1896)
"Natives are all persons born within the jurisdiction of the United States....An alien is a person born out of the jurisdiction of the United States. There are some exceptions, however, to this rule, by the ancient English law, as in the case of the children of public ministers abroad, (provided their wives be English women,) for they owe not even a local allegiance to any foreign power. " James Kent, COMMENTARIES ON AMERICAN LAW (1826)
"NATIVES. All persons born within the jurisdiction of the United States, are considered as natives." Bouvier Law Dictionary (1843)
"Native. A person born within the limits of a country. A citizen or inhabitant by birth." Calvin Townsend, Analysis of Civil Government, pg. 325 (1869)
NATIVE. [Lat. nativas, born, home born.] In English law. A natural born subject. 1 Bl. Com. 366. In American law. A person born within the jurisdiction of the United States. 2 Kent's Com. 38. Alexander Mansfield Burrill, A new law dictionary and glossary, pg 737 (1851)