Collins – Are persons born within the United States Ipso Facto Citizens thereof December 15, 2009
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Some have referenced the writings of George D Collins when attempting to make a case that Vattel and not Common Law determines who is a natural born citizen. However, these people forget to add that the same person argued many of these ‘arguments’ in front of US v Wong Kim Ark and that the Court rejected his arguments. Remarkably many of Collins’ same ‘arguments’ are to be found in the claims of the modern day birthers. With a minor difference, that since Collins made these arguments, they were rejected by the Courts.
ARE PERSONS BORN WITHIN THE UNITED STATES IPSO FACTO CITIZENS THEREOF
GEORGE D COLLINS
The American Law Review (1866-1906); Sep/Oct 1884; 18, American Periodicals Series Online pg.831
The early States and English Common Law December 14, 2009
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One of our Friends of Politijab posted a very enlightening overview of Common Law, responding to
Note: Our friend updated his first sentence to read:
..[T]he first sentence needs toning down a bit. I wrote it all in one go, and didn’t go back to the beginning to correct the overstatement. After all, not all states immediately adopted constitutions, and of those which did, not all explicitly (without having to draw inferences) adopted English common law by name. Some adopted it implicitly, or explicitly abrogated small parts of it repugnant to new, American concepts of law, while explicitly retaining due process, jury trial, and other English common law artifacts. Some were more or less concerned with inadvertently upsetting property law, and others with ensuring that the new states captured the benefits previously owed to the Crown.
I think that’s an enormous part of it. It’s not uncommon to see birthers complain when people cite to English common law or Blackstone because they seem to be under the impression that the American Revolution was about purging the United States of all things British. They refuse to accept the proposition that much of our legal system is premised on the English system and that the common law remained almost entirely intact. These are concepts so basic that any first year law student could explain them, but it’s just an area where birthers very clearly do an eyes-shut-ears-plugged motion.
This isn’t even a matter of interpretation. The constitutions of every state, adopted after the Declaration of Independence, explicitly adopted English common law.
Plyler v Doe, 457 U.S. 202 (1982) October 24, 2009
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In Plyler v Doe, the Court observes
Appellants seek to distinguish our prior cases, emphasizing that the Equal Protection Clause directs a State to afford its protection to persons within its jurisdiction, while the Due Process Clauses of the Fifth and Fourteenth Amendments contain no such assertedly limiting phrase. In appellants’ view, persons who have entered the United States illegally are not “within the jurisdiction” of a State even if they are present within a State’s boundaries and subject to its laws. Neither our cases nor the logic of the Fourteenth Amendment support that constricting construction of the phrase “within its jurisdiction.” [n10]
Footnote 1o explains the reasoning, referring to the Court’s ruling in Wong Kim Ark
US Congress – Mr Dowdy reports on the meaning of Natural Born October 23, 2009
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June 14, 1967
NATURAL BORN CITIZEN
Mr. VIGORITO. Mr. Speaker, I ask unanimous consent that the gentleman from Texas [Mr. DOWDY] may extend his remarks at this point in the RECORD and include extraneous matter.
The SPEAKER pro tempore. Is there objection to the request of the gentleman from Pennsylvania?
There was no objection.
Mr. DOWDY. Mr. Speaker, for a number of years, I have heard and read the discussions, pro and con, regarding the meaning or construction that should be placed on the phrase, “natural born citizen,” as used in the U.S. Constitution, limiting eligibility for the office of President. This has been a recurring discussion, as various persons, born outside the United States, of U.S. citizen parentage, have been mentioned as possible candidates for the offices of President and Vice President. The question is again current.
Rawle and Natural Born September 17, 2009
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“The citizens of each state constituted the citizens of the United States when the Constitution was adopted. The rights which appertained to them as citizens of those respective commonwealths, accompanied them in the formation of the great, compound commonwealth which ensued. They became citizens of the latter, without ceasing to be citizens of the former, and he who was subsequently born a citizen of a state, became at the moment of his birth a citizen of the United States. 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. It is an error to suppose, as some (and even so great a mind as Locke) have done, that a child is born a citizen of no country and subject of no government, and that be so continues till the age of discretion, when he is at liberty to put himself under what government he pleases. How far the adult possesses this power will hereafter be considered, but surely it would be unjust both to the state and to the infant, to withhold the quality of the citizen until those years of discretion were attained. Under our Constitution the question is settled by its express language, and when we are informed that, excepting those who were citizens, (however the capacity was acquired,) at the time the Constitution was adopted, no person is eligible to the office of president unless he is a natural born citizen, the principle that the place of birth creates the relative quality is established as to us.”
Source: William Rawle A view of the Constitution of the United States of America also here
Mario Apuzzo – Vattel September 14, 2009
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Mario Apuzzo:
MA: That the “natural born Citizen” clause is based on undivided allegiance and loyalty can be seen from how the Founders distinguished between “citizen” and “natural born Citizen.”
Yes, citizens include both naturalized and natural born citizens. The Founders distinguished clearly between those who gained citizenship by Birth from those who received it via a Statute.
MA: This distinction is based on the law of nations which became part of our national common law. According to that law as explained by E. Vattel in, _The Law of Nations_ (1758), Vol.1, Section 212, Des Citoyens et Naturels, a “citizen” is a member of the civil society.
The suggestion that the Law of Nation guides citizenship is easily debunked by pointing out that no State would abandon its rights to establish who is and who is not a citizen to ‘Law of Nation’. In fact, it is clear that Municipal Law and not International Law guides citizenship. And the United States is no different here. This argument was made by the Plaintiffs in Wong Kim Ark and rejected by the court:
Wong Kim Ark: 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 (p. 245) to the contemporaneous opinions in Inglis v. Sailors’ Snug Harbor,[p661] above cited, in which this rule had been distinctly recognized, and in which he had said (p. 162) that “each government had a right to decide for itself who should be admitted or deemed citizens,” and, in his Treatise on the Conflict of Laws, published in 1834, he said that, in respect to residence in different countries or sovereignties, “there are certain principles which have been generally recognized by tribunals administering public law” [adding, in later editions "or the law of nations"] “as of unquestionable authority,” and stated, as the first of those principles, “Persons who are born in a country are generally deemed citizens and subjects of that country.” Story, Conflict of Laws, § 48.
MA: To become a “citizen” is to enter into society as a member thereof. On the other hand, Vattel wrote that a native or indigenes (written in French as /les naturels/ or /indigenes/) or “natural born Citizen” as the term later became translated from French into English, is a child born in the country of two citizen parents who have already entered into and become members of the society. Vattel also tells us that it is the “natural born Citizen” who will best preserve and perpetuate the society.
Vattel also said:
It is asked whether the children born of citizens in a foreign country are citizens. The laws have decided this question in several countries and their regulations must be followed. 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 and cannot of itself furnish any reason for taking from a child what nature has given him. I say of itself, for civil or political laws may for particular reasons ordain otherwise. But, I suppose that the father has not entirely quitted his country in order to settle elsewhere. If he has fixed his abode in a foreign country, he has become a member of another society at least as a perpetual inhabitant and his children will be members of it also.MA:: This definition of the two distinct terms has been adopted by many United States Supreme Court decisions. (The Venus, 12 U.S. 253 (1814) and Minor v. Happersett, 88 U.S. 162 (1874) to cite just two.)
As I will show, neither Venus, nor Minor really help Mario, and in fact, Mario fails to acknowledge the many and more recent rulings by the US Supreme Court which disagree with his position. Such as US v Wong Kim Ark, 169 U.S. 649, 1898. First of all, the problem is that Vattel did not use the term natural born, but rather the term “naturels ou indigenes” translated as “Natives or Indigenes”. There is no evidence that Vattel meant to use the term “natural born”, although later translations made this leap, in spite of Vattel.
Scalia on Wong Kim Ark September 8, 2009
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From poster Greg at Dr C’s Obama Conspiracy blog we learn
Scalia wrote a concurrence in Nguyen v. INS, saying [1], very briefly, that he didn’t feel the Court had an ability to grant someone citizenship who did not get it in one of the two ways he described in his concurrence in Miller v. Albright. You don’t have to read Miller very far to realize what Scalia’s talking about and also to realize what little hope you have of overturning Wong Kim Ark.
From Scalia’s concurrence in Miller v. Albright:
The Constitution “contemplates two sources of citizenship, and two only: birth and naturalization.” United States v. Wong Kim Ark, 169 U.S. 649, 702 (1898).
Yeah. Scalia’s not going to overturn Wong Kim Ark. (Here’s another clue in case you didn’t have your coffee this morning – citizenship by birth doesn’t have anything to do with naturalization!)
[1] I remain of the view that the Court lacks power to provide relief of the sort requested in this suit–namely, conferral of citizenship on a basis other than that prescribed by Congress. See Miller v. Albright,523 U.S. 420, 452 (1998) (Scalia, J., concurring in judgment). A majority of the Justices in Miller having concluded otherwise, see id., at 423 (opinion of Stevens, J., joined by Rehnquist, C. J.); id., at 460 (Ginsburg, J., joined by Souter and Breyer, JJ., dissenting); id., at 471 (Breyer, J., joined by Souter and Ginsburg, JJ., dissenting); and a majority of the Court today proceeding on the same assumption; I think it appropriate for me to reach the merits of petitioners’ equal protection claims. I join the opinion of the Court.
Edward Bates on citizenship: 1862 September 2, 2009
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Source: Edward McPherson “The political history of the United States of America“
Colored Men as Citizens.
OPINION OF ATTORNEY GENERAL BATES.
Attorney General’s Office, November 29, 1862 .
Hon. S. P. Chase, Secretary of the Treasury:
Sir : Some time ago I had the honor to receive your letter submitting, for my opinion, the question whether or not colored men can be citizens of the United States. The urgency of other unavoidable engagements, and the great importance of the question itself, have caused me to delay the answer until now.
Wong Kim Ark citing Pothier on Natural Born August 31, 2009
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On Obama Conspiracy, Greg explains
In Wong, Justice Gray cites Pothier’s Traite des Personnes for the law of France. (p. 666 of the decision) Here’s the reference he was citing, pages 17-18. And, here’s one of the quotes, in the original French:
“Les citoyens, les vrais et naturels Français, suivant la definition de Bacquat, sont ceux qui sont nes dans l’etendue de la domination francaise…”
Gray translates it as “citizens, true and native-born citizens…” I think as likely a translation is “The true and natural-born citizens of France…”
It continues, “are those born within the lands under French dominion.”
Paragraph 45 of that Treatise explains that except for those born in countries that later come under French control for everyone else, it doesn’t matter whether their parents were citizens or aliens, or whether they had established a domicile there:
Au reste, pour que ceux qui sont nés dans les pays de la domination française soient réputés Français, on ne considère pas s’ils sont nés de parents français, ou de parents étrangers; si les étrangers étaient domiciliés dans le royaume, ou s’ils n’y étaient que passagers. Toutes ces circonstances sont indifférentes dans nos usages : la seule naissance dans ce royaume donne les droits de naturalilé, indépendamment de l’origine des père et mère, el de leur demeure.
That was the law of France at the time of the founding, not Vattel’s conception of it. France did not change their definition of citizenship until the Code Napolean of 1807.
The Constitution and Common Law August 31, 2009
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In Wong Kim Ark we learn that:
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.” In this as in other respects, it must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution.
Minor v. Happersett, 21 Wall. 162; Ex parte Wilson, 114 U.S. 417, 422; Boyd v. United States, 116 U.S. 616, 624, 625; Smith v. Alabama, 124 U.S. 465. The language of the Constitution, as has been well said, could not be understood without reference to the common law. Kent Com. 336; Bradley, J., in Moore v. United States, 91 U.S. 270, 274. [p655]
Vattel and Virginia Statutes? August 31, 2009
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Arguing that Vattel and not common law guided the Founders, the Birthers proclaim that
The answer to this lies with none other than Thomas Jefferson, who penned Virginia’s Citizenship statue in 1779,
“Be it enacted by the General Assembly, that all white persons born within the territory of this commonwealth and all who have resided therein two years next before the passing of this act, and all who shall hereafter migrate into the same; and shall before any court of record give satisfactory proof by their own oath or affirmation, that they intend to reside therein, and moreover shall give assurance of fidelity to the commonwealth; and all infants wheresoever born, whose father, if living, or otherwise, whose mother was, a citizen at the time of their birth, or who migrate hither, their father, if living, or otherwise their mother becoming a citizen, or who migrate hither without father or mother, shall be deemed citizens of this commonwealth, until they relinquish that character in manner as herein after expressed: And all others not being citizens of any the United States of America, shall be deemed aliens.” As can be seen Jefferson is equating citizenship of the child to that of the parents, and not the land.
Strangely enough they omit the 1783 Virginia statute
SECT. 2. Be it therefore enacted by the General Assembly, That all free persons, born within the territory of this Commonwealth ; all persons, not being natives, who have obtained a right to citizenship under the Act, intituled, ” An Act declaring who shall be deemed citizens of this Commonwealth;” and also all children, wheresoever born, whose fathers or mothers are or were citizens at the time of the birth of such children, shall be deemed citizens of this Commonwealth,
However, in both statutes, the case is clearly not Vattel but rather Common Law, mimicking English Common Law which declares anyone born on its soil a citizen including children born to fathers abroad. The 1783 statute extends this right to fathers and/or mothers.
Naturalization by Treaty August 30, 2009
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Note: Under international law and the law of nature, inhabitants of a nation, which title is transferred to another nation, become citizens of the new nation, with the opportunity of election to maintain the original citizenship. This fact is important when discussing Obama’s British citizenship which was lost when, under the Kenya Independence Act, was transferred to Kenya. Under Kenyan Constitution, Obama’s failure to elect Kenyan citizenship when reaching the age of majority, caused Obama to lose his Kenyan citizenship, while continuing his US birthright citizenship. Similar treaties between the United States and Great Britain, allowed the inhabitants of ceded territory to elect and/or abandon British or United States citizenship.
Chapter VI.—Naturalization By Treaty.
The question of naturalization by treaty may be passed over without any considerable comment. The general principles controlling such cases are entirely clear and have been understood and acted upon by the Government from the first.
Election of Citizenship – Children w. dual nationality August 30, 2009
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Note: The general principle is that a child born on US soil cannot lose his birthright citizenship through the actions of the parents, and, once reaching the age of majority, can make the decision as to which birthright citizenship to continue.
Source: United States. Dept. of State, James Brown Scott, David Jayne Hill, Gaillard Hunt, Citizenship of the United States, expatriation, and protection abroad, Issue 326 of House document, GPO 1906.
Inasmuch as our Government declares that all persons born in the United States are citizens of the United States, and also recognizes as well as adopts, on its own part, the rule that children of citizens resident abroad are citizens of the country to which the parents owe allegiance, there arises, as will be seen, a conflict of citizenship spoken of usually as dual allegiance. The matter was up for consideration and decision in Trimbles v Harrison, 1840, 1 B Monk 140 ,where the matter to be determined was as to the citizenship of a woman who born in Boston in 1773 of British parents, was taken by her father to England prior to 1798, where she was married. In discussing this question, the court said:
Status of Children of Alien inhabitants August 30, 2009
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Source: United States. Dept. of State, James Brown Scott, David Jayne Hill, Gaillard Hunt “Citizenship of the United States, expatriation, and protection abroad”, Issue 326 of House document, GPO 1906.
SECTION 2 Of alien inhabitants
A OF PARENTS WHO MAY BECOME CITIZENS
Where the residence was temporary – This question as to the citizenship of children born in the United States of alien parents who were in this country merely temporarily arose and was elaborately examined in the case of Lynch v Clark 1844 1 Sandf Ch 583. It appeared in that case that not only were the parents here temporarily but that within a year from the time of the child’s birth they had taken her with them on their return to their native country Great Britain. The court showed no hesitancy in declaring that the child so born was a citizen of the United States. In a later New York case Munro v Merchant 1858 26 Barb 383 400, when the question came again before the court under circumstances that were almost identical, the court followed but questioned the Clark case.
Where the residence was permanent – Of course if the above cases are sound as they would seem to be on the question of birth it follows that where the residence is permanent the child born here of such residents should be considered a citizen of the United States and such has been the uniform doctrine as announced by both Federal and State courts. See McCreery v Somerville 1824 9 Wheat 354 (children of Irish parents) McClean Swanton 1856 13 NY 535 Benny v OfBrien 1895 58 N TL 36 (children of Scotch parentage). In re Giovanna 1899 93 Fed 659 (children of Italian parentag)e and see Hartford v Canaan 1886 55 Conn 39 An interesting application perhaps an exception of the doctrine is found in McKay v Campbell 1871 2 Sawy 118 in which it was held that a child born in Oregon of British parents during the joint occupation of that territory by the United States and Great Britain was a British subject.
Munro v Merchant 1858 August 30, 2009
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Munro v Merchant 1858 quotes Lynch v Clarke
It is further contended on the part of the defendant that the plaintiff himself is an alien. He was born in Ballston Spa in this state while his father was a resident of Canada and returned to his father’s domicil with his mother within a year after his birth. His mother was temporarily there without any actual change of residence either on her part or that of his father. It is argued that at common law a natural born subject was one whose birth was within the allegiance of the king (Bac Ab tit Alien A Com Dig A and B 7 to 18, Bl Com 336 74). The cases of children of ambassadors born abroad and of children born on English seas were considered exceptions. Chancellor Kent in his commentaries defines a native born citizen to be a person born within and an alien one born out of the jurisdiction of the United States (2 Kent’s Com 37 50). 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.
Henry Chitty – A treatise of the law of descents August 29, 2009
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Who are aliens, (p) By the common law all persons born out of the king’s dominions and allegiance, even the children of natural born subjects, were deemed aliens: (q) and the character of a natural born subject, previous to any of the statutes which we shall have occasion to refer to, was incidental to birth ; and whatever were the situations of his parents, the being born within the allegiance of the king constituted a natural born subject, (r)
The statute 25 Edw.3. st. 2. provides that ” all children, inheritors, which should thenceforth be born out of the legiance of the king, whose fathers and mothers, at the time of their birth, should be at the faith and legiance of the king of England, should have and enjoy the same benefit and advantage, to have and bear inheritance within the same legiance as other inheritors, provided the mothers of such children passed the sea by the licence and will of their husbands.”
Blackstone – Children of Aliens August 28, 2009
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11 Citizens born abroad - With the exception of those born of alien enemies who happen to hold a part of the country as enemies it is the allegiance not the soil that determines (7 Coke Rep 18 a). Whether a child born in the house of a foreign ambassador would be an alien or citizen seems doubtful. The dictum of the commentator as to French law is no longer true. A child born in France of foreign parents may claim French citizenship under certain conditions(Code Nap I 1 ,9). In both countries the citizenship derived by actual birth is probably now held to be conclusive if properly claimed (See Wooddesson Lect 1, 231).
Lynch v Clarke – Natural Born Citizen and allegiance August 28, 2009
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Lynch vs Clarke 1 Sandf Ch NY 583 1844 where the Vice Chancellor declares at the close of an exhaustive review of the authorities
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
But see the very able opinion of the late Vice Chancellor Sandford in Lynch vs Clarke 1 Sandf 583 where he says p 654
In my judgment there is no room for doubt but that to a limited extent the common law or the principles of the common law as some prefer to express the doctrine prevails in the United States as a system of national jurisprudence. To what extent it is applicable I need not hazard an opinion either in general terms or in particular instances beyond the case in hand but it seems to be a necessary consequence from the laws and jurisprudence of the colonies and of the United States under the articles of confederation that in a matter which by the Union has become a national subject to be controlled by a principle coextensive with the United States in the absence of constitutional or congressional provision on the subject it must be regulated by the principles of the common law if they are pertinent and applicable.
In The Naturalization laws of the United States, we find an important admission that is relevant to the arguments by Mario Apuzzo, who insists that British subjects can never shake their citizenship. In this case we observe how through a mutual treaty between the United States and Great Britain, people were given the liberty to chose which citizenship to accept.
At the Revolution In 1776 every man was at liberty to choose between the United States and Great Britain “whom he would serve”. He might yield an express or a tacit and implied assent to the Declaration of Independence. The evidence of this election and of the time of making it is to determine to whom his allegiance is due. Vice Chancellor Sandford in the interesting case of Lynch vs Clarke 1 Sand Chy Rep 681 says, “The doctrine settled by these authorities is that on the separation of the colonies the United States and Great Britain became respectively entitled as against each other to the allegiance of all persons who were at that time adhering to the governments respectively and that those persons became aliens in respect to the government to which they did not adhere In our decisions the time fixed for the application of the rules is the Declaration of Independence In the British authorities it is applied at the date of the treaty of peace in 1783. Chancellor Kent fixes the date of the treaty referred to as the proper period for the application of the rule.
14th Amendment and 'subject to jurisdiction thereof' – Attorney General Ellis August 28, 2009
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Citizenship Persons born in the allegiance of the United States Term born in allegiance defined(pdf)
A young man was born and always resided in this State His mother was a native of Pennsylvania. His father was an unnaturalized Swede. Held, that such a person is a citizen of the United States and of the State of Michigan and if twenty one years of age would be entitled to register and vote.
A person to be born in allegiance of the United States should not only be born on American soil but on soil that was within the control of the United States at the time of his birth.
(more…)
Wong Kim Ark – Reply Brief of the Appellee August 27, 2009
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