The whole subject of native citizenship was thoroughly reviewed by Assistant Vice Chancellor Sandford in his admirable opinion in the case of Lynch v. Clarke,”3 decided in i844. This opinion is notable for its common sense and originality as well as for its unusual thoroughness and evidence of wide learning. Up to this time citizenship in the United States had been regarded generally as pertaining primarily to the individual states which had separately adopted the English common law, but Judge Sandford treated citizenship as essentially national, and thereby anticipated by more than two decades the declaration concerning citizenship contained in the Fourteenth Amendment to the Constitution. In the course of his opinion he said:
“The provisions of the Constitution of the United States demonstrate that the right of citizenship, as distinguished from alienage, is a natural right or condition, and does not pertain to the individual states” (p. 641).
“Citizenship . . . is a political right, which stands not upon the municipal law of any one state, but upon the more general principles- of national law” (p. 644).
“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” (p. 654).
“When the Union was formed and further state regulation on the point terminated, it follows, in the absence of a declaration to the contrary, that the principle which prevailed, and was the law on such point in all the states, became immediately the governing principle and rule of law thereon in the nation formed by such union” (p. 655).
“It is indispensable that there should be some fixed, certain and intelligible rules for determining the question of alienage or citizenship. The place of nativity furnishes one as plain and certain, and as readily to be proved, as any circumstance which can be mentioned” (p. 658).
Judge Sandford goes on to observe that, because of the presence in this country of alien immigrants in such large numbers, if jus sanguinis should be recognized as the sole basis of nationality, this “might lead to “the perpetuation of a race of aliens” (p. 673).14
Source: Richard W. Flournoy, Jr. – Dual Nationality and Election – The Yale Law Journal - Vol. 30, No. 6, Apr., 1921