In Re Wong Kim Ark – District Court N.D. of California December 15, 2009
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This is the District Court case that resulted in the now infamous US v Wong Kim Ark Supreme Court ruling.
In re WONG KIM ARK.
(District Court, N. D. California. January 3, 1896.)
No. 11,198.
CITIZENSHIP-CHILD OF CHINESE PARENTS,
A person born within the limits of the United States, whose father and mother were both persons of Chinese descent, and subjects of the emperor of China, but, at the time of the birth, were both domiciled residents of the United States, Is a citizen of the United States, within the meaning of the fourteenth amendment to the constitution of the United States. In re Look Tin Sing, 21 Fed. 905, 10 Sawy. 353, and Gee Fook Sing v. U. S., 1 C. C. A. 211, 49 Fed. 146, 7 U. S. App. 27, followed.
Petition for a Writ of Habeas Corpus. Petition granted, and petitioner, Wong Kim Ark, discharged.
Thos. D. Riordan and Napthaly, Friedenreich & Ackerman, for petitioner.
H. S. Foote, U. S. Dist. Atty., and Geo. D. Collins, as amicus curiae, for the United States.
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
US v Wong Kim Ark – The Ruling December 14, 2009
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U.S. Supreme Court
United States v. Wong Kim Ark, 169 U.S. 649 (1898)
United States v. Wong Kim Ark
No. 18
Argued March 5, 8, 1897
Decided March 28, 1898
169 U.S. 649
APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES
FOR THE NORTHERN DISTRICT OF CALIFORNIA
Syllabus
A child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States, by virtue of the first clause of the Fourteenth Amendment of the Constitution,
“All person born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
Post and Email – Misunderstanding Shanks v Dupont December 14, 2009
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Mr Charlton ‘argues’
Shanks v. Dupont, 28 U.S. 3 Pet. 242 242 (1830)
In 16 years later the Supreme Court heard the case regarding the dispute over the inheritance received by two daughters of an American colonist, from South Carolina; one of whom went to England and remained a British subject, the other of whom remained in South Carolina and became an American citizen. At the beginning of the case, Justice Story, who gave the ruling, does not cite Vattel per se, but cites the principle of citizenship enshrined in his definition of a “natural born citizen”:
Ann Scott was born in South Carolina before the American revolution, and her father adhered to the American cause and remained and was at his death a citizen of South Carolina. There is no dispute that his daughter Ann, at the time of the Revolution and afterwards, remained in South Carolina until December, 1782. Whether she was of age during this time does not appear. If she was, then her birth and residence might be deemed to constitute her by election a citizen of South Carolina. If she was not of age, then she might well be deemed under the circumstances of this case to hold the citizenship of her father, for children born in a country, continuing while under age in the family of the father, partake of his national character as a citizen of that country. Her citizenship, then, being prima facie established, and indeed this is admitted in the pleadings, has it ever been lost, or was it lost before the death of her father, so that the estate in question was, upon the descent cast, incapable of vesting in her? Upon the facts stated, it appears to us that it was not lost and that she was capable of taking it at the time of the descent cast.
As however, Justice Grey observed in Wong Kim Ark:
Lynch v Clarke – Ruling November 9, 2009
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The Assistant Vice-chancellor.—The first question which I will examine in this case, is the political condition of the defendant, Julia Lynch, at the death of he ‘uncle, Thomas Lynch. This question stands at the threshold of the cause. For if, as is claimed in her behalf, she were in truth a citizen of the United States at that time, she inherited all the real estate whereof Thomas Lynch was seized, or to which he was entitled, either at law or in equity. Her father died in the lifetime of Thomas. The descent to her, (although the other relations of Thomas were aliens,) was not immediate. (Jackson v. Fitzsimmons, 10 Wend. 9; Lecy’s Lessee v. M’Carty, 6 Peters, 102.)(a) But the Revised Statutes, re-enacting so much of the act 11 and 12 Will. III. ch. 6, provide that no person capable of inheriting under our statute regulating descents, shall be precluded from such inheritance by reason of the alienism of the ancestor of such person. (1 R. S. 754, § 22.) This applies directly to the case, if Julia Lynch were a citizen when her uncle died. (The People v. Ircin, 21 Wend. 128.)
Lynch v Clarke – Samuel Sherwood, for the complainant, in reply November 9, 2009
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Samuel Sherwood, for the complainant, in reply.
Under the circumstances of Julia Lynch’s birth in this country of alien parents, her remaining some six or eight months, ayd then being taken by her parents to Ireland, and remaining there till after the death of her father, the sole question now arises; and it simply is, whether Julia Lynch was a citizen of the United States or a subject of Great Britain, at the time of Thomas Lynch’s death in 1833. The defendant’s counsel contend that by the common law of Great Britain, which has been adopted in the state of New-York, the place of birth determines the allegiance and citizenship of Julia; and that the Constitution of the United States and laws of Congress have not superseded or varied the common law.
Now although on the part of the complainant we do not deny that such was the common law of Great Britain, yet we do deny that it has any bearing upon what now constitutes an American citizen. It .may be difficult to ascertain with precision what was the common law of Great Britain, or whether, independent of the British statutes, the place of birth or parentage gave national character to the child. Calvin’s Case, to which all refer, does not determine the question, because the point was not necessarily involved, and dicta may be found on both sides of the question about equally strong. Nor does the leading case of Collingwood v. Pace, decide it. The principal point there was, whether the son could inherit through an alien, father, and it was decided he could not, though the son was born after the accession of James to the crown of Scotland, uniting the kingdoms, and therefore a natural born subject. The elementary writers, Blackstone, Chitty, Kent, &c., say that an alien is one born out of the king’s dominions, ” but this must be understood with some restrictions. The common law indeed stood absolutely so, with only a cery few exceptions.” The exception generally given, is that of the children of ambassadors born abroad, of parents known to be subjects, and known to be abroad with the animus recertendi, and with the consent of the government; and as far as the correct principle can be extracted, it is and ought to be, that when a citizen of one country is abroad with the approbation of his government, express or implied, temporarily, with the intention of returning and not changing his allegiance, children born of such parents abroad, and actually returning during infancy, are born within the ligeance of the gocernment of the parents country, their national character following the condition of their parent, subject to such allegiance. Such a principle is in harmony with the first law of nature; with the ties of parent and child, and with the reciprocal claims of the goverments, and the rights of the subject or citizen. This principle is affirmed by the stautes of England, by the codes of France, and by the laws of Congress. It is as far as can be ascertained, the existing law of nations, either barbarous or civilized.
It cannot be denied, that while England claims, if not by the common law, by her statutes, that the children of her subjects, born abroad, are her subjects also; she denies the same right to other nations. She claims that children born in England, of foreign parents, are English. Now, if an American family, travelling or temporarily residing in Europe, should have a child born in England, and after its birth, and in prospect of war between the two nations, the family were ordered to leave the country, would England be permitted to assert her doctrine of a natural born subject, and separate the child from the parent, and retain the child as a British subject 1 Or rather, if the claim were asserted, would not the American government, at the hazard of a national conflict, be bound to protect the child, under the paramount laws of Congress, as an American citizen? If Americans would not permit this claim to be enforced against them, could they be guilty of the absurd and incongruous act of attempting to enforce the rule against others ? England also denies the right of expatriation ; she claims her subjects, as bound by an indissoluble bond ; she admits no residence, temporary or permanent; no acts or declarations, as loosening the chain. The American doctrine takes the converse of the proposition ; admits and contends for the right of expatriation. When her citizens renounce their allegiance, they renounce the right to her protection; she yields the one, and they forfeit the other. What precise act severs the bond of allegiance, or where the exact point of these mutual relations terminate and commence, may not always be easy to determine.
The United States would defend the rights of her naturalized citizens, here or abroad. She would protect the permanent resident foreigners, who had declared their intentions to become citizens, while here in their probationary state, and she would guarantee a safe asylum to any who emigrated to our shores, and sought a permanent residence and a perpetual home among us. This latter class contributing to the support of our government, would to a qualified extent, be entitled to its protection, and perhaps there is no better American test of the commencement of this right of protection, than permanent residence with an intention to remain. And it is more reasonable to suppose that England will yield to others what she claims for herself; and that she will conform to a general principle, by which all civilized nations can be governed upon terms of entire equality, and without conflict.
The rapid progress of civilization, the ready and constant intercourse of nations, the mingling of citizens and subjects of all nations without restriction, call for uniform national rules; and can any be more simple and just, than those we contend are to be drawn from the constitution of the United States and the laws of Congress made in pursuance of it 1 Whatever may have been the rule of any particular state, after severing from the mother country, and while bound by articles of confederation merely, such rule ” was virtually repealed” upon the adoption of our federal compact, and a new and “uniform rule of naturalization” was thenceforward to be ” established throughout the United States,” and ” the citizens of each state should be entitled to all the privileges and immunities of citizens of the several states.” Chirac v. Chirac, (2 Wheat. 269. Ch. J. Marshall.) Here then was an original plan to govern all the states, abolishing the old, and building up a new system, to which all the states consented, and in pursuance of which, the acts of Congress have been passed, denning and declaring who shall be ” admitted to be citizens” upon conforming to prescribed regulations, and who shall be ” considered citizens” from their situation without any acts of their own. Adult aliens coming to reside, and actually making our laud the land of their homes, and properly manifesting a disposition to be incorporated into the body politic ; to those, citizenship has been rendered simple and uniform ; the adult alien is thus ” admitted to be a citizen,” and the infant children dwelling here, of such alien, so admitted to be a citizen, are to ” be considered citizens.” Two other classes by the acts of Congress are ” to be considered citizens ;” the widow and children of a man declaring his intention, and dying before naturalization; and children of American citizens born abroad, are ” declared citizens.”
If an American citizen should go to reside in France with the animus manendi, and should live and die there, his children born there, 1 readily admit, would be natural born subjects, because such intention and continued residence of the parent would be evidence of, and equivalent to, expatriation, by implied consent of the government to whom allegiance was due. And although the parent may not have become naturalized so as to entitle himself to all the privileges of his adopted country, yet having cast off allegiance to this country, there is no barrier to the child’s allegiance to the country of its birth, and I perceive no objection to the adoption of the same principles here. If a foreigner came to reside here permanently, and designs renouncing all allegiance to the government of which he is a subject and actually remains here, has children born here, and they remain ; in such case the parent may be deemed to have renounced, with the implied assent of his former government, and although not naturalized, and not entitled to the full privileges of a citizen, yet being domiciled and owing a temporary allegiance, his children born here are natural born citizens. It is permanent residence, with the intent of remaining, added to birth, which creates and establishes the political character. “Without such permanent residence, and while the parent is in itinere, the place of birth follows the allegiance of the father. Adopt this rule, consider this the law of nations, and there is no conflict or incongruity. It is the sensible doctrine of Vattel and of Story. Our Constitution having abrogated the common law, and Congress having provided for infant children born abroad, and dwelling here when the father becomes naturalized, (and if he fails to do so, they may apply when of age;) and Congress having also asserted the citizenship of children born abroad of American citizens ; with the rule I contend for, and the existing enactments, there is no case unprovided for. Adopt the rules the defendants contend for, and each country is in conflict with the other.
With this rule as our guide, we have only to ask, was the father of Julia an alien ? was his visit here temporary ? did he intend to return home, and did he in fact return home and die there, she dwelling with him at the time of his death ? If so, her condition followed his, and she was a British subject. Julia must have dwelt here at the time of her father’s death, to have taken under the enabling statute, as by that statute she obtained no greater rights than if he had that day been naturalized under the acts of Congress.
Lynch v Clarke – Anthony L. Robertson, for the defendant, Julia Lynch November 9, 2009
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Anthony L. Robertson, for the defendant, Julia Lynch.
The question presented for re-argument is simply the right of Julia Lynch to take and hold land in this state, which is denied by the complainant; it being averred that she is not a citizen of the United States.
Lynch v Clarke – Murray Hoffman, also for the defendant Clarke November 9, 2009
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Murray Hoffman, also for the defendant Clarke.
The question now to be discussed, is whether Julia Lynch had not inheritable blood, so that without the aid of any enabling statute, she took as heir of Thomas Lynch, deceased.
Lynch v Clarke – Charles F. Grim, also for the defendant Clarke November 9, 2009
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Charles F. Grim, also for the defendant Clarke.
On the question as to the citizenship of Julia Lynch, insisted that she was born of parents residing here with an intention of permanently remaining, and he argued that her birth here, independent of any permanent residence of her parents, made her a citizen of the United States—a natice born citizen within the meaning of the Constitution of the United States, of this state, of the common law of England, and of all the states that were in existence when the Constitution of the United States was adopted; and that she was a citizen, and not an alien, within the meaning of those words as used in the law of inheritance in this state.
Lynch v Clarke – Gilbert M. Speir, for the defendant Clarke. November 9, 2009
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Gilbert M. Speir, for the defendant Clarke.
(After stating his views of the testimony, and insisting that Patrick Lynch was domiciled here, proceeded on the assumption that he was here dwelling temporarily.)
I. The right to lake and hold land in this state is to be determined by the laws of this state, and they furnish the only rule for governing the question.
It will not be denied that up to the time of the adoption of the Federal Constitution, titles to land and the laws of allegiance were exclusively subjects of state cognizance. By the constitution the power of the states has been abridged only in determining who cannot inherit. But the state is supreme in determining who can inherit. The power of the states is only restrained by the constitution in those cases where it became necessary to carry out the objects of the general government. (Ogden v. Saunders, 12 Wheaton R. 281.)
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.
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.
United States v. Wong Kim Ark, 169 U.S. 649 – Dissenting Opinion August 31, 2009
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FULLER, C.J., Dissenting Opinion
SUPREME COURT OF THE UNITED STATES
169 U.S. 649
United States v. Wong Kim Ark
APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF CALIFORNIA
No. 18 Argued: March 5, 8, 1897 — Decided: March 28, 1898
MR. CHIEF JUSTICE FULLER, with whom concurred MR. JUSTICE HARLAN dissenting.
United States v. Wong Kim Ark, 169 U.S. 649 – Ruling August 31, 2009
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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.
Lynch v Clarke 1 Sand. Ch. 583, 1884- MacKay for the Complainant August 30, 2009
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Lynch v Clarke, 1 Sand. Ch, NY 583, 1844
The cause was argued by HS Mackay, Jacob Radcliff and Samuel Sherwood for the complainant GM Speir, Charles F Grim and Murray Hoffman for the defendant Clarke and AL Robertson for Julia Lynch. The report of their arguments is limited to the point as to the right of Julia L to inherit.
Hay S. Mackay, for the complainant.
It is contended, that Julia Lynch was at the time of the death of Thomas Lynch, and still is, an alien of the United States, and is thereby debarred from inheriting from the ancestor. ‘The case is in effect this, that Julia was born in this country of alien parents, during their temporary stay or sojourn in it, without the intention on their part of making it the country of their adoption. The parents while here, retaining their allegiance to the land of their birth and the animus revertendi, and actually returning to it with the design of resuming it as the place of their continued and permanent abode, and where they died. Julia having been born on the eve of their going back went with them, and was then so young, as (legally considered, at least,) to be insensible of her very existence—an infant in the arms of her parent. She has not been naturalized.
Lynch v Clarke 1 Sand. Ch. 583, 1884 – Ruling August 29, 2009
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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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Counting the Electoral Vote July 25, 2009
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What people seem to have forgotten is that in the 19th Century, Congress was faced with a very similar situation in the Election of President Hayes. We can observe how Congress approached matters in those days, their reasoning and the outcome. For instance, Congress considered a bill in which the title of the President Elect could be challenged in Court, either the Supreme Court, or the Circuit Court if the Supreme Court lacked original jurisdiction. Senators strongly opposed this and argued that having the outcome of the elections decided by the judiciary was counter to the idea of the Founders, that the title of President could only be addressed by Congress via the 12th Amendment (the 20th Amendment did not exist yet) and that once a President was elected, his election was to last 4 years, even if errors were made as the decision to elect a President would be final and irrevocable.
What history shows is that when Congress had to deal with a similar situation as to whether or not a duly elected President’s title could be tried. And they clearly show that
1. Congress is the final arbiter per 12th amendment and its decision is final, and irrevocable, even if later found to be in error.
2. There is no place for the judiciary to decide on Presidential election. This means that the use of Quo Warranto to try the title for Presidency is not provided for.
