Shanks v Dupont

John Woodman at Obamabirthbook.com has already explained why Mario’s appeal to this case fail

US Supreme Court: Shanks v Dupont (1830)

Mario Apuzzo has claimed that this case supports his claim:

Even our United States Supreme Court in 1830, per Justice Story, clearly established that merely being “born in a country” did not equate to being a “natural born Citizen.” Rather, the Court also required “citizen” parents. In Shanks v. Dupont, Justice Story, writing for the Court in 1830, stated:

“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.”

Celebrated Supreme Court Justice Joseph Story Contributed to Two Cases Involving the Division of Colonists into Americans and Britons

Celebrated Supreme Court Justice Joseph Story Contributed to Two Cases Involving the Division of Colonists into Americans and Britons

And this statement comes from the majority Opinion.

As is frequently the case with birthers, however (sorry, but it’s true) Mr. Apuzzo strips the quote from its context.

This particular case is a complex mishmash of competing interests.

We have a woman who was born a British subject on American soil while that soil belonged to England. She was an American at the Declaration of Independence — at which time she may or may not have been a minor. She then married an English officer and moved to England, becoming once more a British subject. Finally, she died, leaving five British children in England, who were suing for a share of their grandfather’s South Carolina estate in a now independent America.

The property in question itself began as part of an English colony. The English colony then declared independence and became part of the United States. The property was captured and held by the British; and then eventually it was given back to the United States of America.

In addition to the revolving nationalities of both Ann Shanks and her father’s property on James Island, the case also concerns:

  • the election of American colonists upon Independence, to be either American or British
  • how the capture of a territory affected the citizenship of its inhabitants
  • how a father’s nationality affected that of his minor children
  • and how a husband’s nationality affected that of his wife.

And the principle mentioned by Story has to do not with citizenship in an established country, but the division of people and land during the great divorce between the American Colonies and Britain. It is one principle of many used to decide the case.

Let’s look again at the passage Apuzzo quotes:

“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.”

During this time… during what time? Mr. Apuzzo somehow leaves out that highly relevant point.

“…at the time of the Revolution, and afterwards… until December, 1782.”

So the question had nothing to do with citizenship in a settled country. The principle laid down was this: Ann Shanks, like all American Colonists, was born a British subject. If she was “of age” from 1776 to December of 1782, then she had clearly chosen — as an adult — to embrace American citizenship.

If she was a minor at that time, however, she could not make the choice for herself, and it could be presumed her father had made a choice on behalf of his minor child. Her father had adhered to the American cause, so it could be presumed that in either event, the choice had been made that she was going to leave British subjecthood and become an American.

Shanks v Dupont simply doesn’t have to do with the citizenship of a child born into a settled country. For that reason, it doesn’t lend any support to Apuzzo’s claim. And this fact is about to become clear when we consider what the exact same Justice said in our next case.

—-

Furthermore, in US v Wong Kim Ark, the court rejects the relevance of Shanks v Dupont, observing that:

In Shanks v. Dupont, 3 Pet. 242, decided (as appears by the records of this court) on the same day as the last case, it was held that a woman born in South Carolina before the Declaration of Independence, married to an English officer in Charleston during its occupation by the British forces in the Revolutionary War, and accompanying her husband on his return to England, and there remaining until her death, was a British subject within the meaning of the Treaty of Peace of 1783, so that her title to land in South Carolina, by descent cast before that treaty, was protected thereby. It was of such a case that Mr. Justice Story, delivering the opinion of the court, said:

“The incapacities of femes covert, provided by the common law, apply to their civil rights, and are for their protection and interest. But they do not reach their political rights, nor prevent their acquiring or losing a national character. Those political rights do not stand upon the mere doctrines of municipal law, applicable to ordinary transactions, but stand upon the more general principles of the law of nations.”

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. 28 U. S. 245) to the contemporaneous opinions in Inglis v. Sailors’ Snug Harbor, above cited, in which this rule had been distinctly recognized, and in which he had said (p. 28 U. S. 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.

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