-Submitted by David Drumm (Nal), Guest Blogger
Holdings, or ratio decidendi (Latin for “the rationale for the decision), are those parts of a court’s opinion that are binding on lower courts and later courts. This binding is referred to as the doctrine of stare decisis which provides hierarchical (vertical) and temporal (horizontal) continuity throughout the judicial system. Obiter Dicta (Latin for a statement “said in passing”), or dicta, are those parts of a court’s opinion that are not binding on lower courts and later courts. Dicta may suggest an interpretation of the law that may prove useful in future cases.
Distinguishing holdings and dicta is sometimes difficult and in some court opinions, intentionally so. Sub-categories of dicta, such as judicial dicta, and their different levels of authority, make the determination even more perilous. Dissenting opinions are always considered dicta.
Vertical stare decisis refers to the power of higher courts to bind the decisions of lower courts. All courts are bound by vertical precedent to follow the holdings in the decisions of the Supreme Court. Vertical stare decisis is generally considered absolute.
Horizontal stare decisis refers to the power of a court to bind itself. The Supreme Court while not bound by its prior decisions, does give them “substantial weight” in deliberations. There is a strong presumption that prior judicial articulations of the law are correct and generally should be followed. Horizontal stare decisis preserves a stable doctrine and prevents cycling.
While “we hold that …” or “the rule is …” are frequently giveaways to holdings, it is no guarantee in the holdings/dictum debate. In United States v. Rubin (1979), J. Friendly, in a concurring opinion, wrote:
A judge’s power to bind is limited to the issue that is before him; he cannot transmute dictum into decision by waving a wand and uttering the word “hold”.
Consider the example found in Minor v. Happersett (1875), a Supreme Court case dealing with the constitution of the State of Missouri that ordains: “Every male citizen of the United States shall be entitled to vote.” The following passage is from J. Waite’s opinion:
The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. For the purposes of this case it is not necessary to solve these doubts.
Portland Examiner contributor Dianna Cotter claims the reference to the natural-born citizen clause in this passage is part of the holding. The Wikipedia entry correctly identifies this reference as obiter dictum.
H/T: Legal Theory Lexicon, Judith M. Stinson, Michael Abramowicz and Maxwell Stearns, Robert G. Scofield.
P.A. … who?
The most relevant court case on the the 14A’s citizenship clause was, and still is, Elk, because the question before the court was the extent of the Fourteenth’s “subject to the jurisdiction thereof.” Doesn’t matter if the party was Indian or a little green man from mars, all that matters that was the constitutional question before the court to adjudicate. Gray answered it was political attachment and not mere physical location. Gray tried to side step what the court already had held in Elk in WKA but this was purely dicta and not a question before that court.
Why is it that in more than a million word here, that no one brings up the name Bingham, and Trumbull and Howard are brought up by Ballentine, only in passing?
Was U.S. vs. Wong Kim Ark Wrongly Decided?
by P.A. Madison on December 10th, 2006
In reading the majorities opinion in Wong Kim Ark, one cannot help but wonder why so much emphasis is being placed on such obscure and irrelevant historical overviews as colonial and foreign law. With two previous court decisions, a United States Attorney General Opinion over the meaning of the Fourteenth’s citizenship clause, and law previously made over alien citizenship via birth, leaves one to wonder what is going on here?
Deeper into the decision, justice Horace Gray (writing for the majority) reveals exactly what the majority is up to: They are attempting to avoid discussion over the construction of the clause by the two Senators whom are most responsible for its language found under the Fourteenth Amendment, Jacob M. Howard and Lyman Trumbull. They are also attempting to keep their prior adjudication to what “subject to the jurisdiction thereof” means in Elk v. Wilkins out of the discussion or else Wong Kim Ark can’t be said to be a citizen of the United States.
It is clear the Wong Kim Ark majority recognized the only viable approach to the conclusion they sought was to somehow distant themselves from the recorded history left behind by the citizenship clause framers. Justice Gray made no attempt to hide this fact when he wrote: “Doubtless, the intention of the congress which framed, and of the states which adopted, this amendment of the constitution, must be sought in the words of the amendment, and the debates in congress are not admissible as evidence to control the meaning of those words.”
Whatever credibility the court may had at the beginning was soon lost when Gray wrote:
The words “in the United States, and subject to the jurisdiction thereof” in the first sentence of the Fourteenth Amendment of the Constitution must be presumed to have been understood and intended by the Congress which proposed the Amendment … as the equivalent of the words “within the limits and under the jurisdiction of the United States…”
Here the court is assuming what Congress may have intended while also arguing the written debates that could easily disclose this intent is inadmissible as evidence. This has to be one of the most incompetent and feeble rulings ever handed down by the Supreme Court. Justice John Paul Stevens would take issue with this inept attempt by the majority to rewrite the Constitution: “A refusal to consider reliable evidence of original intent in the Constitution is no more excusable than a judge’s refusal to consider legislative intent.”
Reviewing the intended purpose behind the words of the clause by both Sen. Howard and Sen. Trumbull, who were responsible for the drafting of the citizenship clause, clearly revealed the intended effect of the clause; leavening little doubt to why justice Gray desired to avoid the legislative history of this language. Howard presents a major hurdle for the majority when he specifically declared the clause to be “virtue of natural law and national law,” never once making any reference to England’s common law doctrine. Perhaps this is why Gray wasted much of his commentary along common law themes.
An Act of April 9, 1866 established for the first time a national law that read, “all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed.” Rep. John A. Bingham, chief architect of the 14th Amendments first section, said this national law (Section 1992 of the US Revised Statutes) was “simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen.” If this law was simply to reaffirm the common law doctrine then the condition of the parents would be totally irrelevant.
Sen. Trumbull, who was the author of this national law, said it was his intention “to make citizens of everybody born in the United States who owe allegiance to the United States.” Additionally, he added if a “negro or white man belonged to a foreign Government he would not be a citizen.”
However, Gray insists Trumbull really meant to grant citizenship to everyone born due only to the fact they were born on American soil. Moreover, if everyone owed allegiance by simply being on American soil, then what was the purpose of having aliens renounce their allegiance to other countries and pledge their allegiance to this one for purposes of becoming naturalized? Perhaps the true answer is because locality itself was never enough to confer complete allegiance.
Speaking of the Fourteenth Amendment, Sen. Trumbull goes on to declare: “The provision is, that ‘all persons born in the United States, and subject to the jurisdiction thereof, are citizens.’ That means ‘subject to the complete jurisdiction thereof.’ What do we mean by ‘complete jurisdiction thereof?’ Not owing allegiance to anybody else. That is what it means.“
Sen. Howard follows up by stating, “the word jurisdiction, as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, coextensive in all respects with the constitutional power of the United States, whether exercised by Congress, by the executive, or by the judicial department; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now.”
The Supreme Court had earlier discussed the meaning of the 14th amendment’s citizenship clause in the Slaughterhouse cases and noted, “[t]he phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.”
Even the dissenting minority affirmed that the result of the citizenship clause was designed to ensure that all persons born within the United States were both citizens of the United States and the state in which they resided, provided they were not at the time subjects of any foreign power. The United States Attorney General in 1873 ruled the word “jurisdiction” under the Fourteenth Amendment to mean:
The word “jurisdiction” must be understood to mean absolute and complete jurisdiction, such as the United States had over its citizens before the adoption of this amendment… Aliens, among whom are persons born here and naturalized abroad, dwelling or being in this country, are subject to the jurisdiction of the United States only to a limited extent. Political and military rights and duties do not pertain to them. (14 Op. Atty-Gen. 300.)
In Elk v. Wilkins, 112 U.S. 94, the court was specifically asked to address “subject to the jurisdiction thereof,” and held it meant:
The persons declared to be citizens are “all persons born or naturalized in the United States, and subject to the jurisdiction thereof.” The evident meaning of these last words is not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction and owing them (U.S.) direct and immediate allegiance. And the words relate to the time of birth in the one case, as they do to the time of naturalization in the other. Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterwards except by being naturalized, either individually, as by proceedings under the naturalization acts, or collectively, as by the force of a treaty by which foreign territory is acquired.
Here we have the framers, the Attorney General and the Elk court all agreeing that “subject to the jurisdiction thereof” means political attachment. The question begs, what happened to the adopted meaning?
In Wong Kim Ark the court made a weak attempt to marginalize what it had said in Elk on the grounds that decision “concerned only members of the Indian tribes within the United States, and had no tendency to deny citizenship to children born in the United States of foreign parents of Caucasian, African or Mongolian descent not in the diplomatic service of a foreign country.”
In truth the adjudicated meaning of “subject to the jurisdiction” in Elk did in fact have the “tendency to deny citizenship to children” because it applied to all person born whether Indian, Asian or any other race. The real question is which court was the question of “subject to the jurisdiction” before the court?
The answer is, Elk.
The definition for “subject to the jurisdiction thereof” handed down in Elk posed a real problem for Wong Kim Ark because Wong’s parents did not owe the United States direct and complete allegiance nor did they fall within the political jurisdiction. To try and sidestep the judicial meaning of “subject to the jurisdiction” found in Elk, Gray attempts to obfuscate the meaning of “subject to the jurisdiction thereof” by painting a new meaning under the Fourteenth Amendment:
The real object of the Fourteenth Amendment of the Constitution, in qualifying the words, “All persons born in the United States” by the addition “and subject to the jurisdiction thereof,” would appear to have been to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the National Government, unknown to the common law), the two classes of cases — children born of alien enemies in hostile occupation and children of diplomatic representatives of a foreign State…
Unfortunately for Gray, he can’t unmake history nor can he hide from what he had ruled in Elk. Again, Kim Ark was not born into the allegiance of the United States, his parents had no political attachment, and his parents were subject to treaties in the same way that Indians were.
When all was said and done, the majority in Wong Kim Ark reveals their true nonsensical position: “To hold that the Fourteenth Amendment of the constitution excludes from citizenship the children born in the United States of citizens or subjects of other countries, would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage, who have always been considered and treated as citizens of the United States.“
That statement pretty much removes all doubt whether the Wong Kim Ark court had any idea what they were talking about.
The court in Minor vs. Happersett (1874) acknowledged that some, not all, but some authorities go as far to “include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first [born to American citizens].”
It was these kind of doubts Howard desired to settle through constitutional amendment. Sen. Howard said of the amendment: “It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States.” This was needed to prevent rebel States from refusing to recognize former slaves (now citizens) as citizens of the United States under the Fourteenth’s first section (privileges and immunities).
Furthermore, these former slaves could be said to had no political attachment to any other country – meaning they did not owe “allegiance to anybody else.” To add additional insult, the court says: “Nor can it be doubted that it is the inherent right of every independent nation to determine for itself, and according to its own constitution and laws, what classes of persons shall be entitled to its citizenship.” Yet, the court refused to recognize the fact the United States had done just that through its revised statutes and Constitution.
The most significant truth to come out of the entire Wong Kim Ark ruling comes from Chief Justice Fuller himself when he said, “the words ‘subject to the jurisdiction thereof,’ in the amendment, were used as synonymous with the words ‘and not subject to any foreign power.’” He was absolutely correct.
Only reason the language of the Fourteenth differs from the civil rights bill of 1866, which used the language “and not subject to any foreign power, excluding Indians not taxed” to restrict citizenship, is because Sen. Howard feared a State could begin taxing Indians, thereby making them eligible for citizenship. Because Indians, and other classes of foreigners whom Congress and the States desired to withhold citizenship from, owed allegiance to a foreign power (Indian tribes were considered independent nations), the Fourteenth would become just as restrictive against Indians by demanding full jurisdiction on part of the United States as with any other class of foreigners.
It is worth mentioning that it was the U.S. government who argued Wong Kim Ark was not born subject to the jurisdiction of the United States. Obviously, the Federal Government had no difficulty in understanding the words of its own revised statutes or constitutional amendment.
For the majority to have been correct with their conclusion they would have to demonstrate how it was possible the States and Federal Government retained England’s “natural allegiance” doctrine. This “natural allegiance” was something most everyone despised and hated. Fuller argued this “rule making locality of birth the criterion of citizenship because creating a permanent tie of personal allegiance to the King, no more survived the American Revolution than the same rule survived the French Revolution.“
There is also a disturbing ethical aspect of Wong Kim Ark in terms of the majorities’ apparent willingness to place themselves unethically above both facts and the supreme law of the land. The United States by treaty with China was prevented from admitting Chinese subjects to citizenship. This treaty was ratified by the same senators who had adopted both Section 1992 of the US Revised Statutes and the Fourteenth Amendment.
Furthermore, the court was also prohibited under 22 Stat. §14 to admit subjects of China to U.S. citizenship, “that hereafter no state court or court of the United States shall admit Chinese to citizenship, and all laws in conflict with this act are hereby repealed.“
The Fuller court was no stranger to criticism or controversy when it came to interpreting law or the Constitution. For example, in the cases of Brooks vs. Codman, and Foote v. Women’s Board of Missions the question was who should get the money appropriated as indemnity for spoliations of William Gray’s (Justice Gray’s grandfather) ships? Codman was the administrator of William Gray’s estate and under a 1891 law payments could only go to “creditors, legatees, assignees or strangers to the blood.”
What did the court do? They did just as they had done in Wong Kim Ark; they simply said forget what the law says because we think payments should go to the “next of kin,” i.e., Justice Horace Gray.
Conclusion
The ruling in Wong Kim Ark is of little relevance to the question surrounding the meaning of “subject to the jurisdiction” since that was not the question before the court as it was in Elk. Whatever one wants to make of the Wong Kim Ark ruling it will have little bearing over questions of whether aliens who have no political attachment to the country can be born born subject to its jurisdiction.
@portney It is ill thought to believe that the court not explicitly using the 14th to define her citizenship meant that no relationship can be made to the two born references in our constitution.
I think that is right. I don’t think there is any plausible interpretation of the 14th Amendment that would not include Minor. One would have thought the framers of the 14th Amendment would have made the language clearer as to relationship between the clauses. The facts are there were much more controversial subjects they were debating. What happened was language was introduced and all anyone argued about was the application to indians and the Chinese. They talked about Presidential eligibility, but no one suggested using the words “natural born” which would have made sense. In fact, many members of such Congress said the President must be a native born citizen. In real life we find that many provisions of our Constitution and Amendments were adopted with little debate and without clear language leaving the Courts to sort it out. It is an imperfect science. The next time the Court addresses this issue, it will be with respect to anchor babies as there too many people pushing such issue for it not to eventually get before the Court.
“1. We know Gray first cited Minor to develop the case of the English common law
2. Gray later cited the entire ‘NBC” passage in Minor to point out that there were doubts about children of aliens
3. Minor court did not reach the 14th to make Minor a citizen
4.WKA reached the 14th to make WKA a citizen.”
Gray later cited the NBC passage solely to argue that neither Justice Miller nor the other justices in SLaughterhouse were committted to the view that children of aliens were excluded from the 14th Amendment. Gray did not say he agreed that there were doubts or whether such doubts had merit. He was pointing out a previous court cited unspecified doubts and was uncommitted to resolving them.
WKA did reach the 14th to make WKA a citizen. The Court was asked whether WKA was a citizen under the 14th, so of course the Court addressed the 14th. Gray never said WKA was a citizen under the 14th Amendment. The holding said he was a citizen. However, Gray spent the first 20 pages of the decision saying a person of WKA’s status would be a citizen under the original constitution and the next 20 saying a person of WKA’s status would be a citizen under the 14th Amendment as the Amendment was “declaratory of existing rights and affirmative of existing law.” Hence, WKA could only be a citizen under the 14th Amendment if he would have been one under the original Constitution.
@portney It would be disingenuous not to concede that considerable controversy existed before the court decision and admittedly still exists in some quarters. I do not agree with the court’s understanding but I realize it has a direct impact on presidential eligibility.
As a matter of history, there was no controvercy prior to Dred Scott. Followig reconstruction we saw for the first time people disputing that jus soli was the rule but they were clearly in the minority. The “data dump” you refer to contains the opinion of pretty every significant scholar prior to 1875 and I could keep citing more authority if you would like. Have you found one person prior to such time disputing jus soli yet. In the run-up to WKA there are a few authorities disputing jus soli, many motivated by the desire to keep the chinese from citizenship. Yet the vast majority agreed with Justice Gray. I could do another data dump if you want.
mrjr101,
I think it reasonable to say that both courts acknowledged our citizenship understanding as being composed of born and naturalized, both in the original constitution and the later 14th. Yes, MvH used A2 to establish her citizenship but so what? The fact the court did not use the 14th does not mean that she wasn’t also a born citizen by that metric. The court emphasized that it was not the 14th in which she derived her citizenship and political rights, they existed prior to its existence. This is not to say that the 14th was not applicable to her situation. It is ill thought to believe that the court not explicitly using the 14th to define her citizenship meant that no relationship can be made to the two born references in our constitution. I’m not explaining my point well, but you get the idea.
There is no goodness and light. The matter is entirely of what the courts have affirmed. The discussion is not any less interesting or important for my change of opinion. It is notable that the US understanding, as opposed to the Mexican for instance, of NbC was affirmed as mere jus soli by the WKA court. I don’t like it, but I consider it incontrovertible at present.
Mrjr101:
That was a very good translation except for the wiki part. I read it somewhere in a case IIRC.
Squeeky Fromm
Girl Reporter
Squeeky Translation:
“You got my blessing child. May the force be with you. Now, ignore the others who disagree with you, they are the devil.
As far as the doubts about NBC prior to Wong Kim Ark, all of that seemed to be just the Chinese cases. I read that on Wikipedia. But, i’m not gonna bother, that’s not really my job.”
Portney:
Congratulations on your decision to quit being a Vattel Birther!!! You are the first one I know of to switch over to the side of goodness and light. Ignore ksdb and the others,.They are just trying to tempt you back to bad ways. ksdb couldn’t analyze a Dr. Seuss book.
As far as the doubts about NBC prior to Wong Kim Ark, all of that seemed to be just the Chinese cases. I read that somewhere. But that is not worth getting hung up over.
Squeeky Fromm
Girl Reporter
“Don’t hate the player…hate the game”
Portney,
No hating here. Please, I was trying to identify your dicta/precedent argument when Gray cited Minor.
1. We know Gray first cited Minor to develop the case of the English common law
2. Gray later cited the entire ‘NBC” passage in Minor to point out that there were doubts about children of aliens
3. Minor court did not reach the 14th to make Minor a citizen
4.WKA reached the 14th to make WKA a citizen
Do you think #1 and #2 are dicta or precedent in WKA? In other words, in your opinion, was WKA citing dicta or was WKA citing precedent on #1 and #2?
“If you consider that Minor is precedent on citizenship and defined NBC per A2S1C5 in 1875, then do you contend that WKA reverted that decision and confirmed Minor as precedent on NBC pre 1898?”
MvH did not rule out the possibility that our American NbC understanding was purely jus soli. Both Waite and Gray reflected on our common law heritage for citizenship. Again, I do not agree that mere jus soli is appropriate or sound for our Republican citizen sovereign world view. I would have thought that the Mexican ideal better and in line with MvH echoing Vattel as to the proper NbC perspective. Regardless, WKA is the litmus now for NbC.
Don’t hate the player…hate the game.
ballantine, speaking of “disingenuous”….my intellectual dishonesty began with confusing a philosophical disagreement with the WKA decision as sound footing that it couldn’t logically be a proper metric of NbC. The qualms I should have are in other areas and not one of settled law. Is there a 12 step program for “birthers”? Perhaps the first step is properly identifying the problem, which in my case was acknowledging the impact of Gray’s decision.
ballantine, the data dump of information relating to jus soli natural born understanding is appreciated…perhaps though it is also understood that many were of another mind before 1898 as to what our national policy might be. i included arbitration quote earlier that showed as example the Mexican version which entailed the citizenship of the father for natural born consideration. I’m sold that mere jus soli is our American natural born understanding per WKA. It would be disingenuous not to concede that considerable controversy existed before the court decision and admittedly still exists in some quarters. I do not agree with the court’s understanding but I realize it has a direct impact on presidential eligibility.
Portney,
Since you seem interested, here is some of what Waite would have found had he looked at the issue. remeber, there are only a handful of personswho had questioned this.
“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)
“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)
“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)
“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)
“As the President is required to be a native citizen of the United States….” James Kent Commentaries on American Law, Vol. 1, pg. 333 (1826)
“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.” 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 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)
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)
“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)
“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)
“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).
@portney “Within the past five years the question whether, under our law, children born in the United States to alien parents are citizens of the United States, — a question productive of much discussion, and on which, at an earlier period, considerable difference of opinion existed, — has been authoritatively settled by a decision of the Supreme Court of the United States.” -CITIZENSHIP OF THE UNITED STATES, BY FREDERICK VAN DYNE, LL. M.
That his opinion, but history shows otherwise. There are only a hand full of authorities that had questionedthe jus soli rule and as Justice Gray pointed out there were really nojne in the first 50 years.
@portney NbC 1875- Those children born in the United States to citizen parents are citizens of the United States. Acknowledged doubts as to those born to aliens.
I think you are putting to much stock in the Minor dicta. The issue was not brief or argued and in those days the Justices had no clerks, so it was probably not researched. Saying some unknown person or persons had some unknown doubts that the court expresssly declined to examine simply is not precedent at all. It tells us nothing as no one knows if wuch doubts would have been easily dismissed upon examination. how many people can you find prior to 1875 that had doubts about the common law rul? Only a couple exist.
Portney,
If you consider that Minor is precedent on citizenship and defined NBC per A2S1C5 in 1875, then do you contend that WKA reverted that decision and confirmed Minor as precedent on NBC pre 1898?
NbC 1875- Those children born in the United States to citizen parents are citizens of the United States. Acknowledged doubts as to those born to aliens.
NbC 1898- Those children born in the United States, irrespective of the parents nationality, are citizens of the United States. Answered the 1875 doubts.
“Within the past five years the question whether, under our law, children born in the United States to alien parents are citizens of the United States, — a question productive of much discussion, and on which, at an earlier period, considerable difference of opinion existed, — has been authoritatively settled by a decision of the Supreme Court of the United States.” -CITIZENSHIP OF THE UNITED STATES, BY FREDERICK VAN DYNE, LL. M.
“a question productive of much discussion, and on which, at an earlier period, considerable difference of opinion existed”
Portney said:
“I’ve gone to the dark side and am pretty convinced that WKA established the jus soli foundation of our natural born citizenship understanding. I don’t argue that it was pretty much up in the air prior to 1898.”
Funny how James Madison didn’t think so about a century prior to that… Do you guys really think you are fooling anyone by pretending to know what you are talking about?