The Missing Link to Birthright Citizenship
[There are a couple very long box quotes inserted in the body of this blog. For your convenience, the essential text is rubricated, red-lettered. Just scroll down to find it.]
How Common Law Changed Upon the Adoption of Our Constitution
The courts of the colonies continued as they operated prior to the revolution. Until the state legislatures and congress provided legislated acts, the courts relied on English common law.
Some English statutes were codified by the state courts, but the entire scope of common law was available to resolve issues in the courts. However, it is important to note that if not codified, the English law was of little import, especially in the face of U.S. and state legislated Acts.
The pre-eminence of English law remains in state code to this day:
2010 Code of Laws of South Carolina:
SECTION 14-1-50. Common law of England shall continue in effect. [SC ST SEC 14-1-50] All, and every part, of the common law of England, where it is not altered by the Code or inconsistent with the Constitution or laws of this State, is hereby continued in full force and effect in the same manner as before the adoption of this section.
How about Virginia?
The common law of England, insofar as it is not repugnant to the principles of the Bill of Rights and Constitution of this Commonwealth, shall continue in full force within the same, and be the rule of decision, except as altered by the General Assembly. Code 1919, §2, §1-10; 2005, c.839
§ 1-201. Acts of Parliament. The right and benefit of all writs, remedial and judicial, given by any statute or act of Parliament, made in aid of the common law prior to the fourth year of the reign of James the First, of a general nature, not local to England, shall still be saved, insofar as the same are consistent with the Bill Of Rights and Constitution of this Commonwealth and the Acts of Assembly. Code 1919, §3, §1-11; 2005, c.839
A Closer Look at English Law Used as Precedent
The concept of ‘place of birth’ determining citizenship was in pari materia to English statutes making any child born within the dominion a natural born British subject. This principle of ‘jus solis’ was in competition with ‘jus sanguinis,’ the principle that the children of freemen inherited their nationality and allegiance, regardless of ‘place of birth.’ However, it was also comparative to English ‘citizenship by descent,’ which was jus sanguinis, as opposed to ‘otherwise than by descent,’ which is, obviously, jus solis.
In May 22, 1789, a famous case was heard in the legislature and a debate between Dr. Ramsay and James Madison ensued. Madison won based on the common law ‘place of birth,’ but Dr. Ramsey’s analysis based on ‘jus sanguinis’ was prophetic of legislated Uniform Naturalization Law passed in 1790, and revised in 1795.
Here is ‘The Case of Mr. Smith’ as recorded in the Papers of James Madison
James Madison, House of Representatives
22 May 1789 Papers 12:179–82
I think the merit of the question is now to be decided, whether the gentleman is eligible to a seat in this house or not, but it will depend on the decision of a previous question, whether he has been seven years a citizen of the United-States or not.
From an attention to the facts which have been adduced, and from a consideration of the principles established by the revolution, the conclusion I have drawn is, that Mr. Smith, was on the declaration of independence a citizen of the United-States, and unless it appears that he has forfeited his right, by some neglect or overt act, he had continued a citizen until the day of his election to a seat in this house. I take it to be a clear point, that we are to be guided in our decision, by the laws and constitution of South-Carolina, so far as they can guide us, and where the laws do not expressly guide us, we must be guided by principles of a general nature so far as they are applicable to the present case.
It were to be wished, that we had some law adduced more precisely defining the qualities of a citizen or an alien; particular laws of this kind, have obtained in some of the states; if such a law existed in South-Carolina, it might have prevented this question from ever coming before us; but since this has not been the case, let us settle some general principles before we proceed to the presumptive proof arising from public measures under the law, which tend to give support to the inference drawn from such principles.
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. Mr. Smith founds his claim upon his birthright; his ancestors were among the first settlers of that colony.
It is well known to many gentlemen on this floor, as well as to the public, that the petitioner is a man of talents, one who would not lightly hazard his reputation in support of visionary principles: yet I cannot but think he has erred in one of the principles upon which he grounds his charge. He supposes, when this country separated from Great Britain, the tie of allegiance subsisted between the inhabitants of America and the king of that nation, unless by some adventitious circumstance the allegiance was transferred to one of the United States. I think there is a distinction which will invalidate his doctrine in this particular, a distinction between that primary allegiance which we owe to that particular society of which we are members, and the secondary allegiance we owe to the sovereign established by that society. This distinction will be illustrated by the doctrine established by the laws of Great Britain, which were the laws of this country before the revolution. The sovereign cannot make a citizen by any act of his own; he can confer denizenship, but this does not make a man either a citizen or subject. In order to make a citizen or subject, it is established, that allegiance shall first be due to the whole nation; it is necessary that a national act should pass to admit an individual member. In order to become a member of the British empire, where birth has now endowed the person with that privilege, he must be naturalized by an act of parliament.
What was the situation of the people of America when the dissolution of their allegiance took place by the declaration of independence? I conceive that every person who owed this primary allegiance to the particular community in which he was born retained his right of birth, as the member of a new community; that he was consequently absolved from the secondary allegiance he had owed to the British sovereign: If he was not a minor, he became bound by his own act as a member of the society who separated with him from a submission to a foreign country. If he was a minor, his consent was involved in the decision of that society to which he belonged by the ties of nature. What was the allegiance as a citizen of South-Carolina, he owed to the King of Great Britain? He owed his allegiance to him as a King of that society to which, as a society he owed his primary allegiance. When that society separated from Great Britain, he was bound by that act and his allegiance transferred to that society, or the sovereign which that society should set up, because it was through his membership of the society of South-Carolina, that he owed allegiance to Great Britain.
This reasoning will hold good, unless it is supposed that the separation which took place between these states and Great Britain, not only dissolved the union between those countries, but dissolved the union among the citizens themselves: that the original compact, which made them altogether one society, being dissolved, they could not fall into pieces, each part making an independent society, but must individually revert into a state of nature; but I do not conceive that this was of necessity to be the case; I believe such a revolution did not absolutely take place. But in supposing that this was the case lies the error of the memorialist. I conceive the colonies remained as a political society, detached from their former connection with another society, without dissolving into a state of nature; but capable of substituting a new form of government in the place of the old one, which they had for special considerations abolished. Suppose the state of South Carolina should think proper to revise her constitution, abolish that which now exists, and establish another form of government: Surely this would not dissolve the social compact. It would not throw them back into a state of nature. It would not dissolve the union between the individual members of that society. It would leave them in perfect society, changing only the mode of action, which they are always at liberty to arrange. Mr. Smith being then, at the declaration of independence, a minor, but being a member of that particular society, he became, in my opinion, bound by the decision of the society with respect to the question of independence and change of government; and if afterward he had taken part with the enemies of his country, he would have been guilty of treason against that government to which he owed allegiance, and would have been liable to be prosecuted as a traitor.
If it is said, that very inconvenient circumstances would result from this principle, that it would constitute all those persons who are natives of America, but who took part against the revolution, citizens of the United States, I would beg leave to observe, that we are deciding a question of right, unmixed with the question of expediency, and must therefore pay a proper attention to this principle. But I think it can hardly be expected by gentlemen that the principle will operate dangerously. Those who left their country to take part with Britain were of two descriptions, minors, or persons of mature age. With respect to the latter nothing can be inferred with respect to them from the decision on the present case; because they had the power of making an option between the contending parties: whether this was a matter of right or not is a question which need not be agitated in order to settle the case before us. Then, with respect to those natives who were minors at the revolution, and whose case is analogous to Mr. Smith’s, if we are bound by the precedent of such a decision as we are about to make, and it is declared, that they owe a primary allegiance to this country, I still think we are not likely to be inundated with such characters; so far as any of them took part against us they violated their allegiance and opposed our laws; so then there can be only a few characters, such as were minors at the revolution, and who have never violated their allegiance by a foreign connection, who can be affected by the decision of the present question. The number I admit is large who might be acknowledged citizens on my principles; but there will very few be found daring enough to face the laws of the country they have violated, and against which they have committed high treason.
So far as we can judge by the laws of Carolina, and the practice and decision of that state, the principles I have adduced are supported; and I must own that I feel myself at liberty to decide, that Mr. Smith was a citizen at the declaration of independence, a citizen at the time of his election, and consequently entitled to a seat in this legislature.
The Founders’ Constitution
Volume 2, Article 1, Section 2, Clause 2, Document 6
The Papers of James Madison. Edited by William T. Hutchinson et al. Chicago and London: University of Chicago Press, 1962–77 (vols. 1–10); Charlottesville: University Press of Virginia, 1977–(vols. 11–).
Here is the Petition of Dr. Ramsay
David Ramsay was a delegate to the South Carolina legislature, and opposed the citizenship of Mr. Smith because Smith was born in South Carolina before the United States was a country, and his parents were dead long before conferring citizenship to him as a minor.
The following year, the 1790 Uniform Naturalization Act was analogous to Dr. Ramsay’s petition. However, under British common law, active at the time of the Case of Mr. Smith, English principles of law were followed in the absence of that legislated act, and Madison’s argument was on firm legal ground.
The petition of Dr. Ramsey was read, in which he stated,
“That citizenship with the United States is an adventitious character to every person possessing it, who is now thirty years of age; and that it can, in no case, have been acquired but in one of the following modes: 1st, By birth or inheritance. 2dly, By having been a party to the late revolution. 3dly, By taking an oath of fidelity to some of the States. 4thly, By tacit consent. 5thly, By adoption: and that Mr. Smith cannot have acquired the character of a citizen in either of the modes, seven years ago. He cannot be a citizen by birth or inheritance, for he was born in 1758, in South Carolina, while a British colony’ and his parents were both dead many years before the declaration of independence; his birthright and inheritance can, therefore, be no other than that of a British subject; for no man can be born a citizen of a Government which did not exist at the time of his being born; nor can parents leave to their children any other political character than that which they themselves possessed.”
Here are the 1790 and 1795 Acts
Note particularly that minor children of aliens are only U.S. citizens upon naturalization of the father. No distinction is made between children who emigrated, or who were born on U.S. soil during the two or five year waiting periods. Nor is there a section proclaiming any child born on U.S. soil, within U.S. dominion, a U.S. citizen.
United States Congress, “An act to establish an uniform Rule of Naturalization” (March 26, 1790)
Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That any Alien being a free white person, who shall have resided within the limits and under the jurisdiction of the United States for the term of two years, may be admitted to become a citizen thereof on application to any common law Court of record in any one of the States wherein he shall have resided for the term of one year at least, and making proof to the satisfaction of such Court that he is a person of good character, and taking the oath or affirmation prescribed by law to support the Constitution of the United States, which Oath or Affirmation such Court shall administer, and the Clerk of such Court shall record such Application, and the proceedings thereon; and thereupon such person shall be considered as a Citizen of the United States. And the children of such person so naturalized, dwelling within the United States, being under the age of twenty one years at the time of such naturalization, shall also be considered as citizens of the United States. And the children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States, shall be considered as natural born Citizens: Provided, that the right of citizenship shall not descend to persons whose fathers have never been resident in the United States: Provided also, that no person heretofore proscribed by any States, shall be admitted a citizen as aforesaid, except by an Act of the Legislature of the State in which such person was proscribed.
United States Congress, “An act to establish an uniform rule of Naturalization; and to repeal the act heretofore passed on that subject” (January 29, 1795).
For carrying into complete effect the power given by the constitution, to establish an uniform rule of naturalization throughout the United States:
SEC.1. Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That any alien, being a free white person, may be admitted to become a citizen of the United States, or any of them, on the following conditions, and not otherwise: —
First. He shall have declared, on oath or affirmation, before the supreme, superior, district, or circuit court of some one of the states, or of the territories northwest or south of the river Ohio, or a circuit or district court of the United States, three years, at least, before his admission, that it was bona fide, his intention to become a citizen of the United States, and to renounce forever all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty whatever, and particularly, by name, the prince, potentate, state or sovereignty whereof such alien may, at that time, be a citizen or subject.
Secondly. He shall, at the time of his application to be admitted, declare on oath or affirmation before some one of the courts aforesaid, that he has resided within the United States, five years at least, and within the state or territory, where such court is at the time held, one year at least; that he will support the constitution of the United States; and that he does absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty whatever, and particularly by name, the prince, potentate, state, or sovereignty, whereof he was before a citizen or subject; which proceedings shall be recorded by the clerk of the court.
Thirdly. The court admitting such alien shall be satisfied that he has resided within the limits and under the jurisdiction of the United States five years; and it shall further appear to their satisfaction, that during that time, he has behaved as a man of a good moral character, attached to the principles of the constitution of the United States, and well disposed to the good order and happiness of the same.
Fourthly. In case the alien applying to be admitted to citizenship shall have borne any hereditary title, or been of any of the orders of nobility, in the kingdom or state from which he came, he shall, in addition to the above requisites, make an express renunciation of his title or order of nobility, in the court to which his application shall be made; which renunciation shall be recorded in the said court.
SEC. 2. Provided always, and be it further enacted, That any alien now residing within the limits and under the jurisdiction of the United States may be admitted to become a citizen on his declaring, on oath or affirmation, in some one of the courts aforesaid, that he has resided two years, at least, within and under the jurisdiction of the same, and one year, at least, within the state or territory where such court is at the time held; that he will support the constitution of the United States; and that he does absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty whatever, and particularly by name the prince, potentate, state, or sovereignty, whereof he was before a citizen or subject; and moreover, on its appearing to the satisfaction of the court, that during the said term of two years, he has behaved as a man of good moral character, attached to the constitution of the United States, and well disposed to the good order and happiness of the same; and when the alien applying for admission to citizenship, shall have borne any hereditary title, or been of any of the orders of nobility in the kingdom or state from which he came, on his moreover making in the court an express renunciation of his title or order of nobility, before he shall be entitled to such admission; all of which proceedings, required in this proviso to be performed in the court, shall be recorded by the clerk thereof.
SEC. 3. And be it further enacted, that the children of persons duly naturalized, dwelling within the United States, and being under the age of twenty-one years, at the time of such naturalization, and the children of citizens of the United States, born out of the limits and jurisdiction of the United States, shall be considered as citizens of the United States: Provided, That the right of citizenship shall not descend to persons, whose fathers have never been resident of the United States: Provided also, That no person heretofore proscribed by any state, or who has been legally convicted of having joined the army of Great Britain during the late war, shall be admitted a citizen as foresaid, without the consent of the legislature of the state, in which such person was proscribed.
SEC. 4. And be it further enacted, That the Act intituled, “An act to establish an uniform rule of naturalization,” passed the twenty-sixth day of March, one thousand seven hundred and ninety, be, and the same is hereby repealed.
So, How did the 1795 Act Supersede James Madison’s Reliance on English Law?
Apparently (or should I say ‘mysteriously’), the Supreme Court felt that the 1790, 1795, 1798, 1802, 1804, and 1854 Acts contributed nothing to their definition of citizens at birth, or naturalized.’
Ex parte Wells, 59 U.S. 307 (1855) – “Now, no principle is better settled than that for the definition of legal terms and construction of legal powers mentioned in our constitution and laws; we must resort to the common law when no act of assembly, or judicial interpretation, or settled usage, has altered their meaning.”
Even with passage of the 1866 Civil Rights Act, this congressman also remained clueless:
“The ancient and indisputable citizenship rule of the British common law was the jus soli, under which a person’s nationality is determined by the place of his birth…. It is clear, of course, that the American colonies and the nation they ultimately established had accepted the precepts of the English common law, as part of the heritage from the mother country.” Cong. Globe, 39th Congress, 1st Sess. 1262 (1866) (Congressman Broomall).
As far back as 1844, the judiciary held firm to jus soli, irregardless that concept was superseded and supplanted by legislated Acts.
Yet, in Minor vs. Happersett, the judge hedges his bets on the side of the sure thing, that a natural born citizen required U.S. citizen parents:
Additions might always be made to the citizenship of the United States in two ways: first, by birth, and second, by naturalization. This is apparent from the Constitution itself, for it provides [n6] that “no person except a natural-born citizen, or a citizen of the United States at the time of the adoption of the Constitution, shall be eligible to the office of President,” [n7] and that Congress shall have power “to establish a uniform rule of naturalization.” Thus new citizens may be born or they may be created by naturalization.
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 [p168] parents. As to this class there have been doubts, but never as to the first. MINOR V. HAPPERSETT, 88 U. S. 162 (1874)
The judge’s familiarity with Emer. de Vattel is clearly evident in this dicta.
The most obvious disabuse of the judiciary of existing legislated Act is Justice Horace Gray in Wong Kim Ark.
Notice how Gray cites the legislative Act in Ark with no reference to its formal title: “Acts of March 26, 1790, c. 3; January 29, 1795, c. 20; June 18, 1798, c. 54; 1 Stat. 103, 414, 566; April 14, 1802, c. 28; March 26, 1804, c. 47; 2 Stat. 153, 292; February 10, 1854, c. 71; 10 Stat. 604; Rev.Stat. §§ 2165, 2172, 1993.”
Justice Gray even goes to far as to specifically cite from the pertinent section of the Act on point, that: “Second. Children of persons so naturalized, “dwelling within the United States, and being under the age of twenty-one years at the time of such naturalization.”” are citizens.
Then, he says, completely incongruous with his preceding citation, “Here is nothing to countenance the theory that a general rule of citizenship by blood or descent (see the citation of English law, footnote 5) has displaced in this country the fundamental rule of citizenship by birth within its sovereignty.”
It is clear, and in plain language, that the Uniform Naturalization Acts required the child of an alien to acquire citizenship by derivative from the parent’s naturalization, and not by native-birth.
English laws were in force as precedent and codified if listed by the states’ supreme courts. However, state or federal legislated act superseded English law.
Therefore, the 1790 Uniform Naturalization Act and subsuquent revisions were guiding law, despite the judiciary’s attempts to hold on to English precepts of jus solis.
Even more disturbing is the fact that English law was more complicated than mere jus soli. English law did decree a child born within its dominion a natural born subject, but if born outside its dominion, but to English subject fathers, the child was a natural born British subject ‘by descent.’ This law was created to support commerce in regions outside English dominion. [citation forthcoming]
The misinterpretation of the 14th Amendment by Wong Kim Ark cannot stand. The child of an illegal Mexican is not automatically a native-born U.S. citizen, and Barack Hussein Obama, the son of a British subject, is not a natural born citizen.
Leonard A. Daneman © 2011
 The statutes passed in England before the emigration of our ancestors, which are in amendment of the law, and applicable to our situation, constitute a part of our common law. Pa. 1782. Morris’ Lessee v. Vanderen, 1 Dall. 64, 1 L.Ed. 38. O. & T. 1783. Republica v. Mesca, 1 U.S. 73, 1 Dall. 73. 1 L.Ed. 42.
 “The very learned and useful opinion of Mr. Justice Gray, speaking for the Court in United States v. Wong Kim Ark, 169 U.S. 649, establishes that, at common law in England and the United States, the rule with respect to nationality was that of the jus soli, — that birth within the limits of the jurisdiction of the Crown, and of the United States, as the successor of the Crown, fixed nationality, and that there could be no change in this rule of law except by statute:” Weedin v. Chin Bow, 274 US 657,660 (1927)
 Pa. 1818. The construction of English statutes before the revolution will be given great weight in construing Pennsylvania statutes in pari material. Seidenbender v. Charles, 4 S. & R. 151, 8 Am.Dec. 682.
 Pa. 1897. The omission of a statute from the list of English statutes reported by the judges of the Supreme Court as in force in Pennsylvania, 3 Binn. 595, raises a strong presumption that such statute is not in force there. Gardner v. Keihl, 37 A. 829, 182 Pa. 194.
 British Nationality Act, 1948, 1948 (11 & 12 Geo. 6.) CHAPTER 56. Part II, Citizenship of the United Kingdom and Colonies. Citizen by Birth or Descent, .—(1) Subject to the provisions of this section, a person born after the commencement of this Act shall be a citizen of the United Kingdom and Colonies by descent if his father is a citizen of the United Kingdom and Colonies at the time of the birth:
Provided that if the father of such a person is a citizen of the United Kingdom and Colonies by descent only, that person shall not be a citizen of the United Kingdom and Colonies by virtue of this section unless—
(a) that person is born or his father was born in a protectorate, protected state, mandated territory or trust territory or any place in a foreign country where by treaty, capitulation, grant, usage, sufferance, or other lawful means, His Majesty then has or had jurisdiction over British subjects; or
(b) that person’s birth having occurred in a place in a foreign country other than a place such as is mentioned in the last foregoing paragraph, the birth is registered at a United Kingdom consulate within one year of its occurrence, or, with the permission of the Secretary of State, later . . .” Cf. ‘Otherwise than by Descent’
 “‘No person except a natural born citizen, or a citizen of the United States at the time of the adoption of this Constitution, shall be eligible to the office of President,’ &c. 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. The position would be decisive in his favor, that by the rule of the common law, in force when the Constitution was adopted, he is a citizen.” Lynch vs. Clarke, 3 N.Y. Leg. Obs. 236 (Chancellery Court of N.Y. 1844)