Posts Tagged ‘dissent Wong Kim Ark’

THE FIRST ELIGIBILITY CASE (1789)

April 29, 2011

Important Update:

In his comment section at http://puzo1.blogspot.com/, Mario Apuzzo reveals what I expected, that even though Madison won an argument that Mr. Smith was a citizen based on ‘place of birth’ principles, Madison followed the 1790 Act passed 10-months later requiring a U.S. citizen parent . . . birthplace not being an active principle in U.S. naturalization law.

http://www.scribd.com/puzo1/d/94493192-Purpura-Moran-v-Obama-Brief-and-Appendix-Filed-5-18-12 is an important read . . . very thorough . . . send to your congressman.

If she was not of age, then she might well be deemed under the circumstances of this case to hold the  citizenship of her father; for children born in a country, continuing while under age in the family of the father, partake of his national character, … 

Shanks v DuPont, 28 U.S. 242; 7 L. Ed. 666; 1830 U.S. LEXIS 537 (1830)

THE FIRST ELIGIBILITY CASE

The Case of Mr. Smith

Ramsay’s Petition in the Case of Mr. Smith, May 22, 1789,[1] was a thorough analysis of by what mechanisms a person became a U.S. citizen. #1, if I recall, was ‘by birth or inheritance.’ It was based on his nine-page Dissertation published in 1789.

The petition of Dr. Ramsey was again 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.”

James Madison countered that ‘place of birth’ was the primary principle, i.e., jus solis as practiced in the states as English colonies.

FACTS

Mr. Smith’s parents died some years prior to 1776 and he was taken to England (exactly where is uncertain) to be raised and educated, returning to his birthplace, S. Carolina, at age 23. Seven years later, at age 30, he ran for congress and his citizenship was challenged.

The congressional hearing sided with Madison, disregarding Smith being ‘born’ of British subjects and not ‘inheriting’ U.S. citizenship from his parents in 1776, or becoming a U.S. citizen ‘at the time of adoption’ of the U.S. Constitution (Art. II).

Ironically, only ten months later, (March 26, 1790) the 1790 Uniform Naturalization Act was passed following Dr. Ramsay’s Dissertation and Petition[2] . . . not the colonial  jus solis position of James Madison.

Under the 1790 Act, Smith would have been required to apply for naturalization at a court of proper jurisdiction.

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.

Note: The Wong Kim Ark case is analogous; the proper application of law would have been his appeal to the denial of his application for naturalization because of the Burlingame Treaty and the Chinese Exclusionary Act, the proper jurisdiction of SCOTUS,[3] NOT misinterpreting the 14th Amendment to create jus solis citizenship where it never was. Cf. the Hausding and Greisser cases cited in Chief Justice Fuller’s dissent in Wong Kim Ark.[4]

And to the same effect are the rulings of Mr. Secretary Frelinghuysen in the matter of Hausding, and Mr. Secretary Bayard in the matter of Greisser.

Hausding was born in the United States, went to Europe, and, desiring to return, applied to the minister of the United States for a passport, which was refused on the ground that the applicant was born of Saxon subjects temporarily in the United States. Mr. Secretary Frelinghuysen wrote to Mr. Kasson, our minister:

You ask “Can one born a foreign subject, but within the United States, make the option after his majority, and while still living abroad, to adopt the citizenship of his birthplace? It seems not, and that he must change his allegiance by emigration and legal process of naturalization.” Sections 1992 and 1993 of the Revised Statutes clearly show the extent of existing legislation; that the fact of birth, under circumstances implying alien subjection, establishes, of itself, no right of citizenship, and that the citizenship of a person so born is to be acquired in some legitimate manner through the operation of statute. No statute contemplates the acquisition of the declared character of an American citizen by a person not at the time within the jurisdiction of the tribunal of record which confers that character.

Greisser was born in the State of Ohio in 1867, his father being a German subject and domiciled in Germany, to which country the child returned. After quoting the act of 1866 and the Fourteenth Amendment, Mr. Secretary Bayard said:

Richard Greisser was no doubt born in the United States, but he was on his birth “subject to a foreign power,” and “not subject to the jurisdiction of the United States.” He was not, therefore, under the statute and the Constitution a citizen of the United States by birth, and it is not pretended that he has any other title to citizenship.

2 Whart.Int.Dig. 399.

Many supporters of jus solis champion James Madison’s position, Madison being one of the framers of the constitution, ipso facto his jus soli position in the Case of Mr. Smith is valid and true law. However, look at the 1802 Naturalization act as cited by Justice Gray in Wong Kim Ark:

The children of persons duly naturalized under any of the laws of the United States, or who, previous to the passing of any law on that subject by the Government of the United States, may have become citizens of any one of the said States under the laws thereof, being under the age of twenty-one years at the time of their parents’ being so naturalized or admitted to the rights of citizenship, shall, if dwelling in the United States, be considered as citizens of the United States, and the children of persons who now are, or have been citizens of the United States shall, though born out of the limits and jurisdiction of the United States, be considered as citizens of the United States: Provided, that the right of citizenship shall not descend to persons whose fathers have never resided within the United States.

Act ofApril 14, 1802, c. 28, § 4; 2 Stat. 155.

Note that this revised act discriminates clearly between two types of citizens at birth going back to the beginning of the Republic. It is not apparent at first glance, but the text infers that until the 1790 Act’s reliance on jus sanguinis, states of the new nation had to rely on traditional jus solis, as the colonies were limited to for nearly a century.

Therefore, at the time of the Smith case, weeks prior to passage of the 1790 Act, Madison was appying correct law concerning citizenship at birth.

The 14th Amendment was proposed only nine weeks after passage of the 1866 Civil Rights Act.

The 1866 Act began with “That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States . . .” Cf. The 14th Amendment’s “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States”

The basic intent of the 14th Amendment and the 1866 Civil Rights Act was to guarantee full rights of citizenship to freed slaves who did not inherit either foreign or U.S. citizenship, because their slave parents were property and outside all government jurisdictions, except for those laws controlling such property.

Update — August 29, 2011    Further research presented by a friend in Virginia reveals Mr. Smith’s connections to the Revolutionary War and the Declaration of Independence. Smith maintained, through loco parentis, his S. Carolina estates, even though born as and living as a British subject in Europe. His meetings and business with Benjamin Franklin is his proof of membership of the United States as a citizen, thus meeting one of Dr. Ramsay’s conditions. However, Smith’s argument mirrors that of James Madison that birthplace alone was his membership card to the newly declared nation. Here is a link to Smith’s recorded comments: http://memory.loc.gov/cgi-bin/ampage?collId=llac&fileName=001/llac001.db&recNum=210


[3] U.S. Const. Art. III, Section 2, Clause 1. Subjects of Jurisdiction.  “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, . . . “

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