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A Rat Called Tandem (natural born Citizen, GA ballot hearing, Obama)
naturalborncitizen.wordpress.com ^ | 2/4/2012 | Leo Donofrio

Posted on 02/04/2012 3:17:29 PM PST by rxsid

"A Rat Called Tandem.

[UPDATED: 2:12 PM - Cindy Simpson's top headline article at American Thinker is also a must read. Excellent analysis as usual.]

What happened in Georgia is what we refer to in poker as, “playing to a script”. It’s like something out of a Frank Capra movie. The citizens head to court to fix a Constitutional wrong, and the State court appears to be tough on the feds, standing up to them bravely flexing their muscles in the name of their citizens. Nice script. But it’s so very transparent.

Everyone needs to read Mario Apuzzo’s in-depth exposure of the blatant flaws in Judge Malihi’s holding, wherein you will experience a brilliant researcher exposing a truly defective legal opinion.

I only have a little bit to add. My remarks will be brief, and focused upon Judge Malihi’s sad failure to address the issue of statutory construction, which I explained thoroughly in my last report, The Dirty “little” Secret of the Natural-Born Citizen Clause Revealed.

Malihi’s opinion directly contradicts his own recent opinion denying Obama’s Motion to Dismiss, wherein Malihi relied exclusively on statutory construction. However, yesterday, Malihi held that the 14th Amendment had to be read “in tandem” with Article 2, Section 1.

But doing so would render the natural-born citizen clause to be inoperative, in that 14th Amendment citizenship, and nothing more, would be the requirement to be President. This would mean that the natural-born citizen clause is rendered superfluous. Here’s what Chief Justice Marshall said about this issue in Marbury v. Madison, 5 U.S. 137 (1803):

“It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such construction is inadmissible, unless the words require it.” Id. 174. (Emphasis added.)

And here’s what the U.S. Supreme Court held as to statutory construction in the seminal case on this issue, Morton v. Mancari:

“Where there is no clear intention otherwise, a specific statute will not be controlled or nullified by a general one, regardless of the priority of enactment. See, e. g., Bulova Watch Co. v. United States, 365 U.S. 753, 758 (1961); Rodgers v. United States, 185 U.S. 83, 87 -89 (1902).

The courts are not at liberty to pick and choose among congressional enactments, and when two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective. “When there are two acts upon the same subject, the rule is to give effect to both if possible . . . The intention of the legislature to repeal `must be clear and manifest.’ ” United States v. Borden Co., 308 U.S. 188, 198 (1939).” Morton v. Mancari, 417 U.S. 535, 550-551 (1974).

There is no “clearly expressed intention” to deem 14th Amendment citizens “natural born”. Those words were intentionally left out of the 14th Amendment. And Judge Malihi has simply overruled the U.S. Supreme Court by suggesting that the general citizenship clause of the 14th Amendment governs the specific requirement to be President in Article 2, Section 1.

Both clauses are not given separate effect by Malihi. His opinion holds that the 14th has the exact same effect as the natural-born citizen clause, while the 14th Amendment does not include the words “natural born Citizen”. Persons claiming citizenship under the 14th Amendment are deemed to be “citizens”. Malihi has added the words “natural born” into the Amendment. This is absolutely forbidden, according to Malihi’s own opinion in the Motion to dismiss, wherein he held:

“In the absence of words of limitation, words in a statute should be given their ordinary and everyday meaning.’ Six Flags Over Ga. v. Kull, 276 Ga. 210, 211 (2003) (citations and quotation marks omitted). Because there is no other ‘natural and reasonable construction’ of the statutory language, this Court is ‘not authorized either to read into or to read out that which would add to or change its meaning.’ ” (Emphasis added.)

Yeah, dude. Whatevah. Such lack of consistency, just weeks apart, from the same jurist… simply reeks. Now he’s putting words into the 14th Amendment, when just two weeks ago he said that was forbidden.


TOPICS: Conspiracy; Government; History; Politics
KEYWORDS: birthcertificate; certifigate; donofrio; malihi; naturalborncitizen; obama; referent
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This situation is precisely what the framers were concerned with. And guess what, that specific scenario is now possible.

If simply being born in the U.S. is enough to be considered a "natural born Citizen", then the current Dauphin of France (as considered by the Legitimists) Prince Louis Duke of Burgundy would be considered POTUS eligible.

French Royal Family
Legitimist

Prince Louis was born in New York City, 2010. Yet, his father is a French and Spanish citizen (but not a U.S. citizen) and his mother is Venezuelan.

If the French decided to have another restoration of the House of Burbon, the King of France would be considered POTUS eligible.
Or, if Louis Alphonse were to be elected POTUS 1st...and then the French decided to restore the crown...wow!

Imagine that. The King of France and the President of the U.S. as one in the same.

The judge has just essentially rule that he considers the current Dauphine of France to be POTUS eligible!


Coat of arms of the Dauphin of France.

I believe the founders and framers would be repulsed by such a ruling.

1 posted on 02/04/2012 3:17:38 PM PST by rxsid
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To: LucyT; Berlin_Freeper; Hotlanta Mike; Silentgypsy; repubmom; HANG THE EXPENSE; Nepeta; Bikkuri; ...
Ping!

"A Rat Called Tandem (natural born Citizen, GA ballot hearing, Obama)"

2 posted on 02/04/2012 3:18:36 PM PST by rxsid (HOW CAN A NATURAL BORN CITIZEN'S STATUS BE "GOVERNED" BY GREAT BRITAIN? - Leo Donofrio (2009))
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To: rxsid; LucyT; Berlin_Freeper; Hotlanta Mike; Silentgypsy; repubmom; HANG THE EXPENSE; Nepeta; ...
PREDICTION: After the coming election is over we are going to see a move from liberals to clearly define what a natural borne citizen is. The definition they will seek will specify that citizens must be born of citizens so as to eliminate any potential candidacy from Jindal or Rubio.
3 posted on 02/04/2012 3:23:26 PM PST by Baynative (The penalty for not participating in politics is you will be governed by your inferiors.)
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To: Baynative

they dont care about jindal or rubio, they got their commie in for 4 or 8 years and they are happy commies.


4 posted on 02/04/2012 3:27:28 PM PST by biggredd1
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To: rxsid
What happened?

Maybe it's as simple as the Obama/Holder Dept. of Just Us telling the judge.. "You know that little incident in Cincinnati back in 1996? Oh, you don't have to have been there. We have ways to prove that you were there and . . . ."

.. or the Clinton way.. "We'll start by killing your pets then . . . ."

5 posted on 02/04/2012 3:31:56 PM PST by WilliamofCarmichael (If modern America's Man on Horseback is out there, Get on the damn horse already!)
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To: rxsid

Here is the actual decision, for any who have not read it:

http://www.scribd.com/doc/80417613/Farrar-Welden-Swensson-Powell-v-Obama-Judge-Malihi-Final-Decision-Georgia-Ballot-Challenge-2-3-2012

The judge based his decision on the US Supreme Court case of Wong Kim Ark:

http://www.law.cornell.edu/supct/html/historics/USSC_CR_0169_0649_ZO.html

and Ankeny v Indiana:

http://www.in.gov/judiciary/opinions/pdf/11120903.ebb.pdf


6 posted on 02/04/2012 3:41:22 PM PST by Mr Rogers ("they found themselves made strangers in their own country")
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To: rxsid
The Constutional Meaning Of "Natural Born Citizen"
7 posted on 02/04/2012 3:47:55 PM PST by sourcery (If true=false, then there would be no constraints on what is possible. Hence, the world exists.)
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To: Mr Rogers
Wong Kim Ark was found to be a "citizen", not a "natural born Citizen", and the Ankeny case in Indiana admits it:

Regarding this: "the guidance provided by Wong Kim Ark", the state court of Indiana had stated this in the previous paragraph:

The Court held that Mr. Wong Kim Ark was a citizen [Edit: "citizen", but NOT a "natural born Citizen"] of the United States “at the time of his birth.” 14
What does footnote 14 say?
We note the fact that the Court in Wong Kim Ark did not actually pronounce the plaintiff a “natural born Citizen” using the Constitution's Article II language is immaterial.

Additionally, WKA's parents were perminantly domociled in the U.S.

Something Barry's father never was.

You already know all that, but continue your full court press in support of a half foreigner who's father was a temporary student visitor, being the Commander in Chief.

8 posted on 02/04/2012 3:48:58 PM PST by rxsid (HOW CAN A NATURAL BORN CITIZEN'S STATUS BE "GOVERNED" BY GREAT BRITAIN? - Leo Donofrio (2009))
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To: Baynative
For more than a decade the congress critters have been trying to Constitutional clause without using the Constitutionally prescribed method. Now that they've accomplished that through corrupted judges obeying 'the Chicago Way', it is absurd to suggest they will reverse their evil over poor Bobby Jindal or upstart Marco Rubio.

You will have to change your law lenses now, the Constitutional Republic is dead and the long lusted for federal oligarchy is in place.

9 posted on 02/04/2012 3:52:09 PM PST by MHGinTN (Being deceived can be cured.)
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To: rxsid

“But doing so would render the natural-born citizen clause to be inoperative, in that 14th Amendment citizenship, and nothing more, would be the requirement to be President.”

No. It merely means that anyone born in the USA of parents here legally IS a natural born citizen allowed to run for President. All other offices would still allow naturalized citizens to run. It would NOT override the NBC clause, but define it.

To the extend the 14th deals with citizenship, it was to overturn the Dred Scott decision. It was the states telling the Court they had ruled incorrectly in Dred Scott.


10 posted on 02/04/2012 3:52:37 PM PST by Mr Rogers ("they found themselves made strangers in their own country")
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To: Mr Rogers

Quote the part of the 14th Amendment that has the term “natural born Citizen” in it.


11 posted on 02/04/2012 3:56:15 PM PST by rxsid (HOW CAN A NATURAL BORN CITIZEN'S STATUS BE "GOVERNED" BY GREAT BRITAIN? - Leo Donofrio (2009))
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To: rxsid; LucyT; Berlin_Freeper; Hotlanta Mike; Silentgypsy; repubmom; HANG THE EXPENSE; Nepeta; ...
Ping..............

A Rat Called Tandem (natural born Citizen, GA ballot hearing, Obama)

Any rat would be better than 0h0m0allah!

12 posted on 02/04/2012 3:56:50 PM PST by melancholy (Professor Alinsky, Enslavement Specialist)
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To: rxsid

The fix is in...

I am sick of even looking at Drudge each morning...
“Happy Days are Here Again”
“Jobless rate falls to lowest in three years”
as Obozo is kissing Paluzie.

The conservatives are in shambles with Mittens running high.
Judges are running wild to protect the Commie messiah.
The Marxist Stream Media is all giggly over their new Karl.
What is left of the Tea Party will be driven into exile.

I am about to predict that Obumbo will be reelected, and America will end by 2015.
Welcome to the new USSA.
Fortunately, I am not there to experience it.

Am I overly pessimistic, or what?


13 posted on 02/04/2012 3:57:56 PM PST by AlexW
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To: rxsid

The judge wrote, “This Court recognizes that the Wong Kim Ark case was not deciding the meaning of “natural born citizen” for the purposes of determining presidential qualifications; however, this Court finds the Indiana Court’s analysis and reliance on these cases to be persuasive.”

Like every other court to look at these issues, it was persuaded by the ARGUMENT in WKA. Yes, in the absence of a formal ruling, DICTA from the Supreme Court, particularly dicta that has been followed and used repeatedly for over 100 years, IS used to guide court decisions.

As I have written to you many times in the past, birthers need to comprehend the arguments and try to answer them, instead of ignoring them and then losing case after case after case. Birthers who ignore WKA will not win in court. Period.

Not even when the other side refuses to show up...


14 posted on 02/04/2012 3:59:11 PM PST by Mr Rogers ("they found themselves made strangers in their own country")
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To: Mr Rogers
While your searching for that...I'll take the liberty to quote the father of the 14th:

John Bingham, "father of the 14th Amendment", the abolitionist congressman from Ohio who prosecuted Lincoln's assassins, reaffirmed the definition known to the framers, not once, but twice during Congressional discussions of Citizenship pertaining to the upcoming 14th Amendment and a 3rd time nearly 4 years after the 14th was adopted.

The House of Representatives definition for "natural born Citizen" was read into the Congressional Record during the Civil War, without contest!

"All from other lands, who by the terms of [congressional] laws and a compliance with their provisions become naturalized, are adopted citizens of the United States; all other persons born within the Republic, of parents owing allegiance to no other sovereignty, are natural born citizens. Gentleman can find no exception to this statement touching natural-born citizens except what is said in the Constitution relating to Indians." (Cong. Globe, 37th, 2nd Sess., 1639 (1862)).

 

The House of Representatives definition for "natural born Citizen" was read into the Congressional Record after the Civil War, without contest!

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.” (Cong. Globe, 39th, 1st Sess., 1291 (1866))"

No other Representative ever took issue with these words on the floor of the House. If you read the Congressional Globe to study these debates, you will see that many of the underlying issues were hotly contested. However, Bingham’s definition of “natural born citizen” (born of citizen parents in the sovereign territory of the U.S.) was never challenged on the floor of the House. Without a challenge on the definition, it appears the ALL where in agreement.


 
Then, during a debate (see pg. 2791) on April 25, 1872 regarding a certain Dr. Houard, who had been incarcerated in Spain, the issue was raised on the floor of the House of Representatives as to whether the man was a US citizen (generally. they were not trying to decide if he was a NBC). Representative Bingham (of Ohio), stated on the floor:

“As to the question of citizenship I am willing to resolve all doubts in favor of a citizen of the United States. That Dr. Houard is a natural-born citizen of the United States there is not room for the shadow of a doubt. He was born of naturalized parents within the jurisdiction of the United States, and by the express words of the Constitution, as amended to-day, he is declared to all the world to be a citizen of the United States by birth.”

(The term “to-day”, as used by Bingham, means “to date”. Obviously, the Constitution had not been amended on April 25, 1872. And, since they knew he was, without a doubt, a natural born Citizen...he was, of course, considered a citizen of the U.S.)

The take away from this is that, while the debates and discussions went on for years in the people's house regarding "citizenship" and the 14th Amendment, not a single Congressman disagreed with the primary architect's multiple statements on who is a natural born Citizen per the Constitution. The United States House was in complete agreement at the time. NBC = born in sovereign U.S. territory, to 2 citizen parentS who owe allegiance to no other country.


{1}
15 posted on 02/04/2012 3:59:23 PM PST by rxsid (HOW CAN A NATURAL BORN CITIZEN'S STATUS BE "GOVERNED" BY GREAT BRITAIN? - Leo Donofrio (2009))
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To: Mr Rogers; rxsid; Red Steel; LucyT
“The judge based his decision on the US Supreme Court case of Wong Kim Ark”

Objection! Assumes facts not in evidence.

IMO, Malihi punted to the fallacious interpretation of WKA concocted by the Ankeny court.

I believe that WKA was correctly decided, but wrongly interpreted by the Ankeny court and by Malihi when they twisted the grammar of the Minor citation in WKA to fit their preconceptions.

The Minor NBC language is like one of those optical illusions where some people instinctively see one image and the rest see an entirely different image. This would be assuming that both sides are honestly declaring what they see.

16 posted on 02/04/2012 4:00:21 PM PST by Seizethecarp
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To: Mr Rogers
I'll repeat the challenge for you and any other after-birther:

Quote the part of the 14th Amendment that has the term “natural born Citizen” in it.

17 posted on 02/04/2012 4:00:58 PM PST by rxsid (HOW CAN A NATURAL BORN CITIZEN'S STATUS BE "GOVERNED" BY GREAT BRITAIN? - Leo Donofrio (2009))
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To: Seizethecarp

Minor specifically stated it was NOT trying to give a comprehensive definition of NBC. That is why trying to force the Court to accept it was stupid. The Minor decision SAID they were not going to settle the dispute about the meaning.


18 posted on 02/04/2012 4:03:09 PM PST by Mr Rogers ("they found themselves made strangers in their own country")
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To: All

Do you expect any other decision from these elitist bastards from both parties, including the judiciary. We have no rights, no justice, and no hope as long as they remain in power. Don’t tell me we can vote them out, you see how that’s working. Fix unemployment, not a chance, they use it to buy votes. Billion dollar campaigns are now the norm, and the common man with love of country has no chance. They now sit there smug in the knowledge that they control us all. God help the Republic.


19 posted on 02/04/2012 4:04:30 PM PST by gunner03
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To: gunner03
"God help the Republic."

Hear, hear!

20 posted on 02/04/2012 4:07:01 PM PST by rxsid (HOW CAN A NATURAL BORN CITIZEN'S STATUS BE "GOVERNED" BY GREAT BRITAIN? - Leo Donofrio (2009))
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To: rxsid

It doesn’t. So why does it scare you?

The Supreme Court did NOT use the 14th to determine the original intent of the NBC phrase. It is your own lawyers, the folks you give money to as they lead you to defeat after defeat, who say the 14th defines NBC. IN a sense it does, since it allows for two sources of citizenship - birth and naturalization.

However, this is what the Supreme Court relied on, and the judge in Georgia:

I. In construing any act of legislation, whether a statute enacted by the legislature or a constitution established by the people as the supreme law of the land, regard is to be had not only to all parts of the act itself, and of any former act of the same lawmaking power of which the act in question is an amendment, but also to the condition and to the history [p654] of the law as previously existing, and in the light of which the new act must be read and interpreted.

The Constitution of the United States, as originally adopted, uses the words “citizen of the United States,” and “natural-born citizen of the United States.” By the original Constitution, every representative in Congress is required to have been “seven years a citizen of the United States,” and every Senator to have been “nine years a citizen of the United States.” and “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.” The Fourteenth Article of Amendment, besides declaring that

all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside,

also declares that

no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

And the Fifteenth Article of Amendment declares that

the right of citizens of the United States to vote shall not be denied or abridged by the United States, or by any State, on account of race, color or previous condition of servitude.

The Constitution nowhere defines the meaning of these words, either by way of inclusion or of exclusion, except insofar as this is done by the affirmative declaration that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” In this as in other respects, it must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution. Minor v. Happersett, 21 Wall. 162; Ex parte Wilson, 114 U.S. 417, 422; Boyd v. United States, 116 U.S. 616, 624, 625; Smith v. Alabama, 124 U.S. 465. The language of the Constitution, as has been well said, could not be understood without reference to the common law. Kent Com. 336; Bradley, J., in Moore v. United States, 91 U.S. 270, 274. [p655]

In Minor v. Happersett, Chief Justice Waite, when construing, in behalf of the court, the very provision of the Fourteenth Amendment now in question, said: “The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that.” And he proceeded to resort to the common law as an aid in the construction of this provision. 21 Wall. 167.

In Smith v. Alabama, Mr. Justice Matthews, delivering the judgment of the court, said:

There is no common law of the United States, in the sense of a national customary law, distinct from the common law of England as adopted by the several States each for itself, applied as its local law, and subject to such alteration as may be provided by its own statutes. . . . There is, however, one clear exception to the statement that there is no national common law. The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.

124 U.S. 478.

II. The fundamental principle of the common law with regard to English nationality was birth within the allegiance, also called “ligealty,” “obedience,” “faith,” or “power” of the King. The principle embraced all persons born within the King’s allegiance and subject to his protection. Such allegiance and protection were mutual — as expressed in the maxim protectio trahit subjectionem, et subjectio protectionem — and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance, but were predicable of aliens in amity so long as they were within the kingdom. Children, born in England, of such aliens were therefore natural-born subjects. But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the King’s dominions, were not natural-born subjects because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction, of the King.

This fundamental principle, with these qualifications or [p656] explanations of it, was clearly, though quaintly, stated in the leading case, known as Calvin’s Case, or the Case of the Postnati, decided in 1608, after a hearing in the Exchequer Chamber before the Lord Chancellor and all the Judges of England, and reported by Lord Coke and by Lord Ellesmere. Calvin’s Case, 7 Rep. 1, 4b-6a, 18a, 18b; Ellesmere on Postnati, 62-64; S.C., 2 Howell’s State Trials, 559, 607, 613-617, 639, 640, 659, 679.

The English authorities ever since are to the like effect. Co.Lit. 8a, 128b, Lord Hale, in Hargrave’s Law Tracts, 210, an in 1 Hale P.C. 61, 62; 1 Bl.Com. 366, 369, 370, 374; 4 Bl.Com. 74, 92; Lord Kenyon, in Doe v. Jones, 4 T.R. 300, 308; Cockburn on Nationality, 7; Dicey Conflict of Laws, p. 173-177, 741.

In Udny v. Udny, (1869) L.R. 1 H.L. Sc. 441, the point decided was one of inheritance, depending upon the question whether the domicil of the father was in England or in Scotland, he being in either alternative a British subject. Lord Chancellor Hatherley said: “The question of naturalization and of allegiance is distinct from that of domicil.” P. 452. Lord Westbury, in the passage relied on by the counsel for the United States, began by saying:

The law of England, and of almost all civilized countries, ascribes to each individual at his birth two distinct legal states or conditions: one, by virtue of which he becomes the subject of some particular country, binding him by the tie of natural allegiance, and which may be called his political status; another by virtue of which he has ascribed to him the character of a citizen of some particular country, and as such is possessed of certain municipal rights, and subject to certain obligations, which latter character is the civil status or condition of the individual, and may be quite different from his political status.

And then, while maintaining that the civil status is universally governed by the single principle of domicil, domicilium, the criterion established by international law for the purpose of determining civil status, and the basis on which

the personal rights of the party, that is to say, the law which determines his majority or minority, his marriage, succession, testacy or intestacy, [p657] must depend,

he yet distinctly recognized that a man’s political status, his country, patria, and his “nationality, that is, natural allegiance,” “may depend on different laws in different countries.” Pp. 457, 460. He evidently used the word “citizen” not as equivalent to “subject,” but rather to “inhabitant,” and had no thought of impeaching the established rule that all persons born under British dominion are natural-born subjects.

Lord Chief Justice Cockburn, in the same year, reviewing the whole matter, said:

By the common law of England, every person born within the dominions of the Crown, no matter whether of English or of foreign parents, and, in the latter case, whether the parents were settled or merely temporarily sojourning, in the country, was an English subject, save only the children of foreign ambassadors (who were excepted because their fathers carried their own nationality with them), or a child born to a foreigner during the hostile occupation of any part of the territories of England. No effect appears to have been given to descent as a source of nationality.

Cockburn on Nationality, 7.

Mr. Dicey, in his careful and thoughtful Digest of the Law of England with reference to the Conflict of Laws, published in 1896, states the following propositions, his principal rules being printed below in italics:

“British subject” means any person who owes permanent allegiance to the Crown. “Permanent” allegiance is used to distinguish the allegiance of a British subject from the allegiance of an alien who, because he is within the British dominions, owes “temporary” allegiance to the Crown. “Natural-born British subject” means a British subject who has become a British subject at the moment of his birth.” “Subject to the exceptions hereinafter mentioned, any person who (whatever the nationality of his parents) is born within the British dominions is a natural-born British subject. This rule contains the leading principle of English law on the subject of British nationality.

The exceptions afterwards mentioned by Mr. Dicey are only these two:

1. Any person who (his father being an alien enemy) is born in a part of the British dominions, which at the time of such [p658] person’s birth is in hostile occupation, is an alien.

2. Any person whose father (being an alien) is at the time of such person’s birth an ambassador or other diplomatic agent accredited to the Crown by the Sovereign of a foreign State is (though born within the British dominions) an alien.

And he adds:

The exceptional and unimportant instances in which birth within the British dominions does not of itself confer British nationality are due to the fact that, though at common law nationality or allegiance in substance depended on the place of a person’s birth, it in theory, at least, depended not upon the locality of a man’s birth, but upon his being born within the jurisdiction and allegiance of the King of England, and it might occasionally happen that a person was born within the dominions without being born within the allegiance, or, in other words, under the protection and control of, the Crown.

Dicey Conflict of Laws, pp. 173-177, 741.

It thus clearly appears that, by the law of England for the last three centuries, beginning before the settlement of this country and continuing to the present day, aliens, while residing in the dominions possessed by the Crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, the jurisdiction of the English Sovereign, and therefore every child born in England of alien parents was a natural-born subject unless the child of an ambassador or other diplomatic agent of a foreign State or of an alien enemy in hostile occupation of the place where the child was born.

III. The same rule was in force in all the English Colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established.

In the early case of The Charming Betsy, (1804) it appears to have been assumed by this court that all persons born in the United States were citizens of the United States, Chief Justice Marshall saying:

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 [p659] 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.

2 Cranch 64, 119.

In Inglis v. Sailors’ Snug Harbor (1833), 3 Pet. 99, in which the plaintiff was born in the city of New York about the time of the Declaration of Independence, the justices of this court (while differing in opinion upon other points) all agreed that the law of England as to citizenship by birth was the law of the English Colonies in America. Mr. Justice Thompson, speaking for the majority of the court, said:

It is universally admitted, both in the English courts and in those of our own country, that all persons born within the Colonies of North America, whilst subject to the Crown of Great Britain, are natural-born British subjects.

3 Pet. 120. Mr. Justice Johnson said: “He was entitled to inherit as a citizen born of the State of New York.” 3 Pet. 136. Mr. Justice Story stated the reasons upon this point more at large, referring to Calvin’s Case, Blackstone’s Commentaries, and Doe v. Jones, above cited, and saying:

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 is, the party must be born within a place where the sovereign is at the time in full possession and exercise of his power, and the party must also, at his birth, derive protection from, and consequently owe obedience or allegiance to, the sovereign, as such, de facto. There are some exceptions which are founded upon peculiar reasons, and which, indeed, illustrate and confirm the general doctrine. Thus, a person who is born on the ocean is a subject of the prince to whom his parents then owe allegiance; for he is still deemed under the protection of his sovereign, and born in a place where he has dominion in common with all other sovereigns. So the children of an ambassador are held to be [p660] subjects of the prince whom he represents, although born under the actual protection and in the dominions of a foreign prince.

3 Pet. 155. “The children of enemies, born in a place within the dominions of another sovereign, then occupied by them by conquest, are still aliens.” 3 Pet. 156.

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.

3 Pet. 164.

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

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

3 Pet. 248. This last sentence was relied on by the counsel for the United States as showing that the question whether a person is a citizen of a particular country is to be determined not by the law of that country, but by the principles of international law. But Mr. Justice Story certainly did not mean to suggest that, independently of treaty, there was any principle of international law which could defeat the operation of the established rule of citizenship by birth within the United States; for he referred (p. 245) to the contemporaneous opinions in Inglis v. Sailors’ Snug Harbor, [p661] above cited, in which this rule had been distinctly recognized, and in which he had said (p. 162) that “each government had a right to decide for itself who should be admitted or deemed citizens,” and, in his Treatise on the Conflict of Laws, published in 1834, he said that, in respect to residence in different countries or sovereignties, “there are certain principles which have been generally recognized by tribunals administering public law” [adding, in later editions “or the law of nations”] “as of unquestionable authority,” and stated, as the first of those principles, “Persons who are born in a country are generally deemed citizens and subjects of that country.” Story, Conflict of Laws, § 48.

The English statute of 11 & 12 Will. III (1700). c. 6, entitled

An act to enable His Majesty’s natural-born subjects to inherit the estate of their ancestors, either lineal or collateral, notwithstanding their father or mother were aliens,

enacted that “all and every person or persons, being the King’s natural-born subject or subjects, within any of the King’s realms or dominions,” might and should thereafter lawfully inherit and make their titles by descent to any lands

from any of their ancestors, lineal or collateral, although the father and mother, or father or mother, or other ancestor, of such person or persons, by, from, through or under whom

title should be made or derived, had been or should be “born out of the King’s allegiance, and out of is Majesty’s realms and dominions,” as fully and effectually, as if such parents or ancestors “had been naturalized or natural-born subject or subjects within the King’s dominions.” 7 Statutes of the Realm, 90. It may be observed that, throughout that statute, persons born within the realm, although children of alien parents, were called “natural-born subjects.” As that statute included persons born “within any of the King’s realms or dominions,” it, of course, extended to the Colonies, and, not having been repealed in Maryland, was in force there. In McCreery v. Somerville, (1824) 9 Wheat. 354, which concerned the title to land in the State of Maryland, it was assumed that children born in that State of an alien who was still living, and who had not been naturalized, were “native-born citizens of the [p662] United States,” and, without such assumption, the case would not have presented the question decided by the court, which, as stated by Mr. Justice Story in delivering the opinion, was

whether the statute applies to the case of a living alien ancestor, so as to create a title by heirship where none would exist by the common law if the ancestor were a natural-born subject.

9 Wheat. 356.

Again, in Levy v. McCartee (1832), 6 Pet. 102, 112, 113, 115, which concerned a descent cast since the American Revolution, in the State of New York, where the statute of 11 & 12 Will. III had been repealed, this court, speaking by Mr. Justice Story, held that the case must rest for its decision exclusively upon the principles of the common law, and treated it as unquestionable that, by that law, a child born in England of alien parents was a natural-born subject, quoting the statement of Lord Coke in Co.Lit. 8a, that,

if an alien cometh into England and hath issue two sons, these two sons are indigenae, subjects born, because they are born within the realm,

and saying that such a child “was a native-born subject, according to the principles of the common law stated by this court in McCreery v. Somervlle, 9 Wheat. 354.”

In Dred Scott v. Sandford, (1857) 19 How. 393, Mr. Justice Curtis said:

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.

19 How. 576. And, to this extent, no different opinion was expressed or intimated by any of the other judges.

In United States v. Rhodes (1866), Mr. Justice Swayne, sitting in the Circuit Court, said:

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. . . . We find no warrant for the opinion [p663] that this great principle of the common law has ever been changed in the United States. It has always obtained here with the same vigor, and subject only to the same exceptions, since as before the Revolution.

1 Abbott (U.S.) 28, 40, 41.

The Supreme Judicial Court of Massachusetts, speaking by Mr. Justice (afterwards Chief Justice) Sewall, early held that the determination of the question whether a man was a citizen or an alien was “to be governed altogether by the principles of the common law,” and that it was established, with few exceptions,

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 (1805), 2 Mass. 244, note. And again:

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. It may here be observed that, in a recent English case, Lord Coleridge expressed the opinion of the Queen’s Bench Division that the statutes of 4 Geo. II, (1731) c. 1, and 13 Geo. III (1773), c. 21, (hereinafter referred to) “clearly recognize that to the King in his politic, and not in his personal, capacity is the allegiance of his subjects due.” Isaacson v. Durant, 17 Q.B.D. 54, 65.

The Supreme Court of North Carolina, speaking by Mr; Justice Gaston, said:

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 [p664] State; . . . British subjects in North Carolina became North Carolina freemen; . . . and all free persons born within the State are born citizens of the 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 (1838), 4 Dev. & Bat. 20, 24-26.

That all children born within the dominion of the United States of foreign parents holding no diplomatic office became citizens at the time of their birth does not appear to have been contested or doubted until more than fifty years after the adoption of the Constitution, when the matter was elaborately argued in the Court of Chancery of New York and decided upon full consideration by Vice Chancellor Sandford in favor of their citizenship. Lynch v. Clark, (1844) 1 Sandf.Ch. 583.

The same doctrine was repeatedly affirmed in the executive departments, as, for instance, by Mr. Marcy, Secretary of State, in 1854, 2 Whart.Int.Dig. (2d ed.) p. 394; by Attorney General Black in 1859, 9 Opinions, 373, and by Attorney General Bates in 1862, 10 Opinions, 328, 382, 394, 396.

Chancellor Kent, in his Commentaries, speaking of the “general division of the inhabitants of every country under the comprehensive title of aliens and natives,” says:

Natives are all persons born within the jurisdiction and allegiance of the United States. This is the rule of the common law, without any regard or reference to the political condition or allegiance of their parents, with the exception of the children of ambassadors, who are in theory born within the allegiance of the foreign power they represent. . . . To create allegiance by birth, the party must be born not only within the territory, but within the ligeance of the government. If a portion of the country be taken and held by conquest in war, the conqueror acquires the rights of the conquered as to its dominion and government, and children born in the armies of a State, while [p665] abroad and occupying a foreign country, are deemed to be born in the allegiance of the sovereign to whom the army belongs. It is equally the doctrine of the English common law that, during such hostile occupation of a territory, and the parents be adhering to the enemy as subjects de facto, their children, born under such a temporary dominion, are not born under the ligeance of the conquered.

2 Kent Com. (6th ed.) 39, 42. And he elsewhere says:

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.

2 Kent Com. 258, note.

Mr. Binney, in the second edition of a paper on the Alienigenae of the United States, printed in pamphlet at Philadelphia, with a preface bearing his signature and the date of December 1, 1853, said:

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 o the United States are, with the exceptions before mentioned,

(namely, foreign-born children of citizens, under statutes to be presently referred to)

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.

P. 20.

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. [p666]

P. 22, note. This paper, without Mr. Binney’s name and with the note in a less complete form and not containing the passage last cited, was published (perhaps from the first edition) in the American Law Register for February, 1854. 2 Amer.Law Reg.193, 203, 204.

IV. It was contended by one of the learned counsel for the United States that the rule of the Roman law, by which the citizenship of the child followed that of the parent, was the true rule of international law, as now recognized in most civilized countries, and had superseded the rule of the common law, depending on birth within the realm, originally founded on feudal considerations.

But at the time of the adoption of the Constitution of the United States in 1789, and long before, it would seem to have been the rule in Europe generally, as it certainly was in France, that, as said by Pothier, “citizens, true and native-born citizens, are those who are born within the extent of the dominion of France,” and

mere birth within the realm gives the rights of a native-born citizen, independently of the origin of the father or mother, and of their domicil;

and children born in a foreign country, of a French father who had not established his domicil there nor given up the intention of returning, were also deemed Frenchmen, as Laurent says, by “a favor, a sort of fiction,” and Calvo, “by a sort of fiction of exterritoriality, considered as born in France, and therefore invested with French nationality.” Pothier Trait des Personnes, pt. 1, tit. 2, sect. 1, nos. 43, 45; Walsh-Serrant v. Walsh-Serrant, (1802) 3 Journal du Palais, 384; S.C., S. Merlin, Jurisprudence, (5th ed.) Domicile, § 13; Prefet du Nord v. Lebeau, (1862) Journal du Palais, 1863, 312 and note; 1 Laurent Droit Civil, no. 321; 2 Calvo Droit International, (5th ed.) § 542; Cockburn on Nationality, 13, 14; Hall’s International Law, (4th ed.) § 68. The general principle of citizenship by birth within French territory prevailed until after the French Revolution, and was affirmed in successive constitutions from the one adopted by the Constituent Assembly in 1791 to that of the French Republic in 1799. Constitutions et Chartes, (ed. 1830) pp. 100, 136, 148, 186. [p667] The Code Napoleon of 1807 changed the law of France and adopted, instead of the rule of country of birth, jus soli, the rule of descent or blood, jus sanguinis, as the leading principle; but an eminent commentator has observed that the framers of that code

appear not to have wholly freed themselves from the ancient rule of France, or rather, indeed, ancient rule of Europe — de la vielle regle francaise, ou plutot meme de la vielle regle europienne — according to which nationality had always been, in former times, determined by the place of birth.

1 Demolombe Cours de Code Napoleon (4th ed.) no. 146.

The later modifications of the rule in Europe rest upon the constitutions, laws or ordinances of the various countries, and have no important bearing upon the interpretation and effect o the Constitution of the United States. The English Naturalization Act of 33 Vict. (1870) c. 14, and the Commissioners’ Report of 1869, out of which it grew, both bear date since the adoption of the Fourteenth Amendment of the Constitution; and, as observed by Mr. Dicey, that act has not affected the principle by which any person who, whatever the nationality of his parents, is born within the British dominions, acquires British nationality at birth and is a natural-born British subject. Dicey, Conflict of Laws 41. At the time of the passage of that act, although the tendency on the continent of Europe was to make parentage, rather than birthplace, the criterion of nationality, and citizenship was denied to the native-born children of foreign parents in Germany, Switzerland, Sweden and Norway, yet it appears still to have been conferred upon such children in Holland, Denmark and Portugal, and, when claimed under certain specified conditions, in France, Belgium, Spain, Italy, Greece and Russia. Cockburn on Nationality, 14-21.

There is, therefore, little ground for the theory that, at the time of the adoption of the Fourteenth Amendment of the Constitution of the United States, there as any settled and definite rule of international law, generally recognized by civilized nations, inconsistent with the ancient rule of citizenship by birth within the dominion. [p668]

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.

Both in England and in the United States, indeed, statutes have been passed at various times enacting that certain issue born abroad of English subjects or of American citizens, respectively, should inherit, to some extent at least, the rights of their parents. But those statutes applied only to cases coming within their purport, and they have never been considered in either country as affecting the citizenship of persons born within its dominion.

The earliest statute was passed in the reign of Edward III. In the Rolls of Parliament of 17 Edw. III (1343), it is stated that,

before these times, there have been great doubt and difficulty among the Lords of this realm, and the Commons, as well men of the law as others, whether children who are born in parts beyond sea ought to bear inheritance after the death of their ancestors in England, because no certain law has been thereon ordained;

and by the King, Lords and Commons, it was unanimously agreed that

there was no manner of doubt that the children of our Lord the King, whether they were born on this side the sea or beyond the sea, should bear the inheritance of their ancestors; . . . and in regard to other children, it was agreed in this Parliament that they also should inherit wherever they might be born in the service of the King;

but, because the Parliament was about to depart, and the business demanded great advisement and good deliberation how it should be best and most surely done, the making of a statute was put off to the next Parliament. 2 Rot.Parl. 139. By reason, apparently, of the prevalence of the plague in England, no act upon the subject was passed until 5 Edw. III, (1350), when Parliament passed an act entitled “A statute for those who are born in parts beyond sea,” by which — after reciting that

some people be in doubt if the children born in the parts beyond the sea, out of the ligeance of England, should be able to demand any inheritance within the same ligeance, or not, whereof a petition was put [p669] in the Parliament

of 17 Edw. III, “and as not at the same time wholly assented” — it was (1) agreed and affirmed

that the law of the Crown of England is, and always hath been such, that the children of the Kings of England, in whatsoever parts they be born, in England or elsewhere, be able and ought to bear the inheritance after the death of their ancestors;

(2) also agreed that certain persons named,

which were born beyond the sea, out of the ligeance of England, shall be from henceforth able to have and enjoy their inheritance after the death of their ancestors, in all parts within the ligeance of England, as well as those that should be born within the same ligeance:

(3) and further agreed

that all children inheritors, which from henceforth shall be born without the ligeance of the King, whose fathers and mothers at the time of their birth be and shall be at the faith and ligeance of the King of England, shall have and enjoy the same benefits and advantages to have and bear the inheritance within the same ligeance as the other inheritors aforesaid, in time to come; so always, that the mothers of such children do pass the sea by the licence and wills of their husbands.

2 Rot. Parl. 231; 1 Statutes of the Realm, 310.

It has sometimes been suggested that this general provision of the statute of 25 Edw. III was declaratory of the common law. See Bacon, arguendo, in Calvin’ Case, 2 Howell’s State Trials, 585; Westlake and Pollock, arguendo, in De Geer v. Stone, 22 Ch.D. 243, 247; 2 Kent Com. 50, 53; Lynch v. Clarke,1 Sandf.Ch. 583, 659, 660; Ludlam v. Ludlam, 26 N.Y. 356. But all suggestions to that effect seem to have been derived, immediately or ultimately, from one or the other of these two sources: the one, the Year Book of 1 Ric. III, (1483) fol. 4, pl. 7, reporting a saying of Hussey, C.J.,

that he who is born beyond sea, and his father and mother are English, their issue inherit by the common law, but the statute makes clear, &c.,

— which, at best, was but obiter dictum, for the Chief Justice appears to have finally rested his opinion on the statute. The other, a note added to the edition of 1688 of Dyer’s Reports, 184a, stating that, at Trinity Term, 7 Edw. III, Rot. 2 B.R., it was adjudged that children of subjects born [p670] beyond the sea in the service of the King were inheritable — which has been shown, by a search of the roll in the King’s Bench so referred to, to be a mistake, inasmuch as the child there in question did not appear to have been born beyond sea, but only to be living abroad. Westlake’s Private International Law (3d ed.) 324.

The statute of 5 Edw. III recites the existence of doubts as to the right of foreign-born children to inherit in England; and, while it is declaratory of the rights of children of the King, and is retrospective as to the persons specifically named, yet, as to all others, it is, in terms, merely prospective, applying to those only “who shall be born henceforth.” Mr. Binney, in his paper above cited, after a critical examination of the statute and of the early English cases, concluded:

There is nothing in the statute which would justify the conclusion that it is declaratory of the common law in any but a single particular, namely in regard to the children of the King; nor has it at any time been judicially held to be so. . . . The notion that there is any common law principle to naturalize the children born in foreign countries, of native-born American father and mother, father or mother, must be discarded. There is not, and never was, any such common law principle.

Binney on Alienigenae, 14, 20; 2 Amer.Law Reg.199, 203. And the great weight of the English authorities, before and since he wrote, appears to support his conclusion. Calvin’s Case, 7 Rep. 17a, 18a; Co.Lit. 8a, and Hargrave’s note 36; 1 Bl.Com. 33; Barrington on Statutes, (5th ed.) 268; Lord Kenyon, in Doe v. Jones, 4 T.R. 300, 308; I: ord Chancellor Cranworth, in Shedden v. Patrick, 1 Macq. 535, 611; Cockburn on Nationality, 7, 9; De Greer v. Stone, 2 Ch.D. 243, 252; Dicey Conflict of Laws, 17, 741. “The acquisition,” says Mr. Dicey, (p. 741) “of nationality by descent is foreign to the principles of the common law, and is based wholly upon statutory enactments.”

It has been pertinently observed that, if the statute of Edward III had only been declaratory of the common law, the subsequent legislation on the subject would have been wholly unnecessary. Cockburn on Nationality 9. By the [p671] statute of 29 Car. II, (1677) c. 6, § 1, entitled “An act for the naturalization of children of His Majesty’s subjects born in foreign countries during the late troubles,” all persons who, at any time between June 14, 1641, and March 24, 1660, “were born out of His Majesty’s dominions, and whose fathers or mothers were natural-born subjects of this realm” were declared to be natural-born subjects. By the statute of 7 Anne, (1708) c. 5, § 3, “the children of all natural-born subjects, born out of the ligeance of Her Majesty, her heirs and successors” — explained by the statute of 4 Geo. II, (1731) c. 21, to mean all children born out of the ligeance of the Crown of England

whose fathers were or shall be natural-born subjects of the Crown of England, or of Great Britain, at the time of the birth of such children respectively . . . . shall be deemed, adjudged and taken to be natural-born subjects of this kingdom, to all intents, constructions and purposes whatsoever.

That statute was limited to foreign-born children of natural-born subjects, and was extended by the statute of 13 Geo. III, (1773) c. 21, to foreign-born grandchildren of natural-born subjects, but not to the issue of such grandchildren; or, as put by Mr. Dicey, “British nationality does not pass by descent or inheritance beyond the second generation.” See DeGeer v. Stone, above cited; Dicey, Conflict of Laws 742.

Moreover, under those statutes, as is stated in the Report in 1869 of the Commissioners for inquiring into the Laws of Naturalization and Allegiance,

no attempt has ever been made on the part of the British Government, (unless in Eastern countries where special jurisdiction is conceded by treaty) to enforce claims upon, or to assert rights in respect of, persons born abroad, as against the country of their birth whilst they were resident therein, and when by its law they were invested with its nationality.

In the appendix to their report are collected many such cases in which the British Government declined to interpose, the reasons being most clearly brought out in a dispatch of March 13, 1858, from Lord Malmesbury, the Foreign Secretary, to the British Ambassador at Paris, saying:

It is competent to any country to confer by general or special legislation the privileges of nationality upon those [p672] who are born out of its on territory; but it cannot confer such privileges upon such persons as against the country of their birth, when they voluntarily return to and reside therein. Those born in the territory of a nation are (as a general principle) liable when actually therein to the obligations incident to their status by birth. Great Britain considers and treats such persons as natural-born subjects, and cannot therefore deny the right of other nations to do the same. But Great Britain cannot permit the nationality of the children of foreign parents born within her territory to be questioned.

Naturalization Commission Report, pp. viii, 67; U.S. Foreign Relations, 1873-1874, pp. 1237, 1837. See also Drummond’s Case (1834), 2 Knapp 295.

By the Constitution of the United States, Congress was empowered “to establish an uniform rule of naturalization.” In the exercise of this power, Congress, by successive acts, beginning with the act entitled “An act to establish an uniform rule of naturalization,” passed at the second session of the First Congress under the Constitution, has made provision for the admission to citizenship of three principal classes of persons: First. Aliens, having resided for a certain time “within the limits and under the jurisdiction of the United States,” and naturalized individually by proceedings in a court of record. 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.” Third. Foreign-born children of American citizens, coming within the definitions prescribed by Congress. 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.

In the act of 1790, the provision as to foreign-born children of American citizens was as follows:

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 [p673] resident in the United States.

1 Stat. 104. In 1795, this was reenacted in the same words, except in substituting for the words “beyond sea, or out of the limits of the United States” the words “out of the limits and jurisdiction of the United States.” 1 Stat. 415.

In 1802, all former acts were repealed, and the provisions concerning children of citizens were reenacted in this form:

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 of April 14, 1802, c. 28, § 4; 2 Stat. 155.

The provision of that act concerning “the children of persons duly naturalized under any of the laws of the United States,” not being restricted to the children of persons already naturalized, might well be held to include children of persons thereafter to be naturalized. 2 Kent Com. 51, 52; West v. West, 8 Paige, 433; United States v. Kellar, 11 Bissell, 314; Boyd v. Thayer, 143 U.S. 135-177.

But the provision concerning foreign-born children, being expressly limited to the children of persons who then were or had been citizens, clearly did not include foreign-born children of any person who became a citizen since its enactment. 2 Kent.Com. 52, 53; Binney on Alienigenae 20, 25; 2 Amer.Law Reg. 203, 205. Mr. Binney’s paper, as he states in his preface, was printed by him in the hope that Congress might supply this defect in our law.

In accordance with his suggestions, it was enacted by the [p674] statute of February 10, 1855, c. 71, that

persons heretofore born, or hereafter to be born, out of the limits and jurisdiction of the United States, whose fathers were or shall be at the time of their birth citizens of the United States, shall be deemed and considered and are hereby declared to be citizens of the United States: Provided, however, that the rights of citizenship shall not descend to persons whose fathers never resided in the United States.

10 Stat. 604; Rev.Stat. § 1993.

It thus clearly appears that, during the half century intervening between 1802 and 1855, there was no legislation whatever for the citizenship of children born abroad, during that period, of American parents who had not become citizens of the United States before the act of 1802, and that the act of 1855, like every other act of Congress upon the subject, has, by express proviso, restricted the right of citizenship, thereby conferred upon foreign-born children of American citizens, to those children themselves, unless they became residents of the United States. Here is nothing to countenance the theory that a general rule of citizenship by blood or descent has displaced in this country the fundamental rule of citizenship by birth within its sovereignty.

So far as we are informed, there is no authority, legislative, executive or judicial, in England or America, which maintains or intimates that the statutes (whether considered as declaratory or as merely prospective) conferring citizenship on foreign-born children of citizens have superseded or restricted, in any respect, the established rule of citizenship by birth within the dominion. Even those authorities in this country, which have gone the farthest towards holding such statutes to be but declaratory of the common law have distinctly recognized and emphatically asserted the citizenship of native-born children of foreign parents. 2 Kent Com. 39, 50, 53, 258 note; Lynch v. Clarke, 1 Sandf.Ch. 583, 659; Ludlam v. Ludlam, 26 N.Y. 356, 371.

Passing by questions once earnestly controverted, but finally put at rest by the Fourteenth Amendment of the Constitution, it is beyond doubt that, before the enactment of the Civil Rights Act of 1866 or the adoption of the Constitutional [p675] Amendment, all white persons, at least, born within the sovereignty of the United States, whether children of citizens or of foreigners, excepting only children of ambassadors or public ministers of a foreign government, were native-born citizens of the United States.


Of course, you refuse to read all that, which is why your side gets it butt handed to it every time it enters court. You cannot refute an argument if you refuse to acknowledge its existence.


21 posted on 02/04/2012 4:09:50 PM PST by Mr Rogers ("they found themselves made strangers in their own country")
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To: All

It is useless. We can argue till our faces turn blue. The judge will/can always rule as obama wishes. He just has to write something that looks like he has the argument and the ‘precedent’. Who can argue with him? We can go to higher court but they will do the same. Then it is too late and it is moot!

We need a ‘velvet revolution’! Do what Pastor Manning says - UNITE UNITE UNITE UNITE !!

SURROUND THEM!


22 posted on 02/04/2012 4:12:26 PM PST by chrisnj
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To: Mr Rogers
The judge based his decision on the US Supreme Court case of Wong Kim Ark:

Seeing that both cases were wrongly decided, why should we be interested in a chain of bad facts and bad reasoning? It would be tantamount to suggesting we should concern ourselves with a decision based on Roe v Wade and Kelo v New London.

They are crap, and therefore so is a decision based on them. Garbage in, Garbage out.

23 posted on 02/04/2012 4:12:26 PM PST by DiogenesLamp (Partus Sequitur Patrem)
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To: Mr Rogers
"It doesn’t"

That's what matters. The 14th has nothing, zero, to do with who is a "natural born Citizen."

Period.

24 posted on 02/04/2012 4:15:16 PM PST by rxsid (HOW CAN A NATURAL BORN CITIZEN'S STATUS BE "GOVERNED" BY GREAT BRITAIN? - Leo Donofrio (2009))
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To: Mr Rogers

Mr Rogers, you said:

“,,,No. It merely means that anyone born in the USA of parents here legally IS a natural born citizen allowed to run for President...”

in which you included the words “of parents here legally”.

But Judge Mahili’s decision said:

“...For the purposes of this analysis, this Court considered that President Barack Obama was born in the United States. Therefore, as discussed in Arkeny, he became a citizen at birth and is a natural born citizen....”

which does not seem to require the birth parents to be here legally. So it would allow “anchor babies” to be considered natural born citizens as well as it would some of the US citizen Islamic Jihadists our Predators have been targeting.

There’s no need to sugarcoat this anti-Constitutional decision.


25 posted on 02/04/2012 4:25:12 PM PST by House Atreides
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To: House Atreides
Not only anchor babies, but according to this ruling, an actual real life foreign prince is now eligible to be our Commander in Chief.

Think about that!

26 posted on 02/04/2012 4:29:44 PM PST by rxsid (HOW CAN A NATURAL BORN CITIZEN'S STATUS BE "GOVERNED" BY GREAT BRITAIN? - Leo Donofrio (2009))
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To: rxsid
then the current Dauphin of France (as considered by the Legitimists) Prince Louis Duke of Burgundy would be considered POTUS eligible.

This is really a silly argument. Eligibility is no great hurdle. Nor was it designed to be. The vast majority of Americans over the age of 35 are eligible to be President. Electability is a whole different matter, a task so enormously difficult that only 43 Americans in the history of this country have been successful at. Statistically, you have a better chance at winning the Powerball than you do at being elected President.

27 posted on 02/04/2012 4:30:07 PM PST by Drew68
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To: House Atreides

According to WKA, the parents need to be here “in amity” with the government for them to be NBS/NBC. Arguably, those here ILLEGALLY are not here in amity with the US government.

My suspicion is that ANYONE born in the US will be considered a NBC - but this Georgia decision doesn’t drive that.


28 posted on 02/04/2012 4:33:45 PM PST by Mr Rogers ("they found themselves made strangers in their own country")
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To: DiogenesLamp

You can call them crap, but you cannot win in court that way. To be honest, tho, it seems you cannot win in court EVEN WHEN THE OTHER SIDE DOESN’T SHOW UP. I actually thought you had a better case than that, but I was wrong.


29 posted on 02/04/2012 4:35:40 PM PST by Mr Rogers ("they found themselves made strangers in their own country")
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To: rxsid

What matters is that natural born subject was a very well known and very commonly used legal phrase in the colonies, and it was used interchangeably with natural born citizen for some years after the Constitution.

And that legal meaning included the children of aliens, unless the aliens were ambassadors or in a foreign army.

NBC was NOT an appeal to European ‘natural law’, but to a term used regularly by every legislature that ratified the Constitution. They didn’t need to define it because it was already a well known and defined term.


30 posted on 02/04/2012 4:40:12 PM PST by Mr Rogers ("they found themselves made strangers in their own country")
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To: Drew68
"then the current Dauphin of France (as considered by the Legitimists) Prince Louis Duke of Burgundy would be considered POTUS eligible.

This is really a silly argument.

---------------------------------------------

Tell that to the founders and framers.

A few examples...

John Jay, 1787:

Permit me to hint, whether it would not be wise & seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government; and to declare expresly that the Command in chief of the american army shall not be given to, nor devolve on, any but a natural born Citizen.

John Adams, 1776:

On the other hand it could never be our Duty to unite with Britain in too great a humiliation with of France. That our real if not our nominal Independence would consist in our Neutrality. If We united with either Nation, in any future War, We must become too subordinate and dependent on that nation, and should be involved in all European Wars as We had been hitherto. That foreign Powers would find means to corrupt our People to influence our Councils, and in fine We should be little better than Puppetts danced on the Wires of the Cabinetts of Europe. We should be the Sport of European Intrigues and Politicks.

Clearly, they didn't consider it "silly."

31 posted on 02/04/2012 4:41:08 PM PST by rxsid (HOW CAN A NATURAL BORN CITIZEN'S STATUS BE "GOVERNED" BY GREAT BRITAIN? - Leo Donofrio (2009))
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To: Seizethecarp

How was WKA was correctly decided?


32 posted on 02/04/2012 4:44:02 PM PST by bushpilot1
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To: Mr Rogers
A natural born subject owed permanent allegiance to a person. A natural born citizen does not.

A naturalized subject was considered a natural born subject for all intents and purposes. A naturalized citizen is not considered a natural born citizen.

According to English common law, a natural born subject was required to be a Christian. A natural born citizen could be any religion...or none.

There are far too many differences between to two to try and force them to be equal.

33 posted on 02/04/2012 4:46:00 PM PST by rxsid (HOW CAN A NATURAL BORN CITIZEN'S STATUS BE "GOVERNED" BY GREAT BRITAIN? - Leo Donofrio (2009))
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To: gunner03
Do you expect any other decision from these elitist bastards from both parties, including the judiciary. We have no rights, no justice, and no hope as long as they remain in power... God help the Republic.

We the People no longer have any power. This "talked to" judge just spit on the People. Sure, his pets and children may have been the leverage but to what future did he just leave them?

34 posted on 02/04/2012 4:46:16 PM PST by bgill (The Obama administration is staging a coup. Wake up, America, before it's too late.)
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To: rxsid

Barry and Michelle have PLANNED from the beginning to rely on the super-expanded version of the 14th Barry “taught” at Chicago. That is clear from words they used back in 2008 at the initial release of the faked certs. That the Administrative Judge punted using the 14th is a tell they were on top of him.

I’d wonder if the word “tandem” has some tracer meaning.


35 posted on 02/04/2012 4:47:08 PM PST by bvw
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To: Mr Rogers
To the extend the 14th deals with citizenship, it was to overturn the Dred Scott decision. It was the states telling the Court they had ruled incorrectly in Dred Scott.

People tend to forget that the passage of the 14th amendment was due to Federal Guns pointed at Southern States. It is hardly "the States" making any sort of statement, unless you accept confessions under duress.

The will of a Puppet is that of it's master, not it's own.

36 posted on 02/04/2012 4:47:26 PM PST by DiogenesLamp (Partus Sequitur Patrem)
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To: rxsid
While your searching for that...I'll take the liberty to quote the father of the 14th:

Justice Gray intentionally IGNORED the Debates on the 14th amendment. All he wanted was enough leeway to twist the words to his satisfaction. Looking at what was said during the debate would not allow him to rule they way he did.

37 posted on 02/04/2012 4:51:33 PM PST by DiogenesLamp (Partus Sequitur Patrem)
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To: Seizethecarp

Superbirther seizethecarp “I believe that WKA was correctly decided”

Enlightened us..superbirther. How was it decided correctly? It opened the flood gates.

A country cannot perpetuate itself unless its citizens are born from citizens. A country should desire this for its own survival.


38 posted on 02/04/2012 4:55:16 PM PST by bushpilot1
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To: rxsid
Clearly, they didn't consider it "silly."

It's just looking at your posts today, you seem awfully concerned that the American-born French Dauphin is going to somehow sweep in and "usurp" the Presidency. I wouldn't lose any sleep over it. And who's to say the Dauphin isn't a stalwart conservative? I don't know the guy personally but I'd be hard-pressed to imagine he'd be any worse than Mitt Romney.

39 posted on 02/04/2012 4:55:32 PM PST by Drew68
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To: Mr Rogers
You can call them crap, but you cannot win in court that way. To be honest, tho, it seems you cannot win in court EVEN WHEN THE OTHER SIDE DOESN’T SHOW UP. I actually thought you had a better case than that, but I was wrong.

All it means is that the rot runs deep, and I fear the tree shall not survive. The Same Court system that Gave us Roe v Wade cannot expect to do otherwise. A Rotten tree bears rotten fruit.

40 posted on 02/04/2012 4:57:09 PM PST by DiogenesLamp (Partus Sequitur Patrem)
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To: DiogenesLamp

Gray pretty much copied what the railroad attorney wrote.


41 posted on 02/04/2012 4:58:38 PM PST by bushpilot1
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To: Mr Rogers
NBC was NOT an appeal to European ‘natural law’, but to a term used regularly by every legislature that ratified the Constitution. They didn’t need to define it because it was already a well known and defined term.

And yet when Chief Justice Marshall wishes to cite the law on Citizenship he turns to Vattel, not Blackstone. So does Justice Washington.

42 posted on 02/04/2012 4:59:59 PM PST by DiogenesLamp (Partus Sequitur Patrem)
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To: gunner03

I don’t really believe this, but consider the possibility that the judge was planted by none other than Karl Rove. By releasing an obviously mistaken, flawed and contradictory opinion, this judge sets the stage for the appeal to be a knockout, and it would then have greater significance.


43 posted on 02/04/2012 5:00:56 PM PST by coloradan (The US has become a banana republic, except without the bananas - or the republic.)
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To: Mr Rogers

Will you STOP posting that crap? Nobody reads it, and it is a nuisance having to scroll down past it.


44 posted on 02/04/2012 5:01:16 PM PST by DiogenesLamp (Partus Sequitur Patrem)
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To: DiogenesLamp; Mr Rogers

Mr Rogers should have stayed on the religious threads. He’s fixin to get another enlightenment.


45 posted on 02/04/2012 5:05:39 PM PST by bushpilot1
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To: bushpilot1
Gray pretty much copied what the railroad attorney wrote.

I hadn't compared the two. (I give very little weight to what courts say, (Opinions about Opinions) rather I pay attention to what the founders said and did.) That puts a new spin on it. Could Crony Capitalism be rearing it's ugly head in this?

46 posted on 02/04/2012 5:07:02 PM PST by DiogenesLamp (Partus Sequitur Patrem)
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To: bushpilot1
Mr Rogers should have stayed on the religious threads. He’s fixin to get another enlightenment.

It won't do any good. Jesus could cure blindness but the rest of us aren't up to the task. :)

47 posted on 02/04/2012 5:10:02 PM PST by DiogenesLamp (Partus Sequitur Patrem)
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Comment #48 Removed by Moderator

To: Mr Rogers

How many parts in Vattel’s Law of Nations. 1 2 3 4 5 6?

Do all the parts discuss International law?


49 posted on 02/04/2012 5:36:21 PM PST by bushpilot1
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To: bushpilot1; Red Steel; rxsid; LucyT; Danae; GregNH
I do not consider myself to be a “superbirther” but rather a truth-seeking fact finder and evidence examiner. It goes back to being a retired CPA and Certified Fraud Examiner who happened to spend six years in court in a custody battle. I had to practically memorize the Texas Code of Civil Procedure (the green and red ones for those years...Texas lawyers will know what I mean)

IMO, the WKA court decided that WKA was a 14A citizen. His parents were “subject to the jurisdiction” of the USA and he was born in the country. WKA was NOT an NBC.

The WKA court cannot be blamed if, subsequently, this decision was twisted first by Ankeny and then by Malihi to declare Barry (with a UK subject father) to be NBC, and, in effect, to also declare Anwar al-Awlaki, an anchor baby who blossomed into a terrorist to be eligible to be POTUS!

I do NOT believe that these distortions are what the WKA court decided. IIRC, Leo Donofrio came around to stating that WKA was correctly decided, once he correctly parsed the NBC language in the Minor holding on the definition of NBC.

50 posted on 02/04/2012 5:40:35 PM PST by Seizethecarp
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