Blackstone's Commentaries on Citizenship

1765 The first and most obvious division of the people is into aliens and natural-born subjects. Natural-born subjects are such as are born within the dominions of the crown of England, that is, within the ligeance, or as it is generally called, the allegiance of the king; and aliens, such as are born out of it. Allegiance is the tie, or ligamen, which binds the subject to the king, in return for that protection which the king affords the subject. The thing itself, or substantial part of it, is founded in reason and the nature of government; the name and the form are derived to us from our Gothic ancestors.

Allegiance, both express and implied, is however distinguished by the law into two sorts or species, the one natural, the other local; the former being also perpetual, the latter temporary. Natural allegiance is such as is due from all men born within the king's dominions immediately upon their birth. For, immediately upon their birth, they are under the king's protection; at a time too, when (during their infancy) they are incapable of protecting themselves. Natural allegiance is therefore a debt of gratitude; which cannot be forfeited, cancelled, or altered, by any change of time, place, or circumstance, nor by any thing but the united concurrence of the legislature. An Englishman who removes to France, or to China, owes the same allegiance to the king of England there as at home, and twenty years hence as well as now. For it is a principle of universal law, that the natural-born subject of one prince cannot by any act of his own, no, not by swearing allegiance to another, put off or discharge his natural allegiance to the former: for this natural allegiance was intrinsic, and primitive, and antecedent to the other; and cannot be devested without the concurrent act of that prince to whom it was first due. Indeed the natural-born subject of one prince, to whom he owes allegiance, may be entangled by subjecting himself absolutely to another; but it is his own act that brings him into these straits and difficulties, of owing service to two masters; and it is unreasonable that, by such voluntary act of his own, he should be able at pleasure to unloose those bands, by which he is connected to his natural prince.

Local allegiance is such as is due from an alien, or stranger born, for so long time as he continues within the king's dominion and protection: and it ceases, the instant such stranger transfers himself from this kingdom to another. Natural allegiance is therefore perpetual, and local temporary only: and that for this reason, evidently founded upon the nature of government; that allegiance is a debt due from the subject, upon an implied contract with the prince, that so long as the one affords protection, so long the other will demean himself faithfully. As therefore the prince is always under a constant tie to protect his natural-born subjects, at all times and in all countries, for this reason their allegiance due to him is equally universal and permanent. But, on the other hand, as the prince affords his protection to an alien, only during his residence in this realm, the allegiance of an alien is confined (in point of time) to the duration of such his residence, and (in point of locality) to the dominions of the British empire.

When I say, that an alien is one who is born out of the king's dominions, or allegiance, this also must be understood with some restrictions. The common law indeed stood absolutely so; with only a very few exceptions: so that a particular act of parliament became necessary after the restoration, for the naturalization of children of his majesty's English subjects, born in foreign countries during the late troubles. And this maxim of the law proceeded upon a general principle, that every man owes natural allegiance where he is born, and cannot owe two such allegiances, or serve two masters, at once. Yet the children of the king's embassadors born abroad were always held to be natural subjects: for as the father, though in a foreign country, owes not even a local allegiance to the prince to whom he is sent; so, with regard to the son also, he was held (by a kind of postliminium) to be born under the king of England's allegiance, represented by his father, the embassador. To encourage also foreign commerce, it was enacted by statute 25 Edw. III. st. 2. that all children born abroad, provided both their parents were at the time of the birth in allegiance to the king, and the mother had passed the seas by her husband's consent, might inherit as if born in England: and accordingly it hath been so adjudged in behalf of merchants. But by several more modern statutes these restrictions are still farther taken off: so that all children, born out of the king's ligeance, whose fathers were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes, without any exception; unless their said fathers were attainted, or banished beyond sea, for high treason; or were then in the service of a prince at enmity with Great Britain.

The children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such. In which the constitution of France differs from ours; for there, by their jus albinatus, if a child be born of foreign parents, it is an alien.

A denizen is an alien born, but who has obtained ex donatione regis letters patent to make him an English subject: a high and incommunicable branch of the royal prerogative. A denizen is in a kind of middle state between an alien, and natural-born subject, and partakes of both of them. He may take lands by purchase or devise, which an alien may not; but cannot take by inheritance: for his parent, through whom he must claim, being an alien had no inheritable blood, and therefore could convey none to the son. And, upon a like defect of hereditary blood, the issue of a denizen, born before denization, cannot inherit to him; but his issue born after, may. A denizen is not excused from paying the alien's duty, and some other mercantile burthens. And no denizen can be of the privy council, or either house of parliament, or have any office of trust, civil or military, or be capable of any grant from the crown.

Naturalization cannot be performed but by act of parliament: for by this an alien is put in exactly the same state as if he had been born in the king's ligeance; except only that he is incapable, as well as a denizen, of being a member of the privy council, or parliament, &c. No bill for naturalization can be received in either house of parliament, without such disabling clause in it. Neither can any person be naturalized or restored in blood, unless he hath received the sacrament of the Lord's supper within one month before the bringing in of the bill; and unless he also takes the oaths of allegiance and supremacy in the presence of the parliament.

That's what I thought I heard too--but I know of know case that is near there as of now. So maybe the phantom case will be well known in 30 days and then approach the USSC after that? That could be an interpretation of what I heard.

Mind you, I tried to press for more information, but it was not forthcoming. Either this party did not want to reveal the contents of the emails because it would point to a where it came from, or another reason, or the whole thing was smoke and mirrors... Who actually knows. But I will say, that this guy is a political consultant hanging out for two days for a republican candidate running for office from PIMA county.

Since I am not keyed into AZ politics, I was there at the fair with my museum, I am not keen on all the players. To give a little insight, my booth is at the entrance to the main exhibitor building...so one would have to go past me to go about anywhere. He stopped by and we began chatting about the fair. He told me he was here on behalf of candidate X (quite frankly I don't know who, but I think he's running for governor. The political consultant layed out the political map and how they were going to defeat the Maricopa machine. Interesting I thought.

Our conversation turned to national politics and the upcoming november congressionals--it was then that he offered up the "Birther" topic. It was he that proffered that description saying something to the extent that, "There is a group of people called "Birthers"....And that he had received an email the previous evening saying that someone with "standing" has been found and that a case is moving in the system now and that within 30 days one would begin hearing about it and that it would be going to the Supreme Court. The writer of the email as well as the political consultant were worried about the prospect of a constitutional crisis and Nancy Pelosi becoming president. The next Day our conversation continued as I tried to press more and that is where I offered that the only person with standing would be a US Attorney. I didn't see how someone out of the US AG's office would prosecute such a case. It was then he told me that State AG's are also US Attorneys, someone that can enforce federal laws, I think the way he put it. If that is the case I said then such a state would have to have a compliant legislature and governor--referring to the recent problems with some state AGs and the Obamacare suits.

He then began talking about AZ and the conversation would not focus on the issue. SO either he was being cagey, or who knows...

But folks that is it in its totality ...like I said before, take it for what its worth.

From there the conversation ran as I outlined above.

All very fascinating

The Founders, who got their legal systeme from Britain through Blackstone

You might want to read Tucker's Blackstone, formally titled:

BLACKSTONE'S COMMENTARIES:
WITH
NOTES OF REFERENCE,
TO
THE CONSTITUTION AND LAWS,
OF THE
FEDERAL GOVERNMENT OF THE UNITED STATES;
AND OF THE
COMMONWEALTH OF VIRGINIA.

Published in 1803.

You'll see that very much of the English Common law, as documented by Blackstone, just didn't apply, either in the Colonies, or even more so, in the United States, after Independence.

Particularly those parts dealing with the state and the individuals relationship to it.

In fact Tucker says that Blackstone himself declared that the Common Law was not applicable to the American Colonies. But Tucker disagrees, but only so far as those laws proteced *individuals* rather than the state or crown.

And here we may premise, that by the rejection of the sovereignty of the crown of England, not only all the laws of that country by which the dependence of the colonies was secured, but the whole lex prerogativa (or Jura Coronae before mentioned) so far as respected the person of the sovereign and his prerogatives as an individual, was utterly abolished: and, that so far as respected the kingly office, and government, it was either modified, abridged, or annulled, according to the several constitutions and laws of the states, respectively: consequently, that every rule of the common law, and every statute of England, founded on the nature of regal government, in derogation of the natural and unalienable rights of mankind; or, inconsistent with the nature and principles of democratic governments, were absolutely abrogated, repealed, and annulled, by the establishment of such a form of government in the states, respectively. This is a natural and necessary consequence of the revolution, and the correspondent changes in the nature of the governments, unless we could suppose that the laws of England, like those of the Almighty Ruler of the universe, carry with them an intrinsic moral obligation upon all mankind. A supposition too gross and absurd to require refutation.

In like manner, all other parts of the common law and statutes of England, which, from their inapplicability, had not been brought into use and practice during the existence of the colonial governments, must, from the period of their dissolution, be regarded not only as obsolete, but as incapable of revival, except by constitutional, or legislative authority. For they no longer possessed even a potential existence, (as being the laws of the British nation, and as such, extending, in theoretical strictness, to the remotest part of the empire,) because the connexion, upon which this theoretical conclusion might have been founded, was entirely at an end: and having never obtained any authority from usage, and custom, they were destitute of every foundation upon which any supposed obligation could be built .... This is a regular consequence of that undisputed right which every free state possesses, of being governed by its own laws .... And as all laws are either written; or acquire their force and obligation by long usage and custom, which imply a tacit consent;[52] it follows, that where these evidences are wanting, there can be no obligation in any supposed law.

Another regular consequence of the revolution was this: when the American states declared themselves independent of the crown of Great-Britain, each state from that moment became sovereign, and independent, not only of Great-Britain, but of all other powers, whatsoever. Each had it's own separate constitution and laws, which could not, in any manner, be affected or controlled by the laws, or constitutions of any other. From that moment there was no common law amongst them but the general law of nations, to which all civilized nations conform. And as no law could thereafter be imposed upon the people of any state, but by the legislature thereof, so no law could be obligatory in one state, merely because it was obligatory in another. And how much soever their municipal institutions might agree, one with another, yet as it was in the power of their legislatures, respectively, to alter the whole, or any part of them, whenever they should think proper, therefore, such coincidence by no means established a common rule amongst them; because, as was before observed, the establishment of a law within the jurisdiction of one state, gave it no authority within the jurisdiction of any other. From hence it follows, that the adoption of the common law, or statutes of England, in one state, or in several, or even in all, although it might produce a general conformity in their municipal codes, yet as such adoption was the separate act of each state, it could not operate so as to give to those laws a sanction superior, to any other laws of the states, respectively; inasmuch as each state would still have retained the power of changing, or rejecting them, whenever it should think proper: and much less, could the adoption of them under various modifications, limitations, and restrictions, (as was actually the case,) create such a superior sanction, as thereafter to render them paramount, not only to the legislative authority, but even to the constitutions, of the respective states.

This all from Note E wherein Tucker makes it pretty clear that there is no federal common law in the United States, except as generated by its own courts, not those of of England. Absent any positive statute law, a crime under the common law of England cannot be a federal crime in the US. (Of course by now there is plent of federal staute law to cover most any common law crime. But those statutes had to be passed by our own Congress, signed by our own President.

Sorry, Jack: here we’re born as citizens, sovereigns of this nation, and not as subjects under a monarch as in England.

Yes, and our nation was also a colony of England before the war of Independence. So the basis of most American law was English law. So the definitions used by the best legal minds of the day have direct bearing on the what the words meant to the founders. I had assumed that this was fairly clear, but apparently not. So, yes Americans took over the concept of "natural born citizen" from English (and more generally European law). And yes, of course they did not apply it to citizenship in England under a King (subject) but to citizenship in the new Republic, under the Constitution. Not everything was invented brand new on July 4, 1776.

Now I move on to the comments you have posted from Professor Solumn.

If the American conception of “natural born citizen” were equivalent to the English notion of a “natural born subject,” then it could be argued that only persons born on American soil to American parents would have qualified.

I'm at a loss to where he gets this, given that the British position, as explained by Blackstone in the excerpt I posted says exactly the opposite of that. Blackstone goes on at great length about the fact that the child of two natual born parents living abroad was concerned natural born.

So his thesis is clearly contradicted by the plain text, above.

I don't believe that your assorted quotes from John Jay and other early Supreme court cases are in context or particualarly relevant. I note in particular the lack of capitalization in the quote discussing the law of nature and the law of nations. I would not therefore assume that the author is discussing a particular book, as you seem to be asserting.

I would be interested, of course, is seeing the primary source documents quoted at length (without too much intersperced commentary) as I have done with Blackstone's commentaries.

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