Natural-Born Subject; Before & After Calvin Pt.1
May 5, 2014 2 Comments
~a three-for-all of NBC truth involving Tonchen, & Gard, & Nash
Bob Gard’s Letter to Stephen R. Tonchen
Dear Mr. Tonchen:
I was impressed by your web site and your vast knowledge. We are in total agreement about most issues.
To your critics that attack your lack of legal credentials, I can only respond the same way I did to Karl Rove. I told Karl Rove he was a fool with respect to the meaning of natural born Citizen and I will tell your critics they are fools too. Back in the day of the Constitution, the definition of a fool was (and still is): One born without the usual powers of reason or understanding. That is a bit different from the definition of those who, like Karl Rove and your critics, yield to others—judges and lawyers—their powers of reason or understanding. Perhaps I should begin labeling these people “voluntary fools” in deference to more precise terms.
The reason that no lawyer and no judge have ever clearly figured out what American natural-born citizens are is their total commitment to legal credentials. Those credentials chain the owner to look solely for legal precedent as the answer to any legal issue. When Karl Rove and your foolish attackers bet all their chips on legal precedent, they restricted their research to one area. They forsook history and linguistics. To educated people who defer to the American judiciary for reasonable and logical judgments concerning our Constitution, I say simply that they have foolishly relinquished their right to think for themselves.
The Constitution is written in plain English. Any eighth-grader without an agenda should understand it better than any lawyer or judge with an agenda. For anyone to judge Tonchen on his non-legal background instead of the formidable facts and knowledge contained in his web site gives rise to one of the main reasons that our Constitution has been distorted to the extent that it no longer resembles anything its framers intended. Such people want other people to think for them, to guide them in life.
I think they are called liberals and progressives and they belong to the Democratic Party. When they get insulted by facts, they immediately resort to name-calling. They throw sticks and stones. While reaching down for the sticks and stones, they overlook any stone labeled “fact.” How many refutations of facts have you seen in the comments directed at birthers?
Being a Democrat, I would be remiss to mention that the vast majority of conservatives and Republicans, though not as prone to name-calling, are so afraid of political correctness that they purposely erect a wall of silence against works like Tonchen’s and mine; the less famous we are, the higher the wall. If Andrew Napolitano wrote my eBook, he would sell a lot but he would also be fired from Fox News for breaking certain political correctness standards the television station maintains. That network is still into writing off birthers as wackos under the Karl Rove axiom that re-addressing the issue would cause a detriment to the Romney campaign. I was utterly naive to think that the conservatives would not bury my press release while condemning my eBook to oblivion with the same alacrity as liberals.
Others of my critics, none of whom have read my eBook from start to finish, voiced their disappointment that I presented no smoking-gun evidence to prove my contention that the true definition of natural born Citizen originated with Vattel’s “indigenes.” I thought that was why I announced in my title that my proof shall be “beyond a reasonable doubt.” I did not want to disappoint or mislead readers who were looking for the smoking gun. “Beyond a reasonable doubt” is one level below “beyond a shadow of doubt,” which almost always includes a proverbial smoking gun.
[Nash responds: Gard failed to grasp that an origin for the three word requirement for Presidents is not found in any writing but in the principles of Natural Law and the English language meaning of the words: "natural citizen" and "born citizen". He used the term "true definition" which implies that a definition is needed and that it is something to be deduced from the legal realm, when neither is true. Is a definition needed for "a wise old man"?]
I repeat, John Jay went to England to negotiate a treaty that would internationally outlaw impressments [forcing naturalized Americans of British ancestry to serve the king's Navy instead of the American Navy] and unjustifiable prizes based on England’s definitions of naturalized subjects, [of which there were almost none since it required an act of Parliament] regular subjects [no such term exists] and natural born subjects as opposed to America’s definitions of naturalized citizens, regular citizens and natural born citizens. I deem that is undeniable.
If our definitions of the three categories of citizenship were closely related to Britain’s three definitions of subjectship, on what grounds would we have been able to dispute Britain’s actions on the high seas? I reason that this conclusion falls within the realm of common sense.
[the problem was not about definitions, they weren't contested, it was about the rightful authority of the monarch to own his subjects for life, -and not allow them to expatriate themselves for another nationality. The right to do so was the basis of the American revolution as the Americans threw off their British subjectship and became independent of the Throne of Britain.]
Years later Britain conformed to international jurisprudence, thereby joining the international legal community, by dropping the perpetual-allegiance requirement so inherent in her subjectship. This can only be additional proof that natural born citizen did not grow from the root of natural born subject.
[that is faulty logic since the origin could be the same but the restriction placed on natural subjects of lifetime allegiance had nothing to do with the origin of their national membership.]
Natural-born in each vocabulary later meant, as it does today, childbirth without intervention by midwives or doctors. I cited a reference to this kind of birth in Coke’s Institutes:
“I have known a woman bear a living child, in a perfectly natural way, fourteen days later than nine calendar months and believe two women to have been delivered of a child alive, in a natural way,”
[that also is false logic. "natural-born" is not found in that statement and it is false to think that humans can intervene in childbirth other than by performing a Cesarian section. Other than surgery, all birth is natural birth.]
In natural-born’s position before “subject,” it entails jus soli and at times jus sanguinis with obligatory perpetual allegiance to a monarch.
[that is a false characterization. Jus sanguinis is not something one could label as involved "at times" since 98% of the children born in Britain were born of natives, and not immigrants. Their national membership was most definitely via jus sanguinis (by right of blood) just as it had been for the thousand years before the Calvin case. His reference must be to those born outside of Britain, -as if they are natural subjects by blood but not so if born inside of Britain.]
Before [the word] citizen, it [natural-born] entails jus soli and perfect jus sanguinis with voluntary allegiance and an inalienable right to expatriation. By voluntary allegiance, I mean no demand can be made of active support anytime, anywhere, except by military induction and the obligation not to commit treason.
[and yet it does not entail jus soli at all, as demonstrated by the Naturalization Act of 1790, in which the first Congress sought to protect the unalienable right of all children of Americans to inherit their father's political status, (specifically, presidential eligibility) -regardless of birth location. It orders all officials and judges in America to recognize that children of Americans born abroad are also natural born citizens.]
Bob Gard email@example.com
1) Today, I updated my Primer, section 4.4, so that it contains a new example of an 18th century English-language publication which used the term “natural born citizen” — Spelman’s translation (1758) of Roman Antiquities.
The statement, “All underage boys and girls living in Mrs. Clayton’s home are Mrs. Clayton’s children”, is a true statement, but is also a misleading statement. It is misleading because it fails to distinguish between Mrs. Clayton’s children in fact (her biological offspring) and Mrs. Clayton’s children in law (her children by adoption or marriage).
Likewise the statement, “All children born on English soil are English natural-born subjects,” is a true statement, but is also a misleading statement. It is misleading because it fails to distinguish between natural-born subjects in fact, and natural-born subjects by law.
[yes! the Brits took to conflating the two for the sake of simplicity, equality, and the fact that their rights were identical in all respects since there was no elected office of King, or President, or Commander in Chief.]
Timothy Cunningham’s, A New and Complete Law-Dictionary (published in 1764, and reprinted in 1771), was the only law dictionary that James Madison ordered for the Continental Congress. It was one of the most popular comprehensive English dictionaries of the late eighteenth century, and was found in many personal libraries, including those of Thomas Jefferson and John Adams. It was contemporaneously used by various American Supreme Courts for clarification of legal terms.
Cunningham’s Law Dictionary gave this factual (as opposed to legal) definition of “natural born subject”:
“All those are natural born subjects, whose parents, at the time of their birth, were under the actual obedience of our king, and whose place of birth was within his dominions.”
Cunningham and multiple other sources tell us that “true” natural born subjects were persons born within the king’s realm, of parents owing actual allegiance to the king. All other so-called natural-born subjects were not “real” natural born subjects; they were merely deemed to be natural-born by “a fiction of law“.
[response by Nash: That would be true were it not for the inclusion of the inappropriate word “all”, as in “All other so-called natural-born subjects were not “real”…”. Lacking “all” it is true, but with it, it is false because foreign-born English sons were natural subjects of their father’s king since they were born to a father who was subject and he remained subject for life. Their status and nationality naturally followed and flowed from his as his issue.
That is self-evident with just a modicum of consideration, but what isn’t self-evident is an extremely subtle truism of logic which was completely overlooked in the first statement. It defines a certain class of people as being natural born subjects, but it does not disambiguate that statement by exclusionary boundaries. It says that all of the people described are nbs, but does not follow with a statement that only those people are nbs.
Just turn the tables 180 degrees and one can see the magnitude of the error. Suppose it stated that all are natural born subjects who were born of subjects outside of the national borders, -which would be true. That would say that native-birth did not a natural subject make but a blood connection was the source of natural subjection, and that would be the national truth of the matter. But what would be missing? All of the vast majority of natural subjects who were born within the national boundaries, -they comprising 98% of the national population. Opps! Slight over-sight. Slightly incorrect by omission. A logical error of linguistics or definition.
Cunningham’s Law Dictionary gave this factual (as opposed to legal) definition of “natural-born subject”: “All those are natural-born subjects, whose parents, at the time of their birth, were under the actual obedience of our king, [meaning permanent and not temporary, -as with immigrants] and whose place of birth was within his dominions.”
[But there's a problem in that the statement of who is an nbs is not an actual definition because it doesn't state that no one else is an nbs. The ones described are not defined as the only NBSs and therein lies the misconstruction and misconception.
Everyone so described ("all") are NBS but others not so described are NOT declared to not be NBS under any circumstances. If that kind of description had been given, it would be a true definition. No such definition has ever been given.
Those not mentioned (the non-native-born) are also NBS but are of a number so small as to be insignificant and thus automatically overlooked. Out of sight and out of mind. General "definitions" do not throw in all possible details of all exceptions that are extremely rare and thus insignificant. That is not how humans think nor talk nor write, and so you end up with incomplete descriptions that are not true definitions because they require far more disambiguation.
That simplistic statement needs a perfect analogy to reveal its inadequacy as a definition. Suppose...a teenage girl gives birth at home. One could say: All children are her natural children if she gave birth to them while living under the authority and roof of her parents.
Yes, that is true, but it is not all that is true. It is a specific, framed, circumstance that is not all-inclusive at describing who could be her natural children. He natural children are still just that if born in the opposite circumstance. The circumstance described in my example is not analogous to subjectship but shows that what could be said, or omitted, may be irrelevant or partially irrelevant to the truth of the matter.
Another example: All slave babies born on my property to my slaves are also my slaves. Ok, that would be true, but what if one of them is at my mother & father's home taking care of them? Does that make her baby theirs? Or does it make it free born? Or is it mine by right of issue of one who is my property, just like with animals that I own. If my mare gives birth in another's pasture, does it become that pasture owners' property or is it naturally mine as the owner of the mother that produced it? The answers are rather self-evident.]
I am willing to be shown otherwise, but as it stands now, I see no reason to believe that the Framers of the Constitution rejected Cunningham’s definition of “natural born” and then replaced it with an equivalent definition of their own making.
[The error of thinking of both Tonchen and Gard is in assuming that "naturalborn" is a term that has a definition, -whatever it is. If it is not a term then it certainly does not have a definition. In fact that is the case. "Natural" has no connection to "born", and vice versa. They both convey distinct and different concepts related to the noun "citizen".
The one, (natural citizen) conveys origin of citizenship (blood descent), while the other "born citizen" conveys an ambiguous reference to either origin or to when citizenship began (at birth). One relates to nature and blood as origin while the other relates to timing and acquisition. But by combining the two, stringing them together and then underlining the word "born" John Jay eliminated ambiguity and conveyed the concept of one who was born being a natural citizen and not made a natural citizens via the fiction of law known as the doctrine of citizenship equality. That fiction, that artifice of American political philosophy, designated the naturalized and the citizen-at-birth as being natural citizens just like the 98% of the nation who were its natives by blood.]
Bob Gard; If you consult my dictionary Tables I and II, you will find that not a single Samuel Johnson dictionary from 1755 to 1854 had an entry for natural-born or natural born citizen. [neither term existed as terms or they would have been included] Looking at Table III, it is evident from 1703 to 1856 that no non-Samuel-Johnson English dictionary showed an entry for natural born citizen. In Table IV, you will find that the first dictionary from 1703 to 1883 that had a definition for natural-born by itself–not as a part of natural-born subject or natural-born citizen–was Ogilvie, John, LL.D., The Imperial Dictionary of the English Language, A Complete Encyclopedic Lexicon, Literary, Scientific, and Technological, New Edition, Carefully Revised and Greatly Augmented. Edited by Charles Annandale, M.A., Blackie & Son, 49 and 50 Old Bailey, E.C., London, 1883. You see, there was no commonplace, common-law, or legal definition for natural-born in print as far as I know. Please show me any reference to the “the English common law definition of ‘natural born.’” I never found any.
Neither your Cunningham nor my Giles law dictionary contains a definition for natural-born, only natural-born subject. Ergo, I contend that natural-born in and of itself had no legal definition at the time. In fact, the term did not even come into play for natural childbirth until much later. The legal meanings were derived from their juxtapositions before subject or citizen, which gives me the reasoning behind my disagreement with you. Therefore, I am forced to conclude, contrary to your cited statement at the top of my response, Cunningham offered no definition for natural-born, whereas he did offer one for natural-born subject. To make assumptions about the definition of natural-born by itself when it never appeared in any common or law dictionary does not seem proper to me.
Please open my eBook and search for Plowden. Bring up Fig. 193, a photo of the title page of his first book. His two books bore more fruit about the history of natural-born subject than any others. I probably quoted more than sixty pages verbatim from them. He is really one of the main reasons I say that natural-born subject had nothing to do with natural born citizen. Please read the citations from the pages of his two books. Never once did he make a reference to natural-born all by itself. His two books compose the bible of natural-born subjectship.
Stephen Tonchen wrote:
From 1608 (when Calvin’s Case was decided) to 1787 (when the U.S. Constitution was adopted), there were two kinds of natural-born subjects: subjects-born (those who are natural-born subjects by birth within the realm, of parents owing actual obedience (allegiance) to the king.), and subjects-made (those who are natural-born subjects by acts of Parliament).
2) Regarding the term “natural subject”, it appears to me that “natural subject” and “natural-born subject” are synonymous, one being an abbreviation of other. I cannot find any source suggesting that the two terms have materially-different meanings. The Naturalization Act of 1541 conferred “natural subject” status, at birth, to children born overseas to English fathers. According to the Act of Anne (1708), “the children of all natural-born subjects, born out of the ligeance [territory] of her majesty, her heirs and successors, shall be deemed, adjudged and taken to be natural-born subjects of this kingdom…”.
[ that sentence counters the one before it which used the word "conferred". That coveys that something is granted, given, or authorized, but government cannot give that which one is born with, -cannot grant that which is already an element of one's political nature. The word "conferred" was no doubt a word selected because of Stephen's lack of understanding of the fact that the 1541 law was merely a protective declaration of the truth, which is seen in the second sentence. "shall be deemed, adjudged and taken to be natural-born subjects of this kingdom...". That is not a command to adhere to a legal fiction, but is an order to recognize a reality. It does not mandate that they be deemed and adjudged to be equal to natural-born subjects, but that they in fact are and must be recognized as such by all magistrates of the government. Imagine a world in which all are blind. Native Americans are still a special class, but no one can tell who they are by looking at them. They need a special Braile ID that designates them to be Native Americans. It does not make them Native Americans, it doesn't permit them to be treated as native Americans. Rather, it recognizes that which is, it does not make it to be so.]
Don Hector Nunez was never naturalized or endenized. [made a denizen by the king] Yet, in January 1576, an administrative court deemed him to be a “natural subject” of Queen Elizabeth, by virtue of his continuous 20-year residence in England. In both instances, “natural subject” is used the same way that “natural-born subject” is used in later writings. [don't think for a moment that a court had the authority to change the meaning of words, and throw out the law of nature as defining what a natural subject was.]
According to Judge Yelverton (one of the judges who decided Calvin’s Case) and at least three 17th-century English court rulings after Calvin’s Case, only subjects-born were “real” natural-born subjects. Subjects-made — those who were deemed to be natural-born subjects by a private or public act of Parliament — were taken, reputed, adjudged and/or deemed to be natural-born subjects by “a fiction of law“. They had some legal rights associated with “natural born subject” status but they were not natural-born subjects in fact.
Parliament may deem someone to be a subject, but it lacks the power to make anyone into a real subject (a subject “indeede”). When conferring “natural-born subject” status to someone, Parliament was careful not to say that it was making anyone into an “actual” natural born subject.
In 1604, Parliament enacted a law granting statutory “denizen” status to children born on English soil, of alien parents. But Parliament never said that such children were real or actual natural-born subjects; Parliament merely said that such children were “aliens made denizens”.
[that changed as a result of the Calvin case. It switched the focus from one's connection to the nation to one's connection to the king. From then on, if one was born within his realm and not of a father who was an invader or an ambassador, one was given the designation of natural-born subject since subjection began at birth. Thus the denizen status of alien-born children was upgraded to full subject status under the doctrine that the father was subject enough, though an alien, not an Englishman, for his child to be deemed to be born subject for life to the monarchy. Then the view of them changed from being alien-born to being subject-born. They could have been labeled as born-subjects (by legal order of the court) as apposed to natural subjects (by natural inheritance). The situation might have arisen wherein mention of new rules, or laws covering "all natural subjects and all born subjects.." came to be viewed as overly cumbersome and so was shortened to "all natural / born subjects...", and eventually just lumping them together via a hyphen. I can think of no other explanation for the appearance of the hyphen. A true natural subject doesn't need the word "born" attached since it is inherent in its meaning, making "born" an unnecessary redundancy. Something had to have happened to the language as it was bastardized, simplified, and consolidated.]
According to three 17th-century English court decisions — Foster v. Ramsey (1656), Collingwood v. Pace (1661-1664), and Craw v. Ramsey (1669-1670) — persons who became English subjects by an act of Parliament were not “real” subjects. There naturalization is a fiction of law, which has no effect except in countries consenting to that fiction.
Lord Coke (in his Report on Calvin’s Case) divided all English subjects into two mutually-exclusive categories: subjects-born and subjects-made. “Subjects-made” included those endenized by the king and those who became subjects by acts of Parliament. Therefore, by process of elimination, “subjects-born” must refer only to persons who were natural-born subjects by birth.
[note that the term "natural born subject" is not referred to, -only "subjects" alone. It is an unjustified leap of logic to assume that if one is subject-born that one is a natural subject since the alien-born were deemed to be subject born also due to the Calvin case. I'm of the presumption that the term "natural-born subject" never existed until brought into existence as a necessity to have a single moniker for both the natural subjects and the alien-born subjects, which were equal and equivalent before the law. That didn't make them literally the same.
Imagine two very large and competitive neighboring tribes ruled by proud royals. But at the death of one of them (the king of England), there was no male heir to inherit his rule. So the elders invite the ruler of their neighboring tribe (Scotland) to be their king also. And then suppose that the leaderless tribe had a hard ancient rule that there could be no intermarriage between them. Well, with one king ruling both tribes, there would be no good reason to prevent intermarriage. If the rule was that only members of their tribe could marry other members, then those in the other tribe wouldn't qualify, -unless you changed the focus of the rule from being on the tribe to being on the king. With that change, it could be declared that anyone who was born subject to the king of both tribes was born a royal subject and therefore not excluded by the rule. Then the unifying element of tribal ancestry and blood connection was displaced by the unifying element of who one's ruler was. Presto! Problem solved (via the court's decision in the Calvin case).
Then the other tribe's members could marry the natural members of their new partners, producing hybrid members having family in both groups, with those newly considered as being members from birth joining those who were natural members by ancestry, with their birth-place not considered. In England the issue wasn't marriage but buying and inheriting property. That had been forbidden to all except Englishmen. Afterward, it was forbidden to all who weren't born as subjects, regardless of being born of foreigners (Scotsman, by the court's ruling, and later expanded to all children born subject to the throne of England, with the meaning of what being "subject" meant changing significantly. Without a new view of subjection, the new fiction of being included under the laws of England would not have had a basis. Thus foreign fathers had to be viewed as being subject to the king, -at least as long as they lived within his realm, even while they remained fully the subjects of their own monarch. That then became irrelevant in the new paradigm.]