ROOTS OF US LAW

ROOTS OF US LAW:  COMMON LAW

Posted by Atticus Finch on Jul 17, 2011  to World Net Daily forum on Presidential Eligibility

There is a reason why our legal system is referred to as Anglo-American jurisprudence instead of Roman-American jurisprudence or Franco-American jurisprudence. Since the founding of our nation, courts have acknowledged our common law heritage that is rooted in the English common law.

Justice Thomas in his concurring opinion in McDonald v. City of Chicago 561 U.S. ____ (2010) observed: ”After declaring their independence, the newly formed States replaced their colonial charters with constitutions and state bills of rights, almost all of which guaranteed the same fundamental rights that the former colonists previously had claimed by virtue of their English heritage.. . . . .. Several years later, the Founders amended the Constitution to expressly protect many of the same fundamental rights against interference by the Federal Government. Consistent with their English heritage, the founding generation generally did not consider many of the rights identified in these amendments as new entitlements, but as inalienable rights of all men, given legal effect by their codification in the Constitution’s text. “

Furthermore, courts have acknowledged that the common law was a barrier to arbitrary power of the government. ”Those who emigrated to this country from England brought with them this great privilege “as their birthright and inheritance, as a part of that admirable common law which had fenced around and interposed barriers on every side against the approaches of arbitrary power.” Thompson v. Utah, 170 US 343, 349-350 (1898) quoting 2 Story’s Const. § 1779

Moreover, “When it is said that we have in this country adopted the common law of England, it is not meant that we have adopted any mere formal rules, or any written code, or the mere verbiage in which the common law is expressed. It is aptly termed the unwritten law of England; and we have adopted it as a constantly improving science, rather than as an art; as a system of legal logic, rather than as a code of rules. In short, in adopting the common law, we have adopted its fundamental principles and modes of reasoning, and the substance of its rules as illustrated by the reasons on which they are based, rather than by the mere words in which they are expressed.’ Fung Dai Kim Ah Leong v. Lau Ah Leong, 27 F. 2d 582, 584 (9th Cir. 1928 ) (internal

3 Responses to ROOTS OF US LAW

  1. arnash says:

    Regarding Vattel;
    “Are you suggesting that it’s somehow “obvious” that they were deviating from their own British legal roots, or are you suggesting that they were careless in not giving us better direction?” [in understanding the meaning of natural born citizen]

    British legal roots? Wake up! There were no roots for forming a brand spanking new form of government that existed no where else. The British tradition is exactly what they committed treason to overthrow! The founders were hungry for authoritative works on natural law and they didn’t care if it was written in French, which many, if not most of them could read and speak. That’s how they served as Ambassadors to France.

    This quote shows how they felt about monarchical foreign political ideas:
    “Delegates at the Constitutional Convention who were concerned with “admitting strangers into our public Councils,” and feared that “foreigners without a long residency in the Country …
    bring with them, not only attachments to other Countries, but ideas of Govt. so distinct from ours that in every point of view they are DANGEROUS!.”

    Re: Vattel and Religion; Americans fled to the New World to ESCAPE from religious persecution, not because they were tolerant of other branches of Christianity, but because oppression was almost mandatory where they came from. With many different denominations constituting the colonies, after nearly two centuries they came to a point of acceptance and a realization that they weren’t each other’s enemy, King George was.

    The founders didn’t “embrace” Vattel in either religion or principles of natural citizenship. They simply understood that his *observation* (not definition) was accurate. Membership in every single natural group in the world throughout all time has been based on being born into the group, with or without any man-made rules. It’s natural membership. It didn’t take any connection to common law to know that.

    The term natural born citizen may have been invented as a combination of born citizen and natural citizen rather than transmorgrified out of “natural born subject” which was an alien idea
    to all Americans except loyalists.

  2. arnash says:

    There is only one criteria for the making of a natural citizen and that is that a child is born to citizen parents. The future is irrelevant. Rubio was born to immigrant foreigners, not immigrant Americans because they were not naturalized until years after he was born. One cannot “become” a natural citizen later in life since one must be born as one. It’s not a matter of semantics, it’s a matter of nature, -having the nature (citizenship) of one’s parents, which is a nature one is born with.

    The original wording supplied by Hamilton was that the president must be born a citizen of the U.S., but that was not accepted because it meant that the U.S.born child of a foreigner could one day command the military of the United States, and that was unanimously viewed as unacceptable. Only off-spring of citizens would have no contamination of any direct connection or allegiance to a foreign nation and its King.

    Almost anyone can be president. Everyone I know and almost everyone I’ve ever known would be eligible because they were born to American citizens. We are all natural indigenous natives of America because our parents were. Natural citizens can be produced by foreigners directly as their own children, not just later as grandchildren, simply by being naturalized before their children are born.
    Where an off-spring is born matters not in natural citizenship nor in nature. By not following the 14th Amendment, the executive branch violates it every day by deeming anyone born here to be a citizen. Even though it is against their own written policy. AN

  3. arnash says:

    http://people.mags.net/tonchen/birthers.htm#ref04.04

    Obama Presidential Eligibility – An Introductory Primer
    Copyright (©) 2009-2011 Stephen Tonchen

    Naturalized at birth: In 1608, Francis Bacon wrote that English law “naturalized,” at birth, English-born children of alien parents, as well as foreign-born children of English parents. In both cases, the children were, at birth, natural-born subjects. But their natural-born subjecthood was conferred by English law, not natural law.

    Furthermore as the law of England must favor naturalization as a branch of the law of nature, so it appears manifestly, that it doth favor it accordingly. For it is not much to make a subject naturalized by the law of England: it should suffice, either place or parents. If he be born in England it is no matter though his parents be Spaniards, or what you will: on the other side, if he be born of English parents it skilleth not though he be born in Spain, or in any other place of the world. In such sort doth the law of England open her lap to receive in people to be naturalized; which indeed sheweth the wisdom and excellent composition of our law … (Bacon, Francis, pp.664-665)

    In Vattel’s understanding, English-born children of foreign parents were “naturalized” at birth. These children became English natural-born subjects, not by natural law, but by a naturalization statute enacted by Parliament in 1604.

    Finally, there are states, as, for instance, England, where the single circumstance of being born in the country naturalizes the children of a foreigner. (Vattel, § 214)

    English-born children of alien parents were natural-born subjects in the sense that they had property rights. But such children did not have the same economic and municipal rights as did English-born children of English parents. Prior to 1737, English-born children of alien parents could not become “citizens” (freemen) of an English city or town (see Question 25: English citizenship).

    When someone was born in England and both of his parents were aliens at the time of his birth, he was deemed a natural-born subject, but nevertheless had to pay aliens’ duties:

    There is a curious passage in Hale’s Treatise Concerning the Customs concerning aliens’ customs in the 17th century. He says “If an alien come into England and have issue [child] here, he [the child] is a natural-born subject. Yet … such a natural-born subject hath been decreed heretofore to pay aliens’ duties…” Hargrave, Tracts, vol. I (1787) 210. Cf. the similar tendency to treat the native members of the foreign Protestant congregations as aliens…. The statute 12 & 14 Car. 2, c. 11 furthered the policy by disabling infant children of aliens from trade. (Parry, footnote 327).

    Summary: When the U.S. Constitution was written, the law “on the books” was that English-born children of alien parents were denizens. These children were called “natural-born subjects” (in the general sense) because they were naturalized, at birth, by statute. They were deemed natural-born subjects by law, but were not natural-born subjects in fact.

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