Citizenship Truths Found in Ancient Law

nash wrote: “It may be true, and I suspect it is, that the States all continued with the never-changed native-birth common law citizenship rule …”

Wilted Rose said… New York definitely did not follow English Law.

“By an act of the legislature of New York, passed on the 27th of February 1788, (chap. 90, sect. 38), it is enacted, ‘that none of the statutes of England or Great Britain shall be considered as laws of this state.”

According to the “rule” of the common law, and not “the statutes of England or Great Britain” passed by Parliament, native-birth was accepted as being grounds to be deemed a citizen, but not a natural citizen since that required being a citizen by descent.

The common law continued, as I said, until altered by State laws or Constitutions.

“Judge Samuel Roberts’ “Digest of Selected British Statutes…” (Roberts’ Digest) On page 26 he says, “The children of aliens, born within the U.S. are aliens; they do not acquire citizenship by birth“. (1817)”

It is not known if he was a State judge or a federal judge.  His attitude could not possibly be true in regard to all States but could be, and I’ve always asserted it to be, true regarding the national policy adopted by Congress and administered by the executive branch of the federal government which rejected dual-citizenship and dual-allegiance.

[subsequent research uncovered this:  the Roberts work (published in 1817) is interesting.  Roberts is very confident and doesn’t appear to have much stake in the matter, but cites nothing and doesn’t give any details, and it’s not clear if he is talking about the law of Pennsylvania or U.S. law generally.

(According to the title page, Roberts was the President of the Court of Common Pleas of the Fifth Judicial District of Pennsylvania, a point confirmed here).  I’m not sure how persuasive this is, but it does show some evidence that the uncertainty about children of aliens born in the U.S. — noted much later in Minor v. Happersett — did reach back (to some extent) at least to the early nineteenth century.  (quoted here]

The States did not reject dual citizenship universally since that was an international matter and not an intra-State matter that concerned them.

Some clarity can be gained by looking at original State Constitutions.  I’ve read three, and they all included native-birth common law citizenship.  To suppose that in 1789, over a century of tradition of native-birth citizenship vanished off the face of the North American continent would be the height of absurdity.

~~~~~~~~~~~~

Mario opined: “At the ratification of the Constitution in 1788, state citizens also became citizens of The United States.”

Yes and no.  They became citizens of a new and improved United States, with a more powerful central government.  What that government did not have was any authority over citizenship.  What it did have was the obligation to write a new rule to make the nationalization rules of the States uniform nation wide.  And what did the new rule require be applicable nation-wide?  Being white, being good, and being a resident for a certain number of years.  Nothing more.  All of the rest flowed from natural law.  Derivative citizenship for the children of the naturalized was citizenship via descent by the natural law of membership. They became what their father had become; an American.

“After Congress passed the Naturalization Act of 1790, the states no longer had any authority to make citizens of the United States.”

“No longer”???  When exactly did they previously have that authority?  Never!  Their citizens entered into a compact of unity, a Union.  In it, all States recognized the citizens of all other States as long as they comported with the national standard rule for non-natives: “Whites only, and of good character.”  Any citizen recognized by all of the States was a national citizen as well, -a citizen of the union.

But the U.S. Justice and State Departments were not constitutionally required to honor State citizenship that included dual-citizenship due to native-birth and foreign parentage.  That divergence affected essentially no one except a few rare exceptions who were transported out of the US as babies or young children and raised abroad.  Otherwise, no one cared since it impacted no one.

“Rather, they continued to make just state citizens of persons born on their territory. Those state citizens were not citizens of the United States, unless they also satisfied the requirements of Acts of Congress.”

Your perspective is backwards.  I’ll rephrase: Those (naturalized) state citizens were citizens of the United States, unless they did not satisfied the requirements of the uniform naturalization rule.”  A “rule” is a guideline mandated by law. It is an obligatory guideline for the States to follow.  It is not an exercise of national authority over the citizenship of foreigners.

They naturalize themselves via their oath.  No power of government can do that for them.  Like marriage vows, the officiator does not make two people married.  Their vows do.  All Congress could do was make a rule as to who would be allowed to take that vow and swear that oath.  They had no authority to force foreigners to do so, nor to force the States to force them to do so.  It was 100% voluntary.  The foreign man naturalized himself via his pledge of full allegiance and total renunciation.  He became a new political creature via that renunciation and his pledge of loyalty & obedience.

~~~~~~~~~~

“…the Court referred to children born in the dominions to alien parents as both “denizen born” and as “natural born subjects.” The point is that these children were alien born and made by the common law into natural born subjects and by the King’s patent into denizens.”

Having looked up the meaning of denizen some time back, I learned that it simply means inhabitant in common vernacular.
That seems to mean that immigrants were inhabitants but not in possession of the legal rights of subjects, inheritance in particular.
The King’s letters patent could bestow such a foreigner with a minimum of rights but not the full rights of subjects. Only almighty Parliament could do that, -at a steep price.
The children of denizens were denizens also via habitation but were more, being subjects also, as Mario points out, via common law.

“the Court referred to children born in the dominions to alien parents as both “denizen born” and as “natural born subjects.”

That meant that they were inhabitant-born and not foreign-born. That was not a reference to any political status, just residency.

“The point is that these children were alien born and made by the common law into natural born subjects and by the King’s patent into denizens.”

Almost. The fathers were made denizens by the King’s patents, not the children. The fathers, being foreigners, had no natural rights as Englishmen, but their endenization gave them some rights. Their children inherited that status and more via common law.

“The next question that we have to investigate is when did a child born in the King’s dominion to alien parents come under the benefit of the common law and thereby come to be called a natural born subject”

As I’ve previously suggested, it must stem from the conundrum resulting from the Norman conquest of England in 1066-1068. How do you unify Frenchmen’s children with Englishmen’s children?
Only through the commonality of both being born within the King’s realm. Native-born, instead of subject-born.  As like what happened with Scotland when the Scottish king became king of England.
At that point, they had to abandon nationality based on descent, based on the national blood of the father since France & England were not like identical sisters but quite foreign to each other.

But they both had native birth in common, and thus it must have become the common law.  Further research will be needed to uncover the truth.

~~~~~~~~~~~~~~

“Denization is the granting of Subject status, in a limited way, to those born aliens.”

As I said, that seems wrong unless referring strictly to foreign-born aliens (i.e., foreigners, and not their England-born children). Endenization was similar to naturalization of foreigners. It was the granting to an adult foreign immigrant or resident certain English rights.

His native-born children were denizens by the natural meaning of the word (inhabitants) but were not limited to inheriting only the father’s limited status, but were deemed full subjects via common law.

“If an English Merchant that lives beyond Sea, marries there, and has a Child by his Wife, and afterwards dies, this Child is born a Denizen, and shall inherit, notwithstanding the Wife was an Alien.”

That grant was via Parliamentary statute, not via the king. It was a fiction of law that gave the child of a mixed nationality marriage some rights, (inheritance) but not full rights.
I presume that if the father was living, the child would have full subject rights if born in the right era -after 1351, following the “De Natis Ultra Mare” Act.  ~see this book review: Aliens in Medieval Law: the Origins of Modern Citizenship)

Nathan Dane wrote: “if an English subject comes into the United States, and marries an American wife, and has a child by her born here: it cannot inherit her estate here, because this child follows the allegiance of its father, and may inherit his estate in England.”

That sure sounds like an alternate reality and not the real world. His error was in equating the national law of Britain with an American practice which was actually determined by the laws of individual American States.
He spoke only of the gender-based custom of British common law or statutory law which was never codified by Congress since land ownership and inheritance was purely a State issue, not a federal issue.

He was so thoroughly steeped in British law that he was essentially programmed like a computer, and could not think outside of that British doctrinal box. That is almost astonishing, and yet not all that uncommon it seems.  Many law makers and state constitution writers continued in their programmed ways to use the word “subject” and natural born subject instead of the free American democratic republican term of “citizen”.

It reminds me of how after I’ve taken my sunglasses off of the top of my head and set them down, ten minutes later I reach up to take them off again because I can still feel them on my head.
His head was so stuffed with British doctrine that even when it was taken off of him, it still left its sensation in his mind and thinking.  There was  no “deprogramming” process to reset minds well rooted in British law and thinking.

Wilted Rose pondered Lord Coke’s words: “because his legitimation is given unto him; for if you derive denizen from deins nee (born within), one born within the obedience or ligeance of the King, then such a one should be all one with a natural-born subject. And it appeareth before out of the laws of King William the 1st, of what antiquity [origin] the making of denizens by the King of England hath been.”

“To me, it looks like Coke is saying that denizens who are born within the realm should be considered natural born subjects. Could that be where the conflation of denizen and natural born subject came from?”

One must be cognizant of the fact that denizen had two meanings; one was the generic meaning of “inhabitant” while the other was the legal meaning for one granted certain civil rights by the king, -and probably originally was preceded by another word, such as “a legalized Denizen” or “the King’s Denizen” or something similar.  Just as in America we have the generic “immigrants” and the specific “legal immigrants”.

The real conflation came about regarding “natural-born subject” because of human intellectual laziness.  It was burdensome to always have to distinguish that the native-born of aliens were not actually natural born subjects; they were merely their equivalent, although totally different; -one subject by borders at birth, the other subject by an inherited bond of loyalty & obedience to the king.  But since both were subjects right from birth, the conflation of the two would have been insignificant compared to that between them and naturalized foreigners who were born and raised as foreigners.  Calling them natural-born subjects as well was a huge conflation.

In time, seeing no difference between them, since they all had identical rights and obligations, why bother to distinguish their differences?  Take the easy way, the lazy way and don’t give a damn about an inconsequential distinction regarding origin.

Inconsequential because they did not have an elected King nor elected national military commander or Prime Minister.  It only mattered in America when the office of President was created.

And thus a subject considered “all one with” a natural-born subject was eventually simply labeled as one also, but with the unspoken understanding that that label was fictional in nature, a legal fiction, -a “subject made” via common law applying to all denizens, even the alien-born (as apposed to “a subject made by Procreation” or descent.

~~~~~~~~~~~~~~~~~~~

“You insist that there was no national common law, but only state common law… -which state provided the common law of which Minor spoke and which it said defined the natural born citizens”

That was the common law extant since about 1070 AD, brought to the Americas by the colonists. But Minor did not say that it defined anything, nor that anything else did either.  Minor has no mention of any defining of anything.  That is 100% in your imagination.  It merely brought up the framers familiarity with the nomenclature of the common law, but then abruptly switched to another unrelated thought and focus, namely; the common impression of who were undoubtedly natural born citizens.

There is no need to read into the statute or expect more as you and your Obot pals like to do.

Wow! What a sign of desperation! That’s the equivalent to calling Custer an Indian lover! That’s how low you have to go to discredit your implacable dis-creditor?
You know my position. It is that both you and the Obots are nuts, -dogmatic Kool-Aid drinkers, clinging to delusional doctrines not based in reality.

“Congress accepted the ancient rule that children followed the condition of their parents regardless of where they were born (partus sequitur patrem).”

Not just Congress, but the Justice & State Departments. It was executive policy in an international context, as well as naturalization law that children of aliens were aliens also, until the father naturalized.  That avoided the conundrum of dual nationality, -the equivalent to having two different sets of parents or two husbands.

But thanks for decapitating your own position! “the condition of their parents regardless of where they were born“!
Thank you Mario, for confirming what I have been hammering you about for years. Yes! Vattel! Father’s nationality rules! Everywhere on Earth! (or Space!) -regardless of foreign birth. That was the rule of natural citizenship.

~~~~~~~~~~~~~

 Wilted Rose said…

For those out there who hang their hat on the English Common Law definition of natural born subject to define natural born citizen, here’s a shocker for you.

Blackstone was wrong.

He said “The children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such.”
They may have been, generally speaking, natural born subjects, the same as any other naturalized subject is considered a natural born subject.

Even though Calvin was considered an English subject because he was born within the King’s dominions, he was considered naturalized by birth since his parents were considered aliens in England.

“First, The King hath the Crown of England by Birthright, being naturally procreated of the Blood Royal of this Realm: Secondly, Calvin the Plaintiff naturalized by Procreation and Birthright, since the Descent of the Crown of England:…”
The reports of Sir Edward Coke Kt. In English (1727)

“…yet was it resolved, That all those that were born under one natural Obedience, while the Realms were united under one Sovereign, should remain natural-born Subjects, and no Aliens; for that Naturalization due and vested by birth-right, cannot by any Separation of the Crowns afterward be taken away: nor he that was by Judgment of Law a natural Subject at the Time of his Birth, become an Alien by such a Matter ex post facto. ”
The reports of Sir Edward Coke Kt. In English (1727)

So, Calvin was a natural born subject by birthright naturalization under common law.

There has been a misunderstanding as to the nature of the subjectship of Calvin. The idea that he was naturalized at birth is true but in a sense that is different than what has been assumed.
The ancient scripts speak of naturalization by Procreation and by birthright:

“First, The King hath the Crown of England by Birthright, being naturally procreated of the Blood Royal of this Realm:”

“Secondly, Calvin the Plaintiff naturalized by Procreation and Birthright, since the Descent of the Crown of England:…”
The reports of Sir Edward Coke Kt. In English (1727)

Just as the heir to the throne has that right via birthright and via procreation by royal blood, -meaning he is royal born as well as first-born (having the birthright to be king).
And what does it say about Calvin? The same thing!

He was born of a subject of the Crown since his father was a subject of the king of Scotland when he became king of Britain, therefore he was not alien born since his father was not an alien but was a Scottish subject, and thereby a subject of the English king as well.
So Calvin was born within the king’s dominion and subject to him as well via his subject father. A subject by both blood and native-birth.
I came across a quote that stopped me cold, which said Calvin was naturalized by descent.(?) That got me thinking and reading closer than before. When I when to copy that quote, I could no longer find it anywhere.

Mario Apuzzo, Esq. replied:

Your understanding of Calvin’s Case is incorrect. That Calvin was naturalized by descent does not mean descent from his father. It means descent of the Crown of England to James IV of Scotland who became James I of England, Ireland, and Scotland.

Calvin was born in Scotland after James IV of Scotland became James I of England, Ireland, and Scotland. Calvin’s father was an antenati (born before the descent of the Crown of England to James IV) and Calvin was a postnati (born thereafter). Being a postnati made one an alien in England, for there was no connection to the English law, government, and English King. It was contended that the postnati, born out of England to alien parents, were also aliens in England. They too were not born subject to the English laws and government.

The English Parliament refused to naturalize as English subjects persons like Calvin who was born in Scotland to Scottish parents. So certain individuals decided to get the courts to naturalize him.
Since Calvin was born in the dominion and under the natural allegiance of a King who was King of not only Scotland, but also England, the court naturalized Calvin at birth and made him an English natural-born subject, even though Calvin was born in Scotland to Scottish parents and not born subject to the laws and government of England. So while the court naturalized the postnati at birth to be English natural-born subjects, the English Parliament eventually naturalized the antenati.

Vattel in The Law of Nations, at Section 214, called “Naturalisation,” recognized the English practice of naturalizing at birth persons born in the King’s dominion to alien parents. There he said: “Finally, there are states, as, for instance, England, where the single circumstance of being born in the country naturalizes the children of a foreigner.”

Mario wrote: “Your understanding of Calvin’s Case is incorrect. That Calvin was naturalized by descent does not mean descent from his father. It means descent of the Crown of England”

I said I read a quote from Coke or someone who said that Calvin was “naturalized by descent”. It did not say by “the” descent, but by descent itself, period, meaning by the effect of descent. That is just another way of saying what Coke said:

“Secondly, Calvin the Plaintiff naturalized by Procreation and Birthright, since the Descent of the Crown of England:…”

Descent is by procreation and right of birth, so your understanding needs to be readjusted. He was made a natural subject (or naturalized) naturally, -by right of blood.

As you state, Calvin’s father was not a subject of the English State but he was a subject of the person of the English King, so the court chose to do an end-run around the law and Parliament by shifting the focus of subjectship from pertaining to the nation and its laws & government, to pertaining solely to the Crown.

Thus the court by that focus could point to the father as being a subject of the King, even though not a subject of England itself. It thereby forever altered the entity to which one owed declared allegiance from being the nation as a whole to being the King personally.

You wrote: “the court naturalized Calvin at birth and made him an English natural-born subject,”

It is not accurate to say that the court did something which he had no authority to do. All it did was switch the focus and the result produced itself.
By having a father who was subject to the king, Calvin also was therefore his subject by descent, by procreation, by birthright.

“Being a postnati made one an alien in England, for there was no connection to the English law, government, and English King.”

True except for the English King. Postnati were subject to him before the English were. Parliament was forced to act in order to reconcile the subjection to the Crown with the non-subjection to the laws of England.
That was kind of like the U.S. federal government having a different citizenship policy than the States. A divergence that needed uniting.

~~~~~~~~~~~~~~~~~~~~~~~~

“…yet was it resolved, That all those that were born under one natural Obedience, while the Realms were united under one Sovereign, should remain natural-born Subjects, and no Aliens;”

“under one natural obedience” means under a father who was a natural subject of the monarch. So it cannot be said that he was naturalized at birth except in the British sense which used the term to even refer to being made a natural subject by blood (procreation), as in made natural by nature, -as apposed to common law.

The children of aliens were not actual Common Law natural born subjects under the definition given:
“All those are natural born Subjects whose Parents, at the Time their Birth, were under the actual obedience of our King, and whose Place of Birth was within his Dominions.”

[note: “actual obedience” may be different from “natural obedience”,  relating to subject parents vs alien parents who are subject, if so, then the alien-born were born as common law subjects but not as natural subjects, since the common law did not exist for the natural born subjects but for the foreign-born parents and their native-born children.]

Wilted Rose wrote:

In Coke’s report on Calvin’s case ;
“2. There is found in the law four kinds of ligeances; the first is, ligeantia naturalis, absoluta pura, et indefinite, and this originally is due by nature and birth-right, and is called alta ligeantia, and he that oweth this is called subditus natus.” [truly “subject born”]

This is actual ligeance or obedience. The other three types of ligeance are acquired or by law.  Other authorities than Blackstone appear to have it right –

“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 [mattereth] 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.”
Francis Bacon (1730)  [note: yes, it had no serious flaw since they had no elected office of Commander in Chief whose origin needed to be defined.]

” Finally there are states, as for instance England, where the single circumstance of being born in the country naturalizes the children of a foreigner ”
The Law of Nations: Or, Principles of the Law of Nature, Emer de Vattel, ‎Joseph Chitty – 1844

“If the writers of the constitution were following English common law when they came up with the phrase “natural born citizen”, then natural born citizen means one who is born in the country of citizen parents, that is, by nature (descent) and birth-right.”  (place of birth, “by right of soil”, not really by right of birth)     ~~~

[nash notes: it is almost astonishing that a reasonable mind can pull place of birth out of a hat that does not exist.  Every single one of the preceding quotes, as well as Vattel (repeatedly) state quite unequivocally that being a subditus natus, -a natural subject or natural citizens was the result solely of being born of a father who was a subject, -or a citizen.  Place of birth is never even hinted at.]

~~~~~~~~~~~~

Mario wrote June 28, 2014 at 10:33 PM: See both the reports of Lord Coke and Francis Bacon in Calvin’s Case (1608) (they both explain that Calvin, while born to alien parents, but born in the King’s dominion, had under the ancient English common law the birthright to be naturalized at birth and so was naturalized at birth to be an English natural born subject). Lord Coke’s report on Calvin’s Case can be read here.

I have already commented at length on this blog how Lord Coke naturalized Calvin at birth to be an English natural born subject.

As Bacon explained in Calvin’s Case, there were four classes of people under English law: “alien enemy;” “alien friend;” “denizen, using the word properly, (for sometimes it is confounded with a natural born subject”); and “natural born subject,” “by birth or by act of parliament.”

The term “natural born subject” is innately ambiguous and undefined as to origin, carrying only the meaning of subject status from birth, -or naturalization, not how that status was acquired; -via blood or via native-birth to foreigners.  So it would be more accurate to say that there were five classes of people, but since all born as subjects had identical rights  there was no point to distinguishing the origin of those rights at or before birth.

So parentage, while given verbal recognition as the true origin of natural subjection, took a back seat to place of birth in everyday life, -as it has continued to do in America.  If someone were to point to an individual and exclaim: “He is a natural born subject!”, that would not tell one anything about his nationality background; whether he as born of native Englishmen or born of immigrant foreigners.  That was a rather significant distinction, sociologically and culturally, but not legally, and so it came to be ignored as irrelevant, until the office of President of the United States was created.  Then it mattered a lot.  But those days are gone… for now.  One day they may be recognized again, but not in any foreseeable future.   ~    ~    ~

 

Advertisements

About arnash
“When you find yourself on the side of the majority, it’s time to pause and reflect.” - Mark Twain - Politicians and diapers - change 'em often, for the same reason. "Government is like a baby. An alimentary canal with a big appetite at one end and no sense of responsibility at the other." Ronald Reagan "Liberals claim to want to give a hearing to other views, but then are shocked and offended to discover that there are other views." William F. Buckley, Jr. “The trouble with the world is that the stupid are cocksure and the intelligent are full of doubt.” - Bertrand Russell The people are the masters of both Congress and the courts, not to overthrow the Constitution, but to overthrow the men who pervert it. Abraham Lincoln “Good people sleep peaceably in their beds at night only because rough men stand ready to do violence on their behalf.” - George Orwell “Satan will use a lake of truth to hide a pint of poison”.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: