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. - U.S. v. Wong Kim Ark, 169 U.S. 649, 18 S.Ct. 456 U.S. 189
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. William Blackstone, Commentaries 1:354, 357--58, 361--62 (1765)
The Constitution mentions only two types of citizenship, by birth (natural born) and by the process of naturalization. Members of Congress do not have to be born citizens as the Constitution only requires one to have been a citizen for a period of time before being elected. Only the POTUS must have been born a citizen and the only term found in the Constitution to denote someone who has been born a citizen is “natural born citizen.”
The Founders were worried about a POTUS with dual national loyalties.
Why Minor v. Happersett doesn’t define “natural born citizen” for the children of aliens: Many use this line to claim only children born in the U.S. of Citizen parents are “natural born citizens.” “ The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their [p168] parents. As to this class there have been doubts, but never as to the first. ” However, this is not an issue decided by the court in this case evidenced by the fact that the next line: “ For the purposes of this case it is not necessary to solve these doubts . ” What’s more, the court in this case through their legal analysis recognizes only two types of citizenship: “ Additions might always be made to the citizenship of the United States in two ways: first, by birth, and second, by naturalization. This is apparent from the Constitution itself, for it provides [n6] that ‘no person except a natural-born citizen, or a citizen of the United States at the time of the adoption of the Constitution, shall be eligible to the office of President, ’ [n7] and that Congress shall have power ‘to establish a uniform rule of naturalization.’ Thus new citizens may be born or they may be created by naturalization.”
The common law origins of naturalization were also exhibited in Sec. 1 of the Act which stated, “That any Alien being a free white person, who shall have resided within the limits and under the jurisdiction of the United States for the term of two years, may be admitted to become a citizen thereof on application to any common law Court of record in any one of the States wherein he shall have resided for the term of one year at least…”
This Act was repealed in 1795 by, United States Congress, “An act to establish an uniform rule of Naturalization; and to repeal the act heretofore passed on that subject” (January 29, 1795). The wording was changed to remove the phrase “natural born citizen” which has not reappeared in U.S. law. The Act stated in Sec. 3, “the children of citizens of the United States, born out of the limits and jurisdiction of the United States, shall be considered as citizens of the United States: Provided, That the right of citizenship shall not descend to persons, whose fathers have never been resident of the United States …”
Natural Born Citizens Presentation
FROM FEUDAL ORIGINS TO MODERN TIMES
AN OVERVIEW & INTRODUCTION
BY JASON SHEPHERD, Esq.
“I can entertain no doubt, but that by the law of the
United States, every person born within the
dominions and allegiance of the United States,
whatever were the situation of his parents, is a
natural born citizen.”
Lynch v. Clarke and Lynch, Chancery Court of New York (1843), New York Legal Observer, Vol. 3 (1845)
English Common Law
Birth on U.S. Soil
Subject to the jurisdiction…
United States v. Wong Kim Ark
Birth on Foreign Soil
Common law history
The Act of March 26, 1790
Renunciation of Citizenship
The “Foreign Born” President
Questions and Answers
“A citizen is nothing more than an immigrant with seniority.”
- Nobel Laureate Gerhard Herzberg
“When an alien lives with you in your land, do not mistreat
him. The alien living with you must be treated as one of
your native-born. Love him as yourself, for you were aliens
in Egypt. I am the LORD your God.”
- Leviticus 19:33-34
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, “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…”
Development of Common Law Doctrines
Jus Sanguinis - the “right of the blood.” Citizenship
inherited from parent(s) citizenship.
Jus Soli – the “right of the land.” Citizenship is
granted because of birth in a nation’s territory.
Both rules of citizenship became engrained in English
Common Law by the time of the Founding.
English Common Law
[A]ll 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
William Blackstone, Commentaries 1:354, 357--58,
English to American Common Law
“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.” Smith v.
Alabama, 124 U. S. 478, 8 Sup. Ct. 569 (1888).
“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…”
U.S. Const. art. 2, §1.
Constitutional Types of Citizenship
By birth – Only those born a U.S. Citizen may be
President of the United States.
By naturalization – Representatives and Senators
may be U.S. Citizens through Naturalization.
John Jay’s Letter to George Washington
New-York, 25th July, 1787.
Permit me to hint whether it would not be wise and
seasonable to provide a strong check to the admission
of foreigners into the administration of our national
government ; and to declare expressly that the
commander in chief of the American army shall
not be given to, nor devolve on any but a
natural born citizen.
I remain, dear sir,
Your faithful friend and servant,
Birth on U.S. Soil – U.S. Jurisdiction
Common Law and the Constitution through the 14th
Amendment grant citizenship to those born on U.S.
soil and who are “subject to the jurisdiction thereof.”
This prevented Native Americans from becoming
citizens because, although they were born in the
U.S., they were deemed loyal to their tribe and not
subject to the jurisdiction of the United States.
Children of foreign officials, by this rule and through
customary international law and the common law,
are also not subject to the jurisdiction of the U.S.
Birth on U.S. Soil – Non-Citizen Parents
Common law dictates that even children of those
temporarily in the U.S. are “natural born citizens.”
Conflicts with laws that provide that children born
on foreign soil retain the citizenship of their parents.
Case law such as U.S. v. Wong Kim Ark (1898) has
helped to set the precedent.
United States v. Wong Kim Ark (1898)
Wong Kim Ark was the U.S. born child of Chinese
U.S. law prohibited Chinese nationals from
becoming U.S. Citizens.
Wong was detained coming back from a visit to
China and faced deportation.
United States contended Wong was not a citizen
because his parents could never be citizens.
United States v. Wong Kim Ark (1898) - 2
The Court concluded:
“The refusal of congress to permit the naturalization of Chinese
persons cannot exclude Chinese persons born in this country
from the operation of the constitutional declaration that all
persons born in the United States, and subject to the
jurisdiction thereof, are citizens of the United States.”
“The laws conferring citizenship on foreign-born children of
citizens do not supersede or restrict, in any respect, the
established rule of citizenship by birth.”
Birth on Foreign Soil – Roman Law
Roman law first introduced the concept of jus
sanguinis – allowing citizenship to pass from the
parents to the child, regardless of where the child
Birth on Foreign Soil – Common Law
Blackstone’s Commentaries (1765) expressed
citizenship in terms of allegiance. The children of
those who owed allegiance to the crown also owed
allegiance, regardless of place of birth.
“Allegiance is the tie, or ligamen, which binds
the subject to the king, in return for that
protection which the king affords the
Birth on Foreign Soil – Act of March 26, 1790
In its first naturalization statute, Congress declared
that “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…” 1 Stat. 104 (1790).
Act of March 26, 1790 - Continued
“Provided, that the right of citizenship shall not
descend to persons whose fathers have never
been resident in the United States…”
While the principles of jus sanguinis and jus soli would seem
to have long created dual citizenship, the principle is modern.
In the past, one’s citizenship would have to be determined
upon reaching age 21.
Many nations in the past did not recognize jus soli citizenship
as applying to the children of foreign nationals.
Duel citizenship does not remove an individual’s status as a
natural born citizen, but would seem to contradict the spirit of
the clause as outlined by John Jay, preventing dual loyalty.
Afroyim v. Rusk, 387 U.S. 253 (1967) affirmed citizenship is an
individual right which must be affirmatively renounced by an
individual on foreign soil.
The mere act of swearing allegiance in an oath of citizenship to
another nation will not necessarily cause one to lose their U.S.
A minor cannot lose his/her citizenship through the action of
parents or guardians.
“[A] majority of commentators today argue that the
Presidential Eligibility Clause incorporates both the commonlaw and English statutory principles, and therefore, Michigan
Governor George Romney, who was born to American parents
outside of the United States, was eligible to seek the Presidency
in 1968” – Heritage Foundation’s Guide to the Constitution.
U.S. Senate passed a non-binding resolution asserting John
McCain, born of U.S. parents on foreign soil, was a natural
The Foreign Born President
Father was not a U.S. citizen
During the campaign, a prominent Northeastern
attorney questioned whether the candidate was born
in the U.S.
Some media picked up on the story and citizen
groups demanded proof of his birth in the U.S.
Even if he was born in the U.S., the attorney
contended that he also had the foreign citizenship of
his father and his dual citizenship would also make
him ineligible to hold the Presidency.
The Foreign Born President - Chester A. Arthur
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