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05/29/2014

A Further Exchange on Natural Born Citizens
Michael Ramsey

As I mentioned yesterday, a reader I am calling "TJ" sent a series of very interesting objections to the view I'm developing on the meaning of "natural born Citizen" in the eligibility clause.

My core contention, on the point in dispute, is that Blackstone emphatically described persons born in England, of alien parents, as natural born subjects.  In my view, this strongly indicates that Americans, relying on their English common law background, would have regarded persons borin the U.S. of alien parents as, in their terminology, natural born citizens.

One objection, which I'll address later, is that "citizen" should not be equated with "subject."  Another objection, which TJ makes, is that I am overreading Blackstone.  Here are his comments on this point:

I think that Blackstone equated those who were denizens and those who were called natural-born subjects because of what Coke wrote regarding Calvin's Case. (The Reports of Sir Edward Coke, Knt: In Thirteen Parts, Volume 4) 

Page 29 - Calvins Case "Every subject is either natus, born, or datus, given or made, and of these briefly in their order. "


Page 31 - Calvins Case "...   Now what a subject born is, appeareth at large by that which hath been said de ligeantia : and so likewise de subdito dato, of a donaison: for that is the right name, so called, because his legitimation is given unto him; for if you derive denizen from deins nee, one born within the obedience or ligeance of the King, then such a one should be all one with a natural-born subject [emphasis added]. And it appeareth before out of the laws of King W. 1. of what antiquity the making of denizens by the King of England hath been."

He equated natural-born subjects and denizens. Since both were subjects of the King, I understand his reasoning. Nevertheless, denizens did not have the same rights as natural-born subjects, and naturalized natural-born subjects did not have the same rights as "subjects born" who were also called natural-born subjects.

 Further down the page he defines who are "subjects born"

Page 31 - Calvins Case " 3) There be regularly (unless it be in special cases) three incidents to a subject born. 1) That the parents be under the actual obedience of the King. 2) That the place of his birth be within the King's dominion. And 3) The time of his birth is chiefly to be considered; for he cannot be a subject born of one kingdom that was born under the ligeance of a King of another kingdom ..."

I think that the "special cases" were spelled out as Common Law, not statutory law. The "special cases" mentioned above appeared to be the children of ambassadors, and the children of the King. This link shows the children of ambassadors were natural-born subjects by common law. A New Abridgement of the Law  (1736)    I cannot currently find the citation that states that the children of the King are natural-born subjects by common law no matter where born, but it seems a self-evident conclusion.

The confusion about the definition of "natural born citizen" appears to have occurred because some have assumed that the statutory additions to those called "natural-born subjects" in England were part of the Common Law when they were not. The fact that naturalized foreigners were also called "natural-born subjects" supports this conclusion.

I found the following footnote interesting, and it supports the idea that statutory changes were considered exceptions to the Common Law, not part of the Common Law. 

"7 All these exceptions to the common law introduced by the legislature are in cases where the father or grandfather is a natural born subject; but there is no provision made for the children born abroad of a mother, a natural born subject, married to an alien." [page 373, footnote 7].  (from Commentaries on the Laws of England, in Four Books, Volume 1 - Blackstone (1793))

There's a lot to digest there, but here are some initial thoughts:

(1) I do not fully understand the first quote from Calvin's Case, but I don't think it's right to say that Blackstone (or Coke) conflated denizens and subjects.  A denizen was a special status, conveyed by the king, that had more rights and duties than an alien but less than a subject.  English common law did not treat people born in England of alien parents as denizens, nor did Blackstone.  Their status was different in two key respects: (a) the former did not need any affirmative act by the king to give them their status (unlike denizens) and (b) they had all the rights and duties of subjects (unlike denizens, who had somewhat lesser rights).

(2) Regardless, the second quote from Calvin's Case confirms my view.  The key phrase is "That the parents be under the actual obedience of the King."  Under English law (and generally under international law of the time) persons within the sovereign's jurisdiction (other than foreign ambassadors and invading armies) owed temporary allegiance to the territorial sovereign, even if they were aliens and thus also owed permanent allegiance to the sovereign of their place of origin.

(3) I agree it is wrong to say that "the statutory additions to those called 'natural-born subjects' in England were part of the Common Law."  The statutory additions (making natural born subjects of certain persons born abroad to English parents) were not part of the common law -- they were extensions by statute, which parliament had power to make.  A critical question is whether the Constitution gave Congress a similar power.   (I believe it did).

(4)  To sum up: (a) persons born in England to alien parents were natural born subjects under the common law; accordingly I think persons born in the U.S. to alien parents were natural born citizens, and (b) persons born abroad to English parents were not natural born subjects under the common law, but parliament had power to make them natural born citizens by its power of naturalization; so I think Congress was given a similiar power by Article I, Section 8, clause 4.  I don't see anything that undermines these conclusions (but I'm happy to have something pointed out).

Of course, this all does depend on equating "natural born" subject and "natural born" citizen, which is a separate topic.

Thanks again to TJ for encouraging me to re-think through all this.