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06/07/2014

Reader Contributions on Natural Born Citizens (Part 1): Citizens and Subjects
Michael Ramsey

My periodic posts on the eligibility clause have generated quite a bit of substantive response from readers.  I'll continue to share some of them.

As I've discussed, my working hypothesis is that the founding-era baseline for the meaning of "natural born" in the eligibility clause was the English law meaning in the phrase "natural born subject" (which was commonly used in the eighteenth century).  That conclusion depends, of course, on a connection between "citizen" and "subject."  If the founding-era Americans thought of those terms as largely equivalent then the conclusion seems appropriate. But if they did not, more investigation would be needed.

Reader William Rawle (a name of good omen!) sent me a list of early Massachusetts statutes that strongly suggests that the terms were used interchangeably in the relevant period.  He writes:

In a discussion of equating [natural born subject] with [natural born citizen] a review of the Naturalization Acts of Massachusetts may be helpful.  Here is a summary:

February, 1785, “AN ACT FOR NATURALIZING NICHOLAS ROUSSELET AND GEORGE SMITH.” in which it was declared that Nicholas Rousselet and George Smith “shall be deemed, adjudged, and taken to be citizens of this Commonwealth, and entitled to all the liberties, rights and privileges of natural born citizens.”

February, 1786, "AN ACT FOR NATURALIZING MICHAEL WALSH.” in which it was declared that Michael Walsh “shall be deemed, adjudged, and taken to be a citizen of this Commonwealth, and entitled to all the liberties, rights and privileges of a natural born citizen.”

July, 1786, “AN ACT FOR NATURALIZING JONATHAN CURSON AND WILLIAM OLIVER” in which it was declared that Jonathan Curson and William Oliver “shall be deemed adjudged and taken to be free Citizens of this Commonwealth, and entitled to all the liberties, privileges and immunities of natural born citizens."

March, 1787, “AN ACT FOR NATURALIZING WILLIAM MARTIN AND OTHERS.” in which it was declared that William Martin and Others, “shall be deemed, adjudged and taken to be free Citizens of this Commonwealth, and entitled to all the liberties, privileges and immunities of natural born subjects.”

May, 1787, the Massachusetts legislature passed “AN ACT FOR NATURALIZING EDWARD WYER AND OTHERS THEREIN NAMED.” in which it was declared that William Martin and Others, “shall be deemed, adjudged and taken, to be free Citizens of this Commonwealth, and entitled to all the liberties, privileges and immunities of natural born subjects.

October, 1787, “AN ACT FOR NATURALIZING BARTHOLOMY DE GREGOIRE, AND MARIA THERESA, HIS WIFE, AND THEIR CHILDREN.” in which it was declared that Bartholomy de Gregoire, and Maria Theresa, his wife, their children, “shall be deemed, adjudged and taken to be free Citizens of this Commonwealth, and entitled to all the liberties, rights and privileges of natural born citizens.”

November, 1787, “AN ACT FOR NATURALIZING ALEXANDER MOORE, AND OTHERS, HEREIN NAMED.” in which it was declared that Alexander Moore and others, “shall be deemed, adjudged and taken to be free citizens of this Commonwealth, & entitled to all the privileges, liberties, and immunities of natural born subjects.”

June, 1788, “AN ACT FOR NATURALIZING WILLIAM MENZIES, AND OTHERS, THEREIN NAMED.” in which it was declared that William Menzies and others “shall be deemed, adjudged and taken to be free citizens of this Commonwealth, and intitled to all the liberties, privileges & immunities of natural born subjects.”

November, 1788, “AN ACT FOR NATURALIZING ELISHA BOURN, AND OTHERS, THEREIN NAMED.” in which it was declared that Elisha Bourn and others “shall be deemed, adjudged and taken to be free Citizens of this Commonwealth, & entitled to all the liberties, privileges & immunities of natural born Citizens.”

February, 1789, “AN ACT FOR NATURALIZING JAMES HUYMAN, AND OTHERS, THEREIN NAMED.” in which it was declared that James Huyman and others “shall be deemed, adjudged and taken to be free Citizens of this Commonwealth, and entitled to all the Liberties, Privileges and Immunities of natural born subjects.”

June, 1789,“AN ACT FOR NATURALIZING NATHANIEL SKINNER, AND OTHERS, THEREIN NAMED.” in which it was declared that Nathaniel Skinner and others "shall be deemed, adjudged and taken to be free citizens of this Commonwealth, and entitled to all the liberties, privileges and immunities of natural born subjects.”

March, 1790, “AN ACT FOR NATURALIZING JOHN JARVIS, AND OTHERS, THEREIN NAMED” in which it was declared that John Jarvis and others, “shall be deemed adjudged and taken to be free citizens of this Commonwealth, and entitled to all the liberties, privileges and immunities of natural born subjects.”

March, 1791, “AN ACT FOR NATURALIZING JOHN WHITE & OTHERS" in which it was declared that John White and others, “shall be deemed adjudged and taken, to be free citizens of this Commonwealth, and intitled to all the liberties, privileges, and immunities of natural born subjects.”
 
Maybe on a practical level the founding generation weren't concerned about the conceptual differences between "subjects" and "citizens".
 
I agree with both the significance of the material and the conclusion he draws from it.
 
Relatedly, a while back Larry Solum showed me a passage from William Lloyd Garrison's The Abolitionist (vol. 1, p. 166, 1833), with the following:
 
It possibly may be contended that the common law principles in regard to subjects, do not apply to citizens.  But this position is untenable, as will be obvious from the following considerations.
 
The word citizen expresses precisely the same relation to the State which subject does to the king.  Indeed for a considerable period after the revolution, the word subject was used as synonimous with citizen.  Thus in the declaration of rights in the constitution of Massachusetts, the word subject is several times introduced, where we should now use citizen.  So in Mass. St. 1784, c. 72, s. 10, a punishment is enacted for kidnapping "any subject of this Commonwealth, or other person lawfully residing and inhabiting therein."  In this passage the word subject can have no other meaning than that of citizen.