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Thomas Jefferson on “Natural Born”

Jefferson

Jefferson

Thomas Jefferson in December, 1783, wrote these notes to Congress [emphasis in the original]:

Qu. 1. Can an American citizen, adult, now inherit lands in England?
Natural subjects can inherit–Aliens cannot.
There is no middle character–every man must be the one or the other of these.
A Natural subject is one born within the king’s allegiance & still owing allegiance. No instance can be produced in the English law, nor can it admit the idea of a person’s being a natural subject and yet not owing allegiance.
An alien is the subject or citizen of a foreign power.
The treaty of peace acknowleges we are no longer to owe allegiance to the king of G.B. It acknowleges us no longer as Natural subjects then.
It makes us citizens of independent states; it makes us aliens then.
A treaty with a foreign nation where the king’s powers are competent to it as in this which is a case of peace & war, supersedes all law.
If the king’s powers were not competent before, the act of parliament of 1782 has made them so. An American citizen adult cannot inherit then.

Qu.2. The father a British subject; the son in America, adult, and within the description of an American citizen, according to their laws. Can the son inherit?
He owes no allegiance to Great B. The treaty acknowleges he does not. But allegiance is the test of a natural subject. Were he to do an act here which would be treason in a British subject he could not be punished should he happen to go there.
He owes allegiance to the states. He is an alien then and cannot inherit.
Obj. The state of the father draws to it that of the son.
Ans. In Villenage it does, but in no other case at the Com- [mon] law. Thus a Natural subject having a son born in a foreign state; the son was an alien at the Com. law. The stat. 25.E.3. st.2. first naturalized him if both parents were, at the time of his birth, natural subjects; & 7.Ann.c.5. & 4.G.2.c.2l. where the father alone was. So an Alien in England having a child born there, that child is a natural subject. A denizen purchases land. His children born before denization cannot inherit, but those born after may. The state of the father then does not draw to it that of the child, at the Com. law.
But does it by the statutes? No, for here are statutes first making the son born abroad a natural subject, owing allegiance. Then comes a treaty of peace wherein the king absolves him from his allegiance & declares him an Alien. This then supersedes the authority of the statute. It is said 2.P.W.124. 1.B1.357. that natural allegiance cannot be cancelled but by act of parl[iament].(2) But surely national treaties supersede acts of parl. The oath of allegiance took it’s origin from the feudal oath of fealty. But as the fealty of the vassal could be relinquished by the lord, so can the allegiance of the subject by the king. If he withdraws his protection allegiance is gone. But he can withdraw his protection without consulting parliament.
Qu. Were the k[ing]’s subjects in France aliens?
If they were not, did they not become so when given up?
Must they not of course become so when taken from him by a superior power?

Qu. 3. The father a British subject. The son as in Qu. 2. but an infant. Can he inherit?
1st. by the Common law.
We have seen before that the state of the father does not draw to it as an accessory that of the son where he is an adult.
But by the common law.
Denization may be 1. by parliamt. 2. by letters pat[ent]. 3. by Conquest. As if the k[ing] & his subjects conquer a kingdom, they become denizens of kingdom conquered. Calvin’s ca. 6.a.
If an alien have issue born within the k[ing]’s obedience, the issue is a natural only: ib. This excludes enemies possess[in]g a town &c. ib.
Abjuratur still owes allegiance because he may be restored. 9.b. So an outlaw. ib. 14.a.
The law of nature is part of the law of Engld. 12.b.
If a noble of another country come to Engld., he sues by his proper name, not by that of his nobility, because on a plea in abatemt that he is not noble, it is not tried by jury but by the record of parliamt. 15.a.
Ambassadors having children born in foreign nation, they are naturl subjects by the com. law. 18.a.

While the kings of Engld. had possessions in France, those born during such possession were naturl subjs. of Engld. 19.a. So is it now of Ireland, Jersey, Guernsey, Man, Alderney, &c.
If a woman alien marrieth a subject she shall not be endowed. 25.a. An alien cannot be ten[ant] by the courtesy. ib.
If Engld & Scotld. sh[oul]d by descent be divided & governed by several kings, those born under one sovereign while the realms were united would remain natural subjects & not aliens. 27.b.
He cannot be a subject born of one kingdom that was born under the ligiance of a king of another kingdom. 18.a.

MS (DLC: Jefferson Papers). In the hand of Thomas Jefferson and endorsed by him: “Alien. British & American.” Jefferson, Papers (Boyd), 6:433-35.
1 Jefferson apparently drafted these undated notes on British and American citizenship and alienage during this period not only because he was studying the treaty of peace but also because he had received a specific request for information from Elizabeth House Trist concerning the status of her son Browse, whose father was a British officer. Jefferson’s response to Mrs. Trist has not been found, but for his record of it see ibid., p. 418.
For an analysis of American ideas of allegiance and the impact of the American Revolution and the treaty of peace on the rights and duties of citizenship, see James H. Kettner, The Development of American Citizenship, 1608-1870 (Chapel Hill: University of North Carolina Press for the Institute of Early American History and Culture, 1979), chapter 7.
2 Jefferson’s references are to P[eere] W[illiams’] Reports, 2:124, and Bl[ackstone’s] Commentaries, 1:357, although the latter is in error, for Blackstone’s discussion of the cancellation of natural allegiance by act of parliament only is actually found at page 374, not 357, of Book one of his Commentaries. See William Peere Williams, Reports of Cases Argued and Determined in the High Court of Chancery….3 vols. (London, 1740-49); William Blackstone, Commentaries on the Laws of England. 4 vols. (Oxford, 1770); and Catalogue of the Library of Thomas Jefferson, comp. by E. Millicent Sowerby, 5 vols. (Washington: Library of Congress, 1951-59), 2:204- 5, 228-29.

Question 2 is of primary interest to us, since it deals with an American with a British father. Jefferson says the American has no allegiance to Great Britain and that allegiance is the determining factor for citizenship. In modern times we speak of jurisdiction (14th Amendment) or nationality rather than the medieval term, allegiance (Civil Rights Act of 1866).

Then Jefferson (as does the Supreme Court in the Wong decision) cites Calvin’s Case, which makes those born in the dominion of Great Britain natural born subjects, though their parents be aliens.

I hope I get time to write an article on Calvin’s Case (1603).

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35 Responses to Thomas Jefferson on “Natural Born”

  1. avatar
    NBC July 19, 2009 at 1:59 am #

    Note how Jefferson fails to quote Vattel but instead relies on Common Law and Blackstone. Seems that the birthers will have a hard time with their claims that natural born means born to 2 us citizens.
    The ironic part is that some birthers have been using Jefferson’s statement to support their claims, selectively omitting relevant parts that would undermine their position.

  2. avatar
    misha July 19, 2009 at 11:26 am #

    No, no. They didn’t say it, but they meant de Vattel. If you carefully insert certain words, and excise certain other words, you can plainly see they really meant to channel de Vattel.

    And if you disagree, you are a subversive. Cook, OTOH, is a true patriot. Orly says so.

  3. avatar
    IzMeBee July 19, 2009 at 1:29 pm #

    Ole Tom is part of the conspiracy.

  4. avatar
    jtx July 19, 2009 at 2:33 pm #

    He does so because his treatise is about English law at the time and how is does or does not apply to Americans.

    Pretending that it has some import on the eligibility issue is merely more of the love of O nonsense.

  5. avatar
    jtx July 19, 2009 at 2:34 pm #

    IzMeBee:

    Sorry, but there’s no “conspiracy” and never was except perhaps in the minds of the looney left trying to dredge up a straw man.

  6. avatar
    jtx July 19, 2009 at 2:38 pm #

    misha:

    Stuff and nonsense on your part though perhaps youi don’t know it.

    Where in the Jeffereson discourse quoted does he mention “natural bortn citizzen”???

    Nowhere.

  7. avatar
    Dr. Conspiracy July 19, 2009 at 2:39 pm #

    Thanks, NBC, by the way, for posting a link to this over at Politijab.

  8. avatar
    Dr. Conspiracy July 19, 2009 at 2:50 pm #

    JTX, too late. Folks will already have had the chance to read the unedited Jeffersonian comments and decided for themselves, with no help from you, before they get down to your comment.

  9. avatar
    Dr. Conspiracy July 19, 2009 at 2:53 pm #

    Don’t worry. I wouldn’t expect you to be able to understand this text. It’s for other people.

  10. avatar
    NBC July 19, 2009 at 3:34 pm #

    ROTFL…. Even when provided with the facts, he stumbles.
    You surely make for a good example

  11. avatar
    NBC July 19, 2009 at 3:35 pm #

    Haha, ignorance is wonderful, especially when it involves being faced with real facts.

    No Vattel… All about Blackstone and Common Law.

  12. avatar
    NBC July 19, 2009 at 3:36 pm #

    Sorry, but there’s no “conspiracy” and never was except perhaps in the minds of the looney left trying to dredge up a straw man.

    Haha. Oh JTX, you’re priceless. We now have early founding fathers, legal and judicial rulings, all pointing to the fact that anyone born on US soil is natural born

  13. avatar
    kimba July 19, 2009 at 3:43 pm #

    HA! Now we know why it was so easy to brainwash you into thinking a one year old theory of Donofrio is the law and what you were taught in school! folie a plusieurs. Madness of many, or a psychosis transmitted from one individual to many others.

  14. avatar
    IzMeBee July 19, 2009 at 3:58 pm #

    I have a problem for you jtx.

    Since you are/were some kind of a Judge I would hope you would find it a good attribute for me.

    I read. Everything. Constantly. I also have the skill to form an opinion for myself. Herein is the root of the problem for many like yourself who finds reason that Obama ins not eligible. Your fine as long as you have people who don’t read and are unable to form opinions for themselves without the help of others.

    Sadly your “Honor” (and I mean that with all due respect) your hunting in the wrong field.

  15. avatar
    NBC July 19, 2009 at 4:00 pm #

    Well, stated. A well informed person is the birther’s worst nightmare

  16. avatar
    dunstvangeet July 19, 2009 at 4:24 pm #

    Thank you for finally coming to your senses, jtx. I guess you believe that Barack Obama is eligible for the Presidency. Otherwise, there are conspiracies dating back at 50 years to get an ineligible man to become President. If you believe Donfrio, then the conspiracies go back 129 years and counting.

  17. avatar
    Adrianinflorida July 19, 2009 at 4:36 pm #

    That’s why Birfers still hold on to the travel ban and “anyone,born anywhere, can get a Hwaiian COLB” myths. Delusion

  18. avatar
    aarrgghh July 19, 2009 at 4:44 pm #

    as pointedly demonstrated for everyone at home by cnn’s kitty pilgrim on friday.

    when confronted by the weight of evidence, checked and rechecked, supporting the president’s eligibility, and asked “what more do you need to be convinced?”, alan keyes, who no doubt was not expecting such a front-loaded intro, could only meekly respond: “some evidence.”

    ouch.

    pilgrim sounds like she read “a birther platonic dialogue” before the show. she did her homework.

  19. avatar
    aarrgghh July 19, 2009 at 4:45 pm #

    this was in response to nbc: “Well, stated. A well informed person is the birther’s worst nightmare”

  20. avatar
    NBC July 19, 2009 at 4:49 pm #

    It’s the fact that these birthers desperately hold on to facts which are clearly false or misleading and ignore the evidence to the contrary, which shows to me the level of denial and dislike of President Obama. Just read General Childers

    But more than 50% of America voted for this charlatan and he now has the helm of the ship of state. Even so, he is not MY President. I will not refer to him as such. I will call him Resident Obama, and an illegal resident of the white house at that. I resent him for what he is not. He has not given proof that he is a natural born citizen of these United States. He has spent millions of dollars protecting the truth of his birth from public knowledge; therefore, it is obvious he has something to hide. He is an interloper, a usurper, a fake, a scam artist, a Chicago crook, a recipient of bribes and gratuitous income for which he paid no tax, a socialist (perhaps only a communist or Marxist), and a grave danger to the future of the America that I love and have protected since I was 17 years old.

    Thank God for retirement. One can hope however that even in retirement the Military can hold Childers to the rules which make our military function. God permitting.

  21. avatar
    NBC July 19, 2009 at 4:50 pm #

    More from ‘General’ Childers

    I can present a long list of reasons, taken individually, which convinced me NOT to vote for Barack Hussein Obama; his crime associates in the USA, his lack of experience, the mystery of his citizenship, his promise to make coal power industry bankrupt through excessive regulations, his constant adjustment of position on issues, his tax plan, his spread the wealth admission, his obvious socialistic goals, his associations with foreign leaders unfriendly to the USA, the lies he tells about a range of subjects including perhaps who his biological father really is, his most recent revelation of having a “National Security Force” (whatever that is)……………all of these says he is a person of mystery, of no integrity, and in fact paints him with the same narcissist paint of Hitler, Stalin, Saddam, Mao, and Kim Jong Ill.

    Amazing.

  22. avatar
    kimba July 19, 2009 at 9:38 pm #

    jtx a judge? Nah. JTX is the NYSE symbol for Jackson Hewitt Tax Services. I think jtx is one of those punch-your-numbers-into-the-turbotaxlike-program-for-you-and-then-try-to-sell-you-a-payday-loan-rate-pre-payment-of-your-refund guys!

  23. avatar
    SvenMagnussen July 20, 2009 at 3:19 pm #

    The first Immigration Act passed by the First Congress in 1790, chapter III we find direct references to Vattel’s assertion that citizenship is derived from the father, in that citizenship was prohibited to children whose fathers have never gave intent to permanently reside of the Untied States. Interestingly in this same act, we also find the clarification of a Natural Born, as being one “And 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: Provided, That the right of citizenship shall not descend to persons whose fathers have never been a resident in the United States.”

    He’s not eligible.

  24. avatar
    dunstvangeet July 20, 2009 at 3:38 pm #

    That’s because they already had the English Common Law definition of Natural-Born Citizen.

    The Supreme Court has already said that the Constitution is written in the language of English Common Law, SvenMagnussen. My question to you is why would a bunch of guys who were immensly familiar with English Common Law abandon the commonly-accepted term of Natural-Born Citizen in English Common Law?

    Why would they use a Swiss philosopher’s definition, when it didn’t even define Natural-Born Citizen until 10 years after the passing of the Constitution?

    And furthermore, why would they not define it when they were using the Swiss Philosopher, when they knew that everybody would be more familiar with the English Common Law definition of it?

  25. avatar
    Dr. Conspiracy July 20, 2009 at 3:38 pm #

    I think the 1790 Act proves that the Framers did NOT have de Vattel in mind when the Constitution was ratified. If they believed the definitions in the Constitution followed from de Vattel, then the 1790 Act would have been unnecessary since the subjects of Chapter III would already be citizens. But instead, the first Congress felt it necessary to extend the common law notion of citizenship (those born in the country) to include those born overseas of US Citizens.

    Now you are saying, what, that Presidents must be born “beyond the the sea”?

  26. avatar
    misha July 20, 2009 at 5:38 pm #

    Related topic: I predict that when Corey Booker announces, the same crowd will demand his birth certificate. Black men ALWAYS have to show more identification. (Where you from, boy? Where’d you get that car?)

    Here: Black professor arrested inside his own home, for B&E, and disorderly conduct!

    Then Andy Martin et al, will start he was born in Canada, and the BC is forged. Then others will start he is illegitimate.

    This crowd is just getting warmed up. Anyone see the call on Orly’s site, for a national strike on 11/4/09? And they are comparing themselves to Solidarity…snicker.

    Popcorn.

  27. avatar
    Scott July 21, 2009 at 5:12 pm #

    Interesting article and great site. I would consider myself a “birther”, but only to the extent that we use a definition of natural born citizen consistent with framers intent. Which obviosly is a difficult thing to determine.

    I’m glad to find this post on Jefferson. Reviewing the site, and reading this article, I find no reference to the citizenship law for Virginia written by Jefferson (with input from Madison and unconfirmed input from John Jay).

    The Virginia citizenship law in 1779 (date may be a little off), Jefferson wrote the law distinctly different from British Common Law. He wrote it to confer Virginia citizenship to chidren born in virgina to 2 parent who were citizens. He also had text regarding citizenship based on bloodline (first father, then mother). Simply being born in Virginia did not pass citizenship.

    I’m on a mobile phone and can’t cut and paste the link now, I will later tonight.

    I’m interested in how this article interprets actual legislation written by Jefferson being different than common law.

  28. avatar
    Scott July 21, 2009 at 5:17 pm #

    How about the citizenship law Jefferson wrote in 1779 consistent with de Vattel, and different than British Common Law.

  29. avatar
    Bob July 21, 2009 at 5:52 pm #

    Scott likely referring to Jefferson’s “A Bill Declaring Who Shall Be Deemed Citizens of This Commonwealth“.

  30. avatar
    nbc July 21, 2009 at 5:57 pm #

    You’re welcome. I believe Jefferson’s notes should be of interest to all who are researching the ‘controversy’

  31. avatar
    thisoldhippie July 21, 2009 at 5:58 pm #

    Seems to me that bill would exclude our President for reasons unrelated to birth location or parents’ nationality, but rather the skin color of one.

  32. avatar
    Bob July 21, 2009 at 6:06 pm #

    As Scott implictly concedes, under the common law of England, citizenship is determined by place of birth.

    Although this bill does imply that Jefferson did not agree with the common law of England, Jefferson did not draft the U.S. Constitution (as he was in Paris at that time).

  33. avatar
    Dr. Conspiracy July 21, 2009 at 7:46 pm #

    Scott,

    The Virginia law (like the US Act of 1790) extended citizenship to the children of citizens born outside their jurisdiction, but the Virginia act did not require parentage for citizenship (although there are those who make this misrepresentation of those acts and don’t provide links so that honest folks can read them).

    We here at Obama Conspiracy Theories believe that everyone is best served by providing links to primary sources, and the Virginia Act you mention was discussed and linked from this article:

    http://www.obamaconspiracy.org/2009/05/madison-v-madison/

    The law you mention could be the 1779 law or the 1783 one. The law in 1779 said:

    BE it enacted by the General Assembly, That all white persons born within the territory of this commonwealth, and all who have resided therein two years next before the passing of this act; and all who shall hereafter migrate into the same, other than alien enemies, and shall before any court of record, give satisfactory proof by their own oath or affirmation that they intend to reside therein; and moreover shall give assurance of fidelity to the commonwealth; and all infants wheresoever born, whose father if living, or otherwise whose mother was a citizen at the time of their birth, or who migrate hither, their father if living, or otherwise their mother, becoming a citizen, or who migrate hither without father or mother, shall be deemed citizens of this commonwealth, until they relinquish that character in manner as herein after expressed; and all others not being citizens of any the United States of America shall be deemed aliens.

    Links:

    1779 Act
    1783 Act

    I urge you to read the two acts and then see if they don’t change your perspective. In think the Framers’ intent is not nearly as difficult to determine as you think.

  34. avatar
    Dr. Conspiracy July 21, 2009 at 7:52 pm #

    And we should all be eternally grateful that Jefferson did NOT draft the U. S. Constitution.

  35. avatar
    nbc July 24, 2009 at 9:00 pm #

    I posted an updated on the Steinkauler case

    The Steinkauler case, which I discussed before, is very relevant. First it established that the term ‘native born’ is equivalent to the term ‘natural born’ and that a ‘native born American citizen … can become President of the United States’. Furthermore, his native born nationality can be supplemented with an acquired nationality without him losing his native born status as long as he decides when reaching the age of majority to take his nationality of birth. The logical consequence is that since Obama was born on US soil, he was a native/natural born citizen of the United States, even though his status was also governed by the British Nationality Act of 1948. Since Obama chose to not pursue his secondary nationality which he ‘acquired’ through his father and since noone can deny him his birthright, Obama had the right to determine when reaching the age of majority, if he wanted to continue his birthright US citizenship. In addition, even if Obama acquired Indonesian citizenship, in contradiction of Indonesian laws, his parents cannot deprive him of his birthright US citizenship and since Obama returned to the US well before reaching the age of majority, his never abandoned his birthright citizenship.

    In Steinkauler’s case (15 Op Atty Gen 15 12 Alb L.J. 23) in an opinion by Mr Pierrepont Attorney General of the US we have the following .Young Steinkauler who was born in St Louis after his father had been naturalized in the United States the father subsequently returning to Germany and taking the boy with him is a native born American citizen. There is no law of the United States under which his father or any other person can deprive him of his birthright. He can return to America at the age of twenty one and in due time if the people elect he can become President of the United States but the father in accordance with the treaty and the laws has renounced his American citizenship and his American allegiance and has acquired for himself and his son German citizenship and the rights which it carries and he must take the burdens as well as the advantages. The son being domiciled with the father and subject to him under the law during his minority and receiving the German protection where he has an acquired nationality and declining to give any assurance of his intention of ever returning to the United States and claiming his American nationality by residence here I am of opinion that he cannot rightfully invoke the aid of the government of the United States to relieve him from military duty in Germany during his minority but I am of opinion that when he reaches the age of twenty one years he can elect whether he will return and take the nationality of his birth with its duties and privileges or retain the nationality acquired by the act of his father.