One of the lesser-known framers of the US Constitution was John Rutledge of South Carolina. In addition to being one of the men who met in Philadelphia to draft the US Constitution, he was the first Governor of South Carolina and the second Chief Justice of the US Supreme Court. It has been said by some that Rutledge was responsible for the Americans defeating the British during the Revolutionary War: he insisted that the Americans shoot from behind trees rather than standing out in the open.1 He also took with him to the Constitutional Convention a draft Constitution, about 1/3 of which was incorporated into the final document, and chaired the Convention’s five-member Committee of Detail that turned the debate into written language. Rutledge, the product of a London legal education, was appointed Chief Justice by Washington while the Senate was in recess, and he served until Congress adjourned because his appointment was not confirmed.
During the short term of Chief Justice Rutledge, the Supreme Court decided two cases, one of which included a question of citizenship, Talbot v Janson. This case was one of a naval encounter where one ship and crew took possession of another in international waters. The question was whether this was an act of piracy, or a lawful seizure under the laws of war. The decision rested in part on the citizenship of the captor, since if he was American the capture was illegal because the US was by treaty neutral in the conflict. The ship’s captain was born a citizen of Virginia but had renounced his citizenship2.
Sir William Blackstone was cited by the court, but not approvingly because under English law, a man may not expatriate himself. Given the fact that the United States was founded upon the principle that a British subject may declare that he is no longer a British subject, English law is unsatisfactory as an authority on this point. The court looked elsewhere, to Grotius, Vattel, Pufendorf and several others whose names are abbreviated. If, however, I understand the reasoning of the Court, it appears that the most important authority is a 1792 Virginia statute which specifies the process by which may renounce citizenship.
This court decision is one of many that divides citizens into two classes, native (natural born) and naturalized (foreign born).
Upon a capture under a commission, to a French citizen, indeed, whether he is a native citizen or naturalized, the thing must be the same in effect, to foreign neutral powers.
What we can take away from this story is that this Framer was widely-read and used a variety of sources of authority as it suited him. Vattel is cited on topics of international law (as here) but never on the acquisition of citizenship — possibly because his views were contrary to the American view. In every case, however, it was the laws of the United States which took precedence, and the law in Virginia at the time (not cited in this case) was that anyone born in Virginia was a citizen, no matter who his parents were. From the law of 1783:
That all free persons, born within the territory of this commonwealth… shall be deemed citizens of this commonwealth.
1This is a gross oversimplification. Rutledge realized that American partisans were not suited to the regimentation of the armies of Europe, and implemented harassing guerrilla tactics. See Mr. Rutledge of South Carolina by Barry.
2 I rather enjoyed this evocative image:
Not being a citizen of Virginia, he cannot be deemed a citizen of the United States. Shall he be called a citizen of the world; a human balloon, detached and buoyant in the political atmosphere, gazed at wherever he passes, and settled wherever he touches?