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Field rejects the legal status of natural law

The influential lawyer and legal reformer David Dudley Field gave an address to the Social Science Association in 1866. The title of his talk was “An International Code.”

In that address, Field made the following interesting comments about writers on international law, and I think it applies directly to the writings of Emerich de Vattel:

Who made these rules, or this international law if you so call it, is explained by the definition which I have given. It was made by the nations themselves, either through express compact with each other or through general practice; that is to say: by treaty or by usage. Publicists, I know, looking beyond the rules so made or sanctioned, have sought in those moral precepts by which nations, not less than individuals, ought to be governed in their intercourse with each other for guides in other circumstances; and statesmen and diplomatists have often fortified their arguments by reference to such opinions, and it has thus frequently happened that those precepts have been gradually adopted into the usage of nations. These views of the publicists are, however, to be regarded rather as suggestions of what ought to be the conduct of nations in particular circumstances than as a statement of established rules. They are entitled to the same weight in the decision of national disputes as a treatise on natural law is entitled to in the decision of a case by the courts of America or England. [Emphasis added.]

Thomas Jefferson on “Natural Born”



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. Continue Reading →

Response to Eligibility Primer (Part 2)

This is a continuation of the discussion of the June 5, 2009, article titled Obama Presidential Eligibility – An Introductory Primer by Stephen Tonchen. We resume at the end of his section 4:

In 1898, in the Wong Kim Ark case, the Supreme Court reexamined the “citizenship-by-birthplace-alone” theory, but did not decide whether it applied to natural born citizenship. The Court ruled that Mr. Ark was a citizen, but did not rule that he was a natural born citizen (SCOTUS in ‘Wong Kim Ark’).

This is a major gloss over one of the most sweeping surveys of citizenship ever appearing in US jurisprudence. The question before the court was whether Wong Kim Ark, born in California of Chinese subjects at a time when racist legislation (the Chinese Exclusion Act) prohibited the Chinese from becoming naturalized citizens, was a citizen. The Court said that he was. But in the majority opinion, the Court said a great many things of importance, specifically:

  1. Citing Smith v. Alabama, the court said that the Constitution is framed in the language of English Common Law
  2. The Court cited English Common law, saying that those born in England are natural born subjects of England, without regard for the citizenship of their parents
  3. The Court asserted the equivalence of “citizen” and “subject”.

While US v. Wong did not decide the natural born citizen question, the majority opinion leads inevitably to the conclusion that those born within the United States (except the children of ambassadors) are our natural born citizens, without regard to the citizenship of their parents. Continue Reading →

Response to Eligibility Primer (Part 1)

I have come to realize that there are two debates on the question of presidential eligibility and the definition of “natural born citizenship”, and some of the more thoughtful people on each side are debating different things. One debate thesis may be summed up this way:

The Constitution does not define “natural born citizen”, nor is it defined in legislation. The U. S. Supreme Court has never decided the question of the relationship of parentage to natural born citizenship. The uncertainty should be resolved.

The second debate thesis might be summed up this way:

Based on common law principles, and supported by numerous authorities, one may conclude with a high degree of certainty that natural born citizens of the United States are those born within its borders except the children of ambassadors.

Folks like Ken Dunbar and Stephen Tonchen (the author of the piece to be discussed here) are debating the former, and this web site is largely geared towards investigating the latter. If debating the first question, then one might say that Barack Obama’s eligibility is “unproven”, but when debating second one will conclude that it is “proven”.

I have no strong objection to the first thesis, but because I affirm the second, I don’t find that there is any urgency towards a judicial resolution of a question that has already been decided by force of argument, the same argument that would be made to the Court and that would certainly prevail. Whichever the case, I find language like “usurper” to be totally irresponsible. Continue Reading →

The Great Mother of All Natural Born Citizen Quotation Pages

Partial lists don’t carry the full impact of citations scattered here and there. This project is to collect everything accessible and to the point into one place If it takes much context or argument, a brief reference and a link is included. I promise you that the quotations will mean the same thing when you read them here than they mean if you read the larger context, and the larger context will be linked to the text. No tricks, no deception.

For additional citations, see The “Natural Born Citizenship” Clause (Updated) to whom this article is indebted for some of these citations. And for EVEN MORE citations see SCOTUS & “Natural Born Citizen” – A Compendium, Books on Google that define “Natural Born Citizen” and History of US citizenship laws.

Continue Reading →

Dead Attorney General declares “Obama native born”

Citation:  10 U.S. Op. Atty. Gen. 328, 1862 WL 1393 (U.S.A.G.)
United States Attorney General
September 1, 1862.

*328 A child born in the United States of alien parents, who have never been naturalized, is, by the fact of birth a native-born citizen of the United States, entitled to all the rights and privileges of citizenship.
Secretary of State. Continue Reading →