I have announced that I am stepping back from my involvement in research and writing regarding the “birther” claims, but this particular item arose in correspondence with a fairly prominent birther, and having done the research, it’s just too easy to go ahead and write it up. Besides, it seems to be an item that hasn’t been that much commented on by others.
My correspondent wrote:
One item in your work that I picked up on right away – you claim that Leo Donofrio tells a “bald-faced lie,” which are strong words in a matter of interpreting the law, and you quote Justice Gray in Ark:
“as said by Mr. Binney in his essay before quoted, “if born in the country, is as much a citizen as the natural-born child of a citizen…”
Does that not indicate a distinction between the “citizen” Ark and a “natural born citizen,” the same distinction made in Article II, Section I, Clause 5 of the Constitution? Is Donofrio really lying or even incorrect in his assertion?
First, a note: I did use the words “bald-faced lie” — although I didn’t state it quite as definitively as that, saying that Donofrio “appears, at least, to bald-faced lie about what Wong Kim Ark says.”
That characterization, by the way, is factual and accurate, as you will see — due to the precise words that Mr. Donofrio surgically deleted from his quote before he paraded it in front of the public.
My reply — to the question “Does [Horace Binney's quote] not indicate a distinction between the ‘citizen’ Ark and a ‘natural born citizen’?” — was as follows:
This is a very good question. The answer is: Not really.
Stating that the child born in the country of two non-citizen parents is “as much a citizen as the natural-born child of a citizen” does not necessarily logically imply that he isn’t also a natural born citizen.
Take a look at what Leo Donofrio has very specifically cut out of the quote — the clause immediately before it.
Here’s the way that Donofrio quotes the passage at his blog:
“Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. His allegiance to the United States is direct and immediate… and his child, as said by Mr. Binney in his essay before quoted, ‘If born in the country, is as much a citizen as the natural-born child of a citizen…’
Here’s the actual passage, from US v Wong Kim Ark:
“Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. His allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin’s Case, 7 Coke, 6a, ‘strong enough to make a natural subject, for, if he hath issue here, that issue is a natural-born subject’; and his child, as said by Mr. Binney in his essay before quoted, ‘If born in the country, is as much a citizen as the natural-born child of a citizen…”
The sentence that Donofrio deletes — and the deletion can not simply be accidental — says:
“and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin’s Case, 7 Coke, 6a, ‘strong enough to make a natural subject, for, if he hath issue here, that issue is a natural-born subject’;”
While the Court used the phrase “natural born subject” rather than “natural born citizen” — due to the fact that they were quoting the historical precedent from English Lord Coke in 1607, note the context:
“His allegiance TO THE UNITED STATES.”
So while they use Lord Coke’s historical quote, they’re talking very specifically about the status of foreign citizens domiciled in our country, and their children born here.
And they very specifically include:
“if he [the foreign citizen] hath issue [that is, a child] here, that issue is a natural-born subject’;”
And they state this as an “irresistible” “conclusion.”
[Additional editorial note: Let me totally spell this out. The Court is saying (because while they are quoting Lord Coke and his term 'natural born subject', they are doing so completely in the context of the situation here in the United States) that any child born on US soil of foreign citizen parents who are domiciled here is a natural-born citizen.]
There’s also another place in US v Wong Kim Ark where the Court makes clear that the same rule has applied for centuries, first in England, then in the colonies, then in the US both after independence and after establishment of the Constitution. And that rule is that all children born on the soil, of whatever parentage, are natural born citizens/ subjects. (By the way, the two terms were used interchangeably in our country’s early history; more info on that in the following link).
For more on those two passages of US v Wong Kim Ark, see here.
Having written that email, I then went and read Horace Binney’s actual essay on the matter.
Horace Binney Told Us Clearly What Makes a Natural Born Citizen
While it took a bit of hunting to track down Horace Binney’s 1853 essay “The Alienigenae [that is, the Foreign-Born Children] of the United States Under the Present Naturalization Laws,” I finally found a full and readable copy of the essay in its first edition thanks to Harvard university.
Then I located a copy of the apparently third and final version, published in the American Law Register in February 1854.
And finally, none other than Mario Apuzzo has found for us a copy of the second edition. Take your pick — where it really counts, they all say exactly the same thing, in exactly the same words.
Here’s a passage from Binney (beginning on page 25 in the first edition, 26 in the second edition, or 206 in the American Law Register) that very clearly reveals Mr. Binney’s understanding of the United States law in regards to natural-born citizenship. The passage is absolutely identical in all three versions of the essay.
“But the law of France rejects the principle of the English law, and of our own laws, that birth within the limits and jurisdiction of France, makes a Frenchman, or a natural-born citizen or subject of France, absolutely, and provides only for the acquisition of that character by the child so born, on his complying with certain formalities in the course of the year that ensues his arrival at the epoch of his majority.
‘Tout individu né en France d’un étranger pourra, dans l’année qui suivra l’èpoque [sic: "l'époque"] de sa majorité, réclamer la qualité de Français, pourvuque [sic: "pourvu que"], dans le cas où il résiderait en France, il dèclare [sic: "déclare"] que son intention est d’y fixer son domicile, et que, dans le cas où il résiderait en pays étranger, il fasse sa soumission de fixer en France son domicile, et qu’il l’y établisse dans l’annèe [sic: "l'année] à compter de l’acte de soumission.’ Chap. 1, Liv. 1, Art. 9.
[My translation: "Any individual born in France of a foreigner shall be able, in the year after reaching the age of majority, to claim the character of a Frenchman, provided that, in the event that he is residing in France, he declares his intention to fix his domicile there; and that in the event that he is residing abroad, he makes application to fix his domicile in France, and establishes such domicile in France within one year of making such application." The passage as quoted in both original versions contains three minor spelling errors -- the wrong accent marks are placed on some of the e's -- and runs together the words "provided that" (e.g., "providedthat"). I have noted the proper French spellings in brackets.]
Until he makes his declaration after attaining his majority, and fixes his domicil in France, he is not a French citizen or subject; and if he omits to comply with the formalities within the time prescribed, he loses even his contingent title. If he is the child of an American father, what is he under these circumstances? Not a citizen or subject of any country whatever.”
So Horace Binney clearly stated what the law was in both the United States and England, in order to contrast this with the law in France.
It is abundantly clear that he is talking about the child born on the soil of whichever country, of parents who are not citizens of the country in which the child is born.
And Binney quite clearly states that in the case of the United States and England, “birth within the limits and jurisdiction” of those countries makes “a natural born citizen or subject” “absolutely.”
In France, there are additional conditions required for the child of a foreigner, born in France, to be a French citizen.
But in the United States and England, there are no such conditions, and such a child is “a natural-born citizen or subject,” “absolutely.”
Note specifically the inclusion of the words “NATURAL BORN.”
Like so many of the authorities that Leo Donofrio and Mario Apuzzo quote as supposedly being in support of their bogus claim that natural born citizenship requires two citizen parents (e.g., James Madison, St. George Tucker, Charles Gordon, Frederick Van Dyne, John Bingham, and Lyman Trumbull) — Horace Binney directly refutes them.
For more information on some of the many authorities that refute Apuzzo and Donofrio, see my posts in this debate with Mario Apuzzo. See also my email to Helen Tansey regarding John Bingham, another US historical figure misrepresented by these people, here.
For my overall conclusions regarding the claims of the birther movement, see here.
And for my “wrapup” post, see here.
Update 1: I would encourage all readers to also read the intelligent question asked below by a reader named Stan, and my response to his question. I think this will shed some further light for some on the origin and meaning of the term “natural born citizen.”
Update 2: Mario Apuzzo has written a sort-of-response to this article, over here.
The reason I call it a “sort-of-response” is that Apuzzo of course ducks the entire point of this article, which is that it’s total nonsense for him to claim, on the very flimsiest of supposed evidence, that Horace Binney says a child born on US soil to non-citizen parents is NOT a natural-born citizen, when the exact same Horace Binney, in the exact same essay, tells us quite clearly that such a child IS a natural-born citizen.
It’s all more of the smoke and mirrors that discerning regular readers of Mr. Apuzzo’s writings have come to expect.
Here’s some more of Apuzzo’s smoke and mirrors. He actually claims that I hide the following quote by Binney from the public, by not posting a link to the second edition of Binney’s paper — even though I’ve posted links to both the first and third editions. Thanks to his efforts in finding the second edition, though, we now know where a copy is, so I will add it to the links above.
We now have an entire jolly collection of the various versions of Binney’s essay, from the beginning through to its apparently final form.
Here’s the quote that Apuzzo claims I am nefariously hiding:
“The right of citizenship never descends in the legal sense, either by the common law, or under the common naturalization acts. It is incident to birth in the country, or it is given personally by statute. The child of an alien, if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.”
I think it would be entirely reasonable to take the charge that I “hid” this quote as — I hate to say it — a deliberate falsehood on Mario’s part, since I very clearly begin this entire post with the only part of that exact quote that can even be (mis)interpreted to support his position!
Does the first sentence support his position? I don’t think so. It is a statement that the right of citizenship does not “descend” from a father to his son. In other words, according to Binney, citizenship is not automatically transmitted in the common law solely by a built-in “jus sanguinis” (“right of blood”) principle. The second sentence explains this: It is either “incident to birth in the country” (again, this doesn’t support Apuzzo’s claim; it goes against it!). Or, “it is given personally by statute” — in the case of foreign-born children of US citizens overseas.
Neither of the sentences that I didn’t include are helpful to Apuzzo. In fact, both of them are actually harmful to his theory, because they both deny the operation in American law of any automatic principle to transmit citizenship by parentage!
I am in fact grateful to Mr. Apuzzo for prompting me to include those sentences, as they are simply a couple more coals to heap onto the ashes of his burned-down false claims.
As for the third and final sentence, I began this article with it! So the claim that I am “hiding” any part of this quote is just cuckoo.
So what does Apuzzo have to say about the actual content of this article? What does he have to say about the fact that Horace Binney clearly stated that the principle at work in both English and American law is that the child born in the country of non-citizen parents is always, “absolutely,” a natural born subject or citizen?
First, he gives a very brief summary of the article. Then here’s his entire answer to this article’s central point:
“Note that John Woodman does not tell us that France actually used the clause ‘natural born citizen’ which Mr. Binney assumes it did when he says France would once those additional conditions were met give ‘that character’ to a person born ‘within the limits and jurisdiction’ of France. If France uses a class of ‘citizen’ other than a ‘natural-born citizen’ which describes the national character that attached to the person described by Mr. Binney (i.e., attached to a child simply born in France, regardless of the citizenship of his or her parents), then we can conclude that Mr. Binney meant to refer to that other class of ‘citizen’ rather than to ‘natural-born citizen.’”
Update 3: I’d like to also note that Leo Donofrio has played some significant hocus-pocus with Mr. Binney’s essay as well. Once again (unfortunately) Donofrio makes so many points that are clearly and egregiously false that it would not be unreasonable to conclude that the false statements are not merely “mistakes.”
I don’t want to take up too much space here, so I will post my commentary on Donofrio’s article as a comment below.