Evidence Found that American Common Law Defined Whether a Child Born on US Soil of Non-Citizen Parents Was a Natural Born Citizen! (Lynch v Clarke, 1844)

Bernard Lynch sued Dr. John Clarke and his own niece over this New York property and its mineral water riches. The case turned entirely on one question: Was Julia Lynch a United States citizen?

Bernard Lynch sued Dr. John Clarke and his own niece over this New York property and its mineral water riches. The case turned entirely on one question: Was Julia Lynch a United States citizen?

[Note: This post began as a portion of Part 3 of this blog's final article. It has been split out to make a post of its own.] 

Previously at this blog, we’ve looked at Mario Apuzzo’s claim that American common law established a definition of “natural born citizen” — a definition which excludes the children born on US soil of alien parents from being natural born citizens (and therefore, from Presidential eligibility).

At that time, I was not aware of any case in which American common law seemed to have settled that question.

So you can imagine my at least mild surprise when I discovered recently that there is an American court case which stated that American common law does define whether a child born on US soil of alien parents is a natural born citizen.

The case is an interesting one. It involves a dispute over the ownership of some valuable land in New York State. The land had a spring that produced mineral water which was then sold to the public, producing a large and ongoing yearly income. (The same property is today a park in Saratoga Springs, NY).

The business, Lynch & Clarke, was owned by Thomas Lynch and Dr. John Clarke until Mr. Lynch’s death in 1833.

The Stage is Set for a Confrontation

Julia Lynch, Thomas’s niece, was born in the spring of 1819 in New York City to Thomas’ brother Patrick and his wife. Both of these were British subjects who lived in Ireland, but resided temporarily in the United States. Before Julia was six months old, the entire family moved back to Ireland — and there they stayed.

But there was a third brother, Bernard, who moved to the United States after Thomas’s death, became an American citizen, got special clearance to inherit Thomas’s property if there were no other heirs, and sued John Clarke and his own niece, Julia Lynch. He claimed that he should have a half-interest in the property and business and that Julia should get nothing.

The case therefore was Lynch v Clarke and Lynch (1844), but it is usually known by its abbreviated title of Lynch v Clarke.

Under the laws at the time, neither Julia Lynch nor her uncle could inherit from Thomas Lynch if they were not US citizens — except by special permission. If Julia was already a US citizen, however, then any property that had belonged to her uncle was legally hers, and her other uncle was due nothing.

As of 1844, Bernard was trying to get his hands on what had belonged to his brother Thomas, and to cut his niece out. The case therefore turned on the question of Julia’s citizenship. And citizenship, the court determined, was not a state issue but a national one.

The question therefore was: Is a child born in the United States of alien parents who are only temporarily here, a United States citizen?

And to answer that question required determining what the law of the United States was.

A State Case that Examined National Law

The answer, the court said, was to be found in the American common law. Here are excerpts from Judge Lewis Sandford’s decision in that case:

It is an indisputable proposition, that by the rule of the common law of England, if applied to these facts, Julia Lynch was a natural born citizen of the United States. And this rule was established and inflexible in the common law, long anterior to the first settlement of the United States, and, indeed, before the discovery of America by Columbus… This was settled law in the time of Littleton, who died in 1482.

Foreigners arriving here intermediate the Declaration of Independence and the adoption of the constitution, became citizens or aliens, according to the laws of the several states where they resided; and the children of aliens born here during that interval, became citizens in those states, because,
as will presently be shown, the common law was in that respect, the law of all the states…

In reference to… those who were born here of alien parents — it is claimed that the common law continued in force, which will be a subject for inquiry presently. Whether it did or did not, their condition was to be ascertained by a national law…

At the formation of our present national government, the common law prevailed as a system of jurisprudence, in all the thirteen states which then constituted the nation…

It is indifferent whether we say that we inherited the common law, or the principles of the common law. There is no doubt but that in all the thirteen colonies, it was the common origin of our jurisprudence…

Judge Tucker says that an alien in America was entitled to many more rights than an alien in England…

[I include the above comment because it makes it clear that American policy and law was more embracing of foreigners than English law. Therefore, as a land which eagerly welcomed new immigrants in order to build our population and fortunes, America undoubtedly would have been more embracing of the children of such immigrants as well. Yet even under English law, the children born within the country of alien parents were natural-born subjects, and thus equal with all other native-born persons in having the highest possible status of membership in that society. The above comment also references St. George Tucker, whom Mario Apuzzo (falsely) claims supports his position.]

It may then be safely assumed, that at the Declaration of Independence, by the law of each and all the the thirteen states, a child born within their territory and ligeance respectively, became thereby a citizen of the state of which he was a native. This continued unchanged to the time when our National Constitution went into full operation. There is no evidence of any alteration of the rule in any of the states during the period that intervened; and the references which will be made under another head, show conclusively that there had been no intermediate change in their policy…

[Judge Sandford also makes the point that terms in the Constitution are to be understood in reference to their definitions from the English common law, by noting that the Framers of the Constitution provided no definition for the terms "impeachment, felonies, treason, bribery, indictment, cases in equity, bankruptcy, attainder, and writ of habeas corpus," "all of which were unknown even by name, to any other system of jurisprudence than the common law."]

The Constitution of the United States contains no clause declaring who shall be citizens, nor is there any act of Congress which applies to the case of Julia Lynch. The necessity for a rule or principle applicable to this subject, and co-extensive with the nation, has existed ever since the adoption of the constitution, and cases to which it is applicable, have been arising constantly since that period. The states parted with their control of the matter to the federal government. Therefore, there must have been a national principle or rule of law, co-eval with the existence of the Union, governing the subject. And the question whether Julia Lynch was or was not a citizen, must be determined by the national unwritten law. [That is, the American common law.]

It is a necessary consequence, from what I have stated, that the law which had prevailed on this subject, in all the states, became the governing principle or common law of the United States. Those states were the constituent parts of the United States, and when the union was formed, and further state regulation on the point terminated, it follows, in the absence of a declaration to the contrary, that the principle that prevailed and was the law on such point in all the states, became immediately the governing principle and rule of law thereon in the nation formed by such union.

If there had been any diversity on the subject in the state laws, it might have been difficult to ascertain which of the conflicting state rules was to become, or did become, the national principle. And if such diversity had existed, it is reasonable to believe that the framers of the constitution would have borne in mind, and enacted a uniform rule, or authorized Congress to establish one. The entire silence of the constitution in regard to it, furnishes a strong confirmation, not only that the existing law of the states was entirely uniform, but that there was no intention to abrogate or change it.

The term citizen, was used in the constitution as a word, the meaning of which was already established and well understood. And the constitution itself contains a direct recognition of the subsisting common law principle, in the section that defines the qualification of the President. “No person except a natural born citizen, or a citizen of the United States at the time of the adoption of this constitution shall be eligible to the office of President,” &c.

The only standard which then existed, of natural born citizen, was the rule of the common law, and no different standard has been adopted since. Suppose a person should be elected President who was native born, but of alien parents, could there be any reasonable doubt that he was eligible under the Constitution? I think not. The position would be decisive in his favor that by the rule of common law, in force when the constitution was adopted, he is a citizen.

Judge Sandford later says the exact same thing that St. George Tucker stated earlier, that the laws of the United States regarding naturalization are in harmony with the English (and American) common law rule of citizenship at birth:

In harmony with the certainty of the common law rule respecting natives born, are our statutory provisions for the admission of aliens to the rights of citizen.

Then:

Upon principle, therefore, I can entertain no doubt, but that by the law of the United States, every person born within the dominions and allegiance of the United States, whatever were the situation of his parents, is a natural born citizen.

Judge Sandford also deals with the claim Mr. Apuzzo makes, that the child “follows the condition of the parent:”

Before parting with this subject, I will examine further the grounds on which the citizenship of Julia Lynch was denied. It was assumed to be an indisputable proposition, that by the international or public law, she was an alien; for that by the public law, the child follows the political condition of the parent…

The rule contended for, is one confined to countries which derived their jurisprudence from the civil law, and is more properly a rule of the civil law, than one of the public law, or law of nations.

[Sandford then reviews various authorities before concluding:]

These references show that the rule which the complainant derives from the writers on public law is not even in theory, clearly defined or uniformly held.

He then states that “the most approved authorities, do not deviate from the rule of the common law, any farther than Judge Story has suggested that it reasonable to deviate.” He notes that such a rule would be unworkable and is inconsistent with English and American practice, and says:

With these remarks, I dismiss the argument founded on the rule of the public law, its fitness and adaption to the spirit of our institutions.

Judge Sandford finally concludes:

In conclusion, I entertain no doubt but that Julia Lynch was a citizen of the United States when Thomas Lynch died. She therefore inherited the property in controversy, if Thomas Lynch had any estate therein, to the entire exclusion of the complainant, who was then an alien, and incapable of taking by descent.

Ouch. Take that, Bernie! You tried to take everything from your niece. Instead, Thomas’s share belongs to Julia, and you don’t get a single dime.

History does not seem to record whether Julia Lynch sent her uncle a bottle of mineral water as a consolation prize.

But back to the 21st century. The take-away for today is: Yes, there is at least one court case that stated that American common law determines whether a child born on US soil is a natural born citizen.

According to Judge Sandford, every single one of the original thirteen states adopted the rule from English common law that says a child born in the country, even to alien parents, is “natural born.”

Because each state adopted that rule, it became the common law of each and every state.

And because that common law rule was absolutely uniform throughout every one of the original 13 states, it became a national principle or common law for the entire country upon their Union.

Therefore, according to American common law, the child born on US soil anywhere in the country was a natural born citizen — without any regard at all as to whether his or her parents were US citizens at the time.

Is a child born on US soil of non-citizen parents eligible to become President? According to Sandford — who was later cited approvingly by the US Supreme Court in the decisive citizenship case of US v Wong Kim Ark — there’s no reasonable doubt about that question:

“Suppose a person should be elected President who was native born, but of alien parents, could there be any reasonable doubt that he was eligible under the Constitution? I think not.”

By every other single principle of law, the birthers have been completely out of luck. And as it turns out, their final refuge — a plea to American common law — destroys their claim as well.

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26 Responses to Evidence Found that American Common Law Defined Whether a Child Born on US Soil of Non-Citizen Parents Was a Natural Born Citizen! (Lynch v Clarke, 1844)

  1. nbc says:

    Yep, Lynch v Clarke a case that keeps on giving. I have discussed the case on my site. Very devastating to the birther cause…

  2. That is why Mario, instead of trying to deny the clear conclusions one must draw from Lynch v Clarke, had to retreat and just say “the judge was wrong”.

    • John Woodman says:

      A case that was quoted approvingly by the US Supreme Court in the majority opinion of US v Wong Kim Ark.

      But Mario knows better than the entire US Supreme Court.

      As for the claim that American common law gives a birther definition of “natural born citizen,” it’s totally, utterly, irretrievably gone.

  3. BrianH says:

    The larger context of one of John’s excerpts is most interesting:

    ***
    If there had been any diversity on the subject [of citizenship by birth] in the state laws, it might have been difficult to ascertain which of the conflicting state rules was to become, or did become, the national principle. And if such diversity had existed, it is reasonable to believe that the framers of the constitution would have borne in mind, and enacted a uniform rule, or authorized Congress to establish one. The entire silence of the constitution in regard to it, furnishes a strong confirmation, not only that the existing law of the states was entirely uniform, but that there was no intention to abrogate or change it. The term citizen was used in the constitution as a word, the meaning of which was already established and well understood. And the constitution itself contains a direct recognition of the subsisting common law principle, in the section which defines the qualification of the President. “No person except a natural born citizen, or a citizen of the United States at the time of the adoption of this constitution, shall be eligible to the office of President,” &c. The only standard which then existed, of a natural born citizen, was the rule of the common law, and no different standard has been adopted since. Suppose a person should be elected President who was native born, but of alien parents, could there be any reasonable doubt that he was eligible under the Constitution? I think not. The rule would be decisive in his favor that by the rule of the common law, in force when the constitution was adopted, he is a citizen.” (Italics in original;. bolding added).

    ****

    It’s a very illuminating case and instructive for several reasons.

    1) It was decided before the enactment of the Fourteenth Amendment, so it precludes the Birther reflexive argument in any case since the amendment that “citizen” means some notion of a “Fourteenth Amendment citizen.”
    2) Vice Chancellor Sandford makes clear that the common law rule of citizenship is, of necessity, “national” in character, which rebuts the argument I’ve seen put forth on the Birther side that state court decisions which may reflect the jus soli English common law rule aren’t applicable to the Constitutional question.
    3) V.C. Sandford makes abundantly clear there is no distinction between “citizen at birth” and “natural born citizen.” He notes that “the only standard which then existed” was that of natural born citizen; there was no “birth citizen” that was distinct from “natural born citizen.” Thus, he uses “citizen,” “natural born” and “native born” completely interchangeably. I notice one Birther on Mario’s board back in 2009, commenting on how WKA cites Lynch, editorializes a supposed distinction between “citizen” and “NBC.” (“That all children, born within the dominion of the United States, of foreign parents holding no diplomatic office, became citizens at the time of their birth, [NOT NATURAL BORN CITIZENS] does not appear to have been contested or doubted until more than fifty years after the adoption of the Constitution, when the matter was elaborately argued in the Court of Chancery of New York, and decided upon full consideration by Vice Chancellor Sandford in favor of their citizenship. Lynch v. Clarke, (1844) 1 Sandf. Ch. 583.”)

    But Justice Gray speaks of V.C. Sandford’s “elaborately argued” case and “full consideration” of the matter. It’s ridiculous to suggest that J. Gray had in view some “birth citizen” versus “natural born citizen” distinction when the Sandford opinion Gray has in front of him most decidely declares there is but one standard of “natural born citizen.”

    • John Woodman says:

      It is indeed “elaborately argued” and a “full consideration.” Sandford is the only person I know — not even the Court in US v Wong Kim Ark went this far back — to trace the principle clearly back into the 1400′s.

      Here’s a comment and link to Littleton’s Treatise on Tenures, and the passage that Sandford refers to.

    • John Woodman says:

      The one link I give is to an English translation of Littleton’s work.

      Here’s another version, which includes the original, written in “Law French.”

  4. Scientist says:

    I have challenged Mario and others to show even a single example of a person born in the US going through naturalization, either before or after the 14th Amendment. There is no question that over the last 220 years, many millions of children have been born in the US with one or both parents not citizens, including many who lived and died before the Civil War. So there should be a plethora of cases to choose from. But there are no examples found (other than a few children of diplomats).

    After much hand-waving, the best Mario could come up with is, “They were naturalized when their parents naturalized so they are not recorded”. But of course, there would have been many whose parents died, returned home or simply never naturalized. If Mario were correct, these children would not have been citizens and would have had to naturalize as adults. And the records would list, “Place of Birth:USA”. So where are such cases? Unlike the Higgs boson they don’t exist, so the model that proposes they do exist is wrong.

    I would also add that as important as Wong was, it did not make new law at all. Had Wong’s parents been the Wongers from Germany or the Wongleys from England, the case would never have arisen because no immigration officer would have ever considered the US-born children to be anything other than citizens. Wong arose as a case solely because of the Chinese Exclusion Laws. And the result simply extended to the children of Chinese parents the rights always extended to the children of European parents, as shown in Lynch.

    • John Woodman says:

      In Part 1, of course, I actually went out and looked, as hard as I could, for even one example of a person born on US soil who was naturalized. Needless to say, I came up dry — except for the one example of a person from New Hampshire who was naturalized in Vermont.

      Which showed, again, that naturalization was for foreigners — since at the time, Vermont was an independent country (the “Vermont Republic”) as separate from the United States as Canada or Mexico are today.

      • Scientist says:

        There are Vermonters today who would like to be independent.

        I believe there are a few cases of kids born to diplomats in the US who later immigrated here as adults and were naturalized. That wouldn’t help the birthers, though. There are also the Indian tribes who were made US citizens by statute at different points. Were they naturalized or retroactively granted natural-born status? Also, of course, there were people in places that became US territory after they were born, like those in the territories acquired in the Louisiana Purchase or the Mexican War. None of those apply to Obama, of course.

        I must remark again that all this complexity seems needless. Most countries seem to do fine lettting any citizen run for any office (with perhaps a minimum age or time of residency). No earthly purpose that I can see is served by making a big deal about how citizenship was acquired. It’s like arguing whether Isaac Stern was born or became a great violinist. Just sit back and enjoy the music.

    • John Woodman says:

      Sorry, that was Part 1, not Part 2. Edited.

  5. Reese says:

    Sorry all, the US Supreme Court case, Minor v. Happersett 88 U.S. 162 (1874) trumps all of your material. The definition was spelled out by the unanimous decision in this case.

    Upholding the US Constitution does not make one a birther.

    • John Woodman says:

      Finally! A legitimate comment!

      I get so tired of the daily deluge of “Hey, I think you doing fine writing and this is a great blogs. I am telling my friends about this site and and wishing you keep up the good work” comment spam.

      Sorry, Reese, but Minor v Happersett has been analyzed to death, and beaten to death. In fact, the entire issue has been analyzed to death and beaten to death.

      I personally researched and wrote 5 different articles on Minor v Happersett alone. You couldn’t possibly be more wrong in the claim that Minor v Happesett supports a birther definition for “natural born citizen.” It does not and never did. Even if it had, it would’ve been dicta. And even if it hadn’t been dicta, it would’ve been overruled by US v Wong Kim Ark, which very clearly established that in general, people born in the United States, even of non-citizen parents, are not only citizens,but natural born ones.

      Frankly, anyone who has really looked at the issue extensively, honestly, and in an unbiased way knows this.

      As far as the broader question, I recommend you read ALL of the 30 or so articles I’ve written on the subject. They plumb the issue about as deeply as it can be plumbed. And there is really NO case for the claim — legally, Constitutionally or historically — that being a natural born citizen requires citizen parents. It just isn’t there. Sorry.

      Start here, with Minor v Happersett and US v Wong Kim Ark.. Then go on and read all the other two dozen or so articles. And you can go back to the original sources for yourself, which I’ve referenced in pretty much every case.

      If you’re honest about the issue, that is. Which I hugely doubt — as the vast majority of people who show up here making comments like you just made are perfectly willing to promote any truth that says what they want it to say, and no other.

      In other words, they aren’t Constitutionalists at all.

      In any event, you ARE right about one thing:

      Upholding the US Constitution does not make one a birther.

      That’s exactly right. Upholding the US Constitution makes one an ANTI-birther.

      • Suranis says:

        Even if one is an ebil foreigner.

      • gorefan says:

        Will you be announcing your new information soon?

        • John Woodman says:

          Sorry for the delays, gorefan.

          Here’s the situation: I have an article all written. It’s ready to go.

          The reason I haven’t posted it yet is because I wanted to do a press release to at least a few news outlets.

          However, I do think the odds of getting much coverage for any news on this are low. So if regulars here would prefer that I just go ahead and get the thing published, without any accompanying press release, I will do so.

          What think you, guys? Publish it, or keep fiddling until I can get around to getting a press release together?

          • Slartibartfast says:

            John,

            What is your purpose for the press release? There will probably be quite a bit of birther activity (which will draw a little bit of press interest) until the election after which you’ll be competing with fewer active birthers for a slice of a much smaller pie. I would think that you are better off getting the information out sooner, press release or no, but depending on your goals that may not be the case.

            Personally, I wanna know now! :-P

            • John Woodman says:

              It’s news. News, and good information on the subject.

            • Slartibartfast says:

              Well, I would think that publicizing it through the anti-birther community would be your best bet—after all, those are the people who will care about it and want to spread it around (not to mention that they will give you credit and link back here). Unless it is something that the press can immediately see as important, what you need are surrogates, not press coverage. I think that you’d probably rather this went viral than had its 5 minutes on the nightly news, right?

            • John Woodman says:

              Who says anti-birthers will even like it? Maybe I’ve discovered some good evidence Obama’s birth certificate is a fake after all. ;-)

              And if they do, what’s to keep both from happening?

              In any event, I will admit it’s been kind of hard for me to get back and do much more writing on the subject. I have other priorities I’m working on. And it’s also getting harder for me to care as much about doing as much as I can to get things out to the media.

              I suppose I could publish the article and someone else could write up a press release and try to get it covered.

            • gorefan says:

              John,
              you were interviewed by a news organization recently, about the time of the CCP’s 2nd press conference, IIRC, you could send that reporter an advance copy. There is also Matthew Hendley at the Phoenix New Times and Morgan Lowe at CBS5 in Phoenix, both seem to be interested in shooting down the CCP’s findings. But outside of them I would not expect much of reaction from the real world.

              However, it will be a nice to have a new bludgeon to use on the birthering community.

              You should think of it this way, how much news coverage would you expect to get if you announced you had proof positive that the fake moon landing conspiracy nuts were wrong?

              Se cuida

            • Slartibartfast says:

              John,

              If you were writing something that the birthers would like I don’t think you’d have a problem interesting birther propaganda outlets like WND or getting birthers to blog about it either (although they would admittedly have trouble understanding the salient points…).

              It sounds like, either way, you’re not really interested in pushing your discovery (which I can understand, after what you’ve gone through)—why not leave it to people who are?

            • John Woodman says:

              The problem is, I’m somewhat interested, but really don’t have the time, or the energy, to give to it.

              Okay, I’m going to go ahead.

              You know, the other part of this is: I prefer to do justice to a task. And I feel like in order to really do justice to it, it ought to be announced, and not just merely published on a web site.

              Be that as it may, maybe I need to accept my own practical limitations and just rely on others to spread the word as far as it needs to be spread.

              Like I say, maybe someone else can come up with a good press release and send it to the appropriate folks in the media. Like those you’ve mentioned. (Hint, hint?)

              Publishing at precisely midnight. That’s 7 minutes from now.

              Hey, a little drama, anyway. ;-)

            • Slartibartfast says:

              Thanks. I’m gonna go give it a read… ;-)

            • Suranis says:

              I think, win or lose, that the article will be largely irrelevent come November. I think its important that the article comes out before the election so that the election is not poisoned by this smear, but its up to you. If you want send a press release to the major networks. If they chose to ignore it then its on them.

            • John Woodman says:

              It’s published. I haven’t sent a press release to any of the national news outlets, but I have to a few local ones.

Comments are closed.