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.
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.