The Historical Meaning of “Natural Born Citizen” —
Part 3: Antebellum America [1825--1860s]

Dred Scott Was an American Slave -- But Was He an American Citizen?

Dred Scott Was an American Slave -- But Was He an American Citizen?

[To start at the very beginning, click here.] 

Having examined the meaning of “natural born citizen” during the lifetime of the Founders, let’s look at what it meant between that time and the US Civil War.

The founding of the new nation brought some uncertainty about citizenship for some who happened to leave the country after the Revolution — especially in the case of children taken to England by their parents. The parents, at least, had been British subjects. Then the Revolution came. Who was a US citizen? Who was a subject of the Crown?

Some of these questions would return to haunt children born during the period of separation of the two countries — typically when the time came to pass on an inheritance.

As well, the nation had been founded with a dire sickness at its core: the evil of slavery. In the last two weeks of the Constitutional Convention, a deal had been struck which would guarantee the continuation of the slave trade for a further 20 years. But it was a deal with the Devil. And as George Mason had ominously, prophetically, warned his fellow delegates on August 22nd:

“Every master of slaves is born a petty tyrant. They bring the judgment of heaven on a Country. As nations can not be rewarded or punished in the next world they must be in this. By an inevitable chain of causes & effects providence punishes national sins, by national calamities.”

Ironically, George Mason was, after George Washington, the second largest holder of slaves in Fairfax County, Virginia. He apparently found himself unable to embrace in personal commitment what his head and heart both knew and felt to be true. Or perhaps he convinced himself that his slaves were in a better situation serving his family than they would be if he freed them in 1790 Virginia. In any event, upon his death 5 years after the Convention, none of his slaves were freed.

The slavery problem, and the division between free and slave states, would eventually lead to the 1857 Dred Scott case. That was a case that involved citizenship. It has also been called the worst Supreme Court decision in US history.

Our sources for this stretch of history center around the court cases that struggled with these issues of citizenship. They are as follows:

  • US Supreme Court: Shanks v Dupont (1830)
  • US Supreme Court: Inglis v Sailors’ Snug Harbor (1830)
  • New York State: Lynch v Clarke (1844)
  • A statement from legal expert Horace Binney (1853)
  • The curious case of John Charles Frémont (1856)
  • And a statement from US Supreme Court Justice Peter Daniel in the case of Scott v Sandford (1857)

US Supreme Court: Shanks v Dupont (1830)

Mario Apuzzo has claimed that this case supports his claim:

Even our United States Supreme Court in 1830, per Justice Story, clearly established that merely being “born in a country” did not equate to being a “natural born Citizen.” Rather, the Court also required “citizen” parents. In Shanks v. Dupont, Justice Story, writing for the Court in 1830, stated:

“Whether she was of age during this time does not appear. If she was, then her birth and residence might be deemed to constitute her by election a citizen of South Carolina. If she was not of age, then she might well be deemed under the circumstances of this case to hold the citizenship of her father; for children born in a country, continuing while under age in the family of the father, partake of his national character, as a citizen of that country.”

Celebrated Supreme Court Justice Joseph Story Contributed to Two Cases Involving the Division of Colonists into Americans and Britons

Celebrated Supreme Court Justice Joseph Story Contributed to Two Cases Involving the Division of Colonists into Americans and Britons

And this statement comes from the majority Opinion.

As is frequently the case with birthers, however (sorry, but it’s true) Mr. Apuzzo strips the quote from its context.

This particular case is a complex mishmash of competing interests.

We have a woman who was born a British subject on American soil while that soil belonged to England. She was an American at the Declaration of Independence — at which time she may or may not have been a minor. She then married an English officer and moved to England, becoming once more a British subject. Finally, she died, leaving five British children in England, who were suing for a share of their grandfather’s South Carolina estate in a now independent America.

The property in question itself began as part of an English colony. The English colony then declared independence and became part of the United States. The property was captured and held by the British; and then eventually it was given back to the United States of America.

In addition to the revolving nationalities of both Ann Shanks and her father’s property on James Island, the case also concerns:

  • the election of American colonists upon Independence, to be either American or British
  • how the capture of a territory affected the citizenship of its inhabitants
  • how a father’s nationality affected that of his minor children
  • and how a husband’s nationality affected that of his wife.

And the principle mentioned by Story has to do not with citizenship in an established country, but the division of people and land during the great divorce between the American Colonies and Britain. It is one principle of many used to decide the case.

Let’s look again at the passage Apuzzo quotes:

“Whether she was of age during this time does not appear. If she was, then her birth and residence might be deemed to constitute her by election a citizen of South Carolina. If she was not of age, then she might well be deemed under the circumstances of this case to hold the citizenship of her father; for children born in a country, continuing while under age in the family of the father, partake of his national character, as a citizen of that country.”

During this time… during what time? Mr. Apuzzo somehow leaves out that highly relevant point.

“…at the time of the Revolution, and afterwards… until December, 1782.”

So the question had nothing to do with citizenship in a settled country. The principle laid down was this: Ann Shanks, like all American Colonists, was born a British subject. If she was “of age” from 1776 to December of 1782, then she had clearly chosen — as an adult — to embrace American citizenship.

If she was a minor at that time, however, she could not make the choice for herself, and it could be presumed her father had made a choice on behalf of his minor child. Her father had adhered to the American cause, so it could be presumed that in either event, the choice had been made that she was going to leave British subjecthood and become an American.

Shanks v Dupont simply doesn’t have to do with the citizenship of a child born into a settled country. For that reason, it doesn’t lend any support to Apuzzo’s claim. And this fact is about to become clear when we consider what the exact same Justice said in our next case.

US Supreme Court: Inglis v Sailors’ Snug Harbor (1830)

That Mr. Apuzzo’s claim regarding Shanks v Dupont is of no value is shown by a quote from the exact same Justice who wrote that Opinion — Justice Joseph Story — in the similar case of Inglis v Sailor’s Snug Harbor, which was decided the exact same month as Shanks v Dupont:

That the father and mother of the demandant were British born subjects is admitted. If he was born before 4 July, 1776, it is as clear that he was born a British subject.

If he was born after 4 July, 1776, and before 15 September, 1776, he was born an American citizen, whether his parents were at the time of his birth British subjects or American citizens. Nothing is better settled at the common law than the doctrine that the children even of aliens born in a country while the parents are resident there under the protection of the government and owing a temporary allegiance thereto are subjects by birth.

If he was born after 15 September, 1776 [the date when the British troops took possession of the City of New York and its surroundings], and his parents did not elect to become members of the State of New York, but adhered to their native allegiance at the time of his birth, then he was born a British subject.

Note the key quote from the passage above: If he was born after 4 July, 1776, and before 15 September, 1776, he was born an American citizen, whether his parents were at the time of his birth British subjects or American citizens. Nothing is better settled at the common law than the doctrine that the children even of aliens born in a country while the parents are resident there under the protection of the government and owing a temporary allegiance thereto are subjects by birth.

And note also that Justice Story applies that principle of “the common law” to a child born of British subjects on what was by that time independent United States soil.

Mr. Apuzzo claims, lamely, that Justice Story “must have done some soul searching and realized that in America children followed the citizenship of their parents until the age of majority at which time they could chose what citizenship they wanted.”

But Supreme Court Justices don’t say state in one court case that “nothing is better settled” than a particular legal principle, and then claim the exact opposite the very same month.

Mario Apuzzo has noted, correctly, that Justice Story’s opinion in Inglis was not the majority opinion. But he avoids several key points.

First, the Court specifically said their majority opinion on the citizenship question was not based on a very extended examination, as it wasn’t necessary to examine that question at all. They had already decided that John Inglis had no legal right to the property in dispute even if he was legally capable of inheriting it. Therefore, it was unnecessary to determine whether he was capable of inheriting as a US citizen.

“It is not, however, deemed necessary to go into a very extended examination of the other questions, as the opinion of the Court upon the one already considered is conclusive against the right of recovery in this action.”

Second, the case was not at all about the citizenship status of children born on US soil once the dust had settled from the Revolution. Like Shanks, it was about the division of the people in America who were in the process either of becoming American citizens or staying British subjects. It was, in essence, about custody of the “children” in the great divorce between England and America.

“This question as here presented does not call upon the Court for an opinion upon the broad doctrine of allegiance and the right of expatriation under a settled and unchanged state of society and government. But to decide what are the rights of the individuals composing that society, and living under the protection of that government when a revolution occurs, a dismemberment takes place, new governments are formed, and new relations between the government and the people are established…”

Third, the Court never stated that John Inglis was born an alien. They made it plain that because he was born in New York during the formation of the country, he had possessed the right to choose to become an American — even though he had left the country with his British-choosing father at a very early age. They also made it clear that since he was about 45 years old when the case was finally brought, and he had never chosen to come back to America and participate as an American citizen, it was too late now. He had clearly, in their view, “adopted and ratified the choice made for him by his father:”

“John Inglis, if born before the declaration of independence, must have been very young at that time and incapable of making an election for himself, but he must, after such a lapse of time, be taken to have adopted and ratified the choice made for him by his father, and still to retain the character of a British subject, and never to have become an American citizen…

If born after 4 July, 1776, and before 15 September of the same year, when the British took possession of New York, his infancy incapacitated him from making any election for himself, and his election and character followed that of his father, subject to the right of disaffirmance in a reasonable time after the termination of his minority, which never having been done, he remains a British subject and disabled from inheriting the land in question.”

The only difference, in fact, between the opinion of the majority and that of Justices Story and Johnson, was that in the view of the former, the United States was still forming in the early months after the Revolution, and Inglis was born during the period in which people were making that choice. Therefore, in their view, that gave John Inglis the right to choose to be an American citizen, but not automatic citizenship in the new country. And because Inglis had never made that choice in a timely manner, he was incapable of making it now.

In the contrasting view of Story and Johnson, the United States was already formed, and John Inglis was born an American, and was still an American, even though he had left as a very young child, and had never returned to the US for more than 40 years.

Therefore, the only directly applicable evidence in this case is Story’s quote about it being well settled that those born in a country are citizens of that country. Inglis is therefore evidence against the birther claim.

New York: Lynch v Clarke (1844)

This precedent-setting case — later cited by the US Supreme Court — found that the US-born child of non-citizen parents, even though those parents did not settle in the United States permanently, was a natural-born citizen:

My conclusion upon the facts proved is, that Julia Lynch was born in this state of alien parents, during their temporary sojourn. That they came here as an experiment, without any settled intention of abandoning their native country, or of making the United States their permanent home…

It is indisputable 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…

One remarkable thing about this case is that — although Judge Sandford mentions the English common law in the passage above, the case was ultimately decided not based directly on the English common law, but on American common law. And this case, and its conclusion, was later cited approvingly by the US Supreme Court.

This obviously ruins Mario Apuzzo’s claim that American common law based on the law of nations created a “birther” definition of “natural born citizen.”

Judge Sandford also finds, very directly and clearly, that a child born on US soil to alien parents is eligible for the Presidency:

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.

A full article on this very interesting case is now available.

A statement from legal expert Horace Binney (1853)

Leo Donofrio, Mario Apuzzo and others have made much of a quote by US legal expert Horace Binney in US v Wong Kim Ark which they claim implies that the US-born child of non-citizen parents may be a citizen, but not a natural born citizen:

Wong Kim Ark itself distinguished between a child born in the country to one or two alien parents and a child born in the country to citizen parents, telling us that while both are “citizens,” only the latter is a “natural born Citizen.” Wong said: “‘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.’ p. 22, note.” Wong Kim Ark, at 666-67 (citing and quoting Binney’s 1853 pamphlet on citizenship).

As I have pointed out elsewhere, if I say that my neighbor’s tomatoes are just as good as the organic tomatoes from the grocery store, that is not a statement that my neighbor’s tomatoes are not organic. They might well be. Or, they might not be. The statement itself does not tell us. It only tells us that they are as good as the organic ones from the grocery store.

Here as elsewhere, Mr. Apuzzo cherry-picks an ambiguous statement that can be interpreted to say what he wants, and claims that it proves what he wants to prove — while simultaneously ignoring or denying a clear and directly applicable statement by the exact same authority which directly contradicts his claim.

In the exact same book the former statement comes from, Mr. Binney writes:

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.

What does Binney tell us the principle is in English and American law? That birth within the limits and jurisdiction of [the country referenced] makes a “natural-born citizen or subject… absolutely” — in other words, with no further conditions at all. No “formalities” as are required in France. No naturalization. No nothing.

Horace Binney therefore clearly and directly contradicts the claim.

For more details, see the article on Horace Binney at this site.

The curious case of John Charles Frémont (1856)

Presidential Candidate Col. John Charles Frémont Must Have Been Proud of His French Heritage and Father -- He Signed His Name With an Accent Over the "E."

Presidential Candidate Col. John Charles Frémont Must Have Been Proud of His French Heritage and Father -- He Signed His Name With an Accent Over the "E."

The first Presidential candidate of the Grand Old Republican Party was born to a non-citizen father who never became a US citizen.

What’s more, John Charles Frémont practically bragged about the fact during his 1856 Presidential election campaign.

A lot of folks have the impression that Abraham Lincoln was the young Republican Party’s first candidate for President. But he wasn’t. John Charles Frémont paved the way for Lincoln, and undoubtedly made Lincoln’s election possible.

And as the official, authorized, Campaign Edition of Frémont’s biography notes, he was born in Savannah, Georgia, to a French citizen who was “a devoted lover of his country” and who, when John was still four years old, “prepared to return once more to his native land.” John’s mother was American.

But before the elder Frémont could leave for France with his wife and three children, including John, he fell ill after a hunting expedition, and died.

That Jean Charles Frémont never became a naturalized American citizen is entirely obvious, from the following two facts:

  • We are very clearly and repeatedly told that his intention was to get back to his beloved native country of France; and
  • The 1802 Naturalization Act quite clearly required all persons becoming naturalized US citizens to take an oath “to renounce forever all allegiance and fidelity to any foreign prince, potentate, state or sovereignty whatever, and particularly, by name, the prince, potentate, state or sovereignty whereof such alien may, at the time, be a citizen or subject.”

In other words, the elder Frémont would have had to completely renounce his French citizenship in order to become a US citizen.

The biographical facts noted above also appeared in other accounts of the life of John Charles Frémont that were published during the 1856 campaign.

It is obvious that Presidential candidate John Charles Frémont would not have publicized his father’s non-citizen status in his election campaign materials if he had thought that doing so would cause a problem. And indeed, there is not the slightest hint that anybody ever thought that Colonel Frémont’s birth to a non-citizen father was any impediment whatsoever to his eligibility for the Presidency.

These facts, then, are a solid indication that nobody in 1856 believed that the correct definition of “natural born citizen” required either two citizen parents or (as a few people have contended for) a citizen father.

By the way, Frémont was so famous in his day that there are cities, and streets in cities, named after him all over the United States. My own city of Springfield, Missouri, has a fairly major street, an elementary school, and a shopping center all named after Colonel John C Frémont.

A Statement from Justice Peter Daniel in the Case of Scott v Sandford (1857)

Justice Daniel Quoted Vattel in Scott v Sandford -- to Support His Claim that Dred Scott Was "Strictly Property."

Justice Daniel Quoted Vattel in Scott v Sandford -- to Support His Claim that Dred Scott Was "Strictly Property."

Last one for this section of history!

This is the infamous Dred Scott case, and Daniel quotes the favorite “birther” passage from Vattel’s Law of Nations. He even quotes the 1797 translation, which uses the phrase “natural born citizens:”

The citizens are the members of the civil society, bound to this society by certain duties, and subject to its authority; they equally participate in its advantages. The natives or natural-born citizens are those born in the country of parents who are citizens. As society cannot perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their parents, and succeed to all their rights.

Again:

I say, to be of the country, it is necessary to be born of a person who is a citizen, for if he be born there of a foreigner, it will be only the place of his birth, and not his country. The inhabitants, as distinguished from citizens, are foreigners who are permitted to settle and stay in the country.

There are, however, four problems with using this quote from Justice Daniel to establish the meaning of “natural born citizen.”

The first problem is that it was part of the most odious Supreme Court decision in history; and Justice Daniel, elsewhere in his same opinion, found that

  • a) 62-year-old Mr. Dred Scott was “strictly property, to be used in subserviency to the interests, the convenience, or the will, of his owner,” and
  • b) African Americans were not “persons,” but had been historically regarded as mere property, and as such could not be parties at all — much less equals — in any compact or form of government in the United States.

Clearly such a judicial opinion would NOT be regarded as Constitutional today.

The second problem is that Daniel didn’t cite this passage from Vattel in order to make the point that it required citizen parents to be a natural born citizen. He cited it for the sole purpose of supporting point a) above — his point that Dred Scott was property, not a citizen, and therefore did not possess any of the rights of a citizen (such as the right to sue in court). Using it to support the birther idea is therefore a misapplication of the quote.

Again, this quote from Vattel was merely part of the rationale for a judge to rule that a person… was not a person.

The third problem is that Daniel’s opinion was not the majority opinion. It was a separate opinion. It agreed in most respects with the majority opinion — but it was solely Daniel’s own opinion and was not joined by any other Justice on the Bench. This particularly includes the quote from Vattel, which was not found in any other Justice’s opinion in the case.

And the fourth problem is that in the exact same case, in a dissenting opinion, Justice Benjamin Curtis directly contradicted the two-citizen-parent idea! His relevant quote is as follows:

The first section of the second article of the Constitution uses the language, “a natural-born citizen.” It thus assumes that citizenship may be acquired by birth. Undoubtedly, this language of the Constitution was used in reference to that principle of public law, well understood in this country at the time of the adoption of the Constitution, which referred citizenship to the place of birth.

For these four reasons, the misapplied quote from Justice Daniel — particularly considered together with Justice Curtis’s direct contradiction of it — really provides no evidence to help the Apuzzo/ birther claim.

To Be Continued in Part Four

The nation that had been founded with the words, “We hold these truths to be self-evident, that all men are created equal…” now faced a situation in which some men were declared by the nation’s highest Court to be, legally speaking, not men at all, but mere property.

They were also told that they were NOT created equal, and that they were NOT endowed by their Creator with certain inalienable rights. They were told that they were not, and could never become, citizens.

To address this disconnect with one of the nation’s founding principles would require not only the freeing of several million persons then held as slaves, but new statements enshrined in law, that would guarantee those millions the same rights held by others. Ultimately, it would require a Constitutional Amendment.

In Part Four, we will look at natural born citizenship as understood in the Civil Rights Act that followed the Civil War, in the Fourteenth Amendment, and beyond — to the beginning of the 20th century.

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4 Responses to The Historical Meaning of “Natural Born Citizen” —
Part 3: Antebellum America [1825--1860s]

  1. John Woodman says:

    I hope these aren’t so lengthy as to be completely unwieldy…

  2. Keith says:

    Mr. Woodman you are undertaking a Herculean task here.

    This series is a brilliant piece of work, and ‘we’ are indebted to you for your scholarship and your brilliant exposition.

    Well done sir!

  3. Scientist says:

    The Fremont case is absolutely devastating to the birthers-a foreign father who never naturalized, a fact which could not have been unknown to the candidate’s opponents. I eagerly await a response from the birthers as to how this differs from the Obama case.

    You are certainly correct that the odious ruling in Scott v Sanford irredeemably tarnishes the arguments used to reach the conclusion. I would add that the birthers other favorite case, Minor v Happersett, also reached a lamentable conclusion-that women had no right to vote. Simply pulling statements out of a ruling that one likes, while ignoring what the case was about and what the decision was is not real legal argument. If birthers want to use Scott and Minor they need to have the honesty to own the actual decisions in those cases. But then honesty and context for quotes have never been their forte.

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