US State Department Policy Relevant to Natural Born Citizenship in the 1880s and 1890s

Secretary of State William Evarts Was Clear that US-Born Children of Non-Citizens Had a Right to Be US Citizens -- But After He Left, the State Department Changed Its Tune.

Secretary of State William Evarts Was Clear that US-Born Children of Non-Citizens Had a Right to Be US Citizens -- But After He Left, the State Department Changed Its Tune.

 
As we’ve seen in the 1856 Presidential election campaign of John Charles Fremont, there never seems to have been any problem in recognizing that persons born in the United States to non-citizen parents were natural born citizens.

By the 1880s, however, the US State Department started to take a more restrictive view toward children of non-citizens who were removed as minors by their parents to other countries.

The policy of the State Department in regard to such people, in fact, seems to have changed at some point between November of 1880 and January of 1885.

In November of 1880, Secretary of State William Evarts wrote to Michael J. Cramer, our Ambassador to Denmark:

“A person born in the United States has a right, though he has intermediately been carried abroad by his parents, to elect the United States as his nationality when he arrives at full age.”

This policy, which appears to have been the policy of the United States from the founding of the country, may have been changed under the next Secretary of State, James Blaine, who wrote the following year:

“The child born to an alien in the United States loses his citizenship on leaving the United States and returning to his parent’s allegiance.”

So the policy under Mr. Blaine at least appears to be different.

Secretary Blaine

Secretary Blaine

It is interesting to note that Secretary of State Blaine seems not to have been trained as a lawyer. Three times he attempted to study law. It is unclear to me whether he managed any real legal training at all.

It is also not entirely clear whether Blaine’s doctrine actually represents the point at which the policy changed, or whether it is simply that the policy at that time was a complicated one.

It could be that children born on US soil of alien parents were regarded as US citizens for as long as they were in our country, and that if taken abroad during minority they “lost” their citizenship — but still kept the right to reclaim and reassume that citizenship upon reaching their age of majority.

Policy Under Frederick Freylinghuysen

Secretary of State Freylinghuysen

Secretary of State Freylinghuysen

By 1885, under Blaine’s successor, Frederick Frelinghuysen, the right of a US-born child carried abroad to be a US citizen upon reaching adulthood was actively denied.

Freylinghuysen’s policy, in direct conflict with that of Evarts, seems to have been based not only on the policy of his predecessor Blaine, but also on misunderstandings or misinterpretations of the earlier laws providing for naturalization of foreign-born children of a person being naturalized, and of Section 1992 of the United States Revised Statutes — the Civil Rights Act of 1866.

In 1885, Freylinghuysen wrote:

“The first case, of Ludwig Hausding, appears to have been decided according to the law and the facts. It is stated that, having been born in the United States of a Saxon subject, he was removed to his father’s native land, where he has ever since remained, although his father has subsequently become a citizen of the United States. You refused a passport on the ground that the applicant was born of Saxon subjects, temporarily in the United States, and was never ‘dwelling in the United States,’ either at the time of or since his parent’s naturalization, and that he was not, therefore, naturalized by force of the statute, section 2172, Revised Statutes…

Not being naturalized by the force of the statute[s] [which allowed for naturalization of minor children of persons being naturalized, and of the widow and children of an alien who had declared an intention to become a US citizen but who died before completing naturalization], Ludwig Hausding could only assert citizenship on the ground of birth in the United States; but this claim would, if presented, be untenable, for by section 1992, Revised Statutes, it is made a condition of citizenship by birth that the person be not subject to any foreign power.

It goes without saying that nothing changed in the Civil Rights Act of 1866 between November of 1880 and January of 1885. What changed, instead, was the State Department.

Freylinghuysen interpreted the Civil Rights Act as restrictive, when its purpose had been inclusive; as creating new law, when it was understood by its proponents to be merely declaratory of the law as it already existed; and its wording — “not subject to any foreign power” — as meant to exclude US-born children of non-citizens, when — as we’ve seen in the section on the 1866 debates — that was never the intention of any of those who crafted and passed the law.

Self-Contradiction?

But Freylinghuysen’s policy seems to have been confused and contradictory. Just two years earlier, in 1883, he wrote, quoting Attorney General Bates from 1862:

“Under the fourth section of the act of April, 1802, to establish a uniform rule of naturalization, &c., such children, if dwelling in the United States, are declared citizens. That section [continues the Attorney General], provides, in brief, that the children of persons duly naturalized under any of the law of the United States, &c., being under the age of twenty-one years at the time of their parents being so naturalized or admitted to the rights of citizenship, shall, if dwelling in the United States, be considered as citizens of the United States.

The section, of course, refers to children born out of the United States; since the children of such persons born within the United States are citizens without the aid of statutory law.”

So did Freylinghusyen change his mind between 1883 and 1885? Perhaps he believed that earlier Attorney General Bates’ opinion had been correct, but that it had been abrogated by the Civil Rights Act of 1866, and then applied his misinterpretation of that Act to his decision.

Or, it’s possible that Mr. Freylinghuysen used whatever justification he could find in order to implement a restrictive policy in regard to citizenship and the issuance of passports, and ignored those parts of law or opinion which he found on a particular occasion inconvenient. It seems difficult at this point to know, at least without a far more thorough survey of Freylinghuysen’s records and writings than I’m prepared to undertake.

In any event, similar restrictive policies seem to have been applied under several succeeding Secretaries of State: Thomas Bayard (1885-1889), James Blaine again (a second stint, from 1889-1892), and Walter Gresham (1893-1895).

These policies made things more difficult for some children removed to other countries by their parents. Even so, none of the Secretaries of State between 1880 and 1900 (or anybody else during that period, for that matter) ever seems to have contended that a US-resident American-born child of non-citizen parents, who took up his American citizenship, was not a natural born citizen or would be thereby disqualified from serving as President. The example of John Charles Fremont was still relatively fresh. And, as covered elsewhere, the political enemies of Chester A Arthur did in fact claim that he was ineligible — alleging first that he had been born in Ireland, and then that he had been born in Canada — but they seem never to have even thought of the possibility that he might be ineligible by virtue of having had a non-citizen father.

Still, the restrictive State Department policies of the 1880s and 1890s are themselves generally favorable to the birthers’ two-citizen-parent claim. It was the existence of such policy, in fact, that was later emphasized by Breckenridge Long in his 1916 attempt to discredit Republican Charles Evans Hughes’ candidacy for the Presidency.

The fact that the policy represented a clear change from earlier understanding and policy, however, is not favorable to the two-citizen-parent claim. And the policy itself was doomed to disappear, struck down by the US Supreme Court in such decisions as US v Wong Kim Ark (1898) and Perkins v Elg (1939).

This entry was posted in Conclusions, Natural Born Citizen, New Information. Bookmark the permalink.

10 Responses to US State Department Policy Relevant to Natural Born Citizenship in the 1880s and 1890s

  1. John Woodman says:

    Let it not be said that I haven’t given the birthers their due.

    I had intended to keep on schedule with the publishing of my final article, but realized that I hadn’t covered this section of history, which is more favorable than most to the birther claim. I decided that the final article would not be complete without covering it, but any treatment of the matter was too long to put into Part 5. Therefore, like my comments on Lynch v Clarke, it’s been separated out.

    Next up is Part 5 of the final article!

  2. Scientist says:

    If the birthers are willing to accept that the Secretary of State defines natural born citizen, then all Obama need do is get a letter from Hillary, then, right? Should she refuse, of course, he is free to fire her and appoint someone else who will agree to do so.

  3. This change in policy and attitude eventually led to the Wong Kim Ark case. The government even hired George Collins who by most standards today would be considered considered a racist to argue its side. The two citizen parent kooks are still trying to argue the losing side over 100 years later.

    • John Woodman says:

      I’m not sure about the policy between 1895 and 1939 — I haven’t tried to research it that far — but I’m sure Perkins v Elg put a stop to the policy for good, if nothing else did.

      There was already a court ruling, In Re Look Tin Sing, in 1884, which found:

      A person born within the United States, of Chinese parents residing therein, and not engaged in any diplomatic or official capacity under the emperor of China, is a citizen of the United States.

      Look Tin Sing had been detained in September 1884. Then, Wong Kim Ark was detained in August 1895 on returning from China, with the Supreme Court ruling coming in 1898.

  4. Scientist says:

    John: Reading the statements by Blaine, it seems that even he felt this policy only applied to those born to non-citizen parents who returned to their home country. There is no evidence that he or anyone ever tried to deny-citizenship to any US-born child who remained within the US (except for Chinese who were subject to racist laws barring their citizenship). The late 19th century was a time of heavy immigration and there would have been millions born in the US to 1 or 2 non-citizen parents. Yet, none of those US-born children were ever naturalized (no records have ever shown any cases), which, if they were not citizens, a great many would have.

    The policy really seems to have been directed at questions of expatriation, which were settled by Perkins v Elg, establishing that minors could not lose citizenship by an act of their parents. So, I’m not sure this policy really says the State Department regarded any of those born in the US as not being natural born citizens (again other than Chinese). And of course, the State Department did not have the final word anyway.

    • Suranis says:

      My reading of Elg suggested that a persons citizenship was inviolate if the person chose to return to the united states in their Majority (i.e. at 21) and chose to remain there. If they didn’t then they could possibly lose their citizenship. But that was an action of the adult, not of the parents.

    • John Woodman says:

      Your remarks are very pertinent.

      Blaine in fact says, “The child born to an alien in the United States loses his citizenship on leaving the United States and returning to his parent’s allegiance.”

      If the child lost his US citizenship, that presumes he possessed US citizenship to start with.

  5. John Woodman says:

    Update:

    This article is not correct, due to the fact that I misread one of the quotes, and didn’t read far enough beyond it.

    I’m going to suspend comments while I do some more research.

    • John Woodman says:

      Okay. I have now edited this article.

      A few of the details have changed, although the overall conclusion is pretty much the same.

      This whole topic is fairly obscure, complicated and confusing. I think the article is accurate now, for as much as it says. It is not and can’t be a thorough, complete analysis of late 1800s State Department policies; but for the sake of thoroughness I felt the topic needed to be included.

      And the key points, I think, are those toward the end of the article: Whether the State Department denied passports (and hence citizenship) to US-born children carried abroad by non-citizen parents ultimately has no real bearing on either those children who possessed at least one US citizen parent, or those who were not taken abroad by their parents. Such a policy also appears at odds with the practice in America before 1880, and was struck down by subsequent court decisions, including Perkins v Elg (1939).

Comments are closed.