Natural Born Citizen Discussions in the Late 1800’s

© Bridgette WTPOTUS 2010

“Looking Back at History”

Natural Born Citizen Discussions in the Late 1800’s

Over 2 1/2 years ago when the subject of Obama’s eligibility or his ineligibility was brought to the forefront during the election cycle in 2008,  I was amazed that he would qualify.   I remembered what I was taught in civics classes in high school;  the President and Vice President must be natural born citizens. Those are the only two jobs in the United States that have the requirement that those persons must be natural born citizens.   According to the United States Constitution,  Article II, Section 1, Clause 5, there are only three  requirements that a person must meet to be eligible  for the office of  president:

  1. Be a “Natural Born Citizen of the United States”
  2. Be at least thirty-five years old;
  3. Have been a permanent resident in the United States for at least fourteen years.

To satisfy my recollection and to dispute what the Left was touting as the requirements by using the 14th amendment as Obama’s qualifier,  and Black’s Law Dictionary’s limited definition of natural born citizen, I researched newspaper sources from the late 1800’s.   Famous constitutionalists  and scholars of their time answer questions that we have had about both  Obama’s  and John McCain’s eligibility to run as presidential candidates.   The examples of certain situations about others can be applied to these two men who were nominated by their respective parties in 2008.

The Brooklyn Daily Eagle provided many examples that addressed the natural born citizen issue  in their question and answer columns.   Remember, millions of immigrants  were arriving in the United States from foreign countries, and were very interested in citizenship requirements, as well as knowing if their children would qualify for the presidency.   Many of these old newspapers were so difficult to read that I typed them.   Below are a few samples of those questions and answers that were found in newspapers from 1859 – 1897.   There are several of these “Question & Answer” columns that were printed and easy to read.  Those will speak for themselves.  Others are transcribed.    Words that could not be deciphered are shown as ??.  These articles are bound to raise questions as well as answer them.    When commenting, please use the date of the article for reference  if you are addressing a certain situation.

The first article below asks:  if a person with American parents is born in a foreign country would he be eligible to the presidency?  Note the answer states “parents” not the singular word “parent.” This answer does not use born on U.S. soil as a qualifier.  Also, the word “foreigner” was misused and most likely was meant to be “person.”

Brooklyn Eagle, September 5, 1880

The Brooklyn Daily Eagle, May 27, 1888
Is a Citizen Born Abroad Eligible to Be President?

Office of President
Is a Citizen Born Abroad Eligible to It?

Your question has been answered so often in these columns that readers should be familiar with the subject.   Only a natural born citizen is eligible to the Presidency of the United States. A natural born citizen is one born on the soil, within the allegiance of the United States, and not one who is made a citizen by law.


The Brooklyn Daily Eagle, January 25, 1891

To the Editor of the Brooklyn Eagle:

My  parents are both Germans and have resided in Germany all their lives, with the exception of four months which they spent visiting some friends in this city, when and where I was born.  On their return to Hamburg, two months later, of course they took me with them, and there I have since lived.  On the 21st of last October I was just 21 years old, when I landed in New York, and intend to make this country my home.  Now what I want to know is:  Have I the full privilege of a natural born citizen, or should I have  to take out any papers?  Would I be eligible to be President should I ever be nominated and elected?           Signed Sturger.

Answer:  This correspondent will have to obtain his naturalization papers just the same as any other natural born German.  He was born of German parents while they were on a visit to this country.  They were not emigrants and they were not settled here in any sense.  The boy born here under these circumstances is a German subject, until he declares his intention to become a citizen of the United States.

 

The Brooklyn Daily Eagle,  February 15, 1891

To the Editor of the Brooklyn Eagle

My wife and I are Americans and go to London on a pleasure trip.  While in London my wife has a child, a boy.  Can he become the President of the United States and what nation does he claim?    Signed  L.G.M.

Answer – Your boy, born in London, would be an American citizen, because a law enacted by congress makes him one, but he is not eligible to the presidency of the United States.  The constitution of the United States  provides that eligibility to the presidency makes it necessary for the person to have been a “natural born citizen.”

The Brooklyn Daily Eagle, Natural Born Citizen

June 17,  1900

Note that this states “You and Your Wife”  and that would be “Parents,”  not the singular word “Parent.”

“J. Son.” —  If you and your wife, who are native born citizens of the United States should visit Europe as tourists, and during your tour a male child should be born to you, he would  NOT be eligible to the presidency of the United States, because he would not be “a natural born” citizen. He would, however, be a citizen of the United States, because made so by the law. This is the law (approved February 10, 1855):     “That persons heretofore born, or hereafter to be born, out of the limits and jurisdiction of the United States, whose fathers were or shall be at the time of their birth citizens of the United States, shall be deemed and considered and are hereby declared to be citizens of the United States.”  If the son born abroad should remain abroad, and never reside in the United States, his children would not be citizens of the United States.

The Brooklyn Daily Eagle, June 16, 1901

This one  also states that a child born to American “parents” (not parent) when abroad is NOT a natural born citizen as required by the Constitution of the United States.

The Brooklyn Daily Eagle,  February  26, 1888

An article entitled “Office of President,” and printed on the sixth page of to-day’s EAGLE, will attract attention. The Constitution of the United States prescribes among other qualifications that the President shall be “a natural born citizen.”

Is the child of a citizen born abroad while his father is temporarily absent from the country, say on diplomatic service, “a natural born citizen,” within the meaning of the Constitution, and therefore eligible to that extent for the Presidency? The law makes such a person a citizen for ordinary purposes. He may vote and hold real estate. So may a man made a citizen by law in any other way, as by acts and proceedings of naturalization. The Constitution does not merely provide that “a Citizen” shall be eligible for President. He must be “a natural born” citizen.

Does this exclude citizens made by law, whether naturalized foreigners or children of citizens as to whom the statute declares that the accident of their birth outside of the country shall not deprive them of their common citizenship?   Must the President have actually been born on our soil?    Story, Kent, Paschal, Daniel Webster and Bates seem to incline to a strict construction of the Constitutional clause and to hold that nobody born on foreign soil, in any circumstances, is eligible to the Presidency.

On the other hand,  Senator Evarts, formerly Secretary of State of the United States, says that a child born in the circumstances suggested “would be eligible,” and other authorities agree with him. The subject is quite likely to provoke discussion.

The Brooklyn Daily Eagle,  February  26, 1888

Office of President
Is a Citizen Born Abroad Eligible to It?

Arguments on Either Side of the Question
What is the Constitutional Meaning of the Word “Natural?”
Opinions of the Hon. William N. Evarts, A.P. Morse, Kent, Story and Others.


Brooklyn Daily Eagle,  Feb. 26, 1888

To the Editor of the Brooklyn Eagle:

Would the child of an American Minister to the Court of St. James, London, born in London during the service of said Minister, be a citizen of the United States in the sense of being eligible to the Presidency? Signed  Cox.

Answer:   Substantially the same question was answered in the EAGLE a few weeks ago, when we took occasion to present the views and points on the same subject which have been frequently set forth in the columns of the Journal of Commerce. We answered the question in the negative.   Now, the query comes again. The difficulty which seems to present itself to those who attempt to study out the Constitutional provision for the Presidency — both learned and unlearned in the law,  is:   What is meant by a natural born citizen? The Constitution of the United States is history as well as law on the subject:

“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; neither shall any persons be eligible to that office who shall not have attained to the age of thirty-five years, and been fourteen years a resident within the United States.”

At the beginning of the government of the United States it is clear that a person not born on the soil, a person not a natural born citizen, could be President of the United States, provided he was 35 years of age, and had resided in the country for fourteen years.   Commentators have been very shy of giving this phrase, “natural born citizen,” a definition. So we find it passed by as if every person knew what it meant. The question sent to the Eagle by “Cox” is just this:  “What does a natural born citizen mean?”  The State Department at Washington calls this a “hypothetical case;” hence it may be inferred that the Secretary of State has not arrived at any conclusion or adopted any standard of belief regarding what constitutes a “natural born citizen.”

We tried to find in Morse, on Citizenship, some light on the question, with the following outcome:

A natural born citizen is one not made by law or otherwise, but born. The Constitution does not make the citizens:   it only recognizes such of them as are natural, home born, and provides for the naturalization of such of them as are alien, foreign born, making the latter, as far as nature will allow, like the former. The expression “natural born citizen” recognized and reaffirms the universal principle common to all nations, and is as old as political society–that the people born in a country do constitute the nation, and, as individuals, are natural members of the body politic.   Page 125, section 90.

We also wrote to the author of the work quoted from Alexander Porter Morse, Esq., Washington, and received a very courteous and prompt reply as follows:

Undoubtedly he would;  [be eligible to the Presidency] provided the father was  (as I infer the question in the shape in which it is put assumes), 1. a citizen of the United States, and 2., is not within the exception of the Act of February 10, 1855  (10 Stat. at Large, 604) which is “that the right of (American) citizenship shall not descend to persons whose fathers never resided in the United States.”

The true rule may be thus expressed:   “The child of an American citizen is an American citizen [by birth].”   The place of birth is immaterial.  Of the former tests of citizenship, the place of birth and the nationality of the father. The United States has given in her adhesion to the latter, as have several Continental States. National character as incident to birth in a particular locality, was the creature of feudal times and of vassalage, and was described as the jus soli [Latin: right of the soil];  national character as the result of parentage was the rule adopted by freer peoples and more enlightened communities, and was designated jus sanguinis [Latin: right of blood].

The child in the question above suggested is an American citizen by birth as a result of parentage; and the child of any other American father, although in private station, born in London or elsewhere in a foreign country, would be equally a citizen of the United States by birth as a result of parentage;   and so far as citizenship is concerned, would be eligible to the Presidency, unless he came within the exceptions mentioned.

This is the modern, contemporary American doctrine on the subject. There is today no serious claim of “a double nationality.”  Reciprocally, the courts of last resort in the United States have held that the children of aliens born in the United States are aliens by birth; and they can only become citizens of the United States by complying with provisions of the law of the land. In the Slaughter House Cases (15? Wallace, p. 36) the Supreme Court declared that the qualification, subject to the jurisdiction in Section 1, Fourteenth Amendment, was intended to exclude “children of ministers, consuls, and citizens of other countries born in the United States.” As to those the accident of place of birth exercises no influence. They are born citizens of the country of the parents.

In the case stated by you it is not, in my opinion, necessary to invoke the principle of international law or the rule of the comity of States, by virtue of which the residence of a foreign minister is treated or regarded as “constructively,” and for all practical purposes, the territory of the State the minister represents.

Mr.  Morse has also favored us with the copy of an article which he addressed to the Boston Pilot on this subject May 1, 1884,  in which he takes the affirmative.  In the body of this article Mr. Morse says: “In the United States the children of American citizens born abroad are themselves citizens of the United States (Act of Congress, February 10, 1855). They are constituted such by virtue of their parents, and if so, are they not natural born citizens?”

A note containing the question at the head of this article was addressed to United States Senator William M. Evarts, in answer to which that gentleman replied as follows:

Washington, D.C.,

February 18, 1888

My own opinion is that a child born under the circumstances stated by you would be eligible to the Presidency of the United States.

I am yours very truly,

Wm. M. Evarts

The New York Herald last Sunday made the assertion broadly that “A child born abroad of American parents is in law a native born American citizen and,   if a male, eligible to the Presidency.” This decision is based upon a course of reasoning rather than in accordance with law, for,  preceding the assertion, is this statement:  “There may be those who first see the light in this country who are not citizens–children of foreign ministers, for example.   Born at Washington, they are citizens of England or Germany or whatever country their father represents. Parentage as well as place of birth is to be considered in determining the citizenship of children born either within or without the United States.

This reasoning would be successful if the laws of other nations governed in the United States, but they do not, and that is just the point where we discover that we must ???ad the solution of our problem not in any treatise or commentary upon international law or upon the laws of other nations, but must look to some of our own authorities for light.   It will not hurt us therefore to look where Daniel Webster looked.   Every time the question has come to the EAGLE we have decided that the son of an American citizen, whether official or not, born abroad, is not eligible to the Presidency.

In the EAGLE of November 27, 1887, the same ground was taken and we cited the statement made in the Journal of Commerce of May 28, 18?3. In the same paper of October 17, 1886 we find that the editor cited as an authority one of Daniel Webster’s favorites, Paschal, the highest authority in the interpretation of the United States Constitution, who defines “a natural born citizen” as one “not made by law or otherwise but born.” “The Constitution does not make the citizens, it is in fact, made by them. It only intends and recognizes such of them as are natural borne born and provides by law for the naturalization of such as are foreign born. It should be observed here, says Mr. David M. Stone, that “every writer of any note who has undertaken to discuss the subject has divided all who are entitled to be called citizens into two classes – those who are homeborn and those who are made citizens by law.

Bates on Citizenship, 10 op., 382, limits the “natural” members of the body politic to “the people born in the country,” and he repeats this, confining the meaning to “every person born in the country.”   Kent says “nativity furnishes as the rule.”   Story, on the Constitution, says: “Considering the ages of all such (i.e. those who are alien born and citizens when the Constitution was adopted), no person of foreign birth can now ever be President of the United States under this Constitution.”

The learning and the respectability of such authorities will not be challenged by lawyers at least.   In what follows, the reader will have no difficulty in coming to the conclusion that, outside of the laws of other nations, and considerations of international ?comity, the Constitution of the United States has settled the question of who is eligible to the Presidency, and that the Statutes at Large have taken cognizance of the accident of birth abroad of the child of any American citizen and made him a citizen of the United States, and that if the statute failed to do so the aforesaid child would not be a citizen. This is admitted by those who affirm that a child so born is eligible to the Presidency, for they cite the law and give us the date of its enactment. Of course, any law of this sort would be superfluous, if the right by birth and parentage was paramount by the terms of the Constitution. We quote the following from the Journal of Commerce:

It may be asked by those who have not examined the subject if the children born abroad of American citizens are not themselves citizens by right of birth, and therefore within the meaning of “natural born?” We answer most positively that they are not citizens by right of birth, but are made citizens by the law. The existing law was passed April 14, 1892, and is entitled “An Act to establish a uniform rule of naturalization,” and this provided that “the children of persons duly naturalized under any of the laws of the United States, being under the age of 21 years, shall, if dwelling in the United States, be considered as citizens: and the children of persons who now are or have been citizens of the United States, shall, though born out of the limits and jurisdiction of the United States, be considered as citizens of the United States.” If the latter are natural born citizens, then allow children who are under age when their parents are naturalized, are also natural born citizens. Both are made citizens because their parents are citizens, but they are made by law in virtue of their birth, and are not natural born.

If anything further was necessary to confirm this view, it may be found in the fact that a child born in Europe of an American citizen who has never resided here is excluded by the very section which confers the title already quoted.  All other children born abroad of American parents are citizens of the United States by virtue of the Naturalization law. It may not be out of place to add that an attempt was made in Congress to give to the Constitution the meaning insisted upon by some of our contemporaries or else the language was used by inadvertence. In the Act of March 26, 1790, it was provided that “the children of citizens of the United States that may be born beyond the sea, or out of the limits of the United States, shall be considered as natural born citizens;but this was coupled with the provision that “the right of citizenship shall not descend to persons whose fathers have never been resident in the United States,” showing that the phrase “considered as natural born citizens” meant merely” to be treated as such because of this law.”

Great exception was taken to the language as misleading, and on January 25, 1795, this was repealed in express terms and a new act adopted, which read, “Shall be considered as citizens of the United States,” thus making the proviso forbidding the privilege to the children of citizens who had not resided here consistent with it.  For if a child of an American citizen born abroad is without any legislation a natural born citizen, then no provision of statute could deprive him of that birth-right as long as he is innocent of crime.

Enough has been brought forward to safely guide the reflective reader. We may regret that Mr. Evarts did not suggest some points or references but he has, doubtless, been over the ground to his own satisfaction. The Herald assumes to be oracular without affording any grounds for the faith. Do adhere to our former answers to the question. — that the child of an American citizen, born abroad, without regard to the station of his father, is not eligible to the Presidency of the United States, because he is not “a natural born citizen, but merely a citizen made so by the law. We close by stating that Paschal, and all other high authorities, are clear that only a citizen born in the allegiance of the United States, i.e., either on its soil, or on the high seas under its flag, is a natural born citizen.

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89 responses to “Natural Born Citizen Discussions in the Late 1800’s

  1. 10 reasons why some don’t care about eligibility
    Exclusive: Joseph Farah outlines arguments against pursuing truth about Obama
    May 20 Snips

    10) Some people don’t care about Barack Obama’s constitutional eligibility because they think this particular provision is “an anachronism.”On Oct. 5, [2004] eight years ago, the Senate Judiciary Committee held a long-forgotten hearing on the subject of “Maximizing voter choice: Opening the president to naturalized Americans.” This was two years before Obama was even elected to the U.S. Senate.One of the advocates for the plan was Rep. Barney Frank, D-Mass. When WND revisited this hearing in 2009, his comments were still available in an audio file posted at Talk Radio News. That posting, like so many others involving this issue, has since mysteriously been scrubbed.

    Here’s some of what he said on the subject: “I believe in the right of the people to choose as they wish. People say, ‘Well you’re amending the Constitution.’ The fact is in 1789 the notion of direct democracy was not the one that governed. Clearly in terms of world history the people who came to the American continent … they went for the first time to self-governance, but they didn’t go all the way. We have evolved substantially since that time, I think in a good direction. We do have now this major obstacle in the way of the voters, and we say to them, ‘We don’t trust you, you could get fooled, I mean, they might, some foreign country might sucker you by getting some slick person and mole him into the United States or her and get that person citizenship and then years later have that person get elected president and you’ll be too dumb to notice.’ I don’t think that’s accurate and I don’t think that ought to be the governing principle. I really believe that the people of the United States ought to have the right to elect as president of the United States someone they wish.”

    It should surprise no one, of course, that Barney Frank is wrong about this. He’s wrong about everything.
    But take a look at what others had to say at that hearing so long ago:

    But take a look at what others had to say at that hearing so long ago:

    Senate Judiciary Committee Chairman Orrin Hatch, R-Utah: “What is a natural born citizen? Clearly, someone born within the United States or one of its territories is a natural born citizen. But a child who is adopted from a foreign country to American parents in the United States is not eligible for the presidency. Now, that does not seem fair or right to me. Similarly, it is unclear whether a child born to a U.S. serviceman overseas would be eligible. This restriction has become an anachronism that is decidedly un-American. Consistent with our democratic form of government, our citizens should have every opportunity to choose their leaders free of unreasonable limitations. Indeed, no similar restriction bars any other critical members of the government from holding office, including the Senate, the House of Representatives, the United States Supreme Court, or the president’s most trusted Cabinet officials. The history of the United States is replete with scores of great and patriotic Americans whose dedication to this country is beyond reproach, but who happen to have been born outside of our borders.”

    Keep in mind, these comments were being made by a Republican four years after a fellow Republican senator born overseas to an American serviceman overseas had sought the nomination of his party for the presidency. Sen. John McCain would seek the presidency again four years later – and face a barrage of hostile media raising the issue of constitutional eligibility, culminating in a unanimous Senate vote of approval of his qualifications. Sen. Barack Obama voted in the affirmative, but avoided any media scrutiny of his own credentials except for WND.

    Here’s more evidence from that testimony that both elite Democrats and Republicans in Washington think eligibility requirements in the Constitution are antiquated and outdated.

    Sen. Don Nickles, R-Okla.: “Many Americans would probably be surprised to learn that a constitutional question remains as to whether a child born abroad to a U.S. citizen serving in the military or serving at a government post are not clearly, indisputably eligible to seek the highest office in our land. Nor is it clear whether a child born overseas to a citizen traveling or working abroad is eligible to run for president. There are strong legal arguments that say these children are eligible, but it certainly is not an inarguable point. Some citizens are ineligible to transmit citizenship to a biological child born abroad because of a failure to meet certain statutory criteria such as having lived in the United States for five years, two of which had to be after the age of 14.”

    At least one expert raised concerns about the idea – Matthew Spalding of the Heritage Foundation.

    “The attachment of the president must be absolute, and absolute attachment comes most often from being born and raised in – and educated and formed by – this country, unalloyed by other native allegiances,” he said. “The natural born citizen requirement for the presidency seeks to guarantee, as much as possible, this outcome where it matters most,” he said. “The question is whether you can expand the eligibility to non-native-born citizens without undermining the wisdom and caution inherent in the framers’ design. One proxy would be a significant citizenship requirement, along with a significantly increased residency requirement. How much? The question is enough to approximate the attachment that comes with having lived in America for almost all of one’s life, thus fundamentally shaped by this regime, its history, institutions, and way of life. The average of 20th century presidents is 54. A 35-year citizenship requirement, combined with a residency requirement increase, would assure that most would-be presidents are citizens before they are 18 years old and residents for much of the time thereafter.”

    So even before Obama entered the picture, the political establishment in Washington was already going soft on a hallmark constitutional provision. It’s worth noting that a year earlier, Arnold Schwarzenegger, born in Austria, was elected governor of California and was, for a time, considered Republican presidential timber.
    Despite the fact that there are so many different reasons not to care about Barack Obama’s constitutional eligibility – probably more than the 10 I enumerated above – there are two discomfiting facts that cannot be ignored:

    1) The “natural born citizen” requirement is still a part of the Constitution.

    2) About half of Americans, according to nearly every poll conducted, question Obama’s eligibility and are troubled by the many unanswered questions – questions that continue to haunt his presidency and the integrity of America’s political system.

    http://www.wnd.com/2012/05/10-reasons-why-some-dont-care-about-eligibility/

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