Stephen Tonchen - Obama Presidential Eligibility - An Introductory Primer

Obama Presidential Eligibility - An Introductory Primer

Copyright (©) 2009-2011 Stephen Tonchen
Revision date: March 10, 2011
This document is subject to ongoing updating as relevant new information becomes available.
The most current version is found at
http://people.mags.net/tonchen/birthers.htm
This Primer, by Stephen Tonchen, is different from, should not be confused with, the
WorldNetDaily Obama Eligibility Primer. The Tonchen Primer appeared on the Internet in
June 2009, more than a year prior to the WND Primer.
Introduction
The Philadelphia Convention adopted the U.S. Constitution on September 17, 1787 [01].
Anyone born after that date must be a natural born citizen in order to be eligible to serve as
President of the United States [02].
What is a natural born citizen? Even if President Barack Obama is a U.S. citizen by birth, is
he a U.S. natural born citizen?
According to an article which appeared in the Michigan Law Review in 2008, we know two
things for sure about the meaning of "natural born citizen":
Anyone who is born in the United States, of parents who are U.S. citizens, is definitely,
without doubt, a natural born citizen.
Anyone who acquires U.S. citizenship through naturalization, after his or her birth, is
definitely not a natural born citizen [03].
But what about children born overseas to U.S.-citizen parents? And what about U.S.-born
children of alien parents? Such children are U.S. citizens by modern-day law. But are they
natural born citizens? So far, Federal law, the Constitution and the courts have not answered
these questions.
In 2004, Senator Don Nickles predicted that, if these questions remain unanswered, they will
someday become "a real issue":
The definition of this term ["natural born citizen"] is an issue that has been
debated in legal circles for years and has never been ruled on by the courts.
Clarification is needed before this becomes a real issue. (Nickles)
Senator Nickles' prediction has come true. Today, an increasing number of Americans are
concerned that Barack Obama, whose father was a Kenyan native, might not be a "natural
born citizen" and therefore might not be eligible, under the Constitution, to serve as president
[04].
Members of the mainstream news media generally believe that all persons born in the United
States are "natural born citizens", regardless of their parents' citizenship. But this belief,
though widely held, is not consistent with American and English history [05].
file:///C|/MyDocuments/WebPage/birthers.htm[3/11/2011 12:10:21 PM]

According to the Heritage Foundation, the notion that birthplace alone is sufficient to confer
U.S. citizenship (in the Constitutional sense) is "historically and legally inaccurate":
The popular concept of "birthright citizenship" -- that anyone born while in the
United States is automatically a U.S. citizen -- is historically and legally
inaccurate. Only a complete jurisdiction of the kind that brings with it an
exclusive allegiance [at birth] is sufficient to qualify for the grant of citizenship
[under the Constitution]. (Heritage Foundation: Immigration Reform)
Six years after the 14th Amendment became part of the U.S. Constitution, the U.S. Supreme
Court -- in Minor v. Happersett (1874) -- commented that, if you were born in the United
States and both of your parents were U.S. citizens at the time of your birth, you are, without
doubt, a natural born citizen. In the same case, the Supreme Court also remarked that, if you
were born in the United States but your parents were not both U.S. citizens when you were
born, your natural born citizenship is in doubt [06].
The Supreme Court has never resolved this "doubt" because, prior to 2008, there was never
any need to do so. With only two exceptions, every U.S. president who was born after 1787,
was born in the United States, of parents who were both U.S. citizens (Natural Born
Presidency). The two exceptions were Chester Arthur and Barack Obama. While running for
office in 1880, Chester Arthur lied to newspaper reporters about his family history (and later
burned most of his family records), thereby obscuring the fact that, when he was born, his
father (William Arthur) was British subject, not a U.S. citizen (Historical Breakthrough -
Chester Arthur).
President Obama publicly admits that his father was a Kenyan native who never became a
U.S. citizen. At birth, President Obama acquired British/Kenyan citizenship by descent from
his father. The 2008 election was the first time in history that the United States knowingly
elected a post-1787-born president whose parents were not both U.S. citizens. Moreover,
2008 was the first time that the U.S. knowingly elected a post-1787-born president who was a
foreign citizen (in addition to being a U.S. citizen) at the time of his birth [07].
U.S.-born children of non-citizen parents are U.S. citizens by modern-day law, but there is
unresolved doubt as to whether such children are Constitutional natural born citizens. This
doubt is not based on the imaginings of tin-foil-hat-wearing conspiracy theorists on the
lunatic fringe of society. This doubt comes from what the Supreme Court has actually said, as
well as a variety of other historical and legal sources which are presented and discussed here.
This Primer introduces the Obama eligibility controversy, in question-and-answer format, for
a non-technical general audience. We've double-checked the facts presented here, cited their
sources, and believe them to be correct. Please contact us if you find any material in this
Primer that you believe to be inaccurate.
Contents
1. What is a "birther"?
2. What are the eligibility requirements for president?
3. Why do birthers think Barack Obama might not be eligible to serve as president?
4. Where should we begin looking for the original Constitutional meaning of "natural born
citizen"?
4.1 Modern-day word usage
4.2 U.S. Constitution and Early Naturalization Acts
4.3 U.S. Federal Law

4.4 English Literature

4.5 U.S. Supreme Court
5. In a nutshell, what is the Obama eligibility controversy?

6. Does the birthers' viewpoint have historical or legal merit?
7. What was the original purpose of the presidential "natural born citizen" requirement?
8. What was the 18th-century meaning of the word "foreigner"?
9. What is the difference between "Constitutional" and "statutory" natural born citizens?
10. Wouldn't the most recent modern-day statutory meaning of "natural born citizen" take
precedence over the original Constitutional meaning?
11. If Obama is not a "Constitutional natural born citizen", so what? Why should anyone
care?
12. Why has every birther lawsuit been denied or dismissed?
13. What is a 14th Amendment natural born citizen?
14. What was the originally intended meaning of "jurisdiction" in the 14th Amendment?
15. Doesn't the Wong Kim Ark decision make Obama a "natural born citizen"?
16. Doesn't the Julia Lynch case show that Obama is a "natural born citizen"?
17. What was an 18th-century English "subject"?
18. What was Calvin's Case?
19. What was a "natural-born subject"?
20. Didn't Calvin's Case affirm the jus soli principle?
21. How did Calvin's Case define ligeance?
22. Who were "alien enemies"?
23. Were English-born children of alien parents "natural-born subjects"?
24. What did "actual obedience" mean?
25. What was an English "citizen" before the American Revolution?
26. Wasn't jus soli the "rule of Europe" when the Constitution was being written?
27. What does "born within the allegiance" mean?
28. Did "natural born" imply exclusive allegiance at birth?
29. What was Vattel's "Law of Nations"?
30. What is the root of the "natural born citizen" debate?
31. What's the "beef" with President Obama's birth certificate?
32. Didn't the State of Hawaii recently verify that President Obama was born in Hawaii?
33. Doesn't the mere existence of Barack Obama's original Hawaiian birth certificate prove
that he was born in Hawaii?
34. Do birthers actually believe that President Obama was born in a foreign country?
35. If President Obama's birth certificate shows conclusively that he was born in Hawaii,
would it end the eligibility controversy?
36. Aren't Obama eligibility challenges merely partisan attacks by Republicans against a
Democratic president?
37. What is "Quo Warranto"?
38. What can we do?
Appendix 1: Excerpts from Jus Gentium (1749)

Appendix 2: Methods of English Subjecthood Acquisition
Appendix 3: Comparison between English and European Political Theories
Appendix 4: Federal Quo Warranto Statute
Footnotes
References
Acknowledgments
Disclaimer
Revisions
Copyright

1. What is a "birther"?
On August 21, 2008, attorney Philip J. Berg, a lifelong Democrat, filed a complaint in federal
district court, "alleging that Obama was born actually in Mombasa, Kenya and that the
Certification of Live Birth on Obama's website is a forgery" (Wikipedia: Phil Berg lawsuit
concerning Barack Obama). Berg's complaint further alleged that, since Obama's mother was
too young to confer U.S. citizenship to a foreign-born son and his father was not a U.S.
citizen, Barack Obama was not a U.S. citizen at birth.
The term "birther" was probably coined in response to Berg's lawsuit. Originally, "birther"
meant:
someone who believes Obama was not born in Hawaii or that he's not a U.S.
citizen. (Are you a birther?)
According to a New York Times article (November 18, 2009) by Leslie Savan, the word
"birther" was created by conservative bloggers Ed Morrissey and Steve Gilbert:
But despite its usefulness for liberals, birther probably wasn't birthed by them.
Birther seems to have been coined about a year ago, separately, by the
conservative bloggers Ed Morrissey and Steve Gilbert. Last December, in
dismissing the birth-certificate argument as a "canard," Gilbert wrote, "The
'birthers' are the new 'truthers.' " (Savan)
David Weigel believes he was first to coin the term "birther":
I think I originally coined the term "Birthers" to describe the people who think
the state of Hawaii and its time travel machine are concealing the truth about
Obama's birth on the roof of a mosque in Kenya. (Weigel)
The New Oxford American Dictionary defines "birther" as:
a conspiracy theorist who challenges President Obama's U.S. birth certificate.
The Online Slang Dictionary defines "birther" as:
a person who believes -- against evidence -- that Barack Obama was born outside
of the United States (Online Slang Dictionary: birther).
In October 2008, two lawsuits -- Donofrio v. Wells and Wrotnowski v. Bysiewicz -- argued
that, regardless of his place of birth, Barack Obama is ineligible to serve as president because
he acquired British/Kenyan citizenship, at birth, by descent from his father (Why Obama is
ineligible -- regardless of his birthplace).
From that point on, the "birther" controversy was no longer limited to the President's birth
certificate and place of birth. Today, most plaintiffs and lawyers who are challenging Obama's
eligibility in court, acknowledge that the Obama eligibility question stems from two separate
and distinct issues: the President's place of birth, and his foreign nationality at birth.
This Primer defines "birther" as anyone who has a fact-based reason to suspect that the
"conditions" of Barack Obama's birth -- his place of birth and/or his dual citizenship at birth -
- are not consistent with the presidential eligibility requirements set forth in the U.S.
Constitution. This definition of "birther" is based, in part, on a commentary, titled A

Constitutional Crisis is Brewing, published on the birther website.
As the birthers, we are pointing out that the conditions of Barack Hussein Obama,
II's birth is [sic] not only important, but critical to the constitutional order of our
Nation. (A Constitutional Crisis is Brewing)
Birthers are people who are aware of facts -- not mere conjecture or speculation -- suggesting
that Barack Obama's legal status at birth might disqualify him from serving as president. The
President Obama's circumstances and activities after his birth -- his purported adoption and
citizenship in Indonesia, his alleged use of a foreign passport, his suspected acceptance of
financial aid intended for foreign students only, etc. -- are of interest, but are not the issues
which define who the birthers are [08].
2. What are the eligibility requirements for president?
Article II Section 1 of the U.S. Constitution states:
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 Person 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.
This means that, in modern times, you cannot legally or legitimately serve as President of the
United States, unless you are:
at least 35 years of age,

a resident of the United States for at least 14 years, and
a natural born citizen.
Regarding the third requirement ("natural born citizen"), the Constitution makes a special
exception for persons who became U.S. citizens before September 17, 1787, the date on which
the U.S. Constitution was adopted. Such persons may serve as president, even if they are not
natural born citizens [09].
Today, no one qualifies for this special exception. No one alive today was a citizen when the
Constitution was adopted. In modern times, if you wish to be president, it is not enough to be
a U.S. citizen -- you must also be a U.S. natural born citizen.
3. Why do birthers think Barack Obama might not be eligible to serve as president?
Birthers believe, or at least suspect, that Barack Obama is not a natural born citizen. They say
that, in order to be a natural born citizen, you must meet two requirements:
a birthplace requirement (you must be born in the United States), and
a parental citizenship requirement (both of your parents must be U.S. citizens at the
time of your birth) [10].
There is some question as to whether President Obama meets the birthplace requirement [11].
There is suspicion that he might have been born in Kenya [12]. There is also speculation that
he might have been born in Canada [13].
Far more importantly, Obama publicly acknowledges that, regardless of where he was born,

he does not meet the parental citizenship requirement. His father was a Kenyan native who
never became a U.S. citizen.
As a Kenyan native, Barack Obama Sr. was a British subject whose citizenship
status was governed by The British Nationality Act of 1948. That same act
governed the status of Obama Sr.'s children. ... In other words, at the time of his
birth, Barack Obama Jr. was both a U.S. citizen (by virtue of being born in
Hawaii) and a citizen of the United Kingdom and Colonies (or the UKC) by
virtue of being born to a father who was a citizen of the UKC. (FactCheck.org:
Does Barack Obama have Kenyan citizenship?)
Birthers believe, based on their understanding of American and English history, that an
individual must be U.S.-born of U.S.-citizen parents in order to be a natural born citizen [14].
If the birthers' understanding is correct, Barack Obama is not a natural born citizen and is
therefore not eligible to serve as president. But is the birthers' understanding correct?
4. Where should we begin looking for the original Constitutional meaning of "natural
born citizen"?
In this Primer, we begin by looking in places where the Constitutional meaning of "natural
born citizen" is not found. Listed below are five sources which do not adequately define
"natural born citizen" as used in the U.S. Constitution.
Modern-day word usage

U.S. Constitution and Massachusetts Naturalization Acts
U.S. Federal Law
English Literature
U.S. Supreme Court
Even though these sources do not have what we are looking for, we must examine them first
because they give us important clues, background information and context that we will need
later.
4.1 Modern-day word usage: In the popular press and contemporary legal writings, the term
"natural born citizen" is often construed to mean either (a) anyone who is a U.S. citizen at
birth, or (b) anyone who is born in the United States. In 1991, the following definition of
"natural born citizen" was added to Black's Law Dictionary:
Natural born citizen. Persons who are born within the jurisdiction of a national
government, i.e. in its territorial limits, or those born of citizens temporarily
residing abroad. (Black's Law Dictionary, 6th Ed., 1991, p.1026)
The modern-day "consensus" of opinion is that anyone born in the United States is a natural
born citizen:
Anyone born after the adoption of the U.S. Constitution in 1787 must be a
"natural born Citizen" of the United States to constitutionally fill the office of
President or Vice-President. ... Some debate exists as to the meaning of this
phrase. Consensus exists that anyone born on U.S. soil is a "natural born Citizen."
One may also be a "natural born Citizen" if, despite a birth on foreign soil, U.S.
citizenship immediately passes from the person's parents. (Legal Information
Institute: Natural Born Citizen)

According to an article published by the Yale Law School, there is near-universal acceptance
of the "consensus" viewpoint:
There is near-universal agreement that all persons born within the United States
are natural born (Bonner, p.3)
According to a Congressional Research Service memorandum (April 3, 2009), the weight of

legal opinion is that anyone born in the United States, except the children of foreign
diplomats, is a natural born citizen:
The weight of scholarly legal and historical opinion appears to support the notion
that "natural born Citizen" means one who is entitled under the Constitution or
laws of the United States to U.S. citizenship "at birth" or "by birth," including
any child born "in" the United States (other than to foreign diplomats serving
their country) ... (Maskell, p.5)
But the Supreme Court has never accepted this "consensus" opinion. On the contrary, in 1874
-- six years after the 14th Amendment became part of the U.S. Constitution -- the Supreme
Court expressed "doubts" concerning the viewpoint that all persons born on U.S. soil are
citizens (natural born or otherwise) regardless of their parents' citizenship [06]. Since these
doubts came from the Supreme Court, only the Supreme Court can resolve them. So far, it has
not.
The Heritage Foundation declares categorically that the "consensus" opinion is historically and
legally inaccurate:
The popular concept of "birthright citizenship" -- that anyone born while in the
United States is automatically a U.S. citizen -- is historically and legally
inaccurate. Only a complete jurisdiction of the kind that brings with it an
exclusive allegiance [at birth] is sufficient to qualify for the grant of citizenship
[under the Constitution]. (Heritage Foundation: Immigration Reform)
According to an article which appeared in the Michigan Law Review in 2008, we know two
things for sure about the meaning of "natural born citizen":
U.S.-born children of U.S.-citizen parents are definitely, without doubt, natural born
citizens; and
natural born citizenship is established only at birth and cannot be acquired after birth
through naturalization.
Except for these two points, the meaning of "natural born citizen" remains unsettled and
unclear [03].
4.2 U.S. Constitution and Massachusetts Naturalization Acts: The U.S. Constitution, and
the Naturalization Acts of Massachusetts (1776-1790), use the term "natural born citizen" but
do not define it.
According to the U.S. Supreme Court, the meaning of "natural born citizen" is not found in
the U.S. Constitution:
The Constitution does not, in words, say who shall be natural-born citizens.
Resort must be had elsewhere to ascertain that. (Minor v. Happersett, 1874)
In 2008, the Senate passed a resolution, expressing a non-legally-binding opinion that John

McCain is a natural born citizen [15]. The resolution acknowledged that "natural born citizen"
is not defined in the U.S. Constitution [16]:
Whereas the term 'natural born Citizen', as that term appears in Article II, Section
1, is not defined in the Constitution of the United States; (Senate Resolution 511)
4.3 U.S. Federal Law: No existing Federal law defines "natural born citizen"; and no existing
Federal law specifies who is, and who is not, a "natural born citizen". Modern-day laws use
the word "citizen", but the term "natural born citizen" does not appear in any existing Federal
statute [17].
In 1790, Congress passed the Naturalization Act of 1790, which used the term "natural born
citizen" in connection with foreign-born children of U.S.-citizen parents:
And 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 (Naturalization Act of 1790)
Five years later, Congress repealed the 1790 Act and replaced it with the Naturalization Act
of 1795. In the 1795 Act, the words "natural born" were deleted, leaving just "citizens":
... and the children of citizens of the United States born out of the limits and
jurisdiction of the United States, shall be considered as citizens of the United
States. (Naturalization Act of 1795)
Throughout history, Congress has enacted various laws conferring U.S. citizenship to certain
children at birth. For example, the 1866 Civil Rights Act stated:
All persons born in the United States and not subject to any foreign power,
excluding Indians not taxed, are declared to be citizens of the United States (1866
Civil Rights Act)
But after 1790, Congress never again passed any law containing the term "natural born
citizen".
In 2004, Senate Bill S.2128: Natural Born Citizen Act gave a definition of "natural born
citizen", but it never became law.
In 2008, the U.S. Senate passed Resolution 511 regarding presidential candidate John
McCain's natural born citizenship, but the resolution was nonbinding and had no legal
effect.
As of the time of this writing, there is no Federal statute that defines who is, and who is not, a
natural born citizen.
4.4 English Literature: We are not aware of any English-language literature which, prior to
the writing of the Constitution, explicitly defined the term "natural born citizen".
Nevertheless, the manner in which the English-language phrases "natural citizen" and "natural
born citizen" were used from the 16th through the 18th centuries provides clues regarding the
Constitutional meaning of "natural born citizen".
Bodin:
In 1576, French political philosopher, Jean Bodin (1530-1596), published his most
famous work, Les Six livres de la Republique ("The Six Books of the Republic").

Bodin's Republique became known in England soon after the first French
edition was published in 1576. Richard Knolles began the translation for
the first English edition in 1603, in the immediate aftermath of James's
accession to the throne, and several years after Bodin's death. (Price, p.132)
Even before the English translation was completed in 1606, English speaking people --
many of whom knew French -- were already reading and appreciating Bodin's work.
Bodin's political works were well-known in early seventeenth-century

England. One historian claimed that in 1600 no other political writer was
cited in England "more often or more favorably" than Bodin. Another
historian cited a dozen treatises from the Elizabethan and Stuart periods
making use of Bodin's formulation of the idea of sovereignty. James
himself, in The Trew Law of Free Monarchies, written in 1598, derived
many of his ideas from Bodin... (Price, p.131)
Bodin defined "citizen" as a free subject who submits to authority for the greater good
[18].
When the head of the family leaves the household over which he presides
and joins with other heads of families in order to treat of those things
which are of common interest, he ceases to be a lord and master, and
becomes an equal and associate with the rest. He sets aside his private
concerns to attend to public affairs. In so doing he ceases to be a master
and becomes a citizen, and a citizen may be denned as a free subject
dependent on the authority of another. (Bodin)
According to Bodin, the "natural citizen" of a society is someone who acquires

citizenship, at birth, from at least one of his parents:
Just as slaves can be slaves either by birth or by convention, so citizens can

be either natural or naturalized. The natural citizen is the free subject who
is a native of the commonwealth, in that both, or one or other of his
parents, was born there... (Bodin)
Although one's parents' birthplace was relevant to one's "natural citizen" status, one's
own birthplace was not relevant to one's citizenship in general:
For place of birth maketh not the child of a stranger (man or woman) to be
a citizen: and he that was born in Africk of two Roman citizens is no less a
citizen, than if he had been born in Rome. (Bodin, Republique, 1st English
edition, 1606, as quoted by Price, p.133)
Patsall:
The twelve-volume classic, Institutio Oratoria, by Marcus Fabius Quintilianus, was
written during the first century AD. It was popular in Europe during the 15th and 16th
centuries:
...enthusiasm for Quintilian spread with humanism itself, reaching northern

Europe in the 15th and 16th centuries. Martin Luther, the German
theologian and ecclesiastical reformer, claimed that he preferred Quintilian
to almost all authors, "in that he educates and at the same time
demonstrates eloquence, that is, he teaches in word and in deed most
happily" (Wikipedia: Quintilian)

When the U.S. Constitution was being written (1787), there were two English
translations of Institutio Oratoria: one by Guthrie (1756) and one by Patsall (1774).
(Greschak).
Institutio Oratoria contains this Latin sentence:
Quare, si fieri, potest et verba omnia et vox huius alumnum urbis oleant,
ut oratio Romana plane videatur, non civitate donata. (Quintilianus,
Institutio Oratoria, Book 1, Chapter VIII, as quoted by Greschak)
Guthrie (1756) translated the above sentence as:
Therefore we ought, if we possibly can, to bring our Language and

Pronunciation to that Purity, that they may seem to be the Natives of our
Country, and not naturalized into her. (William Guthrie's translation of
Institutio Oratoria, as quoted by Greschak)
Patsall (1774) translated the same sentence differently:
Therefore, if possible, every word and the very tone of voice, should
bespeak the natural born citizen of Rome, that the language may be
purely Roman, and not so by a right different from birth and education.
(Patsall, p.55)
The two English translations imply that the "native", or "natural born citizen", of Rome
was someone who was "purely" Roman by "birth and education," not by naturalization.
Vattel:
In 1758, Swiss philosopher, Emmerich de Vattel published Le Droit des Gens ("The
Law of Nations"). It was written in French, and was popular in America, both before
and especially after the American Revolution [19]. Some of the Founding Fathers knew
enough French to read Vattel's work in its original form.
In Law of Nations, Book 1, Chapter 19, Vattel discussed two concepts: citizen and
native. A child acquires, at birth, the citizenship of its father, regardless of where the
child is born (Vattel, §212,215). However, if your place of birth is within the country of
your parents' citizenship, you are (by birth) more than just a "citizen" of your parents'
country -- you are also a "native" or "indigene" of that country [20].
The original French-language version of Vattel's Law of Nations contained this

sentence:
Les naturels, ou indigenes, font ceux qui font nes dans le pays, de parens
citoyens. (Des citoyens et naturels)
The first English translation of Law of Nations, published in 1759, rendered the above
sentence as:
The natives, or indigenes, are those born in the country, of parents who are
citizens.
These words were quoted, verbatim, by the Supreme Court in The Venus case (1814).
In an updated English translation published in 1797, the word "indigenes" was changed
to "natural born citizens":

The natives, or natural born citizens, are those born in the country, of
parents who are citizens. (Vattel, §212)
Today, one's nativeness is often defined by one's place of birth. The "native" of a country is,
generally speaking, a person who was born in that country. But, in at least some eighteenth-
century contexts, the English word "native" was synonymous with "natural" or "natural born",
and implied something more than birth in a particular place. According to Bodin, a "natural
citizen" was a native of the commonwealth, in that at least one of his parents was born there.
In Institutio Oratoria, the Latin term alumnum urbis [21] is translated either as native (by
Guthrie) or natural born citizen (by Patsall), and is used in a manner implying a "pure"
member of a society.
The French word naturels can be translated into English as either "native" or "natural born".
In Vattel's Le Droit des Gens, naturels (noun) is translated as "natives". In a 1781 treaty
between France and the United States, naturels (adjective) is translated as "natural born" [22].
In the 1797 English translation of Vattel's "Law of Nations", the terms natives and natural
born citizens appear together, in a manner implying synonyminity.
Bouvier's Law Dictionary (1914) defines "native" as a "natural-born subject" (Bouvier,

p.2297). Black's Law Dictionary (1st Edition, 1891; and 5th Edition, 1979) defines "native"
as "a natural born subject or citizen". In William Blackstone's Commentaries on the Laws of
England (1765-1769), Book 1 Chapter 10 is titled "Of the People, Whether Aliens, Denizens,
or Natives". Within that chapter, "natural-born subject" and "native" are used interchangeably.
In at least some early English language literature, "natural born" was an adjective form of the
noun "native", and both implied something more than birth in a particular place.
4.5 U.S. Supreme Court: So far, the U.S. Supreme Court has not given a full or complete
definition of "natural born citizen". In 1874, the Court reiterated the 1797 English-language
Law of Nations definition of "natural born citizen":
Resort must be had elsewhere to ascertain that.
At common-law, with the nomenclature of which the framers of the Constitution

were familiar, it was never doubted that all children born in a country of parents
who were its citizens became themselves, upon their birth, citizens also. These
were natives, or natural-born citizens, as distinguished from aliens or foreigners.
Some authorities go further and include as citizens children born within the
jurisdiction without reference to the citizenship of their parents. As to this class
there have been doubts, but never as to the first.
For the purposes of this case, it is not necessary to solve these doubts. It is
sufficient, for everything we have now to consider, that all children, born of
citizen parents within the jurisdiction, are themselves citizens (Minor v.
Happersett, 1874)
In 1874, the Supreme Court said, in effect:
The meaning of "natural born citizen" is not found in the U.S. Constitution.
There is no doubt that, if you were born in the United States and both of your parents
were U.S. citizens at the time of your birth, you are a natural born citizen.

Throughout American history, some "authorities" have expressed the opinion that all
children born in the United States, regardless of their parents' citizenship, are U.S.
citizens at birth and possibly natural-born citizens as well. This opinion remains in
doubt.
In U.S. v. Wong Kim Ark (1898), the Supreme Court discussed birthright citizenship at
length, but did not decide whether birthplace alone confers natural born citizenship. The Court
ruled that Wong was a citizen, but did not rule that he was a natural born citizen. (For further
discussion regarding Wong Kim Ark, see Question 15: Wong Kim Ark).
To summarize, persons born in the U.S., of parents who are U.S. citizens, are definitely
natural born citizens. The above-listed sources raise doubts as to whether natural born
citizenship extends to U.S.-born children of non-citizen parents. We must look elsewhere to
resolve these doubts.
5. In a nutshell, what is the Obama eligibility controversy?
Obama eligibility supporters present three facts:
The State of Hawaii has issued an official government document (presumably a birth
certificate) which declares that Barack Obama was born in Hawaii in 1961.
Hawaii was part of the United States in 1961, and still is today.
The modern-day consensus of legal opinion is that anyone born in the United States is a
natural born citizen.
Given the above facts, politicians and members of the mainstream news media legitimately
ask, "What's the problem here? How can there be any credible question or doubt regarding
President Obama's eligibility?"
Birthers respond with two points:
1) Possibility of birth certificate fraud:

In 1961, Hawaii residents could obtain a birth certificate for a foreign-born baby by
falsely claiming that the baby was born in Hawaii "at home". Since "at home" births are
suspect, the U.S. State Department no longer accepts a birth certificate as proof of U.S.
birth and citizenship, unless the birth certificate specifies that the birth took place in a
hospital or other "appropriate medical facility" (Shame on State Department).
Obama's published Certification of Live Birth, or COLB, does not say whether his birth
occurred in a hospital or at home. Consequently, according to modern-day standards,
Obama's COLB does not constitute proof of U.S. birth and citizenship.
2) Original meaning of "natural born":

In the modern-day consensus of legal opinion, anyone born in 18th century England
was a natural-born subject, therefore anyone born on American soil must be a natural
born citizen. However, this line of reasoning is based on an incomplete understanding
of "natural born".
During the 1600s and 1700s, there were two kinds of English subjects: born and made.
Subjects born were defined as persons born within the sovereign's territory, of parents
who were under the sovereign's actual obedience or allegiance (see Question 24: Actual
obedience). All other English subjects were subjects made; they acquired subjecthood

from Parliament or the king.
The term "natural born" had two meanings: general and specific (see Question 19:
Natural-born subject). In the general sense, all English subjects (except denizens) were
natural-born subjects, regardless of whether they were subjects born or subjects made.
Nearly all children born on English soil, including children of alien parents, were
natural-born in the general sense. However, only subjects born were natural-born in the
specific sense.
In the original draft of the Constitution, the President had to be "born a citizen" of the
United States. In August 1787, "born a citizen" was changed to "natural born citizen",
for the purpose of excluding "foreigners" from the presidency (see Question 7: Original
purpose). This wording change does not make any sense -- it would not have excluded
anyone not already excluded by the "born a citizen" requirement -- unless the term
"natural born" is understood in its specific sense only.
In short, the Obama eligibility controversy stems from two facts: (1) the fact that Obama has
not released sufficient information to conclusively established his birth in Hawaii; and (2) the
fact that, when Obama was born, his father was not under the actual obedience or allegiance
of the United States, and therefore Obama is not "natural born" according to the specific
meaning of the term.
Dual citizenship at birth: In his "Fight the Smears" website, Barack Obama admits that he
acquired foreign citizenship (in addition to U.S. citizenship) at birth, by descent from his
father:
When Barack Obama Jr. was born on Aug. 4, 1961, in Honolulu, Kenya was a
British colony, still part of the United Kingdom's dwindling empire. As a Kenyan
native, Barack Obama Sr. was a British subject whose citizenship status was
governed by The British Nationality Act of 1948. That same act governed the
status of Obama Sr.'s children. Since Sen. Obama has neither renounced his U.S.
citizenship nor sworn an oath of allegiance to Kenya, his Kenyan citizenship
automatically expired on Aug. 4, 1982. (FactCheck.org, as quoted in Obama's
"Fight the Smears" webpage regarding his birth certificate).
The President's public admission raises a question:
Is President Barack Obama a natural born citizen of the United States if he

acquired foreign citizenship at birth? In other words, even if Barack Obama were
a U.S. citizen at birth, can he be a U.S. natural born citizen if his citizenship
status at birth was "governed", even if only partially, by the laws of a foreign
country?
Obama eligibility supports say "Yes". They believe there are only two kinds of American
citizens: naturalized and natural born. A naturalized citizen is someone who becomes a
citizen after his or her birth, through a legal process called "naturalization". A natural born
citizen is anyone who is a U.S. citizen at birth. Since President Obama was born in the United
States and was therefore a U.S. citizen at the time of his birth, he is a natural born citizen,
regardless of his parents' citizenship and regardless of any other citizenship he also acquired
at birth [23].
Contrarians say "No". They believe that, when the Constitution was written, the term "natural
born citizen" referred only to individuals who were, at birth, citizens of the United States
exclusively and were not citizens at birth of any other country. Some children are born with
dual nationality. They acquire U.S. citizenship at birth; they also acquire foreign citizenship at

birth, either from their birthplace or by descent from their parents. While these children are
U.S. citizens, they are not natural born citizens. In order to be a natural born citizen of the
United States, you must not be a citizen, at birth, of any foreign country; which means, you
must be born in the United States, of parents who were exclusively U.S. citizens at the time
of your birth [24].
Thus we have two opposing viewpoints regarding the meaning of "natural born citizen". One
viewpoint understands "natural born" according to its 18th century general meaning; the other
viewpoint understands "natural born" according to its specific sense. Which viewpoint is
correct? So far, the Supreme Court has not answered this question because, until now, there
was no reason to. Now, the Supreme Court needs to do its job and answer the question.
6. Does the birthers' viewpoint have historical or legal merit?
Birthers argue that the modern-day "consensus" of legal opinion -- that anyone born in the
U.S. is a U.S. natural born citizen -- is not consistent with historical fact. In their view, the
preponderance of historical evidence indicates that, when the U.S. Constitution was being
written, parental citizenship was an essential requirement for natural born citizenship. One
could not be a natural born citizen unless one's parents, or at least one's father, was a U.S.
citizen at the time of one's birth [25].
Birthers point out the following:
In Alexander Hamilton's first draft of the U.S. Constitution, a person had to be "born a
citizen" of the United States in order to be eligible to serve as president. In July 1787,
John Jay wrote a letter to George Washington, recommending that the presidential
eligibility requirement be changed from "born a citizen" to "natural born citizen". The
stated purpose of the change was to exclude "foreigners" from the presidency.
From this information alone, we may infer that:
Someone who was "born a citizen" of the United States might also be a
"foreigner" in some sense; but a "natural born citizen" is not a foreigner, at least
not in the same sense.
"Born a citizen" and "natural born citizen" pertain only to one's status at the time
of one's birth [26]. Consequently, the wording change from "born a citizen" to
"natural born citizen" could not have excluded, from the presidency, persons who
became foreigners during adulthood. The change could have, at most, only
excluded persons who were "foreigners" when they were born.
The change from "born a citizen" to "natural born citizen" would not have provided any
additional protection against foreign influence in the presidency -- that is, Jay's wording
change could not have barred, from the presidency, anyone who was not already barred
by the "born a citizen" requirement -- unless the term "natural born citizen" meant a
person who was not a "foreigner" (citizen or subject of a foreign country) at birth. (See
Question 7: Original Purpose)
In 1789, two years after the Constitution was adopted, David Ramsay questioned
whether William Loughton Smith was eligible to serve as a U.S. Representative from
South Carolina. Ramsay argued that one acquires citizenship as a natural right at birth
only if one's parents were citizens at the time of one's birth:
[Birthright citizenship] ... is confined exclusively to the children of those

who were themselves citizens. ... The citizenship of no man could be

previous to the declaration of independence, and, as a natural right, belongs
to none but those who have been born of citizens since the 4th of July,
1776. ... From the premises already established, it may be farther inferred,
that citizenship, by inheritance, belongs to none but the children of those
Americans, who, having survived the declaration of independence, acquired
that adventitious character in their own right, and transmitted it to their
offspring. (Ramsay)
Since a citizen of any state was automatically a citizen of the United States, Smith
claimed he was a U.S. citizen by virtue of being a South Carolina citizen. Even though
he was born before the United States came into existence, he was nevertheless a South
Carolinian by birth, having been born in South Carolina, of a South Carolinian father.
...my ancestors were amonst the very first settlers in South Carolina...
Vattel says, "The country of the father is that of the children, and these
become citizens merely by their tacit consent." (William Loughton Smith,
as quoted in The Documentary history of the first Federal elections, 1788-
1790, Volume 1, pp.176,178)
Although they disagreed over precisely how and when Smith became a U.S. citizen,
both Ramsay and Smith agreed that children naturally acquire citizenship, at birth, by
descent from their fathers. (See Mario Apuzzo, Founder and Historian David Ramsay
Defines a Natural Born Citizen in 1789)
In Tuan Anh Nguyen v. INS (2001), Justice Ginsberg acknowledged that, throughout
most of U.S. history, children inherit, at birth, their father's citizenship:
If Congress went back to the way it was when everything was determined
by the father's citizenship, go back to before 1934,... Suppose Congress
wants to restore the way it was, the way it was for most of our nation's
history, that the father's citizenship gets transferred to the child, not the
mother's? (Justice Ginsberg, as quoted in Natural-Born Citizen per Justice
Ginsberg?)
Every U.S. president who was born after 1787 -- except Barack Obama and Chester
Arthur -- was born in the United States, of parents who were both U.S. citizens (Natural
Born Presidency). In 1880, the voting public seemed unaware that, when Chester Arthur
was born, his father was not yet a naturalized U.S. citizen [27]. The 2008 election
appears to be the first time in American history that the United States knowingly
elected a post-1787-born president whose parents, at the time of his birth, were not
both U.S. citizens.
While running for vice president in 1880, Chester Arthur told outright lies (and later
burned nearly all of his family records) thereby obscuring the fact that, when he was
born, his father was a British subject and not a U.S. citizen (Historical Breakthrough -
Chester Arthur). If "natural born citizen" meant anyone born in the United States,
regardless of parental citizenship, why did Chester Arthur go through so much trouble
to obfuscate his family history? Did he believe that his birth to a non-citizen father
made him ineligible to serve as president or vice president? In 1884, President Arthur
admitted that there were doubts regarding the legal status of a U.S.-born person (such
as himself) whose father intended to become a naturalized U.S. citizen but had not yet
done so:
Our existing naturalization laws also need revision. ... Section 2172,

recognizing the citizenship of the children of naturalized parents, is

ambiguous in its terms... An uniform rule of naturalization, such as the
Constitution contemplates, should, among other things, clearly define the
status of persons born within the United States subject to a foreign power
and of minor children of fathers who have declared their intention to
become citizens... (Chester Arthur, 1884, as quoted by Long)
In 1862, U.S. Representative John Bingham (1815-1900), the principal framer of the
14th Amendment, explained the meaning of "natural born citizen" to the U.S. House of
Representatives. A "natural born citizen" is born in the United States:
The Constitution leaves no room for doubt on this subject. The words
"natural-born citizen of the United States" occur in it, and the other
provision also occurs in it that "Congress shall have the power to pass a
uniform system of naturalization". To naturalize a person is to admit him to
citizenship. Who are natural-born citizens but those born within the
Republic? Those born within the Republic are citizens by birth -- natural-
born citizens. (Congressional Globe, 37th, 2nd Sess.(1862), p.1639,
leftmost column)
A couple of sentences later, Representative Bingham elaborated that a natural born

citizen is also born "of parents owing allegiance to no other sovereign". Native
American Indians owe allegiance to their respective tribes, which are separate
sovereignties. Consequently, their children, though born in the United States, are not
natural born citizens:
All from other lands, who, by the terms of your [congress'] laws and in
compliance with their provisions become naturalized, are adopted citizens
of the United States; all other persons born within the Republic, of parents
owing allegiance to no other sovereignty, are natural-born citizens.
Gentlemen can find no exception to this statement except what is said in
the Constitution in relation to Indians. The reason why that exception was
made in the Constitution is apparent to everybody. The several Indian tribes
were recognized at the organization of this Government as independent
sovereignties. They were treated as such; and they have been dealt with by
the Government ever since as separate sovereignties. Therefore they were
excluded from the general rule. (Congressional Globe, 37th, 2nd
Sess.(1862), p.1639, leftmost column)
In 1866 and in 1872, Representative Bingham reiterated that a natural born citizen is
one who is born in the United States, of parents not owing allegiance to any foreign
sovereignty:
[I] find no fault with the introductory clause [S 61 Bill], which is simply
declaratory of what is written in the Constitution, that every human being
born within the jurisdiction of the United States of parents not owing
allegiance to any foreign sovereignty is, in the language of your
Constitution itself, a natural born citizen. (Congressional Globe, 39th, 1st
Sess.(1866), p.1291, center column)
As to the question of citizenship I am willing to resolve all doubts in favor

of a citizen of the United States. That Dr. Houard is a natural-born citizen
of the United States there is not room for the shadow of a doubt. He was
born of naturalized parents within the jurisdiction of the United States, and

by the express words of the Constitution, as amended to-day [to date], he is

declared to all the world to be a citizen of the United States by birth.
(Congressional Globe, 42nd, 2nd Sess.(1872), p.2791, rightmost column)
When Representative Bingham made his various statements regarding the meaning of
"natural born citizen", no one questioned, challenged or disagreed with those statements
from the House floor (The House of Representatives Definition of 'Natural Born
Citizen').
The U.S. Supreme Court has, on occasion, used the word "citizen" in reference to
individuals who were either not born in the United States or not born of U.S.-citizen
parents. Such individuals were U.S. citizens by law or by naturalization. But the
Supreme Court has never referred to such persons as natural born citizens [28]. In those
few cases in which the Supreme Court has declared an individual to be a "natural born
citizen", the individual was always U.S.-born to U.S.-citizen parents. For example, in
Perkins v. Elg (1939), the Supreme Court referred to Marie Elizabeth Elg as a natural
born citizen. Miss Elg was born in the United States in 1907. A year before her birth,
her father became a U.S. citizen by naturalization, and her mother acquired U.S.
citizenship through marriage. Thus when Miss Elg was born, both of her parents were
U.S. citizens. Also, in the majority opinion in Wong Kim Ark (1898), Justice Gray
quoted an article, by Horace Binney, which used the term "natural born" in connection
with a U.S.-born child of a U.S. citizen, but not in connection with a U.S.-born child of
an alien. In Binney's opinion, both children were U.S. citizens by birth, but only the
U.S.-born child of a citizen was labeled "natural born".
In 1797 (a decade after the Constitution was adopted), the English translation of
Emmerich de Vattel's, Law of Nations was revised to include the term "natural born
citizen". The revised English translation sheds light on the late 18th-century meaning of
"natural born citizen":
The natives, or natural born citizens, are those born in the country, of
parents who are citizens. (Vattel, §212)
In 1874, in Minor v. Happersett, the Supreme Court alluded to the definition of natural
born citizen which had appeared in the 1797 English translation of Vattel's Law of
Nations:
...it was never doubted that all children born in a country of parents who
were its citizens became themselves, upon their birth, citizens also. These
were natives, or natural-born citizens, as distinguished from aliens or
foreigners. Some authorities go further and include as citizens children born
within the jurisdiction without reference to the citizenship of their parents.
As to this class there have been doubts, but never as to the first. (Minor v.
Happersett, 1874)
In Minor v. Happersett, the Supreme Court expressed "doubts" regarding the citizenship
of U.S.-born children whose parents were not both U.S. citizens. In Wong Kim Ark
(1898), the Supreme Court examined these "doubts", but did not render any ruling
pertaining to natural born citizenship. The Court ruled that Wong was a citizen; it did
not rule that he was a natural born citizen. To date, the Supreme Court has never
answered the question as to whether natural born citizenship extends to children of non-
citizen parents.
Based on the above (and other) information, birthers suspect that, even if President Obama is
a U.S. citizen by birth, he might not be a natural born citizen and thus might not be eligible

to serve as president. President Obama publicly admits that his father was a Kenyan native
who never became a U.S. citizen. Consequently President Obama -- regardless of where he
was born -- acquired foreign citizenship at birth by descent from his father. Birthers ask, "Can
someone be a natural born citizen of the United States if she or he was born with foreign
nationality in addition to U.S. citizenship?"
7. What was the original purpose of the presidential "natural born citizen"
requirement?
In Alexander Hamilton's first draft of the U.S. Constitution, an individual was eligible to
serve as president if he was either (a) a U.S. citizen when the Constitution was adopted, or (b)
"born a citizen" of the United States:
No person shall be eligible to the office of President of the United States unless
he be now a citizen of one of the States, or hereafter be born a citizen of the
United States. (Works of Alexander Hamilton, p. 407).
In a letter to George Washington, dated 25 July 1787, John Jay (1745-1829) recommended
changing the presidential eligibility requirement from "born a citizen" to "natural born
citizen":
Permit me to hint whether it would not be wise and seasonable to provide a

strong check to the admission of foreigners into the administration of our national
government; and to declare expressly that the command in chief of the American
army shall not be given to, nor devolve on any but a natural born citizen. (John
Jay, Letter to George Washington, 25 July 1787)
The stated purpose of the wording change was to exclude "foreigners" from the presidency. At
the time, a "foreigner" was anyone owing allegiance to a foreign state or sovereign (see
Question 8: Meaning of "foreigner"). Apparently, a person who was "born a citizen" of the
United States could also be a "foreigner" in some sense, but a "natural born citizen" is not a
"foreigner," at least not in the same sense.
A child can be, at birth, both a U.S. citizen and a "foreigner" (a foreign citizen) at the same
time. But, according to Minor v. Happersett (1874), "natural born citizen" and "foreigner" are
mutually exclusive categories. A child, at birth, can be one or the other, but not both:
...it was never doubted that all children born in a country of parents who were its
citizens became themselves, upon their birth, citizens also. These were natives, or
natural-born citizens, as distinguished from aliens or foreigners. (Minor v
Happersett, 1874, boldface emphasis added)
In August 1787, Jay's recommendation was accepted. The presidential eligibility requirement
was changed from "born a citizen" to "natural born citizen":
It was originally proposed in the Constitutional Convention that the presidential

qualifications be a "citizen of the United States." It was so reported to the
Convention, by the Committee which had it in charge, on the 22nd day of
August, 1787. It was again referred to a Committee, and the qualification clause
was changed to read "natural born citizen," and was so reported out of Committee
on September the 4th, 1787, and adopted in the Constitution. (Long, p.7)
The framers of the Constitution were concerned that a foreign power might raise a "creature
of their own" to the Office of President:

Nothing was more to be desired, than that every practicable obstacle should be
opposed to cabal, intrigue, and corruption. These most deadly adversaries of
Republican government, might naturally have been expected to make their
approaches from more than one quarter, but chiefly from the desire in foreign
powers to gain an improper ascendant in our councils. How could they better
gratify this, than by raising a creature of their own to the chief magistracy of the
Union? (Alexander Hamilton, Federalist No. 68, March 14, 1788, emphasis
added)
St. George Tucker (1752-1827) explained that the purpose of the natural born citizen
provision was to exclude foreigners from the presidency:
That provision in the constitution which requires that the president shall be a
native-born citizen (unless he were a citizen of the United States when the
constitution was adopted) is a happy means of security against foreign influence,
which, wherever it is capable of being exerted, is to be dreaded more than the
plague. The admission of foreigners into our councils, consequently, cannot be
too much guarded against... To have added a [foreign] member to this sacred
family in America, would have invited and perpetuated among us all the evils of
Pandora's Box. (St. George Tucker, as quoted in Madison(2008))
According to U.S. Supreme Court Justice Joseph Story (1779-1845), early patriots were
eligible to be president, even though they were naturalized citizens and not natural born
citizens. But after their generation passed away, only natural born citizens were eligible to be
president. The reason for this "natural born citizen" requirement was to exclude foreigners
from the presidency.
It is indispensable, too, that the president should be a natural born citizen of the
United States; or a citizen at the adoption of the constitution, and for fourteen
years before his election.
This permission of a [pre-1787-born] naturalized citizen to become president is

an exception from the great fundamental policy of all governments, to exclude
foreign influence from their executive councils and duties. It was doubtless
introduced (for it has now become by lapse of time merely nominal, and will soon
become wholly extinct) out of respect to those distinguished revolutionary
patriots, who were born in a foreign land, and yet had entitled themselves to high
honours in their adopted country. A positive exclusion of them from the office
would have been unjust to their merits, and painful to their sensibilities.
But the general propriety of the exclusion of foreigners, in common cases, will
scarcely be doubted by any sound statesman. It cuts off all chances for ambitious
foreigners, who might otherwise be intriguing for the office; and interposes a
barrier against those corrupt interferences of foreign governments in executive
elections, which have inflicted the most serious evils upon the elective
monarchies of Europe. Germany, Poland, and even the pontificate of Rome, are
sad, but instructive examples of the enduring mischiefs arising from this source.
(Story, § 1473)
Precedent for foreign exclusion: It was not unusual for a nation to exclude foreigners from
its highest levels of government. The Jewish Torah, for example, prohibited the appointment
of a foreigner as king:
One from among your brethren you shall set as king over you; you may not put a

foreigner over you, who is not your brother. (Deuteronomy 17:15, RSV)
In 1701, the English Parliament passed a law excluding, from public office, foreign-born
persons of non-English parents:
...no person born out of the Kingdoms of England, Scotland, or Ireland, or the
dominions thereunto belonging (although he be naturalized or made a denizen),
except such as are born of English parents, shall be capable to be of the Privy
Council, or a member of either House of Parliament, or to enjoy any office or
place of trust, either civil or military, or to have any grant of lands, tenements or
hereditaments from the Crown, to himself or to any other or others in trust for
him; (Act of Settlement, 1701)
According to Cunningham's Law Dictionary (1764 and 1783 editions), foreigners -- even
those who had become English subjects by denization or naturalization -- were ineligible to
hold public office in England:
Foreigners, Though made denizens or naturalized here, are disabled to bear

offices in the government, to be of the Privy council, members of Parliament, &c.
by acts of settlement of the crown. (Cunningham, Law Dictionary, vol.2, 1771,
p.82, under "Foreigner")
It did not matter how loyal you were to the English king. It did not matter that you had
completely renounced all of your foreign ties and allegiances. It did not matter that you had
sworn an oath of exclusive allegiance to the king. If you were a "foreigner" at the time of
your birth, you were not eligible to hold any public office in England, even if you were no
longer a citizen or subject of any foreign country.
Dual citizenship: When the thirteen colonies became independent States, each State had the
right to decide, for itself, the citizenship status of any child that was either (a) born in that
State, or (b) born of parents who were citizens of that State. Any child who was "born a
citizen" of a State, according to the laws of that State, became a citizen of the United States
[29].
States were not required to limit themselves to any "natural law" theory of birthright
citizenship. Each State could confer citizenship to:
any child born in the State, even if the parents were citizens or subjects of a foreign
country; and
any foreign-born child whose parents were citizens of the State [30].
A child who was "born a citizen" of a State might also be, at birth, a citizen or subject of
foreign country.
For example, when the U.S. Constitution was being written, a child was a British subject by
birth if such child was either (a) born in the U.S., of British parents, or (b) born in Great
Britain, of U.S.-citizen parents. Depending on the applicable State law, someone who was
"born a citizen" of a State could also be a British subject at birth.
...children and grandchildren, born of British parents in foreign countries, are

British-born subjects; yet these, no doubt, by the laws of the respective foreign
countries, are also deemed natural-born subjects there. I am aware of the
difficulties which such persons may labor under with these double claims of
allegiance upon them. ...the king cannot reckon upon the full and absolute

obedience of such persons, because they owe another fealty besides that due to
him... (Reeve, emphasis added)
Status at birth: Natural born citizenship is conferred only at birth and cannot be acquired
after one's birth [26]. Consequently, the presidential natural born citizen provision, in the
Constitution, pertained only to one's legal status at the time of one's birth. The provision, by
itself, did not prevent, and could never have prevented, the inauguration of a president who
had become a foreigner after she or he was born. At most, the provision only excluded
persons who were "foreigners" at birth.
When the Constitution was written, there were only two ways that a child could be a citizen
or subject of a foreign country at birth:
by being born in a foreign country; or

by being born of parents who were citizens or subjects of a foreign country.
If you were born in the United States and your parents were exclusively U.S. citizens at the
time of your birth, you were, without doubt, completely free of foreign influence at birth --
you were, without doubt, not a foreign citizen at birth and not under any foreign legal
jurisdiction at birth. On the other hand, if you were born outside of the United States or if
your parents were not exclusively U.S. citizens when you were born, you could be both "born
a citizen" of the United States and a "foreigner" (a citizen or subject of foreign country) at
birth.
According to John Jay's letter of 25 July 1787 and other historical documents of that time
period, the purpose of the Constitutional natural born citizen provision was to exclude
foreigners from the presidency. Since the term "natural born citizen" pertains only to one's
legal status at the time of one's birth, the natural born citizen provision could, at most, only
exclude persons who were foreigners at the time of birth. Consequently, the wording change
from "born a citizen" to "natural born citizen" could not have provided any additional
protection against foreign influence -- it could not have excluded anyone not already excluded
by the "born a citizen" provision -- unless "natural born citizen" means a person who is, at
birth, a citizen of the U.S. exclusively and is not, at birth, a citizen or subject of any foreign
country.
8. What was the 18th-century meaning of the word "foreigner"?
In 2009, the Berkeley Journal of International Law published a comprehensive historical

analysis of the words "foreigner" and "alien", as used in English and American legal writings
during the late eighteenth century. This analysis, written by Anderson Berry, found that
"aliens" were persons who established a residence in one country, while they were still
citizens or subjects of some other country; and "foreigners" were natives, citizens or subjects
of a foreign country, regardless of their current residence [31].
...the overwhelming majority of sources available to the drafters of the judicial

bill [of 1789] define an "alien" as an individual who: 1) is foreign-born, and 2)
resides in a sovereign's territory other than the one where he was born. A
"foreigner" is defined as an individual who: 1) is foreign-born, or more
specifically, is a foreign citizen or subject, or 2) is a foreign-born individual
residing extraterritorially [outside the sovereign's territory]. (Berry, pp.337-8)
The eighteenth-century meaning of "foreigner" was not limited to persons born in a foreign
country. If you were a citizen or subject of a foreign country, you were a "foreigner,"
regardless of your residence or place of birth.

According to Black's Law Dictionary, the word "foreigner" has a municipal meaning and an
international meaning. In the municipal sense, anyone who is not an inhabitant of a city is a
"foreigner" in that city. In an international context, anyone owing allegiance to a foreign state
or sovereign is a foreigner.
FOREIGNER. In old English law, this term, when used with reference to a
particular city, designated any person who was not an inhabitant of that city.
According to later usage, it denotes a person who is not a citizen or subject of the
state or country of which mention is made, or any one owing allegiance to a
foreign state or sovereign. (Henry Campbell Black, A Dictionary of Law, First
Edition, 1891, p.506)
Nationality vs. National Origin: In common everyday speech, the word "foreigner" can refer
to either one's nationality or one's national origin:
You have foreign nationality if you are currently a citizen or subject of a foreign
country.
You are of foreign origin if you were a citizen or subject of a foreign country at the
time of your birth, regardless of whether you are still a citizen or subject of that foreign
country. You can acquire foreign citizenship or subjecthood, at birth, either (a) from
your place of birth (the jus soli principle), or (b) by descent from your parents (the jus
sanguinis principle).
In 1608, Sir Edward Coke recognized that someone who is "alien born" can be either (a) of
foreign birth (origin), or (b) of foreign allegiance (nationality):
An alien born is of foreign birth or foreign allegiance, and is also called

peregrinus (foreigner), alien, exotic, stranger, etc. A stranger is a subject who is
born outside the land, that is, outside the king's power. (Coke(1608), p.204,
footnote 151)
In Vattel's Law of Nations (1758) (see Question 29: Law of Nations), one's "country" is either:
the country of one's current nationality, i.e., the country of which one is currently a
member; or
the country of one's national origin, i.e., the country of one's parents' "fixed residence",
or domicile, at the time of one's birth.
As Vattel explained, you can change your nationality but not your national origin.
The term, country, seems to be pretty generally known: but as it is taken in

different senses, it may not be unuseful to give it here an exact definition. It
commonly signifies the State of which one is a member [one's current
nationality]: in this sense we have used it in the preceding sections; and it is to be
thus understood in the law of nations.
In a more confined sense, and more agreeably to its etymology, this term
["country"] signifies the state, or even more particularly the town or place where
our parents had their fixed residence at the moment of our birth. In this sense, it
is justly said, that our country [national origin] cannot be changed, and always
remains the same, to whatsoever place we may afterwards remove. (Vattel, § 122)
In Christian Wolff's Jus Gentium (1749), one's "native country" (the country of one's national

origin) is established at birth and can never change. It is defined by one's citizenship at the
time of birth, not the place of one's birth:
A native country is defined as a place, namely, a land or city, in which one's

parents have a domicile, when he is born... (Wolff, § 141)
Since your native country depends upon birth, moreover, since what has been
done cannot be undone, your native country remains your native country, even if
you establish your domicile outside of it, or abandon it, or even if you are driven
out of it. So England or France remains the native country of an Englishman or a
Frenchman, even if he has established a domicile for himself outside of England
or France, intending never to return to England or France. (Wolff, § 144)
When (foreign-born) immigrants become naturalized U.S. citizens, they relinquish their
foreign nationality and thereby cease to be aliens. But they do not relinquish their national
origin; they remain "foreigners by birth":
Foreigner: A person born in a foreign country, or without [outside of] the country
or jurisdiction of which one speaks. A Spaniard is a foreigner in France and
England. All men not born in the United States are to them foreigners, and they
are aliens till naturalized. A naturalized person is a citizen; but we still call him a
foreigner by birth. (Webster: foreigner, 1828)
Summary: In the late eighteenth century, if you were a citizen or subject of a foreign
country, you were technically a "foreigner"; it did not matter whether you were also a U.S.
citizen. If you acquired, at birth, citizenship in both the United States and a foreign country,
you were a "foreigner" (a foreign citizen or subject) until you decided, in adulthood, to
renounce your foreign allegiance and become a citizen of the United States exclusively [32].
Since natural born citizenship pertains only to one's legal status at the time of one's birth, the
Constitutional "natural born citizen" provision cannot exclude presidential candidates on the
basis of their current nationality. At most, the natural born citizen provision excludes persons
only on the basis of their national origin (their citizenship at the time of birth). Changing the
presidential eligibility requirement from "born a citizen" to "natural born citizen" does not
provide any additional protection against foreign influence -- it does not reduce the number of
persons who may serve as president -- unless "natural born citizen" means a person who is not
a "foreigner" (citizen or subject of a foreign country) at the time of her or his birth.
9. What is the difference between "Constitutional" and "statutory" natural born

citizens?
During the 17th and 18th centuries, there was a distinction between an actual natural-born
subject and a naturalized natural-born subject. All natural-born subjects, both actual and
naturalized, had essentially the same property rights. Actual natural-born subjects acquired
their rights by nature and birthright. Naturalized natural-born subjects acquired their rights
through a public or private act of Parliament. (See Question 19: Natural-born subject).
Likewise, the 14th Amendment created an implicit distinction between "14th Amendment
citizens" and "statutory citizens". A "14th Amendment citizen" is defined as any person who
(a) was born or naturalized in the United States, and (b) was subject to U.S. jurisdiction at the
time of his or her birth or naturalization. In contrast, a "statutory citizen" is a person who does
not qualify for citizenship under the 14th Amendment, but receives US citizenship by laws
enacted by Congress. For example, foreign-born children of American parents do not receive
citizenship from the 14th Amendment; such children acquire U.S. citizenship, at birth, by

statute.
In this Primer, we infer a similar conceptual distinction between Constitutional and statutory
natural born citizens.
"Constitutional natural born citizen" refers to the term "natural born citizen" when it
appears in the Constitution or in a Constitution-related document such as a Supreme
Court decision. It refers to the meaning of "natural born citizen" in the Constitution,
whatever the Supreme Court ultimately decides such meaning to be.
"Statutory natural born citizen" refers to someone who is deemed a "natural born
citizen" as a result of a Federal or State law.
Currently, there is no Federal law that explicitly defines "natural born citizen" or explicitly
conveys "natural born citizenship" to anyone. However, the mainstream news media
sometimes understands and interprets Federal law as implicitly conferring "natural born
citizen" status to certain individuals at birth [17]. For purposes of this Primer, if a person is
deemed a "natural born citizen" pursuant to a law or statute, we refer to such person as a
"statutory natural born citizen".
A statutory natural born citizen is not necessarily the same thing as a Constitutional natural
born citizen. The U.S. State Department warns against confusing the two concepts:
...the fact that someone is a natural born citizen pursuant to a statute does not
necessarily imply that he or she is such a citizen for Constitutional purposes (U.S.
Department of State Foreign Affairs Manual -- 7 FAM 1130, page 9)
If we were to define "natural born citizen" to mean anyone who is a "citizen at birth", our
definition of "natural born citizen" would be statutory because it would depend on the statute
or law which defines "citizen at birth". Under existing law, all children born in the United
States (except the children of foreign diplomats) are "citizens at birth". Therefore, under
existing law, almost all children born in the U.S. -- including children of illegal immigrants --
could be regarded as statutory natural born citizens.
H.R.1940, also known as the Birthright Citizenship Act of 2007, would change the existing
law so that it would no longer grant "citizenship at birth" to children of illegal immigrants. If
Congress were to pass H.R.1940, it would alter the meaning of "citizen at birth", and
therefore would alter our statutory definition of natural born citizen. If H.R.1940 were
enacted, the U.S.-born children of illegal immigrants could no longer be regarded as statutory
natural born citizens.
To summarize:
"Statutory natural born citizen" is the meaning of "natural born citizen" when such
meaning depends on a Federal or State law. As Federal and State laws change, the
meaning of "statutory natural born citizen" changes accordingly.
"Constitutional natural born citizen" is the meaning of "natural born citizen" as used in
the Constitution.
If Barack Obama was born in Hawaii, he could be regarded as a statutory natural born citizen.
But a statutory natural born citizen is not necessarily a Constitutional natural born citizen.
10. Wouldn't the most recent modern-day statutory meaning of "natural born citizen"
take precedence over the original Constitutional meaning?

Not necessarily. The only proper and legitimate means of changing the Constitution is the
Constitutional Amendment process. Congress cannot change the Constitution by simply
passing a law. Nor can the Constitution be changed by someone's understanding or
interpretation of an existing law.
Neither Congress nor society can change the meaning of the Constitution by redefining a
word or term that the Constitution uses. As the U.S. State Department has warned (see
Question 9: statutory natural born citizens), we cannot assume that "natural born citizen" by
modern-day statute or modern-day word usage is the same thing as "natural born citizen" in
the Constitution.
11. If Obama is not a "Constitutional natural born citizen", so what? Why should
anyone care?
Understandably, some Americans question the wisdom of "enforcing the law" and "upholding
the Constitution" when the specific provision being upheld or enforced seems to be an
antiquated technicality. As long as Barack Obama is doing his job as president, why should
his parents' citizenship matter? Obama was elected president, not his parents. His parents
passed away many years ago, so how is their citizenship relevant? Is enforcing a parental
citizenship requirement really worth the horrific political chaos and unimaginable
governmental disruption that might result if Obama were found to be ineligible?
Obama eligibility questioners make three points:
If the Constitution contains something that is no longer appropriate for modern-day

society, the proper remedy is a Constitutional Amendment. If we want to be a nation
that is ruled by law and the Constitution, we cannot simply dismiss Constitutional
requirements, merely because they are inconvenient or we think they don't matter
anymore. If any one part of the Constitution doesn't matter, why would any other part of
the Constitution matter?
The Constitution affirms, defends and protects many of our rights -- free speech,
freedom of religion, privacy, trial by jury, and so on. If we say it's okay to ignore the
Constitution regarding Obama's eligibility, we open the door for someone else to say it's
okay to ignore the Constitution regarding our rights as citizens.
In order to have confidence in their government, the American people need to know,
with reasonable certainty, that their elected officials are holding office legally. This
confidence is especially important among our men and women in uniform, who have
sworn an oath to "support and defend the Constitution of the United States against all
enemies, foreign and domestic". We have at least a moral obligation to give our
military, as much as we reasonably can, confidence that their Commander in Chief is
upholding the Constitution they risk injury or death to defend. If there is any
"reasonable" doubt -- i.e., doubt based on fact, not conjecture or speculation --
regarding the President's Constitutional eligibility, we have a duty to do whatever we
can to resolve this doubt, because it is the right and proper thing to do.
Edwin Vieira, one of this nation's leading Constitutional scholars, warns that Obama's
questionable eligibility, if left unresolved, could become precedent and justification for
unraveling Constitutional authority in the future:
If Obama turns out to be nothing more than an usurper who has fraudulently
seized control of the Presidency, not only will the Constitution have been

egregiously flouted, but also this whole country could be, likely will be,
destroyed as a consequence. And if this country is even credibly threatened with
destruction, every American will be harmed -- irretrievably, should the threat
become actuality -- including those who voted or intend to vote for Obama, who
are also part of We the People. Therefore, in this situation, any and every
American must have "standing" to demand -- and must demand, both in
judicial fora and in the fora of public opinion -- that Obama immediately and
conclusively prove himself eligible for "the Office of President." (Vieira,
italics and boldface are as they appear in the original)
12. Why has every birther lawsuit been denied or dismissed?
So far, every lawsuit challenging Obama's presidential eligibility has been either denied
without comment or dismissed on a technicality -- lack of standing, lack of jurisdiction,
mootness, etc. So far, neither the Supreme Court nor any other court has considered, in an
open hearing, the actual substance or merit of any of these cases. Although some judges have
expressed personal opinions, or dicta, regarding Obama's eligibility, no court -- as of the time
of this writing -- has ruled on whether or not Barack Obama is a Constitutional natural born
citizen.
13. What is a 14th Amendment natural born citizen?
According to the "14th Amendment natural born citizen" theory, the 14th Amendment,
ratified in 1868, implicitly redefined, or at least clarified, the meaning of "natural born
citizen"; and under this new or clarified meaning, Barack Obama is a "natural born citizen"
eligible to serve as president.
The 14th Amendment Citizenship Clause states:
All persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the State wherein they
reside. (Constitution - Amendment 14)
Before the 14th Amendment was enacted, each State had the right to determine the citizenship
of children born within its borders. Citizenship laws varied from State to State, but as a
general rule, free white children born within a State (except the children of foreign
ambassadors) were, by State law, citizens of that State [33]. Anyone who became a citizen of
any State was automatically a citizen of the United States [29].
The 14th Amendment Citizenship Clause defines a particular group of people, which we call
the "14th Amendment Citizen," or 14AC, class. This 14AC class consists of every person
who:
was born or naturalized in the United States, and
was subject to U.S. jurisdiction at the time of his or her birth or naturalization.
The Citizenship Clause, in the 14th Amendment, says that all 14AC-class members are
citizens. It does not say whether citizenship extends to anyone else [34]. The Citizenship
Clause requires each State to recognize 14AC-class members as citizens. Each State retains
the right to grant or deny citizenship to non-14AC-class members [35].

The 14th Amendment mentions citizens. It does not mention natural born citizens.
Nevertheless, 14th Amendment natural born citizen theory argues that the Citizenship Clause
implies that a "natural born citizen" is anyone who is born in the United States and is subject
to U.S. jurisdiction at the time of his or her birth.
Barack Obama was born in Hawaii, which was, in 1961, a part of the United States. His
mother was a U.S. citizen; and his father, though not a U.S. citizen, was residing in the
United States legally. Therefore, Barack Obama, at the time of his birth, was under the
territorial and legal jurisdiction of the United States, and thus met the requirements of natural
born citizenship according to the 14th Amendment.
Three objections have been raised against this "14th Amendment natural born citizen" theory:
It is not consistent with the meaning of "jurisdiction" as defined by the framers of the
14th Amendment.
It is not consistent with the Supreme Court opinion in Marbury v. Madison (1803)
regarding Constitutional interpretation.
It is not consistent with Supreme Court statements implicitly rejecting the notion that the
meaning of "natural born citizen" can be ascertained or derived from the 14th
Amendment.
(1) Originally intended meaning of "jurisdiction": According to transcripts of the

Congressional debates regarding the 14th Amendment, the word "jurisdiction", as used in the
14th Amendment, means sole and complete U.S. jurisdiction, i.e., not subject to any foreign
power. President Obama admits that his citizenship status at birth was "governed" by the laws
of a foreign country. Since the President's birth was not subject to sole and complete U.S.
jurisdiction, he does not qualify for citizenship under the 14th Amendment. President Obama
might have acquired U.S. citizenship at birth from modern-day statute, but he did not acquire
U.S. citizenship from the 14th Amendment, according to its originally intended meaning.
(See Question 14: Jurisdiction).
(2) Marbury v. Madison (1803): The "14th Amendment natural born citizen" argument is not
consistent with the Supreme Court's opinion in Marbury v. Madison (1803). In that opinion,
Chief Justice Marshall stated:
It cannot be presumed that any clause in the constitution is intended to be without

effect; and therefore such construction is inadmissible, unless the words require it.
(Marbury v. Madison, 1803)
All persons are subject to U.S. legal and territorial jurisdiction while they are in the United
States. If the word "jurisdiction", in the 14th Amendment, is interpreted to mean territorial
and legal jurisdiction only, then all persons born or naturalized in the United States are
automatically under U.S. jurisdiction at the time of their birth or naturalization. This would
mean that the phrase, "subject to the jurisdiction thereof," is redundant and without any unique
effect.
In the Fourteenth Amendment, there are two requirements: birth or naturalization

in the United States and within the jurisdiction of the United States. If all persons
who are born in the United States were ipso facto born within its jurisdiction,
then the jurisdiction clause would be rendered superfluous. But a singular
requirement of a written constitution is that no interpretation can render any part
of the constitution to be without force or meaning. (Erler, pp.191-192)

According to Chief Justice Marshall, we cannot interpret the Constitution in a manner that
renders a portion of the Constitution to be without effect. In order to have any effect, the
word "jurisdiction", in the 14th Amendment, must mean something more than territorial and
legal jurisdiction [36].
(3) Implicit Supreme Court rejection: In Minor v Happersett (1874), the Supreme Court said
that the meaning of "natural born citizen" is not found in the U.S. Constitution:
Resort must be had elsewhere to ascertain that. (Minor v Happersett, 1874)
In 1898, the Supreme Court repeated the same point -- that the meaning of "natural born
citizen" cannot be determined from the U.S. Constitution alone:
The Constitution of the United States, as originally adopted, uses the words
"citizen of the United States," and "natural-born citizen of the United States." ...
The Constitution nowhere defines the meaning of these words, either by way of
inclusion or of exclusion, except insofar as this is done by the affirmative
declaration that "all persons born or naturalized in the United States, and subject
to the jurisdiction thereof, are citizens of the United States." In this as in other
respects, it must be interpreted in the light of the common law, the principles and
history of which were familiarly known to the framers of the Constitution. (U.S.
v. Wong Kim Ark, 1898)
In Minor v. Happersett (1874) and in U.S. v. Wong Kim Ark (1898), the Supreme Court
rejected the notion that the meaning of "natural born citizen" can be ascertained from the
Constitution, without reference to legal and historical sources outside the Constitution. When
both cases were decided, the 14th Amendment (ratified in 1868) was part of the Constitution.
If the meaning of "natural born citizen" cannot be determined from the Constitution, it cannot
be determined from the 14th Amendment.
14. What was the originally intended meaning of "jurisdiction" in the 14th Amendment?
On April 9, 1866, Congress passed the Civil Rights Act of 1866, which stated:
All persons born in the United States and not subject to any foreign power,
excluding Indians not taxed, are declared to be citizens of the United States (1866
Civil Rights Act)
Two months later, Congress finalized the wording of the 14th Amendment and presented it to
the States for ratification:
The United States Congress proposed the Fourteenth Amendment on June 13,
1866 and on July 9, 1868, three-fourths of the states (28 of 37) had ratified the
amendment. (Wikipedia: Fourteenth Amendment)
The 14th Amendment stated:
All persons born or naturalized in the United States, and subject to the
reside. (Constitution - Amendment 14)
Since Congress proposed the 14th Amendment only two months after it passed the Civil
Rights Act of 1866, it seems unlikely that the meaning of "subject to the jurisdiction thereof"
(in the 14th Amendment) would differ substantially from "not subject to any foreign power"

(in the 1866 Civil Rights Act).
The 1866 Congressional debates confirm that the two citizenship clauses -- the one in the 14th
Amendment, and the one in the 1866 Civil Rights Act -- were intended to have the same
meaning and effect. During those debates, the primary framers of the 14th Amendment
citizenship clause, Sen. Jacob Howard and Sen. Lyman Trumbull, made it clear that
"jurisdiction", as used in the 14th Amendment, means sole and complete U.S. jurisdiction, i.e.,
not subject to any foreign power:
Sen. Lyman Trumbull: The provision is, that "all persons born in the United
States, and subject to the jurisdiction thereof, are citizens." That means "subject
to the complete jurisdiction thereof." What do we mean by "complete jurisdiction
thereof?" Not owing allegiance to anybody else. That is what it means.
Sen. Jacob Howard: [I] concur entirely with the honorable Senator from Illinois
[Trumbull], in holding that the word "jurisdiction," as here employed, ought to be
construed so as to imply a full and complete jurisdiction on the part of the United
States, coextensive in all respects with the constitutional power of the United
States, whether exercised by Congress, by the executive, or by the judicial
department; that is to say, the same jurisdiction in extent and quality as applies to
every citizen of the United States now. (Madison(2007))
In 1873, the Supreme Court said that the U.S.-born children of foreign citizens are not subject
to U.S. jurisdiction, therefore are not U.S. citizens under the 14th Amendment:
'All persons born or naturalized in the United States, and subject to the
reside.' ... The phrase, 'subject to its jurisdiction' was intended to exclude from its
operation children of ministers, consuls, and citizens or subjects of foreign States
born within the United States. (Slaughter-House Cases, 1873)
In 1884, the Supreme Court reiterated that an individual is a 14th Amendment citizen only if
the United States has complete jurisdiction over such individual at the time of her or his birth
or naturalization:
The persons declared to be citizens are "all persons born or naturalized in the
United States, and subject to the jurisdiction thereof." The evident meaning of
these last words is not merely subject in some respect or degree to the jurisdiction
of the United States, but completely subject to their political jurisdiction and
owing them direct and immediate allegiance. And the words relate to the time of
birth in the one case, as they do to the time of naturalization in the other. Persons
not thus subject to the jurisdiction of the United States at the time of birth cannot
become so afterwards except by being naturalized... (Elk v. Wilkins, 1884)
Sole and complete U.S. jurisdiction was a core requirement for 14th Amendment citizenship.
The 14th Amendment granted citizenship to emancipated slaves and their descendants,
because they were, and have always been, under sole and complete U.S. jurisdiction. Native
American Indians were subject to tribal jurisdiction, thus were not under sole and complete
U.S. jurisdiction. Consequently, the 14th Amendment did not grant citizenship to American
Indians, even though nearly all American Indians were born in the United States.
On his web site, President Obama claims that his father was a British subject and that, in
1961, the citizenship status of children of British subjects was "governed" by the British
Nationality Act of 1948. If Obama's citizenship status at birth was "governed" by the laws of
a foreign country, how could he, at birth, be subject to sole and complete U.S. jurisdiction,

which is an essential requirement for 14th Amendment citizenship?
15. Doesn't the Wong Kim Ark decision make Obama a "natural born citizen"?
Wong Kim Ark was born in the United States in 1873. His parents were Chinese immigrants
and permanent legal residents of the United States, but were not U.S. citizens. In U.S. v.
Wong Kim Ark (1898), the Supreme Court ruled, in a 6 to 2 decision, that Wong was a U.S.
citizen at birth:
The evident intention, and the necessary effect, of the submission of this case to
the decision of the court upon the facts agreed by the parties were to present for
determination the single question stated at the beginning of this opinion, namely,
whether a child born in the United States, of parent of Chinese descent, who, at
the time of his birth, are subjects of the Emperor of China, but have a permanent
domicil and residence in the United States, and are there carrying on business,
and are not employed in any diplomatic or official capacity under the Emperor of
China, becomes at the time of his birth a citizen of the United States. For the
reasons above stated, this court is of opinion that the question must be answered
in the affirmative. (Horace Gray, Majority Opinion, U.S. v. Wong Kim Ark,
1898)
The Wong Kim Ark case does not directly apply to Barack Obama's presidential eligibility, for
two reasons:
The Supreme Court did not rule that Wong was a natural born citizen. It merely ruled
that he was a citizen. Even if Barack Obama's circumstances at birth were identical to
those of Wong Kim Ark, the Court's ruling would, at most, only confer citizenship to
the President. It would not confer natural born citizenship, which is what the President
needs in order to be eligible to hold office.
Wong was granted citizenship because, at the time of his birth, his parents had
"permanent domicile and residence" in the United States and was "carrying on business"
in the United States. President Obama's father did not meet these conditions. He was
not a permanent resident and he was not doing business in the U.S. He was visiting the
U.S. temporarily, to obtain an American education.
In the majority opinion, Justice Horace Gray cited sources which seem to suggest natural born
citizenship requires something more than birth on U.S. soil. For example, he quoted the
following from Minor v. Happersett (1874):
At common law, with the nomenclature of which the framers of the Constitution
were familiar, it was never doubted that all children, born in a country of parents
who were its citizens, became themselves, upon their birth, citizens also. These
were natives, or natural-born citizens, as distinguished from aliens or foreigners.
Some authorities go further, and include as citizens children born within the
jurisdiction, without reference to the citizenship of their parents. As to this class,
there have been doubts, but never as to the first. For the purposes of this case, it
is not necessary to solve these doubts. (Minor v. Happersett (1874), as quoted in
U.S. v. Wong Kim Ark (1898))
Justice Gray also quoted from an article, by Horace Binney, which used the term "natural
born" in connection with a child of a U.S. citizen, but not in connection with a U.S.-born
child of an alien. In Binney's opinion, both children were U.S. citizens, but only the U.S.-born
child of a citizen was labeled "natural born":

The right of citizenship never descends in the legal sense, either by the common
law or under the common naturalization acts. It is incident to birth in the country,
or it is given personally by statute. 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. (Horace Binney, as quoted in U.S. v. Wong Kim Ark (1898))
Nevertheless, Obama eligibility supporters argue that, even though the Court did not hold that
natural born citizenship is determined by birthplace alone, Justice Gray's reasoning leads to
that conclusion.
Under English common law, all children born on English soil (except the children of
foreign diplomats and alien enemies) were natural-born subjects. According to Justice
Gray, this English common law rule "continued to prevail" under the Constitution,
suggesting that the jus soli principle of English common law controlled the
Constitutional meaning of natural born citizen.
Justice Gray cited Lynch v. Clarke (1844), in which Vice Chancellor Sandford had
ruled that Julia Lynch was a U.S. citizen at birth. Miss Lynch was born in New York,
but at the time of her birth, her parents were not U.S. citizens. In his dicta (side
commentary), the Vice Chancellor expressed his opinion that Julia Lynch was not only
a U.S. citizen at birth, but also a natural born citizen. (See Question 16: Julia Lynch)
In the dissenting opinion in U.S. v. Wong Kim Ark, Justice Fuller mentioned natural
born citizenship:
Considering the circumstances surrounding the framing of the Constitution,

I submit that it is unreasonable to conclude that "natural-born citizen"
applied to everybody born within the geographical tract known as the
United States, irrespective of circumstances, and that the children of
foreigners, happening to be born to them while passing through the country,
whether of royal parentage or not, or whether of the Mongolian, Malay or
other race, were eligible to the Presidency, while children of our citizens,
born abroad, were not. (C.J. Fuller, Dissenting Opinion, U.S. v. Wong Kim
Ark, 1898)
Why would Justice Fuller have mentioned "natural born citizen" in his dissenting
opinion, unless he believed that the majority's reasoning, when carried to its logical
conclusion, affected the term's meaning?
In United States v. Low Hong (1919), the defendant was born in the United States, but
was subject to deportation, presumably because his parents were, at the time of his
birth, aliens not permanently or legally residing in the U.S. The Fifth Circuit Court of
Appeals issued dicta that the defendant was a "natural born citizen" according to the
reasoning of U.S. v. Wong Kim Ark (The Federal Reporter Vol 261, 1920, p.74) [37]
According to Judge Dreyer (Ankeny v. Indiana, 2009), the Supreme Court did not rule
that Wong Kim Ark was a natural born citizen but the Court's reasoning seems to imply
that he was:
Based upon the language of Article II, Section 1, Clause 4 and the
guidance provided by Wong Kim Ark, we conclude that persons born
within the borders of the United States are "natural born Citizens" for
Article II, Section 1 purposes, regardless of the citizenship of their parents.
(David J. Dreyer, Ankeny v. Indiana, 2009, boldface emphasis added) [38]

Based on these and other considerations, some Obama eligibility supporters have argued that
Justice Gray's reasoning, when carried to its logical conclusion, supports their viewpoint that
natural born citizenship is determined by birthplace alone, without regard to parental
citizenship.
English Common Law: In U.S. v. Wong Kim Ark, the Court's reasoning was based largely on
the English common law "rule" that, generally speaking, children born on English soil were, at
birth, English natural-born subjects, regardless of whether their parents were subjects or
aliens. According to the majority's opinion, this "rule" of English common law was "in force"
when the U.S. Constitution was being written and thereafter "continued to prevail" in the
United States:
It thus clearly appears that by the law of England for the last three centuries,
beginning before the settlement of this country, and continuing to the present day,
aliens, while residing in the dominions possessed by the crown of England, were
within the allegiance, the obedience, the faith or loyalty, the protection, the
power, and the jurisdiction of the English sovereign; and therefore every child
born in England of alien parents was a natural-born subject, unless the child of an
ambassador or other diplomatic agent of a foreign state, or of an alien enemy in
hostile occupation of the place where the child was born. The same rule was in
force in all the English colonies upon this continent down to the time of the
Declaration of Independence, and in the United States afterwards, and continued
to prevail under the constitution as originally established. (Page 169 U. S. 658,
U.S. v. Wong Kim Ark, 1898)
In his dissenting opinion, Justice Fuller argued that the majority was factually incorrect on this
point. Regarding the "rule" of English common law, the minority and majority disagreed, not
over a legal issue, but over a matter of American history:
And it is this rule, pure and simple, which it is asserted determined citizenship of
the United States during the entire period prior to the passage of the act of April
9, 1866, and the ratification of the Fourteenth Amendment, and governed the
meaning of the words "citizen of the United States" and "natural-born citizen"
used in the Constitution as originally framed and adopted. I submit that no such
rule obtained during the period referred to, and that those words bore no such
construction... (Justice Fuller, Dissenting Opinion, Wong Kim Ark, 1898)
P.A. Madison (a writer for the Federalist Blog) agrees with Justice Fuller's understanding of
American history. When the original thirteen colonies gained their independence and became
States, many of them retained aspects of English common law for their own convenience. But
English common law did not "continue to prevail" at the Federal or national level
(Madison(2006)).
George Mason (1725-1792), called the "Father of the Bill of Rights" and considered one of
the "Founding Fathers" of the United States, is widely quoted as saying:
The common law of England is not the common law of these states. (Debate in
Virginia Ratifying Convention, 19 June 1788)
In 1884, the following commentary appeared in the prestigious American Law Review:
In Wheaton v. Peters, the Supreme Court say: "It is clear there can be no common
law of the United States. The Federal government is composed of twenty-four
sovereign and independent states, each of which may have its local usages,

customs and common law. There is no principle which pervades the Union and
has the authority of law, that is not embodied in the constitution or laws of the
Union. The common law could be made a part of our Federal system only by
legislative adoption." ...
There is nothing in the constitution to indicate that the term "citizen" was used in
reference to the common-law definition of "subject," nor is there any act of
Congress declaratory of the common-law doctrine, and the subject of citizenship
being national, questions relating to it are to be determined by the general
principles of the law of nations. (Collins)
In a recent speech to the Federalist Society, Supreme Court Justice Antonin Scalia confirmed
that English common law did not "control" at the national or Federal level after the United
States gained its independence from Great Britain:
The common law is gone. The federal courts never applied the common law and
even in the state courts it's codified now. (Audio/Video: Justice Scalia speech,
Nov 22, 2008)
Original Intent: In delivering the majority opinion in U.S. v. Wong Kim Ark, Justice Gray
admitted that he had "presumed" that the phrase "subject to the jurisdiction thereof", in the
14th Amendment, meant territorial and legal jurisdiction only. Evidence regarding the
Framers' original intent, as expressed during the Congressional debates over the 14th
Amendment, was deemed "not admissible".
The words 'in the United States, and subject to the jurisdiction thereof,' in the first
sentence of the fourteenth amendment of the constitution, must be presumed to
have been understood and intended by the congress which proposed the
amendment ... as the equivalent of the words 'within the limits and under the
jurisdiction of the United States'... Doubtless, the intention of the Congress which
framed and of the States which adopted this Amendment of the Constitution must
be sought in the words of the Amendment, and the debates in Congress are not
admissible as evidence to control the meaning of those words. (Wong Kim Ark,
1898).
The Supreme Court did not consider evidence showing that the originally intended meaning
of "jurisdiction" was sole and complete jurisdiction. (For a discussion of the originally
intended meaning of "jurisdiction" in the 14th Amendment, see Question 14: Jurisdiction).
According to the Federalist Blog, the Court's refusal to consider such evidence was
"inexcusable":
A refusal to consider reliable evidence of original intent in the Constitution is no

more excusable than a judge's refusal to consider legislative intent. (Justice John
Paul Stevens, as quoted by Madison(2006))
Chester Arthur: Wong Kim Ark's circumstances, though different from Barack Obama's,
were similar to those of Chester Arthur, the 21st president of the United States. Mr. Wong
and President Arthur were born in the United States. When each was born, his father was a
permanent legal U.S. resident but not a U.S. citizen.
Chester Arthur became vice president in 1880, and became president after James Garfield was
assassinated in 1881. At the time, the general public seemed unaware that, when Chester
Arthur was born in 1829, his father, William Arthur, was a British subject and not a U.S.
citizen (Historical Breakthrough - Chester Arthur).

In 1884, President Arthur admitted that there were doubts concerning the citizenship status of
U.S.-born persons (such as himself) whose parents intended to become naturalized U.S.
citizens but had not yet done so:
Our existing naturalization laws also need revision. ... Section 2172, recognizing
the citizenship of the children of naturalized parents, is ambiguous in its terms...
An uniform rule of naturalization, such as the Constitution contemplates, should,
among other things, clearly define the status of persons born within the United
States subject to a foreign power and of minor children of fathers who have
declared their intention to become citizens... (Chester Arthur, 1884, as quoted by
Long)
Prior to 1898, there were two cases in which an elected Federal official was found to be
constitutionally ineligible to the office he was holding: Senator Albert Gallatin (1793), and
Senator James Shields (1849). In both cases, the ineligible official was removed from office,
and every official action that he took while in office was nullified and erased. Thus, in 1898,
if the general public had learned of Chester Arthur's dual citizenship at birth, and if the
ensuing public hearings had determined that he was ineligible, all of his judicial appointments
might have been reversed.
During his three-year presidency, Chester Arthur made 19 judicial appointments: two to the
Supreme Court, four to United States circuit courts, and thirteen to the United States district
courts. In 1882, he appointed Samuel Blatchford and Horace Gray to the U.S. Supreme Court.
President Arthur also appointed David Josiah Brewer to the U.S. 8th Circuit Court in 1884. In
1889, President Harrison appointed Brewer to the U.S. Supreme Court.
Blatchford died in 1893. When the Wong Kim Ark case was decided in 1898, two members of
the Supreme Court -- Horace Gray and David Brewer -- had been Arthur appointees at some
point during their careers. Both voted with the majority in the Wong Kim Ark case.
The Supreme Court did not rule that Wong was a natural born citizen. But according to some
Obama eligibility supporters, the Court's reasoning seems to imply that all children born in
the United States (except the children of foreign diplomats and alien enemies) are natural
born citizens, which would mean that Chester Arthur was a natural born citizen and thus
eligible to serve as president.
Was the Supreme Court's reasoning in U.S. v. Wong Kim Ark influenced by a desire to
implicitly grant natural born citizenship posthumously to Chester Arthur, so as to retroactively
legitimize his presidency and thereby protect the legacies and careers of his judicial
appointees? (Wrotnowski supplemental brief regarding Chester Arthur).
Summary: In Wong Kim Ark, the Supreme Court made a ruling that was based on two
assertions: 1) that the jus soli principle of English common law "continued to prevail under
the Constitution" and controlled the meaning of citizenship at the Federal level, and 2) that, in
the 14th Amendment, "jurisdiction" meant territorial and legal jurisdiction only, something
considerably less than sole and complete jurisdiction. The historical validity of these two
assertions has been questioned by multiple sources [39].
16. Doesn't the Julia Lynch case show that Barack Obama is a "natural born citizen"?
Julia Lynch was born in New York in 1819. At the time of her birth, her Irish parents were
not U.S. citizens -- they were British subjects visiting the United States. Shortly after Julia's
birth, the Lynch family returned to Ireland, where Julia remained until adulthood.

In Lynch v Clarke (1844), a New York State court ruled that Julia was a New York citizen at
birth. At the time, each State decided, for itself, who were and who were not its citizens.
Anyone who was a citizen of any State was automatically a citizen of the United States [29].
The New York State court did not rule that Julia Lynch was a natural born citizen. The
meaning of "natural born citizen" in the Federal Constitution is strictly a Federal matter,
which had nothing to do with Julia's State citizenship under New York State law.
Nevertheless, Vice-Chancellor Lewis Halsey Sandford, who presided over this case,
expressed his personal opinion, or dicta, that Julia Lynch was a U.S. natural born citizen:
After an exhaustive examination of the law, the Vice-Chancellor said that he

entertained no doubt that every person born in within the dominions and
allegiances of the United States, whatever the situation of his parents, was a
natural-born citizen; and added, that this was the general understanding of the
legal profession, and the universal impression of the public mind. (Cases on
Constitutional Law - Part 2, pp.581-582)
An article in the New York Legal Observer elaborated:
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 position 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." (Dicta
from Lynch v. Clarke (1844), cited by Article in New York Legal Observer,
pp.246-247).
Fifteen years earlier, William Rawle (1829) had expressed the same personal opinion -- that
natural born citizenship is determined by birthplace alone:
Therefore every person born within the United States, its territories or districts,
whether the parents are citizens or aliens, is a natural born citizen in the sense of
the Constitution, and entitled to all the rights and privileges appertaining to that
capacity. (Rawle)
Later in American history, the Opinion of Lincoln's Attorney General Edward Bates (1862),
the Opinion of U.S. Secretary of State William Marcy (1854), and the dissenting opinion in
Dred Scott v. Sandford (1856), echoed the same viewpoint -- that you are a U.S. citizen (and
presumably a U.S. natural born citizen as well) if you were born in the United States,
regardless of your parents' citizenship at the time of your birth.
In 1864, Edward McPherson wrote that birth in the United States is sufficient to confer
natural-born citizenship:
And our Constitution, in speaking of natural born citizens, uses no affirmative

language to make them such, but only recognizes and reaffirms the universal
principle, common to all nations, and as old as political society, that the people
born in a country constitute the nations, and, as individuals, are natural members
of the body politic. If this be a true principle, and I do not doubt it, it follows that
every person born in the country is, at the moment of birth, prima facie a [natural
born] citizen ... (McPherson, p.380)
In 1866, George Bancroft expressed the same viewpoint -- that all persons born on U.S. soil
are natural born citizens:

...everyone who saw the first light on the American soil was a natural-born
American citizen (Bancroft, p.201)
Opposing Viewpoints: Throughout American history, various "authorities" have expressed

the opinion that birth within the United States is, by itself, sufficient to confer citizenship, if
not natural born citizenship. For a comprehensive list of these authorities, see Natural Born
Citizenship Research. Other authorities have expressed an opposing opinion -- that citizenship
at birth properly belongs only to children whose parents are U.S. citizens.
In 1789, two years after the Constitution was adopted, David Ramsay argued that a child
naturally receives, at birth, the citizenship of its father:
[Birthright citizenship] ... is confined exclusively to the children of those who

were themselves citizens. ... The citizenship of no man could be previous to the
declaration of independence, and, as a natural right, belongs to none but those
who have been born of citizens since the 4th of July, 1776. ... From the premises
already established, it may be farther inferred, that citizenship, by inheritance,
belongs to none but the children of those Americans, who, having survived the
declaration of independence, acquired that adventitious character in their own
right, and transmitted it to their offspring. (Ramsay)
Ramsay's comments were made in connection with a dispute over William Smith's eligibility
to serve as U.S. representative from South Carolina. Despite their disagreement on the
eligibility issue, Smith agreed with Ramsay that a child receives, at birth, its father's
citizenship:
Vattel says, "The country of the father is that of the children, and these become
citizens merely by their tacit consent." (William Loughton Smith, as quoted in
The Documentary history of the first Federal elections, 1788-1790, Volume 1,
pp.178)
In 1820, Virginia Representative A. Smyth said:
When we apply the term "citizens" to the inhabitants of States, it means those
who are members of the political community. The civil law determined the
condition of the son by that of the father. A man whose father was not a citizen
was allowed to be a perpetual inhabitant, but not a citizen, unless citizenship was
conferred on him. (Rep. A. Smyth (VA), House of Representatives, December
1820, in Abridgment of the Debates of Congress, from 1789 to 1856, Vol VII,
1858, p.30)
In 1845, an article entitled "Massachusetts and South Carolina", appearing in The New
Englander, explained that, in the U.S. Constitution, the term "natural born citizen" means a
U.S. citizen not owing allegiance, at birth, to any foreign state. According to the article, all
citizens are presumed to owe allegiance to the United States exclusively, but a natural born
citizen owes exclusive allegiance from the time of her or his birth:
The expression 'citizen of the United States' occurs in the clauses prescribing
qualifications for Representatives, for Senators, and for President. In the latter the
term 'natural born citizen' is used, and excludes all persons owing allegiance by
birth to foreign states; in the other cases the word 'citizen' is used without the
adjective, and excludes persons owing allegiance to foreign states, unless
naturalized under our laws. ("Massachusetts and South Carolina", The New
Englander, Volume 3, 1845, p.414)

In 1894, The Nation magazine reported an opinion by Thomas Bayard, who was U.S.
Secretary of State under Grover Cleveland. In Bayard's opinion, the U.S.-born child of alien
parents was not subject to U.S. jurisdiction at the time of its birth, therefore was not a U.S.
citizen at birth:
In 1885, Secretary Bayard decided that the son of a German subject, born in
Ohio, was not a citizen under the statute or the Constitution, because "he was on
his birth 'subject to a foreign power,' and 'not subject to the jurisdiction of the
United States'" (The Nation, Vol.59, No.1521, August 23, 1894, p.134, near
bottom of right-most column)
In 1884, an article by George Collins, appearing in the American Law Review (1884),
criticized the Lynch v. Clark ruling:
In Lynch v. Clark, the vice-chancellor held that the common-law doctrine -- that
the place of birth and not the nationality of the father determined the political
status of the child -- was applicable to the United States, constituted a part of the
jurisprudence thereof, and that accordingly a person born within the United
States, whose father at the time of such birth was an alien, was a citizen of the
United States. This case, aside from its fallacious and unsound reasoning, can not
be upheld upon principle. It is well settled that the common law is not part of the
jurisprudence of the United States. (Collins)
In 1904, Alexander Porter Morse argued that parental citizenship is essential to natural born
citizenship; one cannot be a natural born citizen unless one's parents were citizens at the time
of one's birth:
At the time of the adoption of the Constitution, immigration was anticipated and
provisions for naturalization would immediately follow the establishment of the
government. Those resident in the United States at the time the Constitution was
adopted were made citizens. Thereafter the president must be taken from the
natural-born citizens. If it was intended that anybody who was a citizen by birth
should be eligible, it would only have been necessary to say, "no person, except a
native-born citizen"; but the framers thought it wise, in view of the probable
influx of European immigration, to provide that the president should at least be
the child of citizens owing allegiance to the United States at the time of his birth.
(Morse)
In 1916, attorney Breckinridge Long argued that Republican presidential candidate Charles
Evans Hughes was not eligible to serve as president. Hughes was born in the United States,
but at the time of his birth, his father was not a U.S. citizen. In Long's Legal Analysis, a U.S.-
born child of a non-citizen father is not a natural born citizen of the United States:
It must be admitted that a man born on this soil, of alien parents, enjoys a dual
nationality and owes a double allegiance. A child born under these conditions has
a right to elect what nationality he will enjoy and to which of the two conflicting
claims of governmental allegiance he will pay obedience. Now if, by any possible
construction, a person at the instant of birth, and for any period of time thereafter,
owes, or may owe, allegiance to any sovereign but the United States, he is not a
"natural born" citizen of the United States. If his sole duty is not to the United
States Government, to the exclusion of all other governments, then, he is not a
"natural born" citizen of the United States. (Long)
Roots of the Dispute: Throughout American history, there has been an ongoing dispute

between:
authorities who believe that all persons born on U.S. soil (except the children of foreign
ambassadors) are natural born citizens, regardless of their parents' citizenship; and
authorities who believe that natural born citizens are those born in the U.S., of U.S.-
citizen parents.
The dispute arises, in part, from differing understandings of our nation's founding principles.
Those who believe that the Founding Fathers were guided by English common law tend to
believe that the jus soli principle governs the meaning of "natural born citizen." Those who
believe that the Founding Fathers were guided by European political theorists, such as Vattel,
tend to believe that the meaning of "natural born citizen" includes the jus sanguinis principle.
(See Question 30: Root of "Natural Born Citizen" debate).
The dispute is also fueled, in part, by the ambiguous meaning of "natural born" in English
common law.
In the general sense, all English subjects (except persons made denizens by the king)
were natural-born subjects, regardless of whether they acquired their subjecthood by
birth, statute or naturalization. Generally speaking, all persons born on English soil
(except the children of foreign ambassadors and alien enemies) were English natural-
born subjects, regardless of whether their parents were subjects or aliens.
In the factual or natural-law sense, "natural born" referred only to children born within
the king's realm, of parents who were under the king's actual obedience. Such children
owed, at birth, natural allegiance to one, and only one, sovereign. (See Question 28:
Exclusive Allegiance). All other so-called natural-born subjects were deemed to be
natural-born subjects by law, but were not natural-born subjects in fact.
Thus the dispute is, in part, between those who believe that "natural born" should be
understood according to its general meaning (which includes nearly everyone born on English
soil) and those who believe that "natural born" should be construed according to its factual or
natural-law meaning (which excludes children of alien parents). (See Question 19: Natural
Born Subject).
The Supreme Court has yet to settle this dispute. At this time, there remains unresolved
"doubts" regarding the natural born citizenship of U.S.-born children of non-citizen parents
[40].
Case Law: Although some authorities, throughout history, have expressed the opinion that
birth on U.S. soil is, by itself, sufficient to confer U.S. citizenship, there is no pre-Civil War
case law, other than Lynch v. Clarke, supporting that viewpoint:
Lynch v. Clarke [1844] is the only antebellum [pre-Civil War] decision (and
apparently the only reported case in our history) that clearly finds that jus soli per
Calvin's Case determines United States citizenship. Whatever light the case
provides, though, should be adjusted by the fact that it is the unreviewed opinion
of a single state-court judge and that shortly thereafter, in Ludlum v. Ludlum, that
state's highest court, all justices concurring, spoke differently, saying that
birthright citizenship depended on parentage rather than the "boundaries of the
place." (Mayton)
A later New York State case, Munro v. Merchant (1858), contains this summation:

A child born in this state of alien parents, during its mother's temporary sojourn
here, is a native born citizen.
The summation, however, does not reflect the actual ruling in the Munro v. Merchant case.
The Court said that if (emphasis on the word "if") Lynch v. Clarke were law, it would be
relevant to the plaintiff's citizenship at birth. But, in Munro v. Merchant, the Court was not
required to decide the plaintiff's citizenship at birth.
In Lynch v. Clarke, (1 Sand. Ch. R. 583,) the question was precisely as here,
whether a child born in the city of New York of alien parents, during their
temporary sojourn there, was a native born citizen or an alien; and the conclusion
was, that being born within the dominion and allegiance of the United States, he
was a native born citizen, whatever was the situation of the parents at the time of
the birth. That case, if law, would seem to be decisive of the present question,
But, admitting the plaintiff to be an alien, the cases already cited show that the
terms "heirs or assigns," in the 9th article of the treaty, is not to be confined to the
immediate descendants, but is to be extended indefinitely till the title comes to a
citizen. (Munro v. Merchant, Reports of cases in law and equity in the Supreme
Court of the State of New York, 1858, p.400)
Summary: Throughout U.S. history, various authorities have expressed the viewpoint that
birthplace alone determines natural born citizenship. Except for Lynch v. Clarke (1844), case
law does not support that viewpoint. In Lynch v. Clarke, Vice-Chancellor Sandford ruled that
Julia Lynch was a New York State citizen at birth, even though her parents were not citizens
at the time of her birth. The ruling was exceptional. It was the only one in U.S. history that
found that jus soli alone determined citizenship. In his dicta, the Vice-Chancellor expressed
his (non-legally-binding) opinion that Miss Lynch, in addition to being a citizen, was also a
natural born citizen. The fact that Miss Lynch was deemed to be a natural born citizen
according to a State judge's dicta does not necessarily mean that she was a natural born
citizen under the Federal Constitution (see Question 9: Statutory natural born citizen).
17. What was an 18th-century English "subject"?
During the 18th century, the population of England and its colonies was divided into three
categories: foreigners, aliens, and subjects [41]. The difference among them was their
allegiance. Subjects owed permanent allegiance to the English king [42]; aliens owed
temporary (local) allegiance; and foreigners do not owe any allegiance.
Allegiance -- sometimes called ligeance and, at other times, also called obedience -- was
faith, loyalty and service that someone owed to the king, in return for the king's governance
and protection [43].
Subjects and aliens together were collectively referred to as the people of England. Foreigners
were not included among England's people [44].
Some, but not all, subjects were also citizens of an English city or town. All citizens were
subjects, but not all subjects were citizens. (See Question 25: English citizenship).
There were two subcategories of English subjects: denizens and natural-born subjects.
Denizens were persons who became subjects by acts of the king.
Natural-born subjects were persons who became subjects either by birth or by act of
Parliament.

Subjects had property rights; alien and foreigners did not. Subjects could acquire and hold
real (non-movable) property such as land, and bequeath it to their heirs. Aliens and foreigners
were not permitted to possess English real estate, other than a house or apartment for their
own personal habitation [45].
Foreigners:
Foreigners were foreign citizens or subjects who had no intention of making England
their "home". They were living in England, but had no intention of becoming a part of
English society. Foreigners included members of foreign-controlled religious orders,
ambassadors from foreign countries, members of foreign royalty, and foreign merchants
visiting English territory solely for trade or business. (Berry). Foreigners did not owe
allegiance to the English king, and were not under his protection.
Aliens:
An alien [46] was a foreign citizen or subject who had established residence, or
domicile, on English soil (Berry). Alien friends were aliens who owed temporary
("local") allegiance to the king, and were under the king's protection. When an alien
friend departed from English territory, she or he no longer owed any allegiance to the
king. Alien enemies were citizens or subjects of a foreign country that was hostile
towards England. They, like foreigners, did not owe allegiance to the king and were not
under the king's protection [47].
Denizens:
During the early 1600s, the word "denizen" had a broad and general meaning. It
referred to anyone who became an English subject by any artificial means, such as a
public or private act of Parliament, letters patent issued by the king, or military
conquest [48].
[The] denization of an alien may be effected three manner of wayes: by

Parliament, as it was in 3 Hen. 6. 55. in Dower; by letters patents, as the
usual manner is; and by conquest, as if the King and his subjects should
conquer another Kingdome or dominion ... (Coke(1608), p.178)
By the time the U.S. Constitution was written in 1787, the word "denizen" had acquired
a more narrow and specific meaning. It referred only to persons who became English
subjects by acts of the king (letters patent or military conquest). Persons who became
subjects by parliamentary statute or naturalization were no longer called "denizens";
instead, they were called "natural born subjects" [49].
Natural-Born Subjects:
A natural-born subject was anyone who acquired subjecthood either by birth or by act
of Parliament. When the U.S. Constitution was being written, all English subjects --
except persons who were made denizens by the king -- were called natural-born
subjects. Actual natural-born subjects were subjects by "nature and birthright". They
were born on English soil, to parents who were under the king's "actual obedience". All
other natural-born subjects were naturalized; they acquired English subjecthood by a
public or private act of Parliament; they were deemed to be natural-born subjects by
law but were not natural-born subjects in fact.
Foreigners and aliens: Aliens [46] and foreigners were citizens or subjects of a foreign
country. Both owed permanent allegiance to a foreign government. However, there were
important legal differences between the two (Berry):
Aliens owed allegiance (albeit only local or temporary allegiance) to the English king.

Foreigners did not owe any allegiance to England's monarchy.
Aliens were under the king's protection. Foreigners were not under the king's protection,
although the king provided safe-conduct for them and their (movable) personal property
[50].
When aliens committed a crime against the king, they were charged with treason. When
foreigners committed a crime against the king, they were prosecuted under martial law,
not as traitors [51].
Aliens establish permanent legal residence, or domicile, within England or its colonies.
Although foreigners lived on English soil, they were not domiciled there [52]. (See
Appendix 1 regarding the eighteenth-century meaning of "domicile").
Ways of becoming a subject: A person became an English subject either naturally (by
natural law) or artificially (by human action or man-made law). Persons who were subjects by
natural law were called subjects born. Persons who received subjectood artificially (from
Parliament or the king) were called subjects made.
Every subject is either natus, born, or datus, given or made (Coke (1608), p.206)
Except in special cases, a child was subject born (a subject by natural law) if it met two
requirements at the time of its birth: a birthplace requirement (the child had to be born within
the king's realm), and a parental obedience requirement (the child's parents had to be under
the "actual obedience" [53] of the king).
There be regularly (unless it be in special cases) three incidents to a subject born.

1. That the parents be under the actual obedience of the King. 2. That the place of
his birth be within the King's dominion. And, 3. The time of his birth is chiefly to
be considered; for he cannot be a subject born of one kingdom that was born
under the ligeance of a King of another kingdom, albeit afterwards one kingdom
descend to the King of the other. (Coke (1608), p.208)
If you were not subject born, you could become an English subject (subject made) by
artificial means -- naturalization by statute, naturalization by oath, or denization by the king:
Naturalization by Statute:
Parliament may enact laws which automatically naturalize certain children at birth.
Such laws were sometimes called public acts of Parliament. By the time William
Blackstone (1723-1780) wrote his Commentaries (1765-1769), Parliament had enacted
laws which conferred subjecthood, at birth, to foreign-born children of English fathers:
...all children, born out of the king's ligeance [territory], whose fathers were
natural-born subjects, are now natural-born subjects themselves, to all
intents and purposes, without any exception; unless their said fathers were
attainted, or banished beyond sea, for high treason; or were then in the
service of a prince at enmity with Great Britain. (Blackstone)
A law, enacted in 1604, declared English-born children of alien parents to be

"denizens" (in the general sense) [54]:
To place the Children, born within this Realm, of foreign Parents, in

Degree for the first Birth or Descent only, as Aliens made Denizens, and
not otherwise. (House of Commons Journal, Volume 1, 21 April 1604)

Foreign-born children of English fathers, and English-born children of alien parents,

were naturalized at birth, by English law.
Furthermore as the law of England must favor naturalization as a branch of

the law of nature, so it appears manifestly, that it doth favour it accordingly.
For it is not much to make a subject naturalized by the law of England: it
should suffice, either place or parents. If he be born in England it is no
matter though his parents be Spaniards, or what you will: on the other side,
if he be born of English parents it skilleth not though he be born in Spain,
or in any other place of the world. In such sort doth the law of England
open her lap to receive in people to be naturalized; which indeed sheweth
the wisdom and excellent composition of our law ... (Bacon, Francis,
pp.664-665)
Naturalization by Oath:
An alien adult could become an English subject through a legal process called
"naturalization," also called a private act of Parliament. Person who were naturalized in
this manner acquired the same rights as subjects born, but could not hold public office.
Subjecthood by naturalization was available only to Christians who took the Oath of
Supremacy and Oath of Allegiance (see English Oaths, 1642). Naturalization had a
retroactive effect. When someone became a naturalized subject, all of his children
received property and inheritance rights, even if they were born prior to the act of
naturalization.
Naturalization cannot be performed but by act of parliament: for by this an

alien is put in exactly the same state as if he had been born in the king's
ligeance; except only that he is incapable, as well as a denizen, of being a
member of the privy council, or parliament, &c. No bill for naturalization
can be received in either house of parliament, without such disabling clause
in it. Neither can any person be naturalized or restored in blood, unless he
hath received the sacrament of the Lord's supper within one month before
the bringing in of the bill; and unless he also takes the oaths of allegiance
and supremacy in the presence of the parliament. (Blackstone)
Aliens could earn naturalization by (a) serving two years on an English warship during
time of war, (b) serving three years on an English whaling vessel, (c) residing seven
years on an English-run plantation, or (b) serving two years in America (Cunningham,
Law Dictionary, Volume 2, 1771, section titled "naturalization").
Denization by the King:

The king had the authority to issue letters patent to aliens, thereby transforming them
into denizens (in the specific sense) [54]. The rights of denizens were limited by the
terms and conditions of the letters patent, which varied from person to person.
Denization was not retroactive. It did not confer any rights to children which were born
prior to their fathers' denization [55].
A denizen is an alien born, but who has obtained ex donatione regis letters
patent to make him an English subject: a high and incommunicable branch
of the royal prerogative. A denizen is in a kind of middle state between an
alien, and natural-born subject, and partakes of both of them. He may take
lands by purchase or devise, which an alien may not; but cannot take by
inheritance: for his parent, through whom he must claim, being an alien had
no inheritable blood, and therefore could convey none to the son. And,
upon a like defect of hereditary blood, the issue [children] of a denizen,

born before denization, cannot inherit to him; but his issue [children] born
after, may. A denizen is not excused from paying the alien's duty, and some
other mercantile burdens. And no denizen can be of the privy council, or
either house of parliament, or have any office of trust, civil or military, or
be capable of any grant from the crown. (Blackstone)
Summary: The population of England and its colonies was divided into three categories:
foreigners, aliens and subjects. Subjects owed permanent allegiance to the king; aliens owed
temporary (local) allegiance to the king; and foreigners did not owe any allegiance to the king.
There were two kinds of English subjects: subjects born and subjects made.
Subjects born were subjects "by nature and birthright". They were actual natural-born
subjects. They were born on English soil, to parents who were under the "actual obedience"
[53] of the king.
Subjects made acquired subjecthood either from Parliament or from the king. Those who
acquired subjecthood from the king were called denizens. Those who acquired subjecthood
from a public or private act of Parliament were called naturalized natural-born subjects.
A public act of Parliament was a statute which granted subjecthood automatically to anyone
who met certain criteria. Public acts included laws which conferred subjecthood, at birth, to
foreign-born children of English fathers and to English-born children of alien parents.
A private act of Parliament, also called "naturalization," conferred subjecthood to a specific

individual or group.
All English subjects, except persons made denizens by the king, were called "natural-born
subjects". However, only subjects born were actual natural-born subjects. All other natural-
born subjects were deemed to be so by law but were not so in fact.
All English subjects had property rights. They could acquire and possess English real estate
and bequeath it to their heirs. Aliens and foreigners could not hold unmovable property,
except a house or apartment for their own personal habitation.
18. What was Calvin's Case?
Calvin's Case (1608), also known as the Case of the Post-Nati of Scotland, was an historic
lawsuit in which England's highest court ruled that "natural law" -- in addition to man-made
laws enacted by Parliament -- affected an individual's property rights.
This was the focal issue of Calvin's Case (i.e., whether allegiance was a bond of
subjection institutionalised by the law of the kingdom or archetypal submission
grounded upon the law of nature). ... At any rate, the overwhelming majority of
the judges (twelve out of fourteen) and Lord Chancellor Ellesmere concurred in
the opinion that allegiance was grounded upon the law of nature; and therefore it
ought not be confined within the kingdom of England. Accordingly it was decided
that plaintiff Robert Calvin -- even though he was born out of the kingdom of
England -- must not be regarded as an alien in England. (Kim (2000), pp.180-
181)
Long before there were any written laws, the law of subjection was already infused in men's
hearts. Whenever there was a group of people, it was natural for one among them to become
the group's leader (king) and the others to become his faithful followers (subjects):

This Law of Nature, which indeed is the eternal Law of the Creator, infused into
the heart of the creature at the time of his creation, was two thousand years before
any Laws written, and before any Judicial or Municipal Laws. (Coke(1608),
p.196)
It hath been proved before, that ligeance or obedience of the inferior to the
superior, of the subject to the Sovereign, was due by the Law of Nature many
thousand years before any Law of man was made: Which ligeance or obedience
(being the onely mark to distinguish a subject from an alien) could not be altered;
therefore it remaineth still due by the Law of Nature. (Coke(1608), pp.197-8)
The Court ruled that man-made English laws may not deny property rights to persons who are
the king's subjects by natural law.
Facts of Calvin's Case: James Charles Stuart was born in Scotland in 1566. His father,
Henry Stuart, also known as Lord Darnley, was born in England in 1545, and was an English
subject by birth.
James became king of Scotland in 1567, when he was 13 months old, and remained king of
Scotland until his death in 1625.
Queen Elizabeth I of England died in 1603, at which time James inherited the English throne.
Scotland and England were separate countries, each with its own parliament and its own set
of laws. Nevertheless, from 1603 to 1625, James Stuart was king of both countries
simultaneously. He was both King James I of England and King James VI of Scotland [56].
Robert Calvin [57] was born in Scotland in 1606, of Scottish parents [58], and was heir to
some property in England. When he was denied access to his English inheritance, his
guardians filed a lawsuit on his behalf [59]. This lawsuit is known today as "Calvin's Case".
The defendants argued that Calvin did not have property rights in England. Under English
law, only English subjects were permitted to possess English real estate. Even though
Scotland and England were ruled by the same king, they remained separate countries. English
law did not extend property rights to foreign subjects.
In 1608, the Court of the King's Bench, in a 12-to-2 decision, ruled that, when two countries
are governed by the same king, a subject in one country is automatically a subject in the
other, but only if subjecthood was conferred by natural law. If a person was naturalized in a
particular country, according to the (man-made) laws of that country, he was a subject in that
country only and not anywhere else [60].
Since Calvin was born in Scotland, of parents who were Scottish subjects, he was, at birth, a
Scottish subject by natural law. Therefore the Court ruled that, by natural law, Calvin had
property rights in all of the king's territorial possessions, including England. This ruling
remained part of English law well into the mid-19th century [61].
In 1608, Sir Edward Coke wrote a comprehensive Report explaining the court's decision. The
Framers of the U.S. Constitution were undoubtedly aware of Coke's report [62].
Historical Background: In medieval England, an "alien" was anyone born in a foreign

country, and an "Englishman" was anyone born in England. The king could issue letters
patent to aliens, thereby transforming them into denizens ("adopted" Englishmen). In any
case, your personal status -- either alien or Englishman -- at the time of your birth was
determined by your birthplace only, without regard to your parents' status or allegiance.

Later in English history, English law would bar aliens from acquiring and possessing English
real estate (other an a house or apartment for personal habitation). But in medieval times,
aliens had the same property rights as Englishmen. Regardless of whether you were an alien
or an Englishman, you could inherit English property from a deceased relative, as long as you
could prove (a) your age, (b) your parents' marital status at the time of your bith, and (c) your
relation to the deceased. Your proof must be in the form of eye-witness testimony and official
church records. If you could not provide such proof, you would forfeit your inheritance either
to the king or to a local landlord.
If there was a dispute regarding your inheritance, a trial (assize) would take place where the
disputed property was located. During such trial, the matter would be decided by a "jury"
comprised of eye-witnesses with first-hand knowledge of the issues under dispute. If you
were born in a foreign country, you had a problem. The curator of your birth and baptismal
records, and the eye-witnesses to your age, parent's marital status and blood relation, were
most likely located in the foreign counry in which you were born. As foreigners, they could
not serve as jurors, nor could they provide testimony on your behalf.
...a foreign-born person was left with no adequate means to defend himself from
allegations regarding under-age or proximity of blood. The inquest, which had to
be taken in the birthplace, was impossible because the king's writ could not run
beyond the sea. ... The obvious result is that a foreign-born heir would be
defenseless against a lord who would refuse to allow the inheritance. If there was
no one else to claim the inheritance, the fief would fall back on the lord as his
escheat. (Kim (2000), p.111)
By the late thirteenth century, we have clear evidence that foreign-birth was
treated as fatal to any claim based on inheritance. The expression alienigena was
often used in this connection. First and foremmost, it was a factual description
referring to a person's foreign birth or provenance. (Kim (2000), p.113)
In medieval times, foreign-born persons had a right to inherit English property. But they often
had difficulty proving their legitimacy as heirs, because evidence of their legitimacy was
located in a foreign country, beyond the reach of an English inquest.
In 1351, Parliament enacted a series of procedural reforms which made it slightly easier for
foreign-born persons to defend their inheritance in England. Under the new rules, if you could
prove that your parents were within the king's faith and ligeance at the time of your birth, you
would receive, during an inheritance inquest, the same procedural rights as an English-born
person:
All children heirs who will henceforth be born out of the ligeance [territory] of
the king, provided that, at the time of birth, their fathers and mothers are, and will
be, of the faith and ligeance [loyalty and obedience] of the king of England,
[shall] have and enjoy the same benefit and advantage of having and carrying the
inheritance within the said ligeance ... in the future. (Statute De Natis ultra Mare,
1351, as quoted by Kim (2000), p.121)
The statute De Natis ultra Mare did not say that foreign-born children of English parents
were Englishmen. The statute merely said that foreign-born children of English parents would
be treated as English-born for inheritance purposes. Persons born in foreign countries were
still aliens, even if their parents were English.
The [year book] case of 1474, for example, allows the possibility to interpret that
a foreign-born child who has successfully claimed the inheritance relying on the
statute De Natis ultra Mare would still need the king's letters patent in order to be

engaged in other common law transactions such as purchase or gift of land. In

spite of the statute which allowed inheritance, foreign-born children seem to have
remained aliens unless and until they specifically obtained the king's letters patent
enabling them to operate like subjects. (Kim (2000), p.157)
According to Thomas de Littleton (1407-1481), birthplace alone determined whether someone

was born an alien or Englishman. The status or allegiance of one's parents was irrelevant to
one's legal status at birth:
In his Tenures (c. 1450-60), [Littleton] defined aliens as those 'born out of the
liegance of our lord the king...'. He further elaborated that 'born out of the
liegance' meant 'born in such country as is out the king's liegeaunce...' Statutes
enacted in the Tudor years [1485-1603] were in complete agreement with
Littleton's definition in that alien status was defined by birthplace only. (Kim
(2000), p.149).
Littleton never mentioned the parents' allegiance in defining alien status. (Kim
(2000), p.156).
In 1541, Parliament passed a naturalization act which granted subjecthood to foreign-born

children of English fathers. Children of an English father who were born abroad shall be
from henceforth reputed and taken king's natural subject as lawful persons born
within the Realm of England. (Statute 33 Henry VIII c.25, as quoted by Kim
(2000), p.158)
The Naturalizationn Act of 1541 did not change the definition of "natural subject". You were
an actual natural subject only if you were born on English soil. Parliament merely decreed
that the foreign-born children of English fathers shall be "reputed and taken" to be natural
subjects. In other words, such children shall be deemed natural subjects by law, even though
they were not natural subjects in fact.
In 1604, Parliament granted "denizen" status to English-born children of alien parents.
To place the Children, born within this Realm, of foreign Parents, in Degree for
the first Birth or Descent only, as Aliens made Denizens, and not otherwise.
(House of Commons Journal, Volume 1, 21 April 1604)
Later in English history, the word "denizen" would apply only to persons who became English
subjects by letters patent issued by the king. But in 1604, a "denizen" was any person who
acquired English subjecthood by any artifical means, by Parliament or the king.
English-born children of alien parents were denizens. Such denizens were deemed natural-
born subjects, but were not natural-born subjects in fact. They had to pay aliens' duties, while
English-born children of English parents did not. (See Question 23: English-born children of
alien parents).
By the time Calvin's Case was decided in 1608, one's legal status at birth -- whether subject,
alien or denizen -- was no longer determined by birthplace alone. It also depended on the
allegiance of one's parents at the time of one's birth.
Allegiance: In Calvin's Case, the justices defined four kinds of "allegiance" -- natural,
acquired, local, and legal. Lord Coke described these four "allegiances" as follows:
There is found in the law four kinds of ligeances [allegiances]:

the first is, ligeantia naturalis, absoluta, pura, et indefinita [natural, absolute,
pure and unlimited allegiance], and this originally is due by nature and birthright,
and is called alta ligeantia [high allegiance] and he that oweth this is called
subditus natus [subject born].
The second is called ligeantia acquisita [acquired allegiance], not by nature but
by acquisition or denization, being called a denizen, or rather donaizon, because
he is subditus datus [subject made by gift].
The third is ligeantia localis [local allegiance] wrought by the law, and that is
when an alien that is in amity cometh into England, because as long as he is
within England, he is within the King's protection; therefore so long as he is
there, he oweth unto the King a local obedience or ligeance, for that the one (as it
hath been said) draweth the other.
The fourth is a legal obedience, or ligeance which is called legal, because the
municipal laws of this realm have prescribed the order and form of it; and this to
be done upon oath at the Torn or Leet. (Coke(1608), pp.177-8, boldface emphasis
added)
Only the first three kinds of allegiance -- natural, acquired, and local -- were associated with
subjecthood.
Subjects born owed natural allegiance to the king [63]. Their children, if born on
English soil, were subjects born.
Subjects made owed acquired allegiance to the king. Their children, if born on English
soil, were subjects born.
Alien friends owed local allegiance to the king. They were not English subjects.
However, their children, if born on English soil, were "denizens" (in the general sense)
[54].
Foreigners and alien enemies did not owe any allegiance to the king. Their children, even if
born on English soil, did not acquire English subjecthood at birth.
Subjects born (subjects by natural law) were defined as persons born on English soil, to
parents who were under the king's "actual obedience" [53].

descend to the King of the other. (Coke (1608), p.208)
All other English subjects were subjects made (subjects by artificial means).
Summary: In Calvin's Case (1608), England's highest court made a distinction between
subjects born (persons who were English subjects by natural law) and subjects made (persons
who acquired English subjecthood by statute, naturalization or denization). Subjects born had
property rights in all countries governed by the same king. The property rights of subjects
made were limited to the country in which subjecthood was conferred [60].
Robert Calvin was born in Scotland, of Scottish parents, at a time when James Stuart was

king of both Scotland and England simultaneously. England's highest court found that Calvin
was a subject of King James by natural law. Therefore, by natural law, Calvin's property
rights were not limited to Scotland, but extended throughout all of James' territorial
possessions, including England.
19. What was a "natural-born subject"?
Throughout English history, the term "natural-born subject" was used in an ambiguous and
imprecise manner [64].
According to Francis Bacon (1561-1626), a person becomes a "natural-born subject" either

"by birth, or by act of parliament" (Bacon, Francis, p.649). In other words, someone obtains
"natural-born subject" status either naturally (by natural law) or artificially (by statute or
naturalization).
In general, the term "natural-born subject" did not necessarily imply anything about the actual
circumstances of one's birth. During Queen Elizabeth's reign (from 1558 to 1603), Parliament
granted "natural born subject" status to persons who were aliens by birth [65]. When aliens
immigrated to England and lived there continuously for more than 20 years, they were reputed
to be "natural subjects," even though they were not English subjects by birth [66].
...in 1576, a royal decree ordered that people who have lived in England for more
than twenty years could be "reputed natural subjects of the realm," as long as
their linquistic capacities, religion, and customs did not contradict this
assumption. (Herzog, p.183)
The term "natural-born subject" did not imply anything about the place of one's birth.
Children born in foreign countries, of English fathers, were deemed natural-born subjects.
Likewise, "natural-born subject" did not imply anything about one's parents' nationality. As
long as parents were within the king's allegiance, it did not matter whether they were subjects
or aliens; their English-born children were, at birth, natural-born subjects.
All English subjects -- except persons made denizens by the king -- were natural-born
subjects (see Appendix 2). Generally speaking, "natural-born subjects" included:
All children born on English soil, except children of foreign ambassadors and alien
enemies;
All children born overseas to English fathers, except the children of traitors
(Blackstone);
All aliens who became English subjects through naturalization [65];
All aliens who lived in England for at least 20 years and had integrated themselves into
English society [66].
However, there was a difference between actual natural-born subjects (those who were
subjects by natural law), and naturalized natural-born subjects (those who were naturalized by
a public or private act of Parliament).
In 1608, Judge Yelverton (one of the judges who decided Calvin's Case) explained that no act
of Parliament -- no law passed by Parliament, and no naturalization performed by Parliament -
- can transform anyone into a "real" natural-born subject. Parliament may naturalize people
and thereby deem them to be natural-born subjects, but cannot make them natural-born
subjects in fact.

A parliament may make a man to be accompted as naturalised, and conclude

every man to say but that he is so, but it can never make a man to be so indeede
(Yelverton, as quoted by Galloway, p.157).
In his Law Dictionary (1783), Cunningham explains that "naturalization" (an act of
Parliament which transforms an alien into a natural-born subject) is a "fiction of law" which
has no effect except in countries consenting to that fiction.
Naturalizing in Ireland is of no effect as to England; for naturalization is but a

fiction of law, and can have effect but upon those only consenting to that fiction;
therefore it has the like effect as a man's birth hath, where the law-makers have
power, but not where they have not. Naturalizing in Ireland gives the same effect
in Ireland as being born there; so in Scotland as being born there; but not in
England, which consents not to the fiction of Ireland or Scotland, not any but her
own. (Cunningham, section entitled "Aliens")
Parliament may enact laws which "naturalize" certain children as soon as they are born.
Foreign-born children of English fathers, and English-born children of alien parents, are
naturalized at birth. They acquire subjecthood, at birth, by (man-made) English law, not by
natural law.
Furthermore as the law of England must favor naturalization as a branch of the

law of nature, so it appears manifestly, that it doth favour it accordingly. For it is
not much to make a subject naturalized by the law of England: it should suffice,
either place or parents. If he be born in England it is no matter though his parents
be Spaniards, or what you will: on the other side, if he be born of English parents
it skilleth not though he be born in Spain, or in any other place of the world. In
such sort doth the law of England open her lap to receive in people to be
naturalized; which indeed sheweth the wisdom and excellent composition of our
law ... (Bacon, Francis, pp.664-665)
The Act of Anne (1708) did not say that foreign-born children of English parents were
natural-born subjects. Such children were, by law, deemed to be natural-born subjects [67].
The Act did not say in terms that the foreign-born child of natural born parents ...
was himself a natural born subject. It said that he was to be "deemed and
adjudged" to be such, albeit "to all intents, constructions and purposes
whatsoever". (Parry)
In his report to Congress (1967), Dowdy recognized a difference between natural-born

subjects in fact and natural-born subjects by law. Only those persons who were born within
the king's realm were "true" natural-born subjects; all other natural-born subjects were
"naturalized" by Parliament, either by statute or by private acts of naturalization:
No child born outside of the dominion of the King was ever a true "natural-born
subject." They were naturalized subjects. It is true that by the naturalization acts
under which they had become naturalized subjects had "deemed" them to be
natural-born subjects (despite the fact that they were not so in fact), and the very
fact that these were "deemed" to be natural-born by the naturalization act reveals
that the true "natural-born" subjects were those born within the dominion of the
King without the necessity of a naturalization law to "deem" them to be in law
what they were not in fact. (Dowdy)
In Dowdy's reasoning, Parliament would enact laws which deemed certain children to be

natural-born subjects, only when such children were not already natural-born subjects in fact.
If children were, at birth, English subjects by natural law, there was no need for any man-
made law to confer subjecthood upon them.
During the seventeenth and eighteenth centuries, Parliament enacted laws granting
subjecthood to (a) foreign-born children of English fathers, and (b) English-born children of
alien parents. The fact that Parliament had enacted such laws indicates that the children who
were naturalized by those laws were not natural subjects, at birth, in any factual or natural-
law sense.
Summary: You were a "natural born subject" if either:
you acquired English subjecthood at the time of your birth, regardless of whether your
subjecthood was conferred by natural law or by man-made law, or
you received, from Parliament, a grant of subjecthood that was, in effect, retroactive to
the time of your birth.
Since denization by the king does not have a retroactive effect, denizens (by royal charter) are
English subjects but are not natural-born subjects.
In general, the term "natural-born subject" has a broad meaning. Natural-born subjects
include:
all persons born on English soil, except the children of foreign ambassadors and alien
enemies,
all foreign-born children of English parents, except the children of traitors, and
all alien adults who undergo "naturalization", a legal process by which Parliament
confers subjecthood retroactively to the time of one's birth.
Natural born subjects fall into two categories: subjects born (persons who are "natural born
subjects" by natural law) and subjects made (persons who are deemed "natural born subjects"
by human action or man-made law).
Subjects born are natural-born subjects by natural law. They are born on English soil, to
parents who are under the "actual obedience" of the king. Such persons are subjects "by
nature and birthright". They are born with natural allegiance to the king. Their "natural-
born subject" status is a natural consequence of their actual birth circumstances, and do
not depend on any parliamentary action or law.
Subjects made are natural-born subjects by naturalization. Naturalization -- whether by

statute or by private act of Parliament -- is a "fiction of law". Those who acquire
subjecthood by naturalization are called natural-born subjects and are deemed to be
natural-born subjects, but are not natural-born subjects in fact.
Generally speaking, all English subjects -- except persons made denizens by the king -- are
natural-born subjects. However, in the factual or natural-law sense, the term "natural born"
refers only to subjects born -- persons who are natural-born subjects in fact, not persons who
are deemed "natural born" by a "fiction of law".
20. Did Calvin's Case affirm the jus soli principle?
A widely-held belief is that Calvin's Case affirmed, or at least laid the foundation for, the jus

soli principle of English common law:
By the Common Law of England, every person born within the dominions of the
Crown, no matter whether of English or of foreign parents, and, in the latter case,
whether the parents were settled, or merely temporarily sojourning, in the
country, was an English subject, save only the children of foreign ambassadors ...
or a child born of a foreigner during the hostile occupation fo any part of the
territories of England. (Cockburn, p.7)
Calvin's Case led to what is today known in international law as the jus soli, the
rule under which nationality is acquired by the mere fact of birth within the
territory of a state. (Price, p.77)
However, a more careful reading of Coke's Report leads us to a somewhat different

understanding of the English court's ruling in Calvin's Case.
The jus soli principle was prevalent in England prior to Calvin's Case (1608). The place of
one's birth determined whether one was subject born or alien born. In a commentary by John
Rastell (c.1475-1536), anyone born on English soil, regardless of whether his parents were
English or alien, was an Englishman:
Alien is he of whom the father is born, and he himself also born, out of the
ligeance [territory] of our lord the king; but if an alien come and dwell in
England which is not of the king's ememies and here has issue [child], this issue
[child] is not alien but English; also if an Englishman go over the sea with the
king's license and there has issue [child], this issue [child] is not alien.
(Expositiones terminorum (1527), as quoted by Kim (1996), spelling modernized
for readability)
According to Thomas de Littleton (1407-1481), birthplace alone determined whether someone

was a subject or alien by birth:
(2000), p.149).
In 1628, Sir Edward Coke (1552-1634) wrote a commentary on Littleton's work. Coke's
commentary, often referred to as Coke upon Littleton, reiterated Littleton's viewpoint that all
children born on English soil were "subjects born", regardless of whether their parents were
subjects or aliens:
If an Alien commeth into England and hath issue two sonnes, these two sonnes
are Indigenae subjects borne, because they are borne within the Realme. (Coke
(1628), p.630)
For much of English history, the English Channel kept England isolated from the rest of the
world. English subjects rarely gave birth overseas, and aliens rarely gave birth in England. In
general, birth on English soil was synonymous with birth to English parents. However, as
travel, commerce and immigration increased, the simplistic "rule" -- that birthplace alone
determined nationality -- became impractical and unrealistic.
The rule [that every person born within the dominions of the Crown was an

English subject], when originally established, was not unsuited to the isolated
position of this island, and the absence of intercourse with foreign nations in
Saxon times. No children of English parents being born abroad, or children of
foreign parents being born within the realm, the simple rule that to be born within
the dominions of the Crown constituted an Englishman answered every purpose.
But when the foreign possessions of our kings and the increase of commerce had
led to greater intercourse with the Continent, and children of English parents
were sometimes born abroad, the inconvenience of the rule which made place of
birth the sole criterion of nationality soon became felt. (Cockburn, p.7)
In Calvin's Case (1608), allegiance, rather than birthplace, became the new criterion of
English nationality at birth. The justices ruled that parental allegiance, not the place of one's
birth, determined one's legal status at birth. Regardless of where you were born, you were not
an English subject by birth unless your parents were within the king's allegiance (obedience)
at the time of your birth.
...any place within the king's dominions may make a subject born, but any place
within the king's dominions without obedience can never produce a natural
subject. (Coke(1608), p.208)
...it is nec coelum, nec solum [neither sky nor soil], but ligeantia [allegiance] and
obedientia [obedience] that make the subject born (Coke(1608), p.179)
Most children born on English soil were English subjects, only because most children born on
English soil were born of parents who were within the king's allegiance. If parents did not
owe allegiance (obedience) to the king, there was no way -- either by natural law or by man-
made law -- that their children could acquire English subjecthood at birth.
Et si desit obedientia non adjuvet locus [And, if obedience is lacking, the place
does not help]. (Coke(1608), p.224)
Allegiance: Allegiance (also called ligeance) was a relationship between an individual and
the king. In this relationship, the individual was obligated to serve and obey the king, and the
king, in turn, was expected to govern and protect the individual.
...ligeance is the mutual bond and obligation between the King and his subjects,
whereby subjects are called his liege subjects, because they are bound to obey
and serve him; and he is called their liege lord, because he should maintain and
defend them. (Coke(1608), p.176)
When children were born on English soil, their legal status, at birth, was based on their
parents' allegiance (ligeance). Parental allegiance was determined as follows:
Subjects were within "permanent" allegiance of the English king. Their children, if born
on English soil, were natural-born subjects by natural law.
Alien friends were within "local" allegiance of the English king. Local allegiance was
temporary; it existed only while the alien friend was on English soil, and expired as
soon as he or she left the king's realm [68]. Nevertheless, local allegiance was sufficient
to meet the parental allegiance requirement. According to a law enacted in 1604, the
English-born children of alien-friend parents were "denizens" (natural-born subjects by
statute).
Foreigners included members of foreign-controlled religious orders, ambassadors from

foreign countries, members of foreign royalty, and foreign merchants. Foreigners were

not within the king's allegiance or protection, although they were given safe-conduct.
Their children, even if born on English soil, were not English subjects.
Alien enemies included, but were not limited to, subjects of a foreign power that was
hostile towards England. Alien enemies were not within the allegiance of the English
king. Their children, even if born in England, were not subjects.
The jus soli principle: At first glance, the English common law "rule" (as per Calvin's Case)
appears to have been jus soli -- subjecthood determined by birthplace alone. Almost all
children born on English soil were, at birth, natural-born subjects, regardless of whether their
parents were subjects or aliens. But the underlying principle of Calvin's Case was that
parental allegiance, not the place of one's birth, was the primary criterion of one's legal status
at birth.
The fundamental principle of the common law with regard to English nationality
was birth within the allegiance, also called "ligealty," "obedience," "faith," or
"power" of the King. The principle embraced all persons born within the King's
allegiance and subject to his protection. Such allegiance and protection were
mutual -- as expressed in the maxim protectio trahit subjectionem, et subjectio
protectionem -- and were not restricted to natural-born subjects and naturalized
subjects, or to those who had taken an oath of allegiance, but were predicable of
aliens in amity so long as they were within the kingdom. Children, born in
England, of such aliens were therefore natural-born subjects. But the children,
born within the realm, of foreign ambassadors, or the children of alien enemies,
born during and within their hostile occupation of part of the King's dominions,
were not natural-born subjects because [they were] not born within the allegiance
... of the King. (U.S. v. Wong Kim Ark, 1898)
As a general rule, children born on English soil were English natural-born subjects. But there
were exceptions to this rule. While characterizing these exceptions as "unimportant", Albert
Venn Dicey (1835-1922) acknowledged that the underlying reason for these exceptions was
that birthright subjecthood stemmed from allegiance, not the place of one's birth:
The exceptional and unimportant instances in which birth within the British
dominions does not of itself confer British nationality are due to the fact that,
though at common law nationality or allegiance in substance depended on the
place of a person's birth, it in theory at least depended, not upon the locality of a
man's birth, but upon his being born within the jurisdiction and allegiance of the
king of England; and it might occasionally happen that a person was born within
the dominions without being born within the allegiance, or, in other words, under
the protection and control of the crown. (Albert Dicey, The Conflict of Laws,
1896, as quoted in U.S. v. Wong Kim Ark, 1898)
In his Commentaries (1765), Blackstone seemed to imply that birth within the king's
dominions (territory) was synonymous with birth within the king's allegiance (faith, loyalty,
and obedience):
The first and most obvious division of the people is into aliens and natural-born
subjects. Natural-born subjects are such as are born within the dominions of the
crown of England, that is, within the ligeance, or as it is generally called, the
allegiance of the king; and aliens, such as are born out of it. (Blackstone)
But one of the main points of Calvin's Case was that birth within the king's territory was not
the same thing as birth within the king's allegiance (see Question 21: Ligeance). Blackstone
may have over-simplified the English Court's ruling in Calvin's Case. But perhaps we need to

re-read Blackstone a bit more carefully. The phrase "that is" sometimes means "more
accurately" or "by way of clarification". Thus Blackstone's writing could be understood as:
Natural-born subjects are such as are born within the dominions of the crown of
England, or more accurately and by way of clarification, within the ligeance, or
as it is generally called, the allegiance of the king...
Summary: In Calvin's Case, one's legal status at birth was determined primarily by parental
allegiance. If parents were not within the king's allegiance, their children were not English
subjects at birth, regardless of the children's place of birth. Nearly every child born on English
soil was a natural-born subject because nearly every child born on English soil was born of
parents who were within the king's allegiance. Subjects and alien friends were within the
king's allegiance; their English-born children were natural-born subjects. Foreigners and alien
enemies were not within the king's allegiance; their children were not subjects (natural-born
or otherwise), regardless of where they were born.
Lord Coke ... laid down the principle that any person born within the king's
dominion became the king's subject at birth, provided that his parents were at the
time under the actual obedience of the king; this proviso excluded any child born
in England whose father was at the time the ambassador to England of a foreign
power, and any child of an enemy alien... but apart from these two exceptions all
persons born in England are subjects of the king whatever their parentage,
because (apart from these exceptions) aliens living in this country are protected
by the king and therefore owe him local allegiance. ...
... Lord Coke's judgment did not affirm the jus soli as such; he did not lay down
the principle that mere birth within the realm conferred the status of a subject,
and then qualify it by two exceptions: what he did was to lay down a different
principle, that what constitutes the person a subject at birth is the fact of his birth
within the king's allegiance, and this carried with it the consequence that the two
excepted classes were not subjects, because they were not born within the
allegiance of the king. (Ross, p.7)
21. How did Calvin's Case define the word ligeance?
According to the majority opinion in Calvin's Case, ligeance ("allegiance") is the defining
characteristic that separates subjects from aliens. Ligeance is "the onely mark to distinguish a
subject from an alien" (Coke(1608), pp.197-8). A subject has natural or acquired ligeance; an
alien does not.
As a general rule, anyone born within the ligeance of the king is a "natural subject" of the
king:
... they that are born under the obedience, power, faith, ligealty, or ligeance of the
King, are natural subjects, and no aliens. (Coke(1608), p.177)
Prior to 1608, the meaning of ligeance was ambiguous. In some contexts, it meant the king's
territory. In other contexts, it referred to an individual's (or an individual's parents') faith,
loyalty and obedience:
Before ligeance was employed to refer to a tract of land, the term had already
been used to refer to a certain quality of interpersonal relationship. Glanvill, for

instance, used the term to explain the pre-eminent relationship between a tenant
and his 'liege' lord. Also, the treaty between Henry II and William, king of Scots
(the Treaty of Falaise, 1174) ... indicates that the term was used to refer to the
relationship of fidelity rather than a piece of land. ... Bracton also uses the term to
refer to something other than a geographical tract.
... But in the late thirteenth century, we begin to see that the territorial extent of
the King's legitimate power is also called ligeance. According to fourteenth
century legal terminology, out of the ligeance (hors de la ligeance) could mean
'out of England'. Likewise, within the ligeance (deinz la ligeance) often meant
'within England'. ... It appears that the term was used in an ambivalent manner by
the early fourteenth century. In other words, the term carried a certain amount of
ambiguity with it. (Kim (2000), pp.137-139)
Two examples illustrate the confusing dual meaning of ligeance.
Rex v. Philip de Beauvais (1321): Philip inherited an estate from his father. The king's
representative, Geoffrey Scrope, argued that Philip's father was born outside of the
king's ligeance (territory). By English law, English real estate belonging to a foreign-
born individual became, upon the individual's death, the property of the king.
Serjeant Shardlow, the attorney for the defense, argued that Philip's father's parents
(Philip's grandparents) were married in England, did homage to the English king, and
died in the king's homage. Therefore, Philip's father was born within the king's ligeance
(loyalty and obedience).
Shardlow used the dual meaning of ligeance to circumvent English inheritance laws.
His strategy worked, but only temporarily. The judge ruled in Philip's favor, but the
ruling was overturned on appeal. Philip eventually forfeited his inheritance to the king.
(Kim (2000), p.139).
De Natis ultra Mare (1351): This statute, enacted by Parliament in 1351, granted
inheritance rights to a child born outside of the king's ligeance (territory), as long as the
child's parents, at the time of child's birth, were within the king's ligeance (loyalty and
obedience):
All children heirs who will from henceforth be born out of the ligeance
[territory] of the king, provided that, at the time of the birth, their fathers
and mothers are, and will be, of the faith and ligeance [loyalty and
obedience] of the King of England, [shall] have and enjoy the same
benefits and advantages of having and carrying the inheritance within the
said ligeance ... (Statue De natis ultra mare, 1351, as quoted by Kim
(2000), p.121)
In the fifteenth century, Thomas de Littleton (1407-1481) understood ligeance to mean

territorial extent only. The wording of statutes enacted during the sixteenth century suggested
that birthplace alone determined whether someone was a subject or alien:
(2000), p.149).

But the meaning of ligeance underwent a transformation during the late sixteenth-century
Elizabethan succession debates.
Elizabethan Succession Controversy: When Queen Elizabeth I of England (1533-1603)

reached age 30, it became apparent that she was not likely to marry or have children. Various
legal commentators published pamphlets -- called Elizabethan Succession Tracts -- in which
they debated who should, and who should not, inherit the English throne at the end of
Elizabeth's reign.
The debate helped to forge a consensus of legal opinion that a child's personal status at birth -
- whether subject or alien -- was properly based on the faith, obedience and loyalty of the
parents at the time of the child's birth, not the territory in which the child was born. The
English word allegiance (a variation of ligeance) first appeared in the Elizabethan Succession
Tracts. Even today, "allegiance" implies loyalty, not a geographical location.
In 1563, John Hales (a Protestant) published a tract arguing that neither Margaret of
Lennox nor Mary Stuart (each of whom was Catholic) should be Queen Elizabeth's
successor. Margaret of Lennox was born in England; Mary Stuart was born in Scotland.
According to Hales, both women were ineligible to the English throne, not because of
their respective places of birth, but because neither woman's father was an Englishman.
Hales argued that children naturally follow the condition and estate of their fathers; and
the proposition -- that any child born in England is automatically an English subject at
birth, regardless of the parents' condition or estate -- "cannot be justified by any
reason". (Kim (2000), p.160).
In 1567, Catholic lawyer, Sir Edmund Plowden, agreed that one's subjecthood was
properly based on allegiance, not one's place of birth. He argued that, even though Mary
Stuart was born in a foreign country, she did "homage" to the King of England, and
therefore she was within the king's ligeance (Kim (2000), p.170).
A Protestant rebuttal pamphlet, titled Certaine Errours Uppon the Statute, accused
Plowden of confusing "homage" and "ligeance". Homage is a matter of human law. It is
a relationship that someone chooses to enter into, at some point after her or his birth.
Ligeance, on the other hand, is established only at birth and is strictly a matter of
natural law (Kim (2000), pp.172-173).
Calvin's Case: By the time Calvin's Case was decided in 1608, the English legal community
had already reached a consensus of opinion that the allegiance of your parents, not the place
of your birth, determined whether you were a subject or alien when you were born.
By the time of Calvin's Case, it was no longer sensible to doubt that allegiance
was the decisive criterion of a person's legal status. ... The bond of faith thus
became the pivotal element of legal reasoning. (Kim (2000), p.178)
The ruling in Calvin's Case reflected the prevailing viewpoint that one's birthplace, by itself,
did not confer subjecthood; that without some measure of parental obedience or allegiance, it
was impossible (by natural law or man-made law) for a child to be a subject at birth, even if
such child was born on English soil. In his Report on Calvin's Case, Lord Coke quoted --
often word-for-word -- directly from the Elizabethan Succession Tracts.
...any place within the king's dominions may make a subject born, but any place
within the king's dominions without obedience can never produce a natural
subject. (Coke(1608), p.208)
...it is nec coelum, nec solum [neither sky nor soil], but ligeantia [allegiance] and

obedientia [obedience] that make the subject born (Coke(1608), p.179)
In 1608, the English court (in Calvin's Case) defined "ligeance" as a personal relationship
between a king and his subjects, whereby the king governs and protects his subjects, and his
subjects give the king their faith, loyalty and obedience.
... This word ligeance is well expressed by divers several names or synonymia
which we find in our books. Sometimes it is called the obedience or obeisance of
the subject to the King... Sometimes ligeance is called faith... (Coke(1608),
p.176)
...ligeance, and faith and truth which are her members and parts, are qualities of
the mind and soul of man... (Coke(1608), p.182)
...it followeth, that seeing the King's power, command, and protection extendeth
out of England, that ligeance cannot be local, or confined within the bounds
thereof. (Coke(1608), p.188)
...ligeance is a quality of the mind, and not confined within any place...
(Coke(1608), p.188)
There were four kinds of ligeance: natural, acquired, local, and legal [69]. Anyone who was
born with "natural" ligeance [63] was subject born. Persons who owed "acquired" ligeance
were subjects made. Alien friends owed "local" ligeance to the king. Alien enemies, and
foreigners, did not owe any ligeance to the king.
One's ligeance affected the legal status of one's children. Children born on English soil were
subjects at birth only if their parents were within the king's natural, acquired or local ligeance.
Children born in a foreign country were English subjects only if their fathers owed natural
ligeance to the king.
A century and a half after Calvin's Case, the territorial meaning of "ligeance" re-emerged. In
the British Nationality Act of 1772, British-controlled territory was called "ligeance".
Nevertheless, when Calvin's Case was decided in 1608, ligeance meant the bond of faith
between a subject and his sovereign, not the subject's place of birth. Those who had either
natural or acquired ligeance were the king's subjects; those who had any other kind of
ligeance, or no ligeance at all, were aliens or foreigners.
22. Who were "alien enemies"?
In Calvin's Case, the English Court did not rule that all children born on English soil were
English subjects. The children of foreigners and alien enemies, even if such children were
born on English soil, were not subjects of the English king. Presumably, these children were,
at birth, subjects of the (foreign) prince to whom their (alien) parents owed permanent
allegiance.
"Alien enemies" included the following:
Foreign invaders: Foreign military personnel undertaking a hostile invasion or

occupation of English territory were alien enemies. Their children, even if born in

England, did not acquire English subjecthood at birth:
...for if enemies should come into the realm, and possess a town or fort,
and have issue [child] there, that issue [child] is no subject to the King of
England, though he be born upon his soyl, and under his meridian, for that
he was not born under the ligeance of a subject, nor under the protection of
the King. (Coke(1608), p.179)
Non-combatant subjects of hostile regimes: In the case of Amin v. Brown (2005), the
English High Court affirmed the ancient rule that, whenever "war" breaks out between
England and a foreign country, all citizens and subjects of that foreign country --
including civilians not engaged in hostile activities against England -- immediately
become "alien enemies" of the English king. This "rule" has been "on the books" for
centuries and is still part of English law today. But the rule is not likely to be enforced
in modern times, since war "in the technical sense" is now banned by international law:
Mrs. Amin lived in Iraq and owned a house in London, which she rented
out. The rent was paid to Mr. Brown, an English solicitor, as agent for Mrs.
Amin. Mrs. Amin's case was that Mr. Brown had used the rent money to
refurbish the house without instruction from her. In his defense, Mr. Brown
did not claim that he was entitled to carry out works on the house. Instead,
he raised several arguments as to Mrs. Amin's right to bring the claim at
all, including that she had no standing to sue because she was an Iraqi
citizen and therefore an enemy alien.
Justice Collins concluded that this disability of enemy aliens continues to

be "part of the rules of English law relating to the traditional laws of war ...
[but] that there is no warrant for extending it to modern armed conflict not
involving war in the technical sense." Accordingly, since he accepted the
U.K. government's position that its use of force against Iraq was authorized
by a combination of UN Security Council resolutions, Justice Collins held
that the United Kingdom was not at war with Iraq and therefore that Mrs.
Amin could not be an enemy alien.
Although Amin establishes that the procedural rule on enemy aliens still
exists, it might also be taken as evidence that the rule will seldom apply.
International law now prohibits what Justice Collins described as "war in
the technical sense." (Knop)
Non-Christians: In his Report on Calvin's Case, Lord Coke asserted that non-Christians
-- including Muslims and Jews -- were "perpetual enemies" of the king, therefore their
children, even if born in England, were not natural-born subjects:
Christianity being part and parcel of the law of England, those who did not
profess it could not have the rights of Englishmen but, whether born within
the king's allegiance or not, must be aliens, nor could they be alien friends,
but must be regarded as alien enemies, even though they might be here
under the special permission of the king. Lord Coke, in his report of the
judgment of the Exchequer Chamber in Calvin's case, thus lays down the
law: "All infidels are in law perpetui inimici, perpetual enemies (for the law
presumes not that they will be converted, that being remota potentia, a
remote possibility), for between them, as with the devils, whose subjects
they be, and the Christian there is a perpetual hostility, and can be no peace
..." (Henriques, p.186)

Lord Coke's opinions regarding Jews were discarded during the 1800s. But during the
1600s and 1700s, lawyers were uncertain whether English Law conferred subjecthood
and property rights to children born in England, of non-Christian parents.
The capacity of Jews to hold land or other real property in England was ...
for a long time a question of serious doubt among lawyers. If all Jews,
whether born within the realm or not, were aliens and perpetual enemies of
the king, then they were incapable of holding land, for until the year 1870
no alien could hold land in England. ... Even as late as 1830 there were
those who thought that this alleged incapacity [of Jews to hold real property
in England] still existed, for Mr. Blunt, in his excellent History of the Jews
in England, published in that year, is unable to resist this conclusion, and in
the same year that unrivalled Master of Real Property law, Lord St.
Leonards, then Solicitor-General, [asked] for a declaratory law to resolve
all doubts as to the power of Jews to hold landed property in fee... ...he had
himself been dissuaded some years before from buying some landed
property of a Jew by Sir Samuel Romilly who had given it as his opinion
that he could not obtain a good title from a Jew. (Henriques, pp.191-192)
Unlicensed Inhabitants: According to an article appearing in the Harvard Journal of

Law and Public Policy, "alien enemies" included aliens who had entered England
illegally:
Coke seems to have understood the phrase "aliens in amity" to exclude

more than hostile enemy soldiers, more even than the subjects of foreign
sovereigns with whom the English monarch was at war. Although it could
not have been his intention to exclude from the meaning of "aliens in
amity" any alien who was in England in violation of English immigration
law -- there were no such laws -- Coke did make certain other relevant
statements with an apparently similar meaning.
He explained that an alien was either a friend (amicus) or an enemy

(inimicus) at birth, and could become a friend only if there was a "league"
between the alien's sovereign and that of England. If an alien's sovereign
was "in league" with the English sovereign, the alien was a friend (amicus)
and could enter England without "license" of the English sovereign. The
implication is that if an alien requiring a "license" came into England
without one, he would be regarded as not "in amity". Thus, his children
born in England would not be born "within the allegiance." (Wood)
In contrast, alien friends (a) were subjects of a "friendly" country, (b) were accepting of
England's core values and beliefs, and (c) had entered England legally. The English-born
children of alien friends were "natural-born subjects" (in the general sense of the term). The
English-born children of alien enemies were not.
23. Were English-born children of alien parents "natural-born subjects"?
According to a law that Parliament enacted in 1604, the English-born children of alien parents
were "denizens" (in the general sense of the word) [54]:
To place the Children, born within this Realm, of foreign Parents, in Degree for
the first Birth or Descent only, as Aliens made Denizens, and not otherwise.
(House of Commons Journal, Volume 1, 21 April 1604)

This 1604 statute remained in effect until it was temporarily superseded by the General
Naturalization Act in 1709.
In the Privy Council, whose members were well aware of the debates within the
Corporation of London, further arguments against granting English-born children
of foreign parents full recognition as English subjects were put forward.
Here, it was argued, a child of alien parents should not be regarded as English,
because
"he cannot be a perfect loyal subject for that he hath no genealogie of

native English but all foreign and strangers unto whom (as to his
kindred) nature bindeth him".
Thus, allegiance through descent was put forward as an argument by which

territorial allegiance to the land and the ruler of one's birthplace were superseded
by the allegiance to the birthplace of one's father and mother, because children of
Strangers
"retain an inclination and kind affection to the countries of their

parents".
The prerequisites of citizenship and the terms of acquisition were frequently

debated and amended over the next few decades both at a national and a local
level. The issue was eventually resolved by a compromise agreed in 1604, which
lasted until the passing of the General Naturalization Act in 1709. English-born
children of foreign parents were made denizens, that is citizens with limited legal
rights particularly in terms of property-ownership and inheritance patterns (Esser,
p.238)
The General Naturalization Act in 1709 was repealed in 1712, thereby reviving the 1604 Act
and extending its life well into the eighteenth century.
According to the law passed in 1709, the naturalized had to take the oath of
allegiance, and partake of the sacrament before witnesses, who signed a
certificate to that effect. In addition, all the children of naturalized parents were to
be considered natural-born subjects. When the Tories finally gained control of
Parliament in 1712, they succeeded in having the law repealed, but the results
were not overthrown, for the repeal was not intended to invalidate naturalizations
already granted. (Carpenter, p.293)
Eighteenth-century American and English legal writings indicate that the 1604 law was still in
effect when the U.S. Constitution was being written.
John Cowell's The Interpreter of Words and Terms was first published in 1607 and, over the
next two centuries, underwent several revisions and reprints. It was a popular legal dictionary
in the late eighteenth century, though rarely cited in American legal writings (Berry, p.352).
Cowell's Interpreter states that the English-born children of alien parents are "denizens".
...if one born out of the King's allegiance, come and dwell in England, his
Children begotten here, are not Alien, but Denizens. (Cowell, Interpreter, 1701
edition, as quoted by Berry, p.353. This statement also appears in Cowell,
Interpreter, 1727 edition, under the section titled "Alien").
The 1604 law -- that English-born children of alien parents are denizens -- is repeated in four

other eighteenth-century sources: Viner, Cunningham, Jacob and Johnson (Berry, p.353).
These four sources are described here:
Charles Viner's Abridgment of Law, a 23-volume work, was published in 1741 and
again in 1756.
[Viner's Abridgement] was well received and respected in England and the
Colonies, and continues to be "an invaluable work of reference." "[A] lot of
American law," Professor Goebel concludes, "came out of [Mathew]
Bacon's and Viner's Abridgments," and Viner's, in particular, was located
in "many colonial law libraries," including John Adams's personal
collection.
Although the various House and Senate records do not refer to Viner's
Abridgment, the Supreme Courts of Pennsylvania, New Jersey, and
Maryland relied on Viner's various volumes countless times in the years
surrounding the ratification of the Constitution. U.S. Supreme Court
justices, including Oliver Ellsworth's court, also cite to "Vin. Abr."
numerous times. (Berry, pp.344-5)
Timothy Cunningham's Law Dictionary [70] was published in 1764 and again in 1783.
Along with using Blackstone's Commentaries, James Madison ordered a

copy of Cunningham's Law Dictionary for the Continental Congress. In
fact, the only dictionary he ordered was Cunningham's. Although referred
to as a "dictionary," Cunningham's work is more similar to Viner's
Abridgment than a concise collection of definitions.
This compilation of English common and statutory law and definitions has
been considered "[t]he first dictionary which aimed at completeness as
regards [to] legal terms." It was one of the most popular comprehensive
English dictionaries of the late eighteenth century, and was found in many
personal libraries, including those of Thomas Jefferson and John Adams.
Like the Commentaries and Viner's Abridgment, Cunningham's Law
Dictionary was also contemporaneously used by various American
Supreme Courts for clarification of legal terms. (Berry, pp.347-8)
Giles Jacob's New Law Dictionary [71] was first published in 1729. The 8th edition was
published in 1762, the 9th in 1772, and the 10th 1782.
Although Jacob has been dismissed by some modern commentators as a

writer of "undistinguished works," he was one of the most prolific and
widely recognized compilers of legal texts in the late eighteenth century.
His dictionary could be found alongside the works of Blackstone, Viner,
and Cunningham on Jefferson's and Adams's shelves, and was
contemporaneously in twice as many law libraries as the second most
popular legal lexicon. Jacob's New Law Dictionary may be difficult for
commentators to interpret now, but in the early republic it was "the most
widely used English law dictionary." Near the turn of the century, various
American Supreme Courts cited Jacob's New Law Dictionary, and like
Cunningham's Law Dictionary, Jacob's is more than a compilation of words
with definitions; it is "a dictionary, an abridgement, and a vocabulary." For
Jacob, it was not enough to simply define words, "he strove to put the
meaning in context." (Berry, pp.350-1)

Samuel Johnson's A Dictionary of the English Language [72] was published in 1755.
But by far the most influential eighteenth century general dictionary was
Doctor Johnson's, A Dictionary of the English Language, first published in
1755. According to the publishers of the Octavo edition of Johnson's
dictionary -- a digitally scanned version of the 1755 original -- Johnson's
dictionary is to English lexicography "what the King James Bible is to the
English church." This is well established. But this lexicon was not cited by
American Supreme Courts until the nineteenth century, nor was it in use by
the Senate or House in the eighteenth century, although it is more than
likely eighteenth century readers and writers had access to a copy. (Berry,
p.365)
All of the above-listed eighteenth-century sources -- Cowell, Viner, Cunningham, Jacob and
Johnson -- reiterated the 1604 law declaring that English-born children of alien parents were
denizens.
In Calvin's Case of 1608, Sir Edward Coke wrote that English-born children of alien parents
were natural-born subjects:
.. local obedience [the allegiance of an alien friend residing within English

territory], being but momentary and incertain, is strong enough to make a natural
subject; for if he [an alien friend] hath issue [child] here [in England], that issue
[child] is a natural born subject... (Coke(1608), p.179)
William Blackstone's Commentaries, first published in 1765, also stated that English-born
children of alien parents were natural-born subjects.
The children of aliens, born here in England, are, generally speaking, natural-
born subjects, and entitled to all the privileges of such. (Blackstone)
Coke and Blackstone did not necessarily contradict the original intent of the 1604 law. The
term "natural-born subject" had a vague and widely-inclusive meaning (see Question 19:
Natural-born subject), and was often used in an imprecise and ambiguous manner [64]. In
1604, denization -- with no explicitly-specified restrictions -- was substantively the same as
naturalization; and, at the time, naturalized subjects were taken and reputed to be "natural-
born subjects".
What, in short, is the difference between naturalisation and denization? Up to the

end of Elizabeth's reign, it has been submitted, there was no difference. (Parry)
According to Black's Law Dictionary, the word "denizen" was, at one time, synonymous with
"natural-born subject":
A denizen, in the primary, but obsolete, sense of the word, is a natural-born

subject of a country (Black's Law Dictionary, 1st Edition, 1891, under section
titled "Denizen").
Denizens: When the U.S. Constitution was being written, subjects made included "denizens"
(made so by the king) and "naturalized subjects" (made so by Parliament). Naturalized
subjects were natural-born subjects; denizens (by royal prerogative) were not. Francis Bacon
(1561-1626) was among the first to differentiate between "naturalized subjects" and
"denizens" [49]. But, when the 1604 statute was enacted, there was little material or
substantive difference between denization and naturalization.

In 1608, Lord Coke argued that "denizens" and "natural-born subjects" should be regarded as
"one" under the law:
Now what a Subject born is, appeareth at large by that which hath been said de
ligeantia: and so likewise de subdito dato [a subject by reason of gift] of a
donaison [gift]; for that is the right name, so called, because his legitimation is
given unto him; for if you derive denizen from deins nee [born within], one born
within the obedience or ligeance of the King, then such a one should be all one
with a natural born subject. And it appeareth before out of the laws of King
William the First of what antiquity the making of denizens by the King of
England hath been. (Coke(1608), p.208)
Historian Clive Parry points out that the word "denizen", by itself, implied full rights (or at
least full property rights):
Simply because "denizen" originally connoted native-born, endenization

conveyed full rights. And by using the term "denizen", an Act of Parliament
necessarily could imply no more than endenization by letters patent implied.
(Parry)
According to the Huguenot Society, naturalization and denization were synonymous during
the 1500s and early 1600s [73].
Unless the king's letters patent explicitly curtailed the rights of a denizen, there was (in 1604)
little difference between a denizen and a naturalized subject. Both denization and
naturalization conferred "natural-born subject" status, including property and inheritance
rights.
It is not, however, to be collected from what Cockburn says: only natural-born

subjects have inheritable blood and only Parliament can cause a person to be
deemed to be a natural-born subject. The defect of the argument is that the first
step in it is a false one: letters patent can also cause a person to be deemed to be
a natural-born subject as from their date. So far as concerns his subsequently
born children, the denizen is in exactly the same position as the naturalised
person. (Parry)
In the absence of restrictions imposed by the king, denizens -- especially persons who were
made denizens either by statute or by naturalization -- were deemed natural-born subjects.
Naturalized at birth: In 1608, Francis Bacon wrote that English law "naturalized," at birth,
English-born children of alien parents, as well as foreign-born children of English parents. In
both cases, the children were, at birth, natural-born subjects. But their natural-born
subjecthood was conferred by English law, not natural law.
Furthermore as the law of England must favor naturalization as a branch of the

law of nature, so it appears manifestly, that it doth favour it accordingly. For it is
not much to make a subject naturalized by the law of England: it should suffice,
either place or parents. If he be born in England it is no matter though his parents
be Spaniards, or what you will: on the other side, if he be born of English parents
it skilleth not though he be born in Spain, or in any other place of the world. In
such sort doth the law of England open her lap to receive in people to be
naturalized; which indeed sheweth the wisdom and excellent composition of our
law ... (Bacon, Francis, pp.664-665)
In Vattel's understanding, English-born children of foreign parents were "naturalized" at birth.

These children became English natural-born subjects, not by natural law, but by a
naturalization statute enacted by Parliament in 1604.
Finally, there are states, as, for instance, England, where the single circumstance
of being born in the country naturalizes the children of a foreigner. (Vattel, §
214)
English-born children of alien parents were natural-born subjects in the sense that they had
property rights. But such children did not have the same economic and municipal rights as
English-born children of English parents. Prior to 1737, English-born children of alien parents
could not become "citizens" (freemen) of an English city or town (see Question 25: English
citizenship).
A person born in England, of alien parents -- though such person was a natural-born subject -
- was required to pay aliens' duties and was, generally speaking, treated as an alien:
There is a curious passage in Hale's Treatise Concerning the Customs concerning

aliens' customs in the 17th century. He says "If an alien come into England and
have issue [child] here, he [the child] is a natural-born subject. Yet ... such a
natural-born subject hath been decreed heretofore to pay aliens' duties..."
Hargrave, Tracts, vol. I (1787) 210. Cf. the similar tendency to treat the native
members of the foreign Protestant congregations as aliens.... The statute 12 & 14
Car. 2, c. 11 furthered the policy by disabling infant children of aliens from trade.
(Parry, footnote 327).
Summary: Some commentators (such as Blackstone) and members of the English judiciary
(such as Coke) have expressed opinions, or dicta, regarding children born in England, of alien
parents. However, when the U.S. Constitution was being written, the law "on the books" was
that English-born children of alien parents were denizens (subjects made). These children
were "natural-born subjects" only in the general sense of the term. They were natural-born
subjects by English law, not by natural law.
"True" (not naturalized) natural-born subjects were limited to subjects born -- persons who
were born within the king's realm, of parents who were under the king's "actual obedience".
According to the English law that was in effect when the U.S. Constitution was being written,
the English-born children of alien parents were deemed natural-born subjects by law, but
were not natural-born subjects in fact.
24. What did "actual obedience" mean?
English subjects were divided into two groups: subjects born (subjects by natural law), and
subjects made (subjects by human action or man-made law).
A child was subject born if it met two requirements at the time of its birth: a parental
obedience requirement (the child's parents had to be under the "actual obedience" of the king)
and a birthplace requirement (the child had to be born within the king's dominion).

descend to the King of the other. (Coke(1608), p.208)

Coke did not define "actual obedience", nor did he explain how "actual obedience" differed
from "obedience" in general. He did, however, suggest that "actual obedience" was related to
the king's "actual possession" of land.
Actual possession: A country was under the king's "actual obedience" only if the king was in
"actual possession" of the country's territory [74]. In order to qualify as subject born, a child
must be born in a country whose territory the king actually possessed at the time of the child's
birth.
For the first, it is termed actual obedience, because though the King of England
hath absolute right to other kingdoms or dominions, as France, Aquitain,
Normandy, &c. yet seeing the King is not in actual possession thereof, none born
there since the Crown of England was out of actual possession thereof, are
Subjects to the king of England. (Coke(1608), p.208)
In modern-day property law (and presumably in seventeenth-century English property law as

well), there's a difference between actual possession and constructive possession. Actual
possession is possession in fact. Constructive possession is possession in law.
You are in "actual possession" of property if you have direct physical contact and control over
it.
Actual possession, also sometimes called possession in fact, is used to describe

immediate physical contact. For example, a person wearing a watch has actual
possession of the watch. Likewise, if you have your wallet in your jacket pocket,
you have actual possession of your wallet. (Legal definition of 'possession').
In contrast, you are in "constructive possession" of property if you have a legal right to it, but
you are not currently in direct physical contact with it:
Constructive possession is a legal theory used to extend possession to situations

where a person has no hands-on custody of an object. Most courts say that
constructive possession, also sometimes called "possession in law," exists where
a person has knowledge of an object plus the ability to control the object, even if
the person has no physical contact with it...
For example, people often keep important papers and other valuable items in a
bank safety deposit box. Although they do not have actual physical custody of
these items, they do have knowledge of the items and the ability to exercise
control over them. Thus, under the doctrine of constructive possession, they are
still considered in possession of the contents of their safety deposit box. (Legal
definition of 'possession').
According to Lord Coke, possession "in law" was not enough to confer subject born status to
a child at birth. The king must be in actual possession of a child's birthplace, at the time of
the child's birth, in order for the child to qualify as subject born.
Trope of Speech: The capacity to "obey" the king is found only in living human beings, not
in inanimate objects or tracts of land. Thus Coke was likely referring to a country's inhabitants
when he spoke of a country as being under the king's actual obedience. In his discussion of
Samaria, Coke used the term "actual obedience" in reference to the country's people [75].
The name of a place is sometimes used as a metaphor, referring to a person or people

associated with that place. In 1608, Francis Bacon wrote:

...for there is no trope of speech more familiar than to use the place of addition
[76] for the person. So we say commonly, the line of York, or the line of
Lancaster, for the lines of the duke of York, or the duke of Lancaster. So we say
the possessions of Somerset or Warwick, intending the possessions of the dukes
of Somerset or earls of Warwick. So we see earls sign, Salisbury, Northampton,
for the earls of Salisbury and Northampton. And in the very same manner the
statute speaks, allegiance of England, for allegiance of the king of England.
(Bacon, Francis, pp.652-653)
When we say, "New York City welcomed Queen Elizabeth during her recent visit to the
United States," the term "New York City" is understood to mean the people of New York
City, not the city's physical infrastructure. Moreover, not every man, woman and child in the
Big Apple was part of, or had directly participated in, the welcoming activities. Only a
portion of the city's population had actually welcomed the Queen.
Likewise, when we say, "Normandy invaded England in 1066", the word "Normandy" is
understood to mean the Duke of Normandy and his army, not a physical tract of land in
northern France. Moreover, only a portion of the Norman population directly participated in
the invasion.
When Lord Coke spoke of a country as being under the king's actual obedience, he was likely
referring to a portion of the country's population [77]. When the king took actual possession
of territory, at least some of the people living and working in that territory came under the
king's actual obedience.
Sovereignty: In pre-industrial agricultural societies, people needed land in order to survive.

By controlling all of a country's land, the king controlled the country's people and established
himself as "sovereign" over them.
Property...conferred sovereignty. The holder of land often controlled not only the
use of that land, but also the activity of its inhabitants. No one "owned" land in
the modern [literal] sense. Land was held in a pyramid of proprietorship
beginning with the king and reaching down to the lowliest tenant. Each level in
the hierarchy was marked by quasi-governmental privileges under which the
landholder could determine the destiny of those on the land. ... Before it ceded its
position to contract in the nineteenth century, property was the real and symbolic
foundation of all liberties... And property law was the foundation of the common
law (Hulsebosch, pp.9-10)
Serfs were peasants who worked his lord's land and paid him certain dues in
return for the use of land, the possession (not the ownership) of which was
heritable. The dues were usually in the form of labor on the lord's land. ... A serf
was one bound to work on a certain estate, and thus attached to the soil, and sold
with it into the service of whoever purchases the land. (Definition of Serfs)
The king's sovereignty over people was based on his control of the land in which the people
lived and worked. The king granted certain persons, called "subjects", the right to acquire,
possess and utilize tracts of his land. In return, these "subjects" gave the king their faith,
loyalty and obedience.
Synonym of ligeance: The word "obedience" was a synonym of the word ligeance
(allegiance):
This word ligeance is well expressed by divers several names or synonymia

which we find in our books. Sometimes it is called the obedience or obeisance of

the subject to the King. (Coke(1608), p.176)
This bond of allegiance was often understood as the bond of obedience to the
king. Tudor statutes, for example, use 'obedience' where later statutes would use
the word 'allegiance'. Aliens are those 'borne out of ... the kinges obeisaunce'.
Subjects are those 'borne within the kinges Graces Dominions and obeisaunce'.
(Kim(1996), p.156)
Lord Coke used obedience and ligeance interchangeably. For example:
Ligeantia est quasi legis essentia [Ligeance is, as it were, the essence of law]
(Coke(1608), p.175)
obedientia est legis essentia, [obedience is the essence of the law] (Coke(1608),
p.417)
In general, the word ligeance implied subjecthood. Lord Coke defined ligeance as a
relationship between a subject and his king.
Ligeance was "the onely mark to distinguish a subject from an alien" (Coke(1608), pp.197-8).
Those who were within the king's ligeance were subjects. Those who were outside of the
king's ligeance were aliens. The exception to this rule was local ligeance. Persons who owed
local ligeance to king were aliens, not subjects. Local ligeance conferred subjecthood to the
children of aliens, but did not confer subjecthood to the aliens themselves.
Lord Coke characterized local ligeance as "extremely uncertain":
localis ligeantia est ligeantia infima et minima, et maxime incerta [local

allegiance is something mean and small, and extremely uncertain]. (Coke(1608),
p.179)
As a general rule, persons who were within the king's ligeance were subjects, and subjects
(unlike aliens) had the right to acquire and possess land. Since ligeance generally implied
subjecthood, it is not inconceivable that obedience, a synonym of ligeance, also implied
subjecthood, which is (among other things) the right to possess and bequeath land.
Latin obedientia: Lord Coke used the English word "obedience" and its Latin root,
obedientia, interchangeably.
obedientia est legis essentia [obedience is the essence of the Law] (Coke(1608),
p.417)
...it is nec coelum, nec solum [neither sky nor soil], but ligeantia and obedientia
that make the subject born (Coke(1608), p.179)
In The Interpreter of Words and Terms (1607), John Cowell did not define the English word
"obedience", but did define its Latin counterpart, obedientia. According to Cowell, obedientia
had a general meaning and a specific meaning. In general, obedientia was anything that a
superior required of his subordinate. But in a more specific sense, obedientia was a figure of
speech meaning "rent" -- a service or payment that an individual rendered to a landlord, in

return for use of the landlord's property:
Obedientia was a Rent, as appears out of Roger Hoveden, parte poster. annal.
fuor. ... In the Common Law, it is used for an Office or Administration of an
Office; and thereupon the word Obedientiales is used in the Provencial
Constitutions, for those which have the Execution of any Office under
Superiours... It may be that some these offices called Obedientia, consisted in the
Collection of Rents or Pensions, and that therefore those Rents were by a
metonymy, called Obedientia, quia colligebantur ab obedentialibus.
But Obedientia, in a general Acceptation of the Word, signifies every thing that
was enjoined the Monks by the Abbot: And, in a more restrained Sense, the Cells
or Farms which belonged to the Abbey, to which the Monks were sent, vi
ejiesdeni obedientiae, either to look after the Farms, or to collect the Rents which
were likewise called Obedientia. (Cowell)
In the restrained sense, obedientia (obedience) implied a land-based relationship between a

subordinate and his superior. Obedientia (obedience) was that which a subordinate owed to
his superior, in return for use of the superior's land. Only subjects were permitted to hold
land, therefore only subjects could owe obedientia (in the restrained sense) to the king.
"Under Obedience" in the Bible: The Geneva Bible was first published in 1560 and again in
1599. Among Protestants, prior to 1611, it was the de facto standard English-language
translation of the Bible.
The King James Version (KJV) was published in 1611, and eventually supplanted the Geneva
Bible among English-speaking Protestants (Geneva Bible History).
Both Bibles -- the Geneva Bible and the KJV -- are linguistic "time capsules" containing
samples of early seventeenth-century English-language usage. They may offer clues as to the
meaning of "under actual obedience" during the time period in which Calvin's Case was
decided.
In the 1599 edition of the Geneva Bible, the term "under obedience" (without the word
"actual") appears in 1 Timothy 3:4. This verse specifies that a man should not be permitted to
serve as a church bishop unless he:
...can rule his own house honestly, having children under obedience with all
honesty. (1 Timothy 3:4, in Geneva Bible: 1 Timothy, boldface emphasis added)
In the Geneva Bible, the term "under obedience" is an English translation of the Greek word
hypotage, which means "the act of subjecting" or "obedience, subjection". The KJV always
translates hypotage as "subjection" (Strong's Concordance: G5292).
The term "under obedience" also appears in the KJV translation of 1 Corinthians 14:34.
Let your women keep silence in the churches: for it is not permitted unto them to
speak; but [they are commanded] to be under obedience, as also saith the law. (1
Corinthians 14:34, KJV, 1 Corinthians 14, boldface emphasis added)
In the KJV, "under obedience" is the English translation of hypotasso. The word hypotasso
appears forty times in the Greek New Testament. In eight instances, the KJV translates
hypotasso using words or phrases which imply or connote submission, but in all other cases,
the KJV translates hypotasso using words or phrases which imply or connote subjection (see
Strong's Concordance: G5293).

In the Geneva Bible, hypotasso, as used in 1 Corinthians 14:34, is translated as "to be

subject":
Let your women keep silence in the Churches; for it is not permitted unto them to
speak, but they ought to be subject, as also the Law saith. (1 Corinthians 14:34,
Geneva Bible: 1 Corinthians, boldface emphasis added)
In both the Geneva Bible and the KJV, the English term "under obedience" implied or
connoted subjection. When one Bible translated a Greek word as "under obedience", the other
translated the same Greek word in the same verse as "subjection" or "to be subject". If "under
obedience" implied subjection, it is possible that "under actual obedience" also implied
subjection, perhaps even more so. In other words, persons who were under the actual
obedience of the king were subjects of the king.
Aftermath: During the decades following Calvin's case, some native-born Scotsmen,
presumably born after 1603, filed applications for English naturalization or denization. If
Calvin's Case had granted automatic English subjecthood to all postnati Scottish subjects
(Scottish subjects born in Scotland after 1603), why did some postnati Scottish subjects seek
English subjecthood through lengthy and costly legal procedures? Weren't these postnati
Scottish subjects already English subjects as per Calvin's Case (assuming, of course, that their
parents were not foreign diplomats or alien enemies)? [78]
One possible answer is that Calvin's Case did not confer English subjecthood to all postnati
Scots. It conferred English subjecthood only to postnati Scotsmen whose parents were under
the "actual obedience" of the king. If you were born in Scotland but, at the time of your birth,
your parents were not under the king's "actual obedience", you might have been a Scottish
subject by Scottish law, but you were not a Scottish subject by natural law, hence you were
not eligible for automatic English subjecthood at birth.
Presumably, aliens were not under "actual obedience". Consequently their Scottish-born
children were not subjects born, thus did not receive automatic English subjecthood at birth.
If these children wished to become English subjects in later life, they had to go through a
conventional naturalization or denization process in England.
Summary: In order to be subject born, a child had to meet two requirements at birth: a
birthplace requirement (the child had to be born within the king's dominion), and a parental
obedience requirement (the child's parents had to be under the "actual obedience" of the king).
In order for a child to meet the parental obedience requirement, the king must be in actual
possession of the child's birthplace at the time of the child's birth. Apparently, there was a
connection between the king's "actual possession" of territory and the "actual obedience" of
parents who were residing and giving birth within that territory.
The king was in "actual possession" of a country if he physically occupied and controlled the
country's territory. However, the king, by himself, as an individual, could not possibly occupy
and control an entire country. When we speak of the king as being in actual possession of a
country, we mean that the king's subjects were physically occupying and controlling the
country's real-estate, on his behalf. The king was in actual possession of territory through his
subjects. These subjects included two classes of people:
the king's military personnel which had invaded and conquered the country; and
the country's native inhabitants who surrendered to the king and became his subjects.

Military conquest of an alien's homeland was one of the means by which an alien could
become an English subject [79]. For example, when England conquered Ireland, the Irish
people became subjects of the English king [80].
The terms "actual possession" and "actual obedience" appear to have been inseparably
intertwined. The king could not have been in actual possession of territory unless his subjects,
who were under his actual obedience, were occupying and controlling the territory for him.
On the other hand, the king's subjects could not be under the "actual obedience" of the king
(and their children could not be subjects born), unless the king was in "actual possession" of
the land on which they were living and working. Thus "actual possession" and "actual
obedience" were different sides of the same coin. They were facets of a land-based
relationship between the king and his subjects.
Although alien friends were within the allegiance or obedience of the king, it seems unlikely
that they were under the king's "actual obedience". The term "actual obedience" is tied to the
king's, or rather the king's subjects', actual possession of a country's territory. Aliens did not
have the authority to acquire or possess land within the king's dominion. Aliens could not
hold real property, therefore they could not have been part of a land-based relationship with
the king. Aliens could earn a living by importing, manufacturing and marketing movable
objects, but aliens were barred from acquiring and holding any real (non-movable) property
such as land.
25. What was an English "citizen" before the American Revolution?
Prior to the American Revolution, an English "citizen" was a person who (a) was a legal
resident of an English or colonial American city, (b) had the right to practice a trade or
conduct business in that city, and (c) could vote and hold public office [81].
An English citizen was not the same thing as an English subject. Subjecthood was a vertical
relationship between an individual (subject) and a sovereign (king) who protected the
individual and ruled over him. Citizenship was a horizontal relationship between the
individual (citizen) and his fellow citizens. Within a city, the citizens of that city shared civic
responsibility and collectively govern themselves through their elected representatives.
Prior to the American Revolution, the inhabitants of England and its American colonies were
divided into two groups: "foreigners" (in the international sense) and "the people". The people
owed allegiance to the king; foreigners did not.
The "people" were further divided into "subjects" and "aliens". Subjects owed permanent
allegiance to the king; aliens owed temporary (local) allegiance to the king. Aliens were
sometimes called "strangers".
Every English "subject" was either free or unfree. Unfree subjects were sometimes called
serfs, bondmen/bondwomen, indentured servants, or villeins.
Unfree subjects were not slaves. Unfree subjects had legal rights which slaves did not have:
One may be a villein in England, but not a slave. (Sir John Holt, Chief Justice of
King's Bench, 1701, as quoted in Banks, pp.812-3)
Villeins were subjects, and as subjects, had the right to "hold real or personal property"
(Banks, p.815).
In England, your servile status (free or unfree) at birth depended on the status of your father

at the time of your birth. If your father was "free" when you were born, you were "free" at
birth. If your father was not "free" at the time of your birth, your status at birth was "unfree".
...Sir Edward Coke, in one of the great treatises on the English common law, the
four volume Institutes of the Laws of England, wrote that if a bondman or serf
(villein) marries a free woman, their children would be villeine [unfree], but if a
bondwoman (niefe) married a free man, their children would be free. According
to Lord Coke, the English common law rule, that the status of the child follows
the father, is grounded in the notion of marital unity. Under common law the
legal identity and status of a wife merged with that of her husband; they became
one in the eyes of the law, and that one was the husband. Therefore, the legal
status of the father naturally governs the legal status of the child. ...
But Lord Coke's statement only governs the status of a legitimate child of a
freeman and bondwoman. ...
Coke acknowledges that some judges have mistakenly held that an "illegitimate"
child of a bondwoman is a villeine, and thus unfree. The correct rule, he writes, is
that a child born to unwed parents is a child of no one (quasi nullius filius),
because the child cannot be heir to anyone. Thus this child is not a villeine unless
the child places her/himself in bond before a court. (Banks, pp.815-16)
There were various ways by which a subject's status could change from free to unfree, or
from unfree to free. But a subject's status at birth was the status of his father -- except that an
illegitimate child was, at birth, "free" by default.
Within a city or town, free subjects were further divided into "freemen" (citizens) and
"foreigners" (non-citizens). In an international context, the word "foreigner" means a citizen
or subject of a foreign country. But in an urban context, a "foreigner" in a city or town was
anyone who was not a citizen of that city or town.
English freemen (citizens) had certain rights and privileges, called Freedom of the City,
which foreigners (non-citizens) did not have. These rights and privileges included
"economic" freedom (the right to conduct business or practice a trade in the city) and
"political" freedom (the right to vote and hold public office).
Indeed, the importance of the freedom, i.e., the status of citizen, must not be
underestimated... The citizen -- or freeman, as he was designated throughout the
colonial period -- considered his citizenship a more highly prized right than does
the average citizen of the present day. ...the title of freeman was not an empty
one. Not only did it possess for him profound political significance, but it was the
condition of his economic independence. Unless one were a freeman, he did not
posses the right of suffrage, nor was he eligible to election to public office.
Furthermore, non-freemen were not permitted to practice trades or carry on any
business whatsoever. (Seybolt, p.3)
The all-important dividing line among townsmen was between freemen and non-
freemen. Freedom of the city involved both privileges and obligations set down in
local ordinances and enforced in the Lord Mayor's Court. The effect of these
ordinances was to provide the freemen, or citizenry, with a virtual monopoly over
both political and economic affairs. Only freemen could hold civic office and
only freemen could vote in municipal and parliamentary elections. (John Evans,
as quoted by Luu, p.60)
Noah Webster's American Dictionary (1828) defined "citizen" as:

The native of a city, or an inhabitant who enjoys the freedom and privileges of
the city in which he resides; the freeman of a city, as distinguished from a
foreigner, or one not entitled to its franchises. (Webster's Dictionary: citizen,
1828)
In 18th-century England, most English subjects did not have suffrage (the right to vote). In
rural areas, a subject could vote only if he possessed property that produced at least 40
shillings per year of revenue. In a city or town (borough), a subject could vote only if he was
a freeman ("citizen") of that city or town:
There were two types of seats in the Commons: county and borough, the latter
meaning that the constituency was a particular town. Typically, the right to vote
was earned, for county constituencies, by owning land valued at forty shillings
per year. In "freeman boroughs," one could vote by being a "freeman," in other
words by being granted the town's "freedom" -- the right to carry on one's trade
within its walls. (Olsen, p.6)
There were several ways to become a citizen of an English city or town. The three most
important were: birth, apprenticeship, and redemption.
birth: Someone could claim citizenship by birth if, at the time of his birth, his father
was a citizen [82].
apprenticeship: If a boy, at age 14, entered a seven-year apprenticeship, and if he

completed it successfully, he earned the right to become a citizen of his town or city.
redemption: A non-citizen could become a citizen by demonstrating a marketable skill

and paying a redemption fee [83].
Apprenticeship was the most-frequently-used pathway to urban citizenship:
In sixteenth century London, for example, it has been estimated that 90 per cent
of Londoners became citizens through apprenticeship (Withington, p.29)
Most literature of local citizenship in England during the early modern period
[1500-1800] focused on London. In it, freeman is the equivalent of citizen.
...London historians tell us that during most of the early modern period,
citizenship was mainly identified with apprenticeship and the exercise of a
specific trade, craft, or occupation. Most admissions to freedom were acquired on
the basis of apprenticeship... (Herzog, p.178)
In Colonial American cities and towns, every young person who was not of "independent
living" was either (a) an apprentice engaged in learning and mastering a trade, or (b) a
bondsman, i.e., serf or slave (Seybolt, p.4). Those who successfully completed their
apprenticeships became, in adulthood, citizens of their town or city.
In England, you were eligible for apprenticeship only if, at the time of your birth, your
parents were free English subjects. Prior to 1737, aliens and their children were barred from
apprenticeship; the only way they could become freemen was through redemption:
A primary qualification for apprenticeship was that a boy or girl should be of free
condition and not a villein. ...no "foreigner" should be enrolled as an apprentice
unless he first swore that he was a free man and not a serf, and later serf is
defined as the son of a man who was a serf at the time the boy was born. We may

take this to mean that if a villein became of free condition by residence, his sons
born subsequently were eligible for apprenticeship, but that sons born previously,
even if they became of free condition themselves, were excluded as having the
taint of servile origin. ... From 1483 onwards the apprenticeship of alien-born
children was frequently forbidden alike by company and City ordinance. (British
History Online: Apprenticeship).
Until 1737, London's statutes forbade the sons of foreigners, even those born in
the kingdoms to naturalized parents, to become freemen by apprenticeship; they
could obtain recognition as freemen only through redemption. (Herzog, p.182)
In 1707, every freeman in New York City was required to take an oath, swearing that he will
not take, as an apprentice, any child whose parents were either aliens (not English subjects) or
bondmen (non-free):
Ye shall Swear, That ... Ye shall take no Apprentice, but if he be free-born (that
is to say) no Bond-man's Son, nor the Son of an Alien ... (Oath of a Freeman of
the City of New York, 1707, as quoted by Seybolt, p.11).
In summary, there was a difference between a "subject" of the English king and a "citizen" of
an English (or colonial American) city or town.
Subjects were politically passive members of English society. They had inheritance and
property rights, but as a general rule, they did not activity participate in the government's
decision making process. Most subjects could not vote or hold public office. Subjecthood, by
itself, did not confer a "free" status; some subjects were serfs or villeins. The parental
requirements for English subjecthood were minimal. It did not matter whether your parents
were subjects or aliens, or free or unfree. As long as your parents were within the allegiance
of the king at the time of your birth, you were, if born on English soil, an English natural-
born subject.
Citizens, on the other hand, were politically active members of English society. They were
free. They could vote and hold public office. The parental requirements of English citizenship
were more stringent than those of English subjecthood. Throughout much of English history,
you were eligible for apprenticeship (the primary means of acquiring citizenship) only if your
father was a free subject (not a bondman and, prior to 1737, not an alien). You could claim
citizenship by birth only if your father was a citizen at the time of your birth.
26. Wasn't jus soli the "rule of Europe" when the Constitution was being written?
When the U.S. Constitution was written, continental (mainland) western Europe was
comprised of states, each ruled by a strong individual leader or king. Embedded within each
state were local communities (towns and villages). As a general rule, anyone who established
his permanent residence (domicile) within a community, and possessed property in the
community, was a "member" or "citizen" of that community:
Comparing practices in England, France, Germany, and northern Italy, Susan

Reynolds concludes that a common heritage indeed existed in medieval Western
Europe. ... In both towns and villages, community members were typically adult
male heads of households who resided permanently in the jurisdiction. (Herzog,
pp.170)
As a general rule, an individual living under an eighteenth-century western European

monarchy was both (a) a "subject" of a king, and (b) a "citizen" of a local community.

...an important group of historians argues that the citizenship regime that evolved
in Western Europe from the eleventh to the thirteenth century persisted with
slight modification to the eighteenth century. According to this view, municipal
communities continued to be associations of free individuals during the early
modern period [1500-1800]. ... Community members -- usually identified as
resident heads of households possessing property -- were allowed to use
communal land and could actively participate in [local] decision making. Rather
than changing, in the early modern period local citizenship was simply
overshadowed by the appearance and consolidation of kingdoms. ... Although still
members and citizens, individuals were now instituted first and foremost as
subjects. (Herzog, pp.170-171)
The relationship between subjecthood and citizenship varied throughout Europe:
France:
In medieval times, an individual was "French" only if he or she belonged to a local
French community. But by the sixteenth century, the king assumed the power to decide
who were "French" and who were not. Local communities no longer had any say in the
matter:
According to most historians of France, by the sixteenth century the

subjection of local communities to the king was complete. Instead of a
territory composed of different local communities, France became a
kingdom. One consequence of this development was that the status and
rights of people were no longer determined by reference to their local
membership. Instead, they were determined by their relationship to the
monarch. ... Because of this process the king obtained a monopoly over the
classification of people as natives or foreigners, which had earlier been
exercised by local communities, and he had gained control over alien
property (droit d'aubain), which had earlier belonged to local lords.
(Herzog, p.191).
An individual was a native Frenchman, with inheritance rights, if (a) he was born in
France, (b) at least one of his parents was French at the time of his birth, and (c) after
his birth, he continued to live in France:
Historians agree that for the purpose of inheritance a person was French if
he or she resided in the territory and had been born there to at least one
French parent. This definition required the combination of two conditions:
descent and birth in the territory. (Herzog, p.192)
If a child was foreign-born of French parents, or was French-born of alien parents, the
child's legal status depended on the child's and its parents' residence:
In the time of the ancien regime [1650-1789], the criterion of residence

was very important: when recognition of French nationality could only be
based upon French parents giving birth abroad or foreign parents giving
birth in France, the parlements required that current and future residence be
established in the kingdom. This was a sign of personal allegiance, both
present and future, to the king. (Weil, p.79)
Birthplace alone was not enough to confer French nativeness or nationality. A child,
born in France, was not a French native unless some other requirement -- a residence
requirement or a parental nationality requirement -- was also met. According to some

historians, the notion that jus soli prevailed in eighteenth-century France is an

oversimplification [84].
Netherlands:
In the Dutch Republic [1581-1795], there was no such thing as national citizenship. The
word "citizen", or burgher, referred to members of local communities, not members of a
nation or state:
Under the Old Regime, no such thing as Dutch citizenship existed. The
state, i.e., the Dutch Republic, was a federation composed of seven
sovereign provinces. These provinces did not have citizens either, at least
in the formal sense. Citizenship in the Dutch Republic was a local, more
specifically an urban phenomenon. There was nothing unusual about this:
urban citizenship was the norm throughout early modern Europe. (Prak)
In some local Dutch communities, citizenship was based on the jus soli principle, while
in other communities, the jus sanguinis principle prevailed:
In the 18th century, in the Dutch Republic, there was no national civil law
which united the whole population. Each town had its own civil law
stipulating citizen rights and obligations, based on the citizenship model of
the Roman Republic. Citizenship law of the burghers was still restricted to
only the town's population, and completely excluded the people of the
countryside.
The rights of citizenship were based on the principle of jus soli, signifying
that rights would be granted to all those born on the territory. However, this
was not applied uniformly and in some cities as for example in Nijmegen,
citizenship could be acquired only by jus sanguinis. (Wikipedia: Dutch
Nationality)
Germany:
When the U.S. Constitution was being written, German citizenship was based on
residence:
In Germany, ... the criterion for many centuries was ... the fact of residence
in the territory, or of residence with official permission (Ross, p.2)
Later in German history, jus sanguinis became the rule of German citizenship at birth.
...the German definitions of citizenship are more closely and fundamentally

related to heritage and nationalism and jus sanguinis. (Dellolio)
Italy:
Italian cities were free to establish their own citizenship criteria:
...different communities belonging to the same state each maintained its

separate communal institutions, statutes, councils, and officers and its own
citizenship criteria. The inhabitants of each community were considered a
separate group and were treated as foreigners in other jurisdictions.
(Herzog, p.177)
As a general rule, local citizenship was acquired either by birth or by integration into
the community. A child was a citizen by birth if it was born within the community and
at least one of its parents was a citizen.

Persons became citizens either by birth or by statutory process. Under the

formulation articulated by Bartolus, and apparently followed in the Italian
cities of the thirteenth and fourteenth centuries, a citizen by birth -- civis ab
origine -- was one who had been born within the territory of the state and
to at least one parent who was already a citizen of the state. (Price, p.124).
Those who were not citizens by birth could become citizens by integrating into the
community.
...Venice, Florence, Pescia, Rome, Brescia, Torino, and Mantova stressed

the importance of residence, integration, and reputation for the purpose of
obtaining citizenship. (Herzog, p.175)
The Italian "fiscal" court (regia camera della sommaria) was responsible for collecting
taxes. Since tax rates varied according to citizenship, the fiscal authorities were required
to decide who were citizens and who were not. Local communities could establish their
own citizenship rules, but the court decided how those rules should be applied for
taxation purposes.
...the fiscal court...was the body responsible for tax collection. Tax
collection depended on citizenship, and so the court was often charged with
distinguishing citizens from non-citizens. ... Local citizenship criteria would
continue to exist, yet there would be a single body responsible for
determining how these criteria would be applied so that, in spite of local
differences, people could attain recognition as citizens of the kingdom. ... It
meant that the power to recognize people as citizens was no longer only in
municipal hands but now, because of the involvement of the court, was
shared between the municipality and the king. (Herzog, p.177)
The fiscal court did not have the power to grant citizenship to anyone or to revoke
anyone's citizenship. However, if a taxpayer wanted to pay lower taxes, he had to prove
that he was a citizen of his local community. In general, if you were a permanent legal
resident of an Italian community, you were deemed an Italian citizen for taxation
purposes.
Beginning in the mid-sixteenth century and especially through the

seventeenth, the court generally held that permanent residence was the
principle method for citizenship acquisition. Residence had to be
accompanied by an animus permanendi, that is, by a wish to remain in the
jurisdiction "for good" and by the promise to establish a stable home in the
territory. This wish could be orally attested to, or it could be deduced by
observing the behavior of petitioners. (Herzog, p.172-173)
Spain:
In the Castile region of Spain, there was no such thing as citizenship by birth. Your
place of birth, and the status of your parents at the time of your birth, were irrelevant.
You became a citizen of a community when you made a choice to join that community
and integrate yourself into it. In Spain and in Spanish America, one's "citizenship" or
"nativeness" was determined by one's behavior, not the circumstances of one's birth.
...over time and especially in the seventeenth and eighteenth centuries,

Castilian and then Spanish nativeness became associated with local
citizenship. People were natives, or became natives, once they established,
with the intent to remain permanently, residence in a community located on

Spanish territory, or once they gave other proofs of their wish to tie
themselves to such community. ... Indeed, like citizenship, nativeness
operated on the margins of formal declarations... People obtained it, or lost
it, because of the way they behaved rather than because of birth or royal
recognition. (Herzog, p.66)
...in Castile, the native born were required to integrate into the community
if they wished to obtain recognition as citizens, whereas in Italy birth
appears to have granted this status automatically. (Herzog, p.175)
In summary, when the U.S. Constitution was being written, there was no uniform citizenship
"rule" that prevailed throughout continental (mainland) western Europe. Often, a child born in
a particular city or state was not regarded as a native, subject or citizen of that city or state
unless some other requirement -- parental residence, parental nationality or parental allegiance
-- was also met at the time of the child's birth.
27. What does "born within the allegiance" mean?
In 1866, Justice Swayne tied the word "allegiance" to the phrase "natural born":
All persons born in the allegiance of the King are natural-born subjects, and all
persons born in the allegiance of the United States are natural-born citizens. Birth
and allegiance go together. (Justice Swayne, United States v. Rhodes, 1866, as
quoted in U.S. v. Wong Kim Ark, 1898).
In 18th-century England, you were, at the time of your birth, an English natural-born subject
if you were "born within the allegiance of the king".
... they that are born under the obedience, power, faith, ligealty, or ligeance
[allegiance] of the King, are natural subjects, and no aliens. (Coke(1608), p.177)
According to Francis Bacon (1561-1626), the phrase "born within the allegiance of the king"
was a figure of speech referring to:
...children whose parents were at the time of their birth at the faith and obeisance
of the king of England. (Bacon, Francis, pp.652-653)
There were two ways by which you could be "born in the allegiance of the king": by natural
law, and by man-made statute.
By natural law, you were "born in the allegiance of the king" if you were born on
English soil, of parents who were within the "actual obedience" of the king at the time
of your birth.
By man-made statute, you were "born in the allegiance of the king" if you were born in
a foreign country, of a father who was a natural-born subject at the time of your birth,
or if you were born in the king's realm, of parents who were alien friends.
In all cases, the phrase "born within the allegiance of the king" implied some measure of
parental allegiance at the time of one's birth.
Except in special cases, those who were subjects born -- i.e., those who were "born in the
allegiance of the king" in accordance with natural law -- had two characteristics:
They were born within the king's realm; and

They owed, at birth, exclusive (natural) allegiance to the king.
It is therefore plausible that U.S. natural born citizens -- those who were "born in the
allegiance of the United States" in accordance with natural law -- also had two characteristics:
They were born in the United States; and

They owed, at birth, exclusive allegiance to the United States.
28. Did "natural born" imply exclusive allegiance at birth?
When the U.S. Constitution was being written, the term "natural-born subject" referred to
three classes of people:
Natural-law subjects (subjects born) were, at birth, natural-born subjects according to

natural law. Except in special cases [85], they were born within the king's realm, of
parents who were under the king's "actual obedience".
Statutory subjects were persons who received natural-born subject status, at birth, by a
law enacted by Parliament. For example, foreign-born children of civilian (non-royalty,
non-diplomatic, non-military) English fathers, were natural-born subjects by law. A law
enacted in 1604 granted "denizen" status to English-born children of alien parents.
Naturalized subjects were aliens at birth, but at some point after birth, became subjects
by naturalization.
All three of the above groups were referred to as "natural-born subjects". Members of the
second and third groups were not born with exclusive allegiance to the English king.
Statutory subjects were either (a) foreign-born children of English civilian fathers, or
(b) English-born children of alien parents. These children were born with dual
nationality. Foreign-born children owed allegiance to the foreign king in whose territory
they were born. English-born children of alien parents received foreign allegiance by
descent from their parents.
...children and grandchildren, born of British parents in foreign countries,

are British-born subjects; yet these, no doubt, by the laws of the respective
foreign countries, are also deemed natural-born subjects there. I am aware
of the difficulties which such persons may labor under with these double
claims of allegiance upon them. ...the king cannot reckon upon the full and
absolute obedience of such persons, because they owe another fealty
besides that due to him... (Reeve)
Naturalized subjects were aliens at birth. When they were born, they did not owe any
allegiance to the English king. At some point after birth, they became English subjects
through a legal process called naturalization.
Thus, the term "natural-born subject" sometimes referred to people who (a) were not born on
English soil, or (b) did not, at birth, owe sole allegiance to the English king. However,
subjects born -- natural-born subjects by natural law -- were usually born on English soil but
always owed natural (i.e., exclusive) allegiance to the English king at birth.
Act of Anne: The wording of the Act of Anne (1708) suggests that foreign-born children of
civilian English fathers were not natural-born subjects in fact, but were "deemed and

adjudged" to be such by man-made laws [67]:
The Act did not say in terms that the foreign-born child of natural born parents ...
was himself a natural born subject. It said that he was to be "deemed and
adjudged" to be such, albeit "to all intents, constructions and purposes
whatsoever". (Parry)
According to Dowdy's report to Congress (1967), only those born within the king's realm --
that is, only those who acquired their subjecthood by natural law -- were "true" natural-born
subjects; all other subjects were "naturalized":
No child born outside of the dominion of the King was ever a true "natural-born
subject." They were naturalized subjects. It is true that by the naturalization acts
under which they had become naturalized subjects had "deemed" them to be
natural-born subjects (despite the fact that they were not so in fact), and the very
fact that these were "deemed" to be natural-born by the naturalization act reveals
that the true "natural-born" subjects were those born within the dominion of the
King without the necessity of a naturalization law to "deem" them to be in law
what they were not in fact. (Dowdy)
Naturalization at birth: "Naturalization", as generally understood, was a legal process by

which an alien adult became an English subject. But in some contexts, the word
"naturalization" also referred to man-made laws which conferred subjecthood to children at
birth.
According to Francis Bacon, when a child of English parents was born in a foreign country,
English law naturalized the child at birth.
...the law of England doth work and confer the benefit of naturalization upon a
birth neither within the dominions of the kingdom, nor king of England. By the
statute of 35 E. III which, if you believe Hussy, is but a declaration of the
common law, all children born in any parts of the world, if they be of English
parents continuing at that time as liege subjects to the king, and having done no
act to forfeit the benefit of their allegiance, are ispo facto naturalized. (Bacon,
Francis, p.652)
Vattel used the word "naturalize" in a similar manner, implying that naturalization can, in
some cases, occur at birth. According to Vattel, English law "naturalizes", at birth, the
English-born children of alien parents:
Finally, there are states, as, for instance, England, where the single circumstance
of being born in the country naturalizes the children of a foreigner. (Vattel, §
214)
Ordinarily, naturalization was a legal process by which an alien adult acquired English
subjecthood. But in a more general sense, naturalization was any acquisition of English
subjecthood by human act or law, regardless of whether subjecthood was conferred at birth or
at some point after birth.
Fiction of Law: Yelverton, one of the judges who heard Calvin's Case in 1608, made a
distinction between subjects in fact and subjects by law. Parliament may deem someone to be
a natural-born subject by law, and may confer (by law) "natural-born subject" status to such
person, but can never make someone a natural-born subject "indeede" (i.e., in actual fact):
A parliament may make a man to be accompted as naturalised, and conclude

every man to say but that he is so, but it can never make a man to be so indeede
(Yelverton, as quoted by Galloway, p.157).
A series of English legal cases -- Foster v. Ramsey (1656), Collingwood v. Pace (1661-1664),
and Craw v. Ramsey (1669-1670) -- came to the same conclusion. Naturalization, whether by
England or by a foreign country, is merely a fiction of law which has no effect except in
countries which choose to "go along" with that fiction:
The law clearly held that naturalization equated an alien and a natural-born
subject. Yet as Chief Justice Vaugham noted, native Irishmen were natural
English subjects, although aliens naturalized in Ireland were not.
"The reason is, that naturalization is but a fiction of law, and can
have effect but upon those consenting to that fiction: therefore it hath
the like effect that a man's birth hath, where the lawmakers have
power, but not in other places where they have not. Naturalizing in
Ireland gives the same effect in Ireland as being born there, so in
Scotland as being born there, but not in England, which consents not
to the fiction of Ireland or Scotland, nor to any but her own."
A legal fiction could not in any absolute sense make an alien a natural-born
subject, for this would mean that he would have "two natural princes, one where
he was born and the other where naturalized." The idea was absurd as the
supposition that a man could have "two natural fathers, or two natural mothers."
(Kettner, pp.41-42)
According to Chief Justice Vaugham, an English natural-born subject in fact was someone
who, at birth, owed natural allegiance to the English king and did not, at birth, owe allegiance
to any other sovereign. The notion of a "true" natural-born subject having more than one
allegiance at birth was "absurd".
Meaning of Liege: In Calvin's Case, Lord Coke used the word liege to describe a natural-
born subject's ligeance (relationship with the king):
defend them. (Coke(1608), p.176, emphasis added)
The word liege carried a connotation of exclusive loyalty to only one lord, and freedom from
all obligations to other lords:
A liege lord seems to have been a lord of a free band; and his lieges, though
serving under him, were privileged men, free from all other obligations, their
name being due to their freedom, not to their service. (Webster's 1913 Dictionary:
liege, boldface emphasis added)
A subject's obligation to his liege lord took precedence over all others. Due to the
complexities of feudal relationships, sole allegiance to one lord exclusively was not always
possible, unless the "lord" was the king himself.
One of the characteristic marks of the feudal age was the use of personal ties to
bind society together. Loyalty was directed to a person's immediate lord; the
abstract concept of the "state" did not exist. This bond between men was
expressed in acts of "homage" and "fealty." ...

The act of homage had its roots in the German tribes that overran the Roman
Empire. It was the custom for the men of these tribes to pledge their service and
loyalty and to become the "man" of some chief. Therefore, the term "homage"
comes from the Latin word for man, "homo." ...
At this point, something should be said about liege homage. While the basic
concept of homage implied that a man had only one lord, by the ninth century
there were already instances of a man having two or more lords. This created the
obvious problem of reconciling loyalties to lords in conflict. Liege homage arose
to solve this problem. The liege lord had the first call on a man's services before
all ordinary lords. This however, did not remove the causes of multiple lords. So,
in time, liege homage went the route of simple homage, except in England where
the king successfully monopolized liege homage. (The Feudal Oath)
In his report regarding Calvin's Case (1608), Lord Coke described two kinds of homage:
feudal and liege. Feudal homage was homage that a serf owed to his lord, but liege homage
was owed to the king alone:
Homage in our book is twofold, that is to say, Homagium Ligeum [Liege

Homage], and that is as much as ligeance, of which Bracton speaketh, lib. 2. c.
35. fol. 79, Soli Regi debet' sine dominio, seu servitio [it is owed to the King
alone, without lordship or service], and there is Homagium feodale [feudal
homage] which hath his original by tenure. In Fit. Nat. Brev. 269, there is a writ
for respiting of this later homage (which is due ratione feodi sive tenurae:) Sciatis
quod respectuamus homagium nobis de terr' et tenementis quae tenentur de nobis
in capite debit' [by reason of fee or tenure: Know ye that we have respited the
homage due to us from the lands and tenements which are held of us in chief].
But Homagium ligeum, i.e. Ligeantia [ligeance], is inherent and inseparable, and
cannot be respited. (Coke(1608), p.182)
A natural-born subject's ligeance was a liege relationship between the subject and his king.
Since liege carried a connotation of exclusivity, it would appear that a natural-born subject's
ligeance implied exclusivity as well.
Natural Ligeance: During the sixteenth century Elizabethan succession debates, natural
ligeance was depicted as an exclusive bond "swallowing up all others":
All promises bind the parties. But the author of 'Certaine errours...' sees that there
is an important difference in their binding power. The author explains that
one tenaunt maie be of divers Lordes fees and homage.
In other words, the bond of fidelity created by homage does not prevent the
parties from engaging themselves in other similar bonds of fidelity with third
parties. But,
legiaunce...is the bonde of faith swallowinge up all others, and the

greatest among creatures, religion to the Creator reserved, due by the
lawe of god and nacions from the subject to the prince... [A] tenure
or oath of homage ableth not an aliann to be a subject of the
legiaunce of England nor to be a person capable of inheritance like
an English mann.
According to the Protestant author, nationality is a question of this 'bonde of faith

swallowinge up all others.' Even if Mary Stuart was the chief homager of the king
of England and, therefore, could rely on the bond of trust created by the homage,
that would not make her any less alien. The contractual bond of trust (fidelitatis
connexio) is 'instituted' by the parties in accordance with the (positive) law of the
kingdom. It arises and disappears as a result of the parties' own doing. The bond
of legiaunce, on the other hand, transcends the parties' own will or action. It is
'ordained' by the 'lawe of god and nacions'. ... Our author concludes his argument
with the following remark: 'One God, one king, one legiaunce'. This is the most
revealing explanation of the meaning of allegiance understood by sixteenth
century lawyers. (Kim (2000), pp.172-3)
Although homage was non-exclusive, natural ligeance was exclusive to one and only one
sovereign. In his Report on Calvin's Case, Lord Coke wrote that natural ligeance was
"absolute" and "pure":
There is found in the law four kinds of ligeances: the first is, ligeantia naturalis,
absoluta, pura, et indefinita [natural, absolute, pure and unlimited allegiance],
and this originally is due by nature and birthright, and is called alta ligeantia
[high allegiance] and he that oweth this is called subditus natus [subject
born].(Coke(1608), p.177)
In his Commentaries, William Blackstone described "natural allegiance" as an obligation of

allegiance that a child (if subject born) acquires, at birth, to the sovereign of the child's place
of birth. This "natural allegiance" is intrinsically exclusive: it is owed to one, and only one,
sovereign. If you have obligations of allegiance to more than one monarch, it is the result of
human action, not natural law:
Indeed the natural-born subject of one prince, to whom he owes allegiance, may
be entangled by subjecting himself absolutely to another; but it is his own act that
brings him into these straits and difficulties, of owing service to two masters ...
And this maxim of the law proceeded upon a general principle, that every man
owes natural allegiance where he is born, and cannot owe two such allegiances,
or serve two masters, at once. (Blackstone)
Ambassadors: By international convention, ambassadors enjoyed diplomatic immunity.

When an Englishman was sent as an ambassador to a foreign country, he did not owe any
allegiance -- not even "local" allegiance -- to the foreign king. Thus, the Englishman's
children, even if born in that foreign country, were not foreign subjects. Such children were
regarded as natural-born subjects of the English king.
And therefore if any of the King's ambassadors in foreign nations, have children
there of their wives, being English women, by the common laws of England they
are natural-born subjects, and yet they are born out-of the King's dominions.
(Coke(1608), pp.208-9)
Yet the children of the king's ambassadors born abroad were always held to be
natural subjects: for as the father, though in a foreign country, owes not even a
local allegiance to the prince to whom he is sent (Blackstone)
Could it be that the children of the English king's ambassadors were deemed to be natural
subjects of the English king, not because of the children's place of birth, but because such
children, at birth, owed allegiance to the English king only and did not owe any allegiance, at
birth, to any other sovereign?
Summary: The term "natural-born subject" had different meanings in different contexts. In

general, a natural-born subject was anyone who possessed the rights and obligations of a
native Englishman, regardless of when or how those rights and obligations were acquired.
In a "natural law" context, a natural-born subject was someone who acquired natural
allegiance at birth. Natural allegiance was exclusive. A person could not, at birth, owe natural
allegiance to more than one sovereign. It therefore appears that, in the "natural law" sense,
"natural born" carried a connotation of birth in a particular place and exclusive allegiance, at
birth, to the sovereign of that place.
29. What was Vattel's "Law of Nations"?
During the eighteenth century, two influential European writers -- German philosopher
Christian Wolff (1679-1754) and Swiss philosopher Emmerich de Vattel (1714-1767) --
published works in which they discussed, among other things, the "natural law" pertaining to
a child's citizenship at birth.
Christian Wolff: In 1749, Christian Wolff published a book, written in Latin, titled Jus
Gentium ("Law of Nations"). There was no English-language translation of Jus Gentium when
the U.S. Constitution was being written. The first English translation of Jus Gentium appeared
in 1934.
There was a French translation of the Jus Gentium in 1757-8 and the Institutiones
was translated into both German and French, but American libraries have
generally had nothing but the Latin text which repelled modern students. (Wright,
p.554).
Wolff's writings were not widely-read in the English colonies in America. But in Europe,
Christian Wolff was perhaps the most influential writer on international law of
the eighteenth century. His influence flowed not only from his reputation in other
fields -- mathematics, philosophy and theology --, from the voluminousness of
his writings, from the notoriety of his philosophical controversies, but also from
the logic, completeness and definiteness of his treatise on international law, first
published in 1749, as the ninth volume of his Jus Naturae et Gentium. ... [Wolff]
carried on the tradition of the Grotian school which rested international law upon
the two legs of natural law and voluntary law. (Wright, pp.552-3)
In Jus Gentium, Wolff explained several concepts pertaining to nationality:
Domicile: Everyone, except a vagabond, has a fixed dwelling place, or home, where he
or she intends to live permanently. Such a dwelling place, or residence, is called a
domicile.
Expatriation: Everyone has a right to change her or his domicile. You may abandon
your current domicile with the intent of never returning, and establish a new domicile
for yourself in a different country. If your intentions change -- that is, if the place where
you intend to live permanently changes -- your domicile changes accordingly.
Permanent citizen: Domicile and citizenship are intertwined. As a general rule, you are
a permanent citizen of the country in which your current domicile (primary permanent
legal residence) is located. Not all persons domiciled in a country are necessarily
citizens of that country. However, you cannot be a permanent citizen of a country unless
your permanent legal residence (domicile) is located in that country.

Temporary citizen: If you leave your current domicile for the purpose of visiting a
foreign country temporarily, and you intend to eventually return to your current
domicile, your current domicile (thus your permanent citizenship) does not change.
While you are residing in the foreign country, you are a temporary citizen of that
country, but you remain a permanent citizen of the country of your domicile. Your
temporary citizenship in a foreign country terminates as soon as you leave that foreign
country.
Acquired domicile: If you permanently leave your domicile and established a new
domicile elsewhere, your new domicile is called an acquired domicile. An acquired
domicile is a domicile that you establish for yourself by your own choice.
Natural domicile: Your natural domicile is your first, or original, domicile. It is defined
as your father's domicile at the time of your birth, regardless of your actual place of
birth.
Native country: Your native country is the country in which your natural domicile is
located. Your legal rights at birth stem from your native country, not the country in
which you were actually born.
For excerpts from a modern-day English translation of Wolff's Jus Gentium, see Appendix 1.
Vattel's Influence: In 1758, four years after Wolff's death, Swiss philosopher Emmerich de
Vattel (1714-1767) published Droit des Gens (which also means "Law of Nations"). Droit des
Gens was written in French and was based largely on Wolff's work. An English-language
translation was published in 1759.
Despite its critics, Vattel's Droit des Gens was immensely popular, especially in America
[19].
The extraordinary thing about the enthusiastic acceptance of Vattel's work was
that neither Vattel the man, nor the work itself, seemed worthy of it. That is,
Vattel was very much an epigone and in no way the intellectual equal of men like
Wolff and Liebnitz whose influence, in this field at least, he surpassed. In
addition, it is the consensus of scholars that the intrinsic value of Vattel's work
was not at all proportionate to the success achieved by it. (Ruddy, p.177)
According to C. Van Vollenhoven, an outspoken critic of Vattel:
...the most disheartening fact of all is that Vattel was enormously successful. The
man, who as a thinker and a worker, could not hold a candle to Grotius, was so
favored by fortune that the second stage of the Law of Nations (1770-1914
speaking roughly again) may be safely called after him. (Vollenhoven, as quoted
in Ruddy, p.178)
Likewise, in 1913, Professor Fenwick remarked:
A century ago not even the name Grotius was more potent in its influence upon
questions relating to international law than that of Vattel. Vattel's treatise on the
law of nations was quoted by judicial tribunals, in speeches before legislative
assemblies, and in the decrees and correspondence of executive officials. It was
the manual of the student, the preference work of the statesman and the text from
which political philosophers drew inspiration. Publicists considered it sufficient to
cite the authority of Vattel to justify and give conclusiveness and force to
statements as to the proper conduct of a state in international relations. (Charles

G. Fenwick, "The Authority of Vattel", VII American Political Science Review

(Baltimore, 1914), p.395, as quoted in Ruddy, p.178)
According to John Basset Moore, Vattel was
...more widely read and quoted than any other writer on the law of nations.
(Moore, as quoted in Ruddy, p.178)
Vattel's widespread acceptance and influence is reflected in the number of translations and
editions of his work:
There were between 1758 and 1834 twenty French editions of Droit des Gens.
There were between 1759 and 1834 ten translations of his work in England, and
from 1796 until 1872 eighteen translations, or reprints of translations, published
in the United States. Between 1820 and 1836 there were six translations of Vattel
into Spanish, one into German in 1760, and one into Italian in 1805. These facts
are put into greater perspective if one considers that Grotius, who had been
reprinted or translated fifty times between 1625-1758, went through only one
more edition (1773) and one more translation (1853) during the hundred years
after Vattel's publication. (Ruddy, pp.178-179)
In U.S. courts, Vattel was cited more frequently than all of his predecessors combined. The
following chart represents the results of Professor Dickinson's survey of American legal cases
from 1789 through 1820:
Citations in Court Court

Pleadings Citations Quotations
Grotius 16 11 2
Pufendorf 9 4 8
Bynkershoek 25 16 2
Vattel 92 38 22
American cases 1789-1820

(Source: Ruddy, p.179)
Vattel's work appeared prominently in American colleges and universities:
James Wilsons' lectures on jurisprudence in 1790, which gave "the first American
presentation of the principles of the law of nature and of nations" followed Vattel
very closely. In addition, when Jefferson inaugurated the study of the Law of
Nature and of Nations at William and Mary College in 1779, the text from then
until 1841 was Vattel's. Vattel was also the text at Dartmouth College from 1796-
1828. (Ruddy, p.179-180)
The Declaration of Independence and U.S. Constitution contain concepts and ideas which
came from Vattel [19].
Vattel is still cited in modern times. In 2008, the U.S. Supreme Court quoted Vattel's Law of

Nations regarding civilian access to military weaponry (Footnote 10, page 14, in District of
Columbia et al. v. Heller, 2008).
Vattel's Thesis: According to Vattel, the people living in a state consist of inhabitants,
perpetual inhabitants, and citizens (roughly analogous to foreigners, aliens and subjects).
Inhabitants are those who are living in the state temporarily. Perpetual inhabitants are those
who have established a permanent "fixed residence" or "settlement" within that state. A
citizen is a perpetual inhabitant who is also a full-fledged member of the state. One cannot be
a citizen of a state unless one is also a perpetual inhabitant of that state. The status -- whether
"citizen" or "perpetual inhabitant" -- of a child, at birth, is the status of its father at the time of
its birth.
Here are some excerpts, organized by subject, from an English translation of Vattel's Law of
Nations:
Inhabitants:
The inhabitants, as distinguished from citizens, are foreigners, who are permitted to
settle and stay in the country. Bound to the society by their residence, they are subject
to the laws of the state while they reside in it; and they are obliged to defend it, because
it grants them protection, though they do not participate in all the rights of citizens.
They enjoy only the advantages which the law or custom gives them. (Vattel, § 213)
Perpetual Inhabitants:
The perpetual inhabitants are those who have received the right of perpetual residence.
These are a kind of citizens of an inferior order, and are united to the society without
participating in all its advantages. Their children follow the condition of their
fathers; and, as the state has given to these the right of perpetual residence, their
right passes to their posterity. (Vattel, § 213)
Settlement:
Settlement is a fixed residence in any place, with an intention of always staying there. A
man does not, then, establish his settlement in any place, unless he makes sufficiently
known his intention of fixing there, either tacitly or by an express declaration. However,
this declaration is no reason why, if he afterwards changes his mind, he may not
transfer his settlement elsewhere. In this sense, a person who stops at a place upon
business, even though he stay a long time, has only a simple habitation there, but has no
settlement. Thus, the envoy of a foreign prince has not his settlement at the court where
he resides. (Vattel, § 218)
Original Settlement:
The natural, or original settlement, is that which we acquire by birth, in the place
where our father has his; and we are considered as retaining it, till we have abandoned
it, in order to choose another. The acquired settlement (adscititium) is that where we
settle by our own choice. (Vattel, § 218)
Vagrants:
Vagrants are people who have no settlement. Consequently, those born of vagrant
parents have no country, since a man's country is the place where, at the time of his
birth, his parents had their settlement ... or it is the state of which his father was then
a member, which comes to the same point; for, to settle for ever in a nation, is to
become a member of it, at least as a perpetual inhabitant, if not with all the
privileges of a citizen. (Vattel, § 219)
Country:
The term, country, seems to be pretty generally known: but as it is taken in different

senses, it may not be unuseful to give it here an exact definition. It commonly signifies
the State of which one is a member: in this sense we have used it in the preceding
sections; and it is to be thus understood in the law of nations.
In a more confined sense, and more agreeably to its etymology, this term signifies the
state, or even more particularly the town or place where our parents had their fixed
residence at the moment of our birth. In this sense, it is justly said, that our country
cannot be changed, and always remains the same, to whatsoever place we may
afterwards remove. A man ought to preserve gratitude and affection for the state to
which he is indebted for his education, and of which his parents were members when
they gave him birth. But as various lawful reasons may oblige him to choose another
country, -- that is, to become a member of another society; so, when we speak in
general of the duty to our country, the term is to be understood as meaning the state of
which a man is an actual member; since it is the latter, in preference to every other
state, that he is bound to serve with his utmost efforts. (Vattel, § 122)
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 the
society cannot exist and perpetuate itself otherwise than by the children of the citizens,
those children naturally follow the condition of their fathers, and succeed to all
their rights. ...it is presumed, as matter of course, that each citizen, on entering into
society, reserves to his children the right of becoming members of it. The country of
the fathers is therefore that of the children; and these become true citizens merely by
their tacit consent. ... I say, that, in order to be of the country, it is necessary that a
person be born of a father who is a citizen; for, if he is born there of a foreigner, it will
be only the place of his birth, and not his country. (Vattel, § 212)
Foreign birth:
By the law of nature alone, children follow the condition of their fathers, and enter
into all their rights (§ 212); the place of birth produces no change in this particular, and
cannot, of itself, furnish any reason for taking from a child what nature has given him;...
(Vattel, § 215)
...for, naturally, it is our extraction, not the place of our birth, that gives us rights...
(Vattel, § 216)
Expatriation:
The children are bound by natural ties to the society in which they were born; ... ...they
have a right to enter into the society of which their fathers were members. But
every man is born free; and the son of a citizen, when come to the years of discretion,
may examine whether it be convenient for him to join the society for which he was
destined by his birth. If he does not find it advantageous to remain in it, he is at liberty
to quit it, on making it a compensation for what it has done in his favour, and
preserving, as far as his new engagements will allow him, the sentiments of love and
gratitude he owes it. A man's obligations to his natural country may, however, change,
lessen, or entirely vanish, according as he shall have quitted it lawfully, and with good
reason, in order to choose another, or has been banished from it deservedly or unjustly,
in due form of law or by violence.
As soon as the son of a citizen attains the age of manhood, and acts as a citizen, he
tacitly assumes that character; his obligations, like those of others who expressly and
formally enter into engagements with society, become stronger and more extensive: but

the case is very different with respect to him of whom we have been speaking. ... A
citizen may therefore quit the state of which he is a member, provided it be not in such
a conjuncture when he cannot abandon it without doing it a visible injury. ... Every
man has a right to quit his country, in order to settle in any other, when by that
step he does not endanger the welfare of his country. But a good citizen will never
determine on such a step without necessity, or without very strong reasons. It is taking a
dishonourable advantage of our liberty, to quit our associates upon slight pretences,
after having derived considerable advantages from them; and this is the case of every
citizen, with respect to his country. (Vattel, § 220)
Summary: During the eighteenth century, several European authors had published their
theories regarding natural law and the law of nations. The work of one such author,
Emmerich de Vattel, was popular and influential in the English colonies in America,
especially after they gained their independence from Great Britain.
Three points regarding citizenship emerge from Vattel's writings:
Exclusivity: Vattel presumes that an individual abandons his current "settlement"

(primary permanent legal residence or domicile) when establishing a new settlement
elsewhere; hence each person has, at most, only one "settlement" at any one time. Since
the country of one's citizenship is the country of one's settlement, and since an
individual has, at most, only one settlement, "permanent citizenship" implies exclusive
membership in one, and only one, society at any particular point in time. The notion of
dual citizenship -- being a permanent citizen of more than one country at the same time
-- makes about as much sense as having two primary permanent legal residences
simultaneously.
Jus sanguinis: Each State has the right to establish its own citizenship criteria and
confer citizenship on anyone it chooses. States are under no obligation to conform to
any particular "natural law" theory. Nevertheless, in Vattel's understanding of natural
law, a child naturally acquires, at birth, the rights (including citizenship) of its father,
regardless of the child's place of birth. "By the law of nature alone, children follow the
condition of their fathers, and enter into all their rights" (Vattel, § 212).
Expatriation: Everyone has the right to terminate his existing citizenship and become a
naturalized citizen of another country, as long as such expatriation causes no harm.
30. What is the root of the "natural born citizen" debate?
When the thirteen colonies gained their independence and became the original thirteen States,
each State did not discard its existing government, nor did it try to create an entirely new
government "from scratch". Instead, each State retained its existing English legal system and
modified it as necessary. In general, English common law, including the jus soli principle and
the doctrine of perpetual allegiance, continued to prevail at the State level.
But to what extent did English common law "continue to prevail" at the Federal or national
level? According to one school of thought, since English common law persisted among the
States, it must have also persisted under the U.S. Constitution. According to an opposing
school of thought, European political and natural law theory, including but not limited to
Vattel's Law of Nations, influenced the Founding Fathers as they wrote the Declaration of
Independence and the U.S. Constitution.

A book titled A Treatise On the Law Of Citizenship In The United States was published in
1891, well after the 14th Amendment was ratified (1868) but well before the Supreme Court
ruled in U.S. v. Wong Kim Ark (1898). According to the book's author, Prentiss Webster
(1851-1898), differences of opinion regarding citizenship are largely due to differences of
opinion regarding our nation's founding principles.
Webster cites expatriation as an example of a citizenship-related controversy.
In Ainslie vs. Martin (1812), the Massachusetts Supreme Court ruled that U.S. citizens do not
have a right to terminate their U.S. citizenship and become naturalized citizens of another
country:
This claim of the commonwealth to the allegiance of all persons born within its
territory may subject some persons, who, adhering to their former sovereign, and
residing within his dominions, are recognized by him as his subjects, to great
inconvenience, especially in time of war, when the opposing sovereigns claim
their allegiance. But the inconvenience cannot alter the law of the land. Their
situation is not different in law, whatever may be their equitable claims, from the
situation of these citizens of the commonwealth who may be naturalized in the
dominion of a foreign prince. The duties of these persons arising from their
allegiance to the country of their birth remain unchanged and unimpaired by their
foreign naturalization. For by the common law no subject can expatriate himself.
(Ainslie vs. Martin (1812), as quoted in Webster, p, 78)
But, in Murray vs. McCarthy (1811), a Virginia court affirmed the right of U.S. citizens to
expatriate themselves from the United States, provided that they do so according to law:
It is believed that the right of emigration or expatriation is one of those inherent

rights, of which, when men enter into a state of society, they cannot by any
compact deprive or divest their posterity. But although municipal laws cannot
take away or destroy this right, they may regulate the manner and prescribe the
evidence of its exercise, and in the absence of the regulations juris positivi, the
right must be exercised according to the principles of law. (Murray vs. McCarthy
(1811), as quoted in Webster, p, 79)
The Massachusetts court denied the right of expatriation, but the Virginia court did not.
According to Webster, these differing opinions regarding citizenship were due to differing
understandings of the Founding Fathers' political philosophy:
By what processes of reasoning these two opinions so diametrically opposed

were reached is to be explained by this: that in the first, the common law was
believed to be the guide to the declaration of independence and the constitution
of the United States, while in the second the reason is from the principles as laid
down by the founders of the government and based on the natural law of man. ...
The first recognized the English common law as the guide to the American form
of government, while the second recognized the government to be founded on the
natural law of man. (Webster, p. 79)
As a general rule, those who believe that English common law guided the forming of the U.S.
government, tend to also believe that English common law guided the Founding Father's
understanding of citizenship. Likewise, those who believe that western European political and
natural law theorists, such as Vattel, influenced the Declaration of Independence and U.S.
Constitution, tend to also believe that those same theorists influenced the early American
meaning of "citizen".

Under English common law, any child born on English soil (except the child of a foreign
ambassador or alien enemy) was a natural-born subject, and English natural-born subjects
owed perpetual allegiance to the king. Therefore, if you believe that English common law
guided the formation of the U.S. national government, you are likely to also believe that U.S.
citizenship was based on the jus soli principle, and that U.S. citizens did not have the right of
expatriation.
On the other hand, European political and natural law theorists, such as Vattel, taught that
children, at birth, acquire citizenship by descent from their fathers, and that expatriation is a
basic human right. Thus, if you believe that European theorists influenced the Founding
Fathers as they wrote the Declaration of Independence and the U.S. Constitution, you are
likely to also believe that the Founding Fathers' understanding of citizenship included the jus
sanguinis principle and the right of expatriation.
The differences between English common law and European political theory are summarized
in Appendix 3
After gaining independence, the original thirteen States did not abolish their English-based
governments and laws. Instead of creating a new government and legal system "from
scratch", each State retained its colonial system of laws and government, and modified it as
necessary. The States retained aspects of English common law, including the "rule" which
granted citizenship to children of alien parents who, though not yet citizens, had sworn an
oath of allegiance to the State and had established permanent legal residence, or domicile,
within the State:
While all States could be said to have recognized place of birth as conferring
State citizenship, it is important to realize many of these States also required of
anyone who desired to become domiciled within their limits to first swear off all
allegiances to other governments and pledge their allegiance solely to the State.
Therefore, a child born to domiciled parents was "born within the allegiance" of
the State -- and this was truly the prevailing rule [in the United States] ...
(Madison(2007))
The early framers of the Federal government seemed disinclined to follow the English
understanding of sovereignty and allegiance.
John Jay's notion of "popular sovereignty" reflects European political theory more than
English common law:
[T]he sovereignty of the nation is in the people of the nation, and the residuary
sovereignty of each State in the people of each State. ...
[A]t the Revolution, the sovereignty devolved on the people; and they are truly
the sovereigns of the country, but they are sovereigns without subjects (unless the
African slaves among us may be so called) and have none to govern but
themselves; the citizens of America are equal as fellow citizens, and as joint
tenants in the sovereignty. ...
Sovereignty is the right to govern; a nation or State-sovereign is the person or

persons in whom that resides. In Europe the sovereignty is generally ascribed to
the Prince; here it rests with the people; there, the sovereign actually administers
the Government; here, never in a single instance; our Governors are the agents of
the people, and at most stand in the same relation to their sovereign, in which
regents in Europe stand to their sovereigns. (Chief Justice John Jay, Chisholm
v.Georgia, 1793)

According to a recent article in the Michigan Law Review, the English concept of "subject"
was not the same as the Republican concept of "citizen":
Both Jay and Wilson's opinions suggest that usage in the founding era reflected a
significant conceptual distinction between the words "subject" and "citizen" -- a
distinction that was strongly associated with the ideas about the nature of
sovereignty. The term "citizen" reflects the notion that individual citizens are
sovereign in a republic, whereas the term "subject" reflects feudal and
monarchical conceptual of the monarch as sovereign and the individual as the
subject, owing a duty of allegiance and duty to the monarch. This conceptual
distinction may be relevant to the original understanding of the phrase "natural
born citizen" which was used instead of "natural born subject," the phrase that
served as a term of art in English legal usage. The notion of a natural born
subject may reflect a feudal understanding of political obligation: those born in
the kingdom owed a natural duty of allegiance to their king and were his natural
subjects. Given a republic theory of popular sovereignty, citizens are sovereign
and the notion of a "natural born subject" would be anathema. (Solum, p.10)
Thomas Jefferson rejected the English common law notion of perpetual allegiance, and
affirmed each individual's right of expatriation:
That our citizens are certainly free to divest themselves of that character, by
emigration and other acts manifesting their intention and may then become the
subjects of another power and be free to do whatever the subjects of that power
do. (Thomas Jefferson, as quoted by Webster, p.76)
If we carry Webster's reasoning a step further, the philosophical system that controlled the
original meaning of "natural born citizen" was, most likely, the same system that guided the
Founding Fathers as they wrote the Declaration of Independence and the U.S. Constitution.
If the Framers of the Constitution were guided by English common law, the original meaning
of "natural born citizen" was likely based on English common law as well; in which case, the
original meaning of "natural born citizen" was probably based on the jus soli principle. This
means that anyone born in the United States (except the child of an ambassador or alien
enemy) is at least a U.S. citizen at birth, if not a natural born citizen as well.
On the other hand, if the Founding Fathers were guided by European political and natural law
theorists, such as Vattel, the original meaning of "natural born citizen" was probably based on
the jus sanguinis principle; in which case, you cannot be a U.S. natural born citizen unless
your father was a U.S citizen at the time of your birth.
Seven years after A Treatise On the Law Of Citizenship In The United States was published,
the U.S. Supreme Court decided the case of U.S. v. Wong Kim Ark.
In the majority's Opinion of the Court, English common law was "in force" when the
United States was founded, "continued to prevail" under the Constitution, and
controlled the Constitutional meaning of citizenship. According to the jus soli principle
of English common law, U.S.-born children of "domiciled" (permanent legal resident)
alien parents are citizens by birth.
In the minority's Dissenting Opinion, the Law of Nations controlled the Constitutional
meaning of citizenship. According to the jus sanguinis principle promoted by European
natural law theorists, a child is naturally a citizen at birth only if its parents were
citizens at the time of its birth, regardless of the child's place of birth.

In the Wong Kim Ark case, the difference of opinion among the justices was rooted in their
differing understandings of America's history and founding principles. The split decision in
Wong Kim Ark illustrated Webster's main point: that one's understanding of Constitutional
citizenship reflects one's belief as to which philosophical system -- English common law, or
European political and natural law theory -- guided the framers of the U.S. Constitution.
31. What's the "beef" with President Obama's birth certificate?
President Obama has published, on the internet, a digital photograph of a computer-generated

Certification of Live Birth (or COLB), also known as a "short-form birth certificate". In the
photograph, the certificate number has been electronically "blacked out". There is suspicion
that the photograph might have been altered in other ways as well (Polarik).
At the time of this writing, President Obama has not published a copy of his original 1961
typewritten long-form birth certificate containing the names and signatures of people who
witnessed his birth or independently confirmed his birth information. (See Sample Hawaiian
long-form birth certificate, 1961).
The Department of Hawaiian Home Lands website explains the difference between a birth
Certificate and a birth Certification:
The Department of Hawaiian Home Lands accepts both Certificates of Live Birth
(original birth certificate) and Certifications of Live Birth because they are
official government records documenting an individual's birth. The Certificate of
Live Birth generally has more information which is useful for genealogical
purposes as compared to the Certification of Live Birth which is a computer-
generated printout that provides specific details of a person's birth.(Applying for
Hawaiian Home Lands)
In Hawaii, the contents of an original long-form birth certificate are private and confidential
information, protected by State law. The Aloha State will not release a copy of an original
birth certificate without proper authorization. So far, President Obama has not given his
permission for the release of his original long-form birth certificate.
If you were born in Hawaii and you ask for a copy of your Hawaiian birth certificate for a
routine everyday purpose such as applying for a drivers license, the Hawaii Department of
Health will send you a computer generated short-form Certification of Live Birth, which
shows only minimal information -- your name, date of birth, place of birth, name and race of
each of your parents, and so forth. A short-form Certification of Live Birth can be used,
instead of an original long-form birth certificate, for most purposes. The Department of
Health will not send you a copy of your original long-form birth certificate, unless you
specifically ask for it.
A short-form Certification of Live Birth shows an individual's birth information but does not
show the source of that information. The source of one's birth information might be a
hospital, a birthing clinic, a doctor, a midwife or a parent's or relative's affidavit. In Hawaii,
the name of such source is private and confidential. It is identified only on an original long-
form birth certificate, and is not indicated on a short-form Certification of Live Birth.
Barack Obama's published short-form Certification of Live Birth (assuming it is authentic)

tells us two things:
The State of Hawaii has, in its files, the President's original birth records; and

The President's original birth records say that he was born in Hawaii.
But a Certification of Live Birth does not answer these questions:
Where did the information, contained in Obama's birth records, originally come from?
Did it come from a hospital? Doctor? Midwife? Or did it come from a family member?
If the information came from a family member, to what extent, if any, was this
information confirmed by someone other than a family member?
Until these questions are answered, we cannot say whether Obama's birth information,
including his place of birth, has been independently verified or confirmed by a non-family-
member.
32. Didn't the State of Hawaii recently verify that President Obama was born in Hawaii?
On October 31, 2008, Dr. Chiyome Fukino, Director of Health for the State of Hawaii,
released this public statement regarding (then Senator) Barack Obama's birth certificate:
There have been numerous requests for Sen. Barack Hussein Obama's official
birth certificate. State law (Hawai'i Revised Statutes 338-18) prohibits the release
of a certified birth certificate to persons who do not have a tangible interest in the
vital record.
Therefore, I as Director of Health for the State of Hawai'i, along with the
Registrar of Vital Statistics who has statutory authority to oversee and maintain
these type of vital records, have personally seen and verified that the Hawai'i
State Department of Health has Sen. Obama's original birth certificate on record
in accordance with state policies and procedures.
No state official, including Governor Linda Lingle, has ever instructed that this
vital record be handled in a manner different from any other vital record in the
possession of the State of Hawai'i. (Statement by Dr. Chiyome Fukino, October
31, 2008, boldface emphasis added).
On July 27, 2009, Dr. Chiyome Fukino issued a second statement:
I, Dr. Chiyome Fukino, Director of the Hawai'i State Department of Health, have
seen the original vital records maintained on file by the Hawai'i State Department
of Health verifying Barack Hussein Obama was born in Hawai'i and is a natural-
born American citizen. I have nothing further to add to this statement or my
original statement issued in October 2008 over eight months ago. (Statement by
Dr. Chiyome Fukino, July 27, 2009, boldface emphasis added)
In her first statement, Dr Fukino "verified" that the State of Hawaii has, in its possession,
Obama's original birth records. According to her second statement, Obama's original birth
records "verify" (i.e., "say") that Obama was born in Hawaii.
On May 2, 2010, Hawaii Governor Linda Lingle, during a radio interview, gave her assurance
that Obama's birth records establish, as fact, that the President was born in Hawaii.
This [birth certificate] issue kept coming up so much in the [2008 presidential]
campaign, and again I think it's one of those issues that is simply a distraction
from the more critical issues that are facing the country. So I had my health
director, who is a physician by background, go personally view the birth

certificate in the birth records of the Department of Health, and we issued a news
release at that time saying that the president was, in fact, born at Kapi'olani
Hospital in Honolulu, Hawaii. And that's just a fact and yet people continue to
call up and e-mail and want to make it an issue and I think it's again a horrible
distraction for the country by those people who continue this. ... The question has
been asked and answered, and I think we should all move on now. (Interview:
Governor Linda Lingle (May 2, 2010))
Gov. Lingle has expressed her personal conviction that Obama was born in Hawaii. But she
did not explain the basis of her conviction. She did not say, for example, that she had
personally viewed Obama's original birth documents and had performed her own assessment
of the documents' probative value.
Applicable state law: Under the laws that were in effect in Hawaii when Barack Obama was
born, the State of Hawaii would not have issued an "original" (non-adoption-related)
Hawaiian birth certificate, declaring that a child was born in Hawaii, unless the Aloha State
believed that the child was born in Hawaii. The Hawaii Department of Health would not have
knowingly issued an original birth certificate containing false or incorrect information
regarding the child's place of birth.
Act 96 of Laws of the Territory of Hawaii was adopted in 1911. Under this Act, original
Hawaiian birth certificates were issued only to individuals who were believed to be born in
Hawaii:
The Secretary of Hawaii may, whenever satisfied that any person was born within
the Hawaiian Islands, cause to be issued to such person a certificate showing such
fact. (pp 127-128, Laws of the Territory of Hawaii)
A subsequent law, enacted in 1955, reaffirmed the fact that original Hawaiian birth certificates
were given only to persons believed to be born in Hawaii. But the 1955 law allowed Hawaii
to issue a birth certificate to a child whose actual place of birth was not independently
confirmed by a non-family member.
In 1961, if a person was born in Hawaii but not attended by a physician or

midwife, then all that was required was that one of the parents send in a birth
certificate to be filed. The birth certificate could be filed by mail. There appears
to have been no requirement for the parent to actually physically appear before
"the local registrar of the district." It would have been very easy for a relative to
forge an absent parent's signature to a form and mail it in. In addition, if a claim
was made that "neither parent of the newborn child whose birth is unattended as
above provided is able to prepare a birth certificate, the local registrar shall secure
the necessary information from any person having knowledge of the birth and
prepare and file the certificate." (Section 57-8&9)
I asked the Dept of Health what they currently ask for (in 2008) to back up a
parent's claim that a child was born in Hawaii. I was told that all they required
was a proof of residence in Hawaii (e.g. a driver's license [We know from
interviews with her friends on Mercer Island in Washington State that Ann
Dunham had acquired a driver's license by the summer of 1961 at the age of 17]
or telephone bill) and pre-natal (statement or report that a woman was pregnant)
and post-natal (statement or report that a new-born baby has been examined)
certification by a physician. On further enquiry, the employee that I spoke to
informed me that the pre-natal and post-natal certifications had probably not been
in force in the '60s. Even if they had been, there is and was no requirement for a

physician or midwife to witness, state or report that the baby was born in Hawaii.
(Western Journalism, Investigator's June 10 Report)
If a birth certificate is based solely on a parent's or relative's uncorroborated statement, and

such a birth certificate is presented as evidence to a court or agency, the court or agency must
determine, for itself, the birth certificate's probative value:
In 1961, if a person was born in Hawaii but not attended by a physician or mid
wife, then, up to the first birthday of the child, an adult could, upon testimony,
file a "Delayed Certificate", which required endorsement on the Delayed
Certificate of a summary statement of the evidence submitted in support of the
acceptance for delayed filing, which evidence must be kept in a special
permanent file. The statute provided that the probative value of the Delayed
Certificate must be determined by the judicial or administrative body or official
before whom the certificate is offered as evidence. (See Section 57-18, 19 & 20 of
the Territorial Public Health Statistics Act in the 1955 Revised Laws of Hawaii
which was in effect in 1961). (Hawaii Birth Records Law)
At the time of this writing, we are not aware of any law or birth registration procedure that (a)
was in effect in Hawaii in 1961, and (b) allowed the Hawaii Department of Health to issue an
original (non-adoption-related) birth certificate declaring that a person was born in Hawaii,
when such person was known to have been born outside of Hawaii.
Hawaiian Statute 338-17.8, Certificates for children born out of State, allowed Hawaiian birth
certificates to be issued to foreign-born children of Hawaii-resident parents. But Statute 338-
17.8 was not enacted until 1982, well after Barack Obama was born.
Newspaper birth announcement: During the early '60s, whenever a birth was registered in
Hawaii, the Department of Vital Statistics automatically generated a birth announcement and
sent it to the local newspapers for publication. Obama's birth announcement appeared in both:
The Honolulu Advertiser, August 13, 1961, page B-6, and
The Honolulu Star Bulletin, August 14, 1961.
This birth announcement indicates that Obama's birth was registered in Hawaii in August of
1961. In the Honolulu Advertiser, Obama's birth announcement appeared under a column
labeled "Health Bureau Statistics", indicating that the birth announcement came from the
Department of Vital Statistics, not from a private citizen or family member.
Such vital statistics, however, were not sent to the newspapers by the general
public but by the Health Department, which received the information directly
from hospitals, Okubo said. Birth announcements from the public ran elsewhere
in both papers and usually included information such as the newborn's name,
weight and time of birth. (Hawaii officials confirm Obama's original birth
certificate still exists)
Summary: Based on these four pieces of information -- Obama's published Certification of

Live Birth, Dr. Fukino's and Gov. Lingle's public statements, the laws and administrative
procedures which were in effect in Hawaii in 1961, and Obama's birth announcement
published in the local Honolulu newspapers in 1961 -- we conclude that (a) Obama's birth was
registered in Hawaii in 1961, and (b) Obama's birth registration says he was born in Hawaii.
However, unanswered questions remain. When Barack Obama's birth was registered in
Hawaii in 1961, who or what was the source of his birth information? Was it a hospital? A

doctor? A midwife? Or was it based solely on a parent's or relative's statement?
Dr. Fukino and Gov. Lingle have stated publicly that they believe President Obama was born
in Hawaii. Dr. Fukino has characterized Obama's original birth records as "verifying" the
President's birth in Hawaii. Unfortunately, Dr. Fukino and Gov. Lingle cannot (due to
Hawaii's privacy laws) disclose the source of Obama's birth information [86] and
consequently they cannot eliminate the possibility that Obama's birth registration was based
solely on a family member's uncorroborated statement.
If a child's family has no reason to falsify a child's birth information, we might accept a
family member's statement "as is", without independent corroboration. Unfortunately,
Obama's parents may have had a compelling reason to commit birth certificate fraud. When
Obama was born (on August 4, 1961), his father (Obama Senior) was not a U.S. citizen, and
his mother (Stanley Ann) was too young to confer U.S. citizenship to a foreign-born child.
Consequently, if Obama were born overseas, he did not acquire U.S. citizenship at birth.
Obama's American citizen parent, Ann Dunham, had to have been a resident of
the United States for 10 years, at least five of which were over the age of 14.
Dunham did not meet that requirement (of the Nationality Act of 1940, revised
June, 1952) until her 19th birthday in late November of 1961, almost four months
after Obama was born. The law confers U.S. nationality on the infant of a foreign
father only under certain circumstances; it would apply to "(7) a person born
outside the geographical limits of the United States and its outlying possessions
of parents one of whom is an alien, and the other a citizen of the United States,
who prior to the birth of such person, was physically present in the United States
or its outlying possessions for a period or periods totaling not less than ten years,
at least five of which were after attaining the age of fourteen years." (Fredrick)
If Obama were born outside of the United States, he was not a U.S. citizen by birth.
Nevertheless, his parents could have acquired U.S. citizenship for him through birth certificate
fraud. They could have (a) registered his birth in Hawaii as "unattended," and (b) claimed
(falsely), on his birth registration form, that he was born in Hawaii. Since Obama's parents
may have had a compelling reason to misprepresent their son's place of birth, their
uncorroborated statement, by itself, is insufficient to "verify" the President's birth in Hawaii.
33. Doesn't the mere existence of Barack Obama's Hawaiian birth registration prove
that he was born in Hawaii?
Barack Obama's birth registration, by its mere existence, indicates that the State of Hawaii
believed (or at least did not disbelieve) that he was born in Hawaii. His birth registration
would prove that he was born in Hawaii only if his birth in Hawaii was witnessed or
confirmed by someone other than an immediate family member. For example:
If Barack Obama was born in a hospital in Hawaii, his birth certificate would indicate
that a hospital had confirmed his birth in that hospital. Such confirmation would show,
beyond reasonable doubt, that President Obama was born in Hawaii.
If Barack Obama was born at home, his birth certificate would show the name of the
professional (presumably, a doctor, midwife or paramedic) who assisted with the
delivery. The professional's name and signature would confirm, and thus remove any
reasonable doubt, that Obama's birth took place in Hawaii.
If Barack Obama was born at home and his birth was not attended by a doctor or
midwife, his birth certificate would show the name of the doctor who examined the

baby shortly after its birth. The name and signature of the doctor who did the postnatal
examination would confirm that Obama was born in Hawaii.
But consider this hypothetical scenario: Suppose Stanley Ann Obama (President Obama's
mother) had been a resident of Hawaii since June 1960. Suppose that, in November or
December 1960, upon learning of her pregnancy, she received prenatal care from a local
doctor in Hawaii. Suppose that, on Tuesday August 8, 1961, Madeline Dunham [87] --
Stanley Ann's mother, also President Obama's maternal grandmother -- registered the
"unattended" birth of her teenage daughter's son. (A birth is "unattended" if it did not take
place in a hospital, and was not attended by a doctor or midwife). Suppose Madeline told a
health department worker that her daughter, Stanley Ann, had given birth, at home, on Friday
evening, August 4, 1961.
Suppose Madeline was able to provide the Department of Health with the following
documentation:
Madeline's written statement saying that Barack Obama II was born in Hawaii
Proof that she (Madeline) had been a resident of Hawaii for more than a year
Proof that her daughter (Stanley Ann) had been a Hawaii resident for more than a year
Proof that Stanley Ann had received prenatal care while in Hawaii
Proof that the baby's mother (Stanley Ann) and father (Barack Obama Sr.) were married
at the time of the baby's birth
A document or form, bearing what appears to be Stanley Ann's signature, attesting to
Barack Obama II's birth in Hawaii
An acknowledgment by Barack Obama Sr. that he is the biological father of the child
Given the above information, the Hawaii Department of Health -- under the laws in effect in
1961 -- might have issued a Hawaiian birth certificate to Barack Obama II, even though no
one outside of his immediate family had actually witnessed or confirmed his birth in Hawaii.
(Western Journalism, June 10 Report).
It is possible that President Obama was born outside of Hawaii, and Madeline Dunham
fraudulently registered his birth in Hawaii, as an "unattended" birth [88]. In the absence of an
original long-form birth certificate, this possibility cannot be entirely ruled out.
Since birth certificate fraud can and does occur, the U.S. State Department no longer
automatically accepts non-hospital-generated birth certificates as proof of U.S. birth and
citizenship. If an individual was born at home, his/her birth certificate, even if signed by a
doctor, is not sufficient for passport application purposes. If Barack Obama were to apply for
a passport today, his published Certification of Live Birth would not be adequate. He would
need to provide additional documentation showing that he was born in a hospital or other
"appropriate medical facility" (Citizens "Born In A House" Are Denied Passports Despite
Having Birth Certificates).
Until President Obama releases an original birth certificate showing independent

corroboration of his birth in Hawaii, no one can say for sure whether the President meets the
first requirement of natural born citizenship -- birth within the United States.
34. Do birthers actually believe that President Obama was born in a foreign country?
Birthers are divided over the birthplace issue. Some believe President Obama was born
outside the United States. Others believe that, when the President's long-form birth certificate
is released, it will show conclusively that he was born in Hawaii.

Most birthers, when asked, "Is Barack Obama a U.S. citizen? Was he born in Hawaii? Is he
eligible to serve as President?", will generally answer:
"We don't know. That's what we are trying to find out!"
Joseph Farah, a well-known "birther" spokesperson, emphasizes that he is not claiming that
President Obama is foreign-born:
I remain absolutely agnostic on the question of whether Obama is constitutionally

eligible to serve. I just plain don't know -- and I'm honest enough to say it, over
and over again. (Joseph Farah, Who are the real conspiracy theorists?, March 1,
2010)
WorldNetDaily, which routinely reports on the Obama eligibility issue, has never reported
that Obama was foreign-born:
WND, meanwhile, has never reported Obama was born outside the U.S. Instead,
WND has reported that Obama has not released documentary evidence
conclusively proving his place of birth. (WorldNetDaily article, Obama pal slams
WND for eligibility reporting, July 21, 2010)
The birthers.org website does not claim that Barack Obama was born in a foreign country. It
says there is uncertainty regarding the President's place of birth and calls for a resolution of
this uncertainty:
The question of Barrack Hussein Obama, II's actual location of birth is of great
concern. Until he releases his vault copy, of the long form birth certificate and
supporting evidence such as the hospital records, this issue will haunt him for his
entire term in office. (Birther website article: Where in the World Was Obama
Born?)
Among the various attorneys and plaintiffs who have filed lawsuits challenging the President's
eligibility and/or seeking the release of his original long-form birth certificate, there is no
consensus of opinion regarding the President's actual place of birth.
Attorney Phil Berg believes the President was born in Kenya.
Dr. Orly Taitz, in recent public interviews, has said that the Obama eligibility issue is
about both his place of birth and his foreign citizenship at birth. However, until
recently, her eligibility lawsuits have focused almost exclusively on Obama's birth
certificate and purported birth in Kenya.
Charles F. Kerchner, Jr., plaintiff in the Kerchner v. Obama lawsuit, has stated publicly
that he believes Obama was born in Kenya. His attorney, Attorney Mario Apuzzo, is
cautious regarding the birthplace issue, saying only that there is information which leads
one to suspect that the President might have been born overseas. (Podcast audio:
Apuzzo/Kerchner interview on Jeff Kuhner Show, 30 Apr 2010). The Kerchner case
alleges that, regardless of his place of birth, Obama is ineligible to serve as President,
due to his dual citizenship at birth.
Attorney Gary Kreep, of the United States Justice Foundation, believes Obama could
have been born in Hawaii, but there is insufficient information in the public domain to
say for sure. (YouTube video: Floyd Brown interviews attorney Gary Kreep)
Attorney Leo Donofrio believes Barack Obama was probably born in Hawaii.

One-time adjunct law professor Andy Martin, whom some Obama supporters have
dubbed "king of the birthers", believes the President was born in Hawaii (Andy Martin
interview, May 3, 2010). Martin argues that the President's birth certificate is an
historical document and, for that reason, seeks its release.
As this Primer has pointed out, there are facts which give rise to suspicion and doubt
regarding the President's place of birth. However, at the time of this writing, we are not aware
of any verified fact that directly challenges Obama's birth in Hawaii.
Barack Obama's paternal grandmother, Sarah Obama, stated that she witnessed the
President's birth in Kenya. However, her statement was not made under oath, and the
truthfulness of her statement has not been independently confirmed or verified.
In a speech before the Kenyan Parliament, James Orengo (the Kenyan Minister for
Lands) stated that President Obama is Kenyan-born. However, Mr. Orengo's statement
was not made under oath, and the truthfulness of his statement has not been
independently confirmed or verified.
Lucus Smith has published a document that he claims to be a certified copy of

President Obama's Kenyan birth certificate. However, the authenticity of this document
has not been independently verified.
Obama's refusal to release his original birth records gives rise to suspicion, but
suspicion is not factual evidence of anything.
There are indications that the Published Digital Photograph of Obama's Certification of
Live Birth might have been altered, if not fabricated (Polarik). But a fictitious
photograph, though suspicious, does not directly impugn the President's birth in Hawaii.
The Hawaii Department of Health appears to have mishandled UIPA requests made by
citizens seeking information regarding Obama's birth records. (See Red Flags in Hawaii
and Hawaii Department of Health denied UIPA responses). Although it raises
suspicion, Hawaii's mishandling of UIPA requests is not, in itself, evidence that Obama
was born outside of Hawaii.
In at least one case in which a plaintiff's lawsuit was based solely on the birthplace/birth
certificate issue, a court found insufficient factual evidence to proceed:
Plaintiff presents nothing but conjecture and subjective belief to substantiate the
basis for her claims (Judge Xavier Rodriguez, as quoted in Order Denying Orly
Taitz's Recusal)
Birthers generally concede they do not have a "smoking gun" regarding the birthplace issue.
They have reasons for suspicion and doubt about the President's place of birth, but they do not
have enough solid factual evidence to prove, in court, the theory that Obama was born outside
of the United States. At the same time, birthers also point of that there is insufficient
information in the public domain to establish conclusively Obama's birth in Hawaii.
35. If President Obama's birth certificate shows conclusively that he was born in Hawaii,
would it end the eligibility controversy?
Most certainly not! President Obama has stated publicly that his father was not a U.S. citizen.
According to the birthers' understanding of American history, if his father was not a U.S.
citizen, President Obama cannot be a Constitutional natural born citizen, regardless of where

he was born. If President Obama was born in Hawaii, he could be regarded as a statutory
natural born citizen, but he would not necessarily be a Constitutional natural born citizen (See
Question 9: Statutory natural born citizen).
Regardless of what his birth certificate says, Obama's presidential eligibility will never be
settled or resolved, until the Supreme Court decides whether the U.S.-born children of non-
U.S.-citizen parents are Constitutional natural born citizens.
36. Aren't Obama eligibility challenges merely partisan attacks by Republicans against a
Democratic president?
The first eligibility lawsuit against Barack Obama was filed by Phil Berg, a lifelong
Democrat.
Five days before the Republican National Convention, John McCain's eligibility was
challenged in court (California lawsuit questions McCain's Eligibility for Presidency).
In Donofrio v. Wells (October 2008), the plaintiff sought to remove three presidential
candidates from the New Jersey ballot during the 2008 presidential election: Democratic
candidate Barack Obama, Republican candidate John McCain, and Socialist Workers Party
candidate Roger Calero. All three were subject to foreign legal jurisdiction at birth.
John McCain was born in the Colon Hospital, in Colon, Panama. He was not born in the
Panama Canal Zone as widely believed. (See John McCain's short-form Certificate of Live
Birth, and long-form birth certificate). McCain was a U.S. citizen at birth, due to the fact that
his parents were U.S. citizens. His citizenship status, at birth, was also governed by
Panamanian law, due to the fact that he was born in Panama. Although he did not acquire
Panamanian citizenship, he did acquire, at birth, right to become a Panamanian citizen if he
or his parents so chose [89].
Roger Calero was born in Nicaragua. At the time of his presidential candidacy, he was not a
U.S. citizen.
The Republican Party has a history of accommodating presidential candidates whose

Constitutional eligibility is uncertain.
Chester Arthur -- America's first post-1787-born president whose parents were not both
U.S. citizens -- was a Republican.
Charles Evans Hughes was the Republican presidential candidate in 1916. He lost to
incumbent president Woodrow Wilson, a Democrat. Hughes' father was a British
subject who never became a U.S. citizen (Obama not the first to have Presidential
Eligibility questioned).
George Romney ran for the Republican party nomination in 1968. He was born in
Mexico.
Barry Goldwater was born (in 1909) in Phoenix, when Arizona was still territory, not
yet a state.
Lowell Weicker entered the race for the Republican Party nomination of 1980 but
dropped out before voting in the primaries began. He was born in Paris, France.
John McCain was born in Panama, not the Panama Canal Zone as is widely believed.
But regardless of whether he was born in the Panama Canal Zone or in Panama itself,

he was, in either case, subject to Panamanian legal jurisdiction at birth and, as a result,
acquired Panamanian citizenship-related rights.
Bobby Jindal is a possible Republican presidential or vice presidential candidate for

2012. He was born in the United States, but at the time of his birth, his parents were
foreign nationals, not U.S. citizens. Jindal acquired U.S. citizenship, at birth, due to the
fact that he was born on U.S. soil. He also acquired, at birth, citizenship-related rights
from India, his parents' native country.
Marco Rubio is another possible Republican presidential or vice presidential candidate

for 2012. He was born in the United States, but the naturalization/citizenship status of
his parents at the time of his birth is uncertain.
Andy Martin has declared his intention of running in the 2012 Republican presidential
primary. His natural born citizenship is uncertain (Is Andy Martin a Natural Born
Citizen?)
Given its long history of eligibility-questionable presidential candidates, the Republican Party
would be guilty of hypocrisy if it were to challenge President Obama's eligibility.
Moreover, if the Courts find that Barack Obama is ineligible, John McCain might be
ineligible as well, since neither candidate was subject to sole and complete U.S. jurisdiction at
the time of his birth.
If McCain were found to be an ineligible presidential candidate, the RNC might be required
to return government monies (amounting to millions of dollars) it had received in 2008 for
McCain's (purportedly illegitimate) presidential campaign. Such a possibility, though
improbable, nevertheless provides the Republican Party leadership with a reason to avoid the
presidential eligibility question altogether.
37. What is "Quo Warranto"?
Quo Warranto (Latin for "by what warrant?") is a judicial hearing for the purpose of
determining whether an elected or appointed public official has legal authority to hold the
office he or she is currently holding (Charlton). Information regarding the Federal Quo
Warranto Statute can be found at these sites:
Quo Warranto Legal briefs -- Parts 1, 2 and 3
Writ of Quo Warranto
In a quo warranto action, the burden of proof lies with the public official whose eligibility is
being challenged. The office holder is asked to substantiate her or his authority to hold public
office. If the office holder cannot or will not do so, he or she is removed from office.
Various states and the District of Columbia have enacted their own quo warranto laws. These
non-Federal laws should not be confused with the Federal quo warranto statute.
Congress enacted the Federal quo warranto statute in 1902 and revised it in 1963 to is present
form. This statute consists of three sections, labeled 16-3501, 16-3502 and 16-3503
respectively. All three sections are reprinted in Appendix 4: Federal Quo Warranto Statute.
Section 16-3501 states:
A quo warranto may be issued from the United States District Court for the

District of Columbia in the name of the United States against a person who
within the District of Columbia usurps, intrudes into, or unlawfully holds or
exercises, a franchise conferred by the United States or a public office of the
United States, civil or military. The proceedings shall be deemed a civil action.
This section, as written, suggests:
Ineligibility is a public wrong but not a crime. A Federal quo warranto is a civil action,
not a criminal prosecution.
A Federal quo warranto may be issued against any elected or appointed official who
holds a Federal office located within the District of Columbia.
The DC District Court is the only court in which a Federal quo warranto proceeding
may take place.
In theory, a quo warranto can remove a sitting president who is found to be ineligible.
Attorney Mario Apuzzo has questioned this theory (Quo Warranto and the Kerchner v.
Obama). Attorney Leo Donofrio insists the theory is sound (Misconceptions about Quo
Warranto).
Direct Challenge: A "direct" quo warranto challenge, if successful, would remove an

ineligible elected or appointed Federal official from office.
A "direct" challenge cannot be instituted unless there is an evidentiary fact which directly
impugns a person's eligibility to hold the Federal office he or she is currently holding. At the
time of this writing, there is only one verified fact that directly challenges Obama's eligibility:
his British/Kenyan citizenship at birth. A variety of other facts -- such as his refusal to release
his original long-form birth certificate and his grandmother's testimony regarding his birth in
Kenya -- give rise to suspicion and doubt, but are not sufficient to support a legal challenge to
Obama's eligibility.
When given a substantive evidentiary fact that directly challenges a Federal office holder's
eligibility, any of the following may institute a "direct" Federal quo warranto proceeding in
the DC District Court.
The Department of Justice (either the U.S. Attorney General or the U.S. Attorney for
the District of Columbia)
A "third person" (anyone who receives permission from both the Department of Justice
and the DC District Court)
An "interested person" (someone who has an "interest" in the office allegedly being
usurped and has permission from the DC District Court).
Since the U.S. Attorney General and the U.S. Attorney for the District of Columbia are
Obama appointees, the Justice Department is not likely to institute a "direct" quo warranto
action against the President, and is not likely to grant permission to a "third person" wishing
to pursue such an action. However, an "interested person" may petition the DC District Court
directly, without the Justice Department's permission.
2008 presidential and vice presidential candidates -- including, but not necessarily limited to,
Mike Huckabee, Sarah Palin, Mitt Romney and Alan Keyes -- might qualify as "interested
persons". Plausibly, any one of them could bypass the Justice Department, go directly to the
DC District Court, and ask for permission to initiate a quo warranto regarding Obama's

presidential eligibility.
In Newman v. United States (1915), the Supreme Court expanded the meaning of "interested
person". The Court said:
The rule is the same regardless whether the office is elective or appointive. For in
neither case is there any intent to permit the public office to be the subject matter
of private litigation at the instance of one who has no interest therein which
differs from that of every other member of the public. The claim that this
construction makes the statute nugatory cannot be sustained, for the statute, as
already pointed out, gives a person who has been unlawfully ousted before his
term expired a right, on proof of interest, to the issuance of the writ, and there
might be cases under the civil service law in which the relator would have an
interest and therefore a right to be heard. (Newman v. United States, 1915,
boldface emphasis added)
The phrase "cases under the civil service law" might mean that someone like Inspector general
Gerald Walpin, who was fired from his civil service job by Obama, could qualify as an
"interested person".
Indirect Challenge: The Supreme Court, in Andrade v. Lauer (1984), said that, if you were
harmed by an official action taken by an ineligible Federal office holder, you may file an
"indirect" (or "collateral") challenge against the official action, on the basis of the office
holder's ineligibility.
In the Andrade case, the plaintiffs were Government employees who lost their
jobs to "reduction in force" ordinances which cut whole departments from the
Government budget. The plaintiffs sued alleging those who did the cutting were
not Constitutionally qualified to make such decisions in that their appointments
violated the appointments clause of the US Constitution.
The DC District Court held that the plaintiffs had no standing other than to bring
a "direct attack" in quo warranto to remove the alleged usurper. But the DC Court
of Appeals reversed and said that plaintiffs, who had suffered real injuries, could
bring such an action on a case by case basis if they could prove their injuries in
fact (being fired) was caused by a Government official who was not eligible to
serve. (Leo Donofrio, Misconceptions about Quo Warranto, 2009)
An "indirect" challenge, if successful, would not remove an usurper from office, but it would
undo the usurper's action which had caused harm or injury. For example, persons or
companies which are being harmed by Obama's moratorium on off-shore drilling could ask
the Court to overturn the moratorium, on the basis that Obama, as an ineligible President, had
no legal authority to issue such a moratorium.
38. What can we do?
(1) Learn the "core" facts regarding the President Obama's eligibility. These facts include, but
are not limited to, the following:
President Obama has publicly admitted that he was a "foreigner" (a citizen of a foreign
country) at birth. In addition to U.S. citizenship, he acquired British/Kenyan
citizenship, at birth, by descent from this father.
Except for Chester Arthur and Barack Obama, every U.S. president who was born after

1787 was born in the United States, of U.S.-citizen parents. Consequently, every post-
1787-born president (other than the two exceptions) was, at birth, a citizen of the
United States exclusively and was not a citizen, at birth, of any foreign country [07].
Prior to 2008, the U.S. has never knowingly elected a post-1787-born President who
was, at birth, a citizen or subject of a foreign country. There is no evidence indicating
that, during the 1880 presidential election, the voting public was aware of Chester
Arthur's dual nationality at birth.
In August 1787, the presidential eligibility requirement in the Constitution was changed
from "born a citizen" to "natural born citizen". The stated purpose of the change was to
exclude "foreigners" from the presidency. During the 18th century, the definition of
"foreigner" was broad and general enough to include persons born with dual nationality.
Since natural born citizenship pertains only to one's legal status at birth, the wording
change does not affect persons who became foreigners after they were born. The natural
born citizen provision could only have excluded, from the presidency, persons who
were foreigners at birth, and could have achieved such exclusion only if "natural born
citizen" means the absence of foreign nationality at birth. (See Question 7: Original
Purpose)
In 1874, the Supreme Court alluded to the 1797 English translation of Vattel's Law of
Nations, which defined "natural born citizen" as "children born in a country of parents
who were its citizens".
were its citizens became themselves, upon their birth, citizens also. These
were natives, or natural-born citizens, as distinguished from aliens or
foreigners. (Minor v Happersett, 1874)
Contrary to a popular misconception, the 14th Amendment does not confer U.S.
citizenship to all persons born in the United States. It confers U.S. citizenship to U.S.-
born children only in cases in which the birth took place under U.S. "jurisdiction".
According to the transcripts of the Congressional debates over the 14th Amendment,
and according to two Supreme Court opinions rendered after the 14th Amendment was
enacted, the word "jurisdiction", as used in the 14th Amendment, means "sole and
complete jurisdiction", i.e., not subject to any foreign power. If parents are foreign
citizens, their U.S.-born children are subject to a foreign power and therefore do not
qualify for U.S. citizenship under the originally-intended meaning of the 14th
Amendment. (See Question 14: Jurisdiction)
Contrary of another popular misconception, the Supreme Court ruling in Wong Kim Ark
(1898) did not confer U.S. citizenship to all U.S.-born children of alien parents. It
conferred U.S. citizenship to such children only if their parents were permanent legal
residents, domiciled and doing business in the United States. The Court did not rule that
such children were natural born citizens. Writing for the majority in the Wong Kim Ark
case, Justice Gray admitted that the Court ignored (deemed "not admissible") evidence
of original intent of the 14th Amendment framers. (See Question 15: Wong Kim Ark).
Since his father was not a permanent domiciled U.S. resident, Obama does not receive
citizenship from the Wong Kim Ark ruling.
When the U.S. Constitution was being written, there were two kinds of English
subjects: born and made. Subjects born were subjects by "nature and birthright". They
were born on English soil, to parents who were under the king's "actual obedience"
(Question 24: Actual Obedience). Subjects made were subjects either by act of

Parliament or denization by the king. All English subjects, except denizens, were called
"natural born subjects" (Question 19: Natural-born subject). Only subjects born were
"true" natural born subjects. All other natural born subjects were naturalized subjects;
they were deemed to be "natural born" by law, but were not so in fact. Naturalization
was a "fiction of law" which had no effect except in countries consenting to that fiction.
English-born children of alien parents were naturalized, at birth, by a law which was
enacted in 1604 and which was still in effect when the Constitution was being written.
Thus the term "natural born" had two meanings. In the general sense, nearly all persons
born on English soil were natural born subjects. But in the factual sense, only those
born within the king's realm, of parents who were under the king's actual obedience,
were truly natural born (Question 23: English born children of alien parents).
There is insufficient information in the public domain to conclusively establish Obama's

birth in Hawaii. According to the US State Department, a birth certificate does not
prove US birth and citizenship, unless the birth certificate indicates that the birth took
place in a hospital or other "appropriate medical facility". If a person was born at home,
his/her birth certificate, even if signed by a doctor, doesn't prove anything. It is too easy
for family members to obtain a birth certificate by falsely claiming that a foreign-born
child was born at home in the US. Obama's published Certification of Live Birth
(COLB) does not specify a hospital birth, therefore according to the State Department,
it does not constitute proof of US birth and citizenship, without additional documentary
evidence. Birthers are asking Obama to produce the same level of documentation that
the State Department requires of ordinary citizens applying for a passport. (See
Question 31: Birth Certificate through Question 33)
According to a 1948 Supreme Court opinion, when a verified fact directly challenges
the eligibility of an elected or appointed Federal official, the burden of proof falls on
that official to substantiate her or his claim to the office she or he is holding. Birthers
have produced verified facts which directly challenge Barack Obama's natural born
citizenship and eligibility to hold office. These facts include but are not limited to (1)
Obama's foreign citizenship at birth, and (2) historical documents showing that the
purpose of the natural born citizen provision was to exclude, from the presidency,
anyone who was born with foreign citizenship. Given these facts, President Obama now
has the legal obligation, and he how bears the burden of proof, to conclusively establish
his eligibility to hold office.
Now that Obama's citizenship has been seriously questioned, the burden of
proof rests squarely on his shoulders. The "burden of establishing a
delegation of power to the United States ... is upon those making the
claim." Bute v. Illinois, 333 U.S. 640, 653 (1948). And if each of the
General Government's powers must be proven (not simply presumed) to
exist, then every requirement that the Constitution sets for any individual's
exercise of those powers must also be proven (not simply presumed) to be
fully satisfied before that individual may exercise any of those powers. The
Constitution's command that "[n]o Person except a natural born Citizen ...
shall be eligible to the Office of President" is an absolute prohibition
against the exercise of each and every Presidential power by certain
unqualified individuals. Actually (not simply presumptively or
speculatively) being "a natural born Citizen" is the condition precedent sine
qua non for avoiding this prohibition. Therefore, anyone who claims
eligibility for "the Office of President" must, when credibly challenged,
establish his qualifications in this regard with sufficient evidence. (Vieira)
Birthers do not need to prove that Obama is ineligible. They only need to present

verified facts which directly challenge the President's eligibility. Birthers have done
their part and have presented such facts to the general public. President Obama is now
bears the burden of proof and is obligated, by law, to substantiate his claim to the
Office of President.
(2) Avoid -- and encourage others to avoid -- mischaracterizing the birther controversy as
being solely about Obama's birthplace and birth certificate. In general, birthers do not claim
that Obama was foreign-born. They merely point out that there is uncertainty regarding the
President's place of birth. Of greater importance is the fact that, regardless of his place of
birth, Obama acquired foreign citizenship, at birth, by descent from his father. This fact,
which has been verified by Obama himself, directly challenges the President's natural born
citizenship and Constitutional eligibility.
(3) Inform your elected representatives, both Federal and State, of the facts which give rise to
doubts concerning the President's eligibility to hold office. Advise your elected
representatives that, whenever there are facts indicating a violation of the Constitution, their
oath to uphold the Constitution requires a timely investigation and resolution of those fact.
(4) Ask your U.S. senators and U.S. representatives to enact Federal legislation requiring
future presidential and vice presidential candidates to establish their eligibility prior to
running for office. An example of such legislation is H.R.1503, the purpose of which is:
To amend the Federal Election Campaign Act of 1971 to require the principal
campaign committee of a candidate for election to the office of President to
include with the committee's statement of organization a copy of the candidate's
birth certificate, together with such other documentation as may be necessary to
establish that the candidate meets the qualifications for eligibility to the Office of
President under the Constitution. (H.R.1503)
(5) Ask your State representatives to support State legislation barring from the State ballot any
presidential or vice presidential candidate who fails to conclusively establish his or her
eligibility to hold office. Examples of such State legislation include Nebraska Legislative Bill
654 and Arizona HB 2544.
(6) If you know persons, businesses, or state or local governments which have suffered
"concrete and particularized injury" (loss of job, loss of franchise, loss of income or
investment, etc.) as a direct result of an official action by President Obama, let them know
they may have standing to challenge the official action and have it overturned, on the basis of
the President's ineligibility.
(7) If you have access to any of the 2008 presidential and vice presidential candidates, let
them know they may have standing, as "interested persons", to petition the DC District Court
for permission to begin a quo warranto challenge to President Obama's eligibility. The
petitioner does not need to believe that the President is ineligible; he or she only needs to
believe that "clearing the air" of uncertainty surrounding the President's eligibility is in the
nation's best interest. After filing a petition, the petitioner's direct personal involvement in the
matter would end; the lawyers would take over from there.
(8) Stay informed. From time to time, these sites (listed in alphabetical order) provide news,
commentary and information regarding the Obama eligibility controversy, and the various
eligibility lawsuits currently in progress:
Birtherreport.com
Birthers Website

Devvy Kidd
Leo Donofrio blog
Mario Apuzzo blog
Nobarak08's Weblog
Obama File (subscription required)
Patriot's Heart Network
Phil Berg website
Post & Mail
Protect Our Liberty
Right Side of Life
World Net Daily
(9) If you are a person of religious faith, include the Obama presidential eligibility
controversy in your prayers.
Appendix 1: Excerpts from Jus Gentium (1749)
These excepts, from an English translation of Jus Gentium, illustrate Christian Wolff's mid-
eighteenth-century understanding of international law regarding citizenship:
§ 137. What domicile is.
Domicile is defined to be a fixed dwelling in some place with intention of remaining

there permanently. In the native vernacular it is called die Behausung [the housing].
Since for establishing a domicile the intention is required of remaining permanently, a
domicile is not understood to be fixed, unless the intention of remaining permanently is
adequately declared, either expressly or impliedly, therefore one does not have domicile
in a place where he lives for the purpose of some business. Nevertheless, since any one
is allowed to change his intentions as long as he does nothing contrary to the right of
another, a domicile can be changed, that is, it is not of itself unchangeable.
So an ambassador, though he lives for many, nay, very many, years with his
family at some court, and possess his own home in the city, does not
nevertheless on this account have domicile there. Likewise, he who for the
purpose of trade dwells anywhere for a long time does not nevertheless have
domicile there, but remains a foreigner.
§ 138. Of natural and acquired domicile.
Natural domicile is defined as that which any one acquires by birth, in the place where
his father had domicile. That is called acquired domicile which any one has established
for himself on his own will. Therefore any one is supposed to retain his natural domicile

as long as he has established none for himself by his own will, or has not abandoned it.
§ 139. Of vagabonds.
A vagabond is defined as one who has no domicile anywhere. And so vagabonds live
now in one place, now in another, nevertheless have no intention of remaining anywhere
permanently. However, since one is supposed to retain his natural domicile as long as he
has established none for himself by his own will, vagabonds also are usually supposed to
retain their domicile. But since nothing prevents any one from leaving his natural
domicile and from being able to have the intention of remaining permanently in no
particular place, vagabonds do not retain their natural domicile, if they leave it with the
intention of remaining permanently in no particular place.
So swindlers, thieves, gamblers, actors, wandering doctors, and beggars are

usually classed as vagabonds. Thence it happens that the word vagebonds, in
German specifically Landstreicher [land-rovers] or Landlauffer [land-
runners], some disgraceful significance usually attaches. Nevertheless there
is no reason why even those who live an honourable kind of life, may not
now and then be vagabonds. Indeed the Apostles, who established nowhere
a domicile for themselves, were vagabonds. Likewise for sake of trade a
merchant can live now in one place, now in another, and have a domicile
nowhere; then he is therefore enumerated among the vagabonds.
§ 140. What a native country is.
A native country is defined as a place, namely, a land or city, in which one's parents
have a domicile, when he is born, the reference being to the nation or some particular
corporation of a nation, to which the land or city belongs. In the native vernacular, we
say with the broader meaning das Vaterland [Fatherland], the narrower die Vaterstadt
[Father-city], as the land or city in which our fathers dwelt from whom we have derived
our stock. Moreover, the place of birth, which is the place in we have been born, differs
from native country. When any one is born in his native country, a thing which usually
happens, the place of birth is synonymous with native country especially in the stricter
significance, but if any one is born on a journey or in a foreign land, where his parents
are living on account of some business, his native country differs from his place of birth.
It is to be noted besides that the place of birth is to be considered without reference to
the nation to which be belongs, and therefore it gives no right to one born in that place.
It is not without reason that the native land is discussed in the law of nations,
since on it depend certain rights, which men do not enjoy unless they have
this native land. Therefore, since these rights belong to anyone because he is
born of parents who have domicile either in this territory or this city or in
this district, this is the reason why native country admits the broader and
narrower significance. Moreover, since those rights are established by the
will of men, although they are in harmony with natural law, they are not
natural rights but simply positive rights, and therefore are not necessary
rights nor are they the same in all nations. Moreover, since the place of birth
confers no right, of itself it deserves no attention at all in the law of nations,
except in so far as it is considered a native country through a caprice of
speech.
... Likewise he who is born of parents who have their domicile in London in
England, is called a Londoner and an Englishman, even if his parents at the
time of his birth have been living in some place outside of England, for

example, if they were in Germany on account of military service or if the

father was performing the duty of an ambassador in the court of the most
Christian King.
§ 141. Of the children of vagabonds.
Since a native country is a place where the parents have domicile at the time of one's
birth, moreover, since vagabonds have no domicile anywhere, he who is born of parents
who are vagabonds has no native country, except so far as vagabonds are supposed to
have retained their natural domicile, consequently the native country of the parents is
considered their native country also.
So those who are born of Gipsies have no native country, just as their
parents do not.
§ 144. Of the immutability of one's country.
Since your native country depends upon birth, moreover, since what has been done
cannot be undone, your native country remains your native country, even if you establish
your domicile outside of it, or abandon it, or even if you are driven out of it.
So England or France remains the native country of an Englishman or a

Frenchman, even if he has established a domicile for himself outside of
England or France, intending never to return to England or France.
§ 324. Whether he remains a citizen who dwells in alien territory.
Foreigners dwelling in alien territory or staying there remain citizens or subjects of their
own nation. For since foreigners dwelling in alien territory or staying there have not
departed from their own nation with the intention of changing their domicile, since rather
they have the intention of returning to their own nation, they remain members also of
their own state, consequently citizens or subjects of their own nation.
It is undoubtedly one thing to depart from a society, even such as a state is,
and to declare by that deed itself that one does not desire to be a member of
that society, but it is another thing to go away for some time from a place in
which the society has its abode. Absence from the place of domicile can
deprive no one of the right which he has in it, nor free him from the
obligation by which he is bound therein. Nor does it make any difference
that a foreigner, so long as he dwells in alien territory or stays there,
becomes a temporary citizen; for the obligation by which one is bound as a
temporary citizen in alien territory is limited to certain actions alone for a
certain time, and this detracts in no respect from the obligation by which any
one is bound as a citizen to his nation and from the right which belongs to
him in it. ...
§ 325. Of the obligation and right of citizens who are staying in alien territory as
foreigners.
Since foreigners living in alien territory or staying there remain citizens or subjects of
their own nation, the obligation by which they are bound by their own nation is not
terminated, nor are citizens or subjects deprived of the right which they enjoy with the
same, for the reason that they live for some time in alien territory or stay there on account
of some business, and consequently if a citizen injures a fellow citizen in alien territory
and the offender returns to his own people, he can be punished there according to the

laws of the place and compelled to repair the loss.
Source: Wolff
Appendix 2: Methods of English Subjecthood Acquisition
The following table shows four ways by which a person could become an English subject
during the late 1700s -- the time period in which the U.S. Constitution was being written.
Two centuries earlier, during the reign of Queen Elizabeth I of England, the word "denizen"
referred to anyone who became an English subject through any artificial means, i.e., by
statute, act of parliament or king's charter [49]. But by 1787, "denizen" had taken on a more
precise and limited meaning. It referred only to aliens who became English subjects by royal
prerogative -- either letters patent issued by the king, or the king's military conquest and
subjugation of the alien's home country. In the table below, we use the narrower meaning of
"denizen", since it was the meaning that was in effect when the U.S. constitution was being
written.
Methods of Subjecthood Acquisition
Natural law Statute Naturalization Denization
Subjecthood The Act of

conferred, at Anne (1708)
birth, to granted
children who subjecthood, at
Subjecthood
were (a) born birth, to
granted to
on English soil, foreign-born
alien adults
of parents who children of
by (a)
were under civilian (non-
Subjecthood letters
"actual royalty, non-
granted to patent
General obedience" of military, non-
alien adults by issued by
description: the king; or (b) diplomatic)
a private act of the king, or
in special cases, English fathers.
Parliament. (b) military
born in foreign A law, enacted
conquest of
countries, of in 1604,
the alien's
English parents granted
home
who were subjecthood, at
country.
royalty or in the birth, to
king's English-born
diplomatic or children of
military service. alien parents.
Subjecthood Royal
Natural law Man-made law Man-made law
acquired by... prerogative
When was
subjecthood At birth At birth After birth After birth

acquired?
Were subjects
"born within Yes (by natural
Yes (by statute) No No
the allegiance law)
of the king"?
Were subjects
referred to as
Yes Yes Yes No
"natural-born
subjects":
Could
subjects hold
public office
Yes Yes No No
(if they met
other
requirements):
Were subjects
born with
natural
Yes No No No
allegiance to
the English
king?
Was subjects'
allegiance, at
birth, to the Yes No No No
English king
exclusively?
Comparison of Subjecthood Acquisition Methods
Appendix 3: Comparison between English and European Political Theories
Throughout American history, there has been a difference of opinion regarding our nation's
founding principles. On one hand are those who believe that English common law guided the
writing of the Declaration of Independence and the U.S. Constitution. On the other hand are
those who believe that the Founding Fathers were guided by European political theorists such
as Vattel.
As a general rule, those who think that are nation's founding was based on English common
law tend to believe that anyone born in the United States is a "natural born citizen". Those
who think that European political theory guided the Framers of the Constitution tend to
believe that one cannot be a natural born citizen of the United States unless one's parents
were U.S. citizens at the time of one's birth.
The differences between English and European political theories are summarized in the table
below.

European Political
English Common Law
Theory
Form of
Monarchy Republic
government:
Members of
the nation or
Subjects Citizens
state were
called:
Most
important
The right to inherit, hold and bequeath
right of The right to vote.
real property.
membership
was:
The people (citizens) are

Who is The king is sovereign. He governs the sovereign. They govern
sovereign? people, who owe him their allegiance. themselves, through their
elected representatives.
Government's
The consent of the
authority The divine right of kings.
people.
comes from:
Natural law
theory is Vattel's Law of Nations
Coke's Report on Calvin's Case (1608)
documented (1758)
by:
Allegiance is an equal
Allegiance is an unequal relationship relationship among
between a king and his people. The king citizens, who share
What is is superior; his people are inferior. The sovereignty equally
allegiance? king rules and protects his people, and his among themselves.
people are obligated to serve and obey the Citizens owe their
king. service, loyalty and
obedience to each other.
Perpetual. Allegiance between a subject Volitional. Allegiance is

and his king is a permanent bond which a compact that people
The nature of cannot be terminated, except with the choose to enter into.
allegiance is: king's permission. At birth, natural-born They remain in this
subjects are obligated, for the rest of their compact only as long as
lives, to serve and obey the king. they so choose.
Citizenship at birth

Subjecthood at birth depends on a depends on paternal

What is the
combination of birthplace (jus soli) and citizenship only (jus
natural law
parental allegiance. Children are "true" sanguinis). A child
regarding
natural subjects if born in the king's acquires, at birth, the
legal status at
territory, of parents who are within the citizenship of its father,
birth?
king's "actual obedience". regardless of the child's
place of birth.
No. The English common law doctrine of Yes. In time of peace,

"perpetual allegiance" denies the right of citizens have a right to
Do members
expatriation. A natural-born subject "quit" their country and
have the right
acquires, at birth, a permanent lifelong become citizens of some
of
obligation to serve and obey the king. other country, provided
expatriation?
This obligation cannot be discharged that such action does not
without the king's permission. cause harm or injury.
Comparison between English and European Political Theories
Appendix 4: Federal Quo Warranto Statute
The following is from the District of Columbia Code; Division II: Judiciary and Judicial
Procedure; Title 16: Particular Actions, Proceedings and Matters; Chapter 35: Quo
Warranto; Subchapter 1: Actions Against Officers of the United States:
§ 16-3501. Persons against whom issued; civil action.
A quo warranto may be issued from the United States District Court for the District of
Columbia in the name of the United States against a person who within the District of
Columbia usurps, intrudes into, or unlawfully holds or exercises, a franchise conferred
by the United States or a public office of the United States, civil or military. The
proceedings shall be deemed a civil action.
(Dec. 23, 1963, 77 Stat. 602, Pub. L. 88-241, § 1; July 29, 1970, 84 Stat. 562, Pub. L.
91-358, title I, § 145(n); 1973 Ed., § 16-3501; 1981 Ed., § 16-3501.)
§ 16-3502. Parties who may institute; ex rel. proceedings.
The Attorney General of the United States or the United States attorney may institute a
proceeding pursuant to this subchapter on his own motion or on the relation of a third
person. The writ may not be issued on the relation of a third person except by leave of
the court, to be applied for by the relator, by a petition duly verified setting forth the
grounds of the application, or until the relator files a bond with sufficient surety, to be
approved by the clerk of the court, in such penalty as the court prescribes, conditioned
on the payment by him of all costs incurred in the prosecution of the writ if costs are not
recovered from and paid by the defendant.
91-358, title I, § 145(n); 1973 Ed., § 16-3502; 1981 Ed., § 16-3502.)
§ 16-3503. Refusal of Attorney General or United States attorney to act; procedure.
If the Attorney General or United States attorney refuses to institute a quo warranto
proceeding on the request of a person interested, the interested person may apply to the
court by certified petition for leave to have the writ issued. When, in the opinion of the

court, the reasons set forth in the petition are sufficient in law, the writ shall be allowed
to be issued by any attorney, in the name of the United States, on the relation of the
interested person on his compliance with the condition prescribed by section 16-3502 as
to security for costs.
91-358, title I, § 145(n); 1973 Ed., § 16-3503; 1981 Ed., § 16-3503.)
Source: Michie's Legal Resources.
Footnotes
[01] There is a difference between the date on which the Constitution was adopted and
the date on which it was ratified. The Constitution was adopted on September 17,
1787. The thirteen States ratified the Constitution on June 21, 1788 (Wikipedia: U.S.
Constitution).
[02] Article II Section 1 of the U.S. Constitution states:
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 Person 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.
All persons who were U.S. citizens when the Constitution was adopted (in 1787)
were exempt from the "natural born citizen" requirement. They could serve as
president, even though they were not natural born citizens. However, no one alive
today qualifies for this exemption. If you were born after 1787, you must be a
natural born citizen in order to be Constitutionally eligible to serve as president.
[03] In 2008, the Michigan Law Review published an article titled, "Originalism and the
Natural Born Citizen Clause", by Professor Lawrence B. Solum. The article contains
this text:
What was the original public meaning of the phrase that establishes the
eligibility for the office of President of the United States? There is
general agreement on the core of its meaning. Anyone born on
American soil whose parents are citizens of the United States is a
"natural born citizen." Anyone whose citizenship is acquired after birth
as a result of naturalization is not a natural born citizen. (Solum, p.1)
An earlier draft of the same article contained this text:
What is the legal significance of what we can call "the natural born
citizen clause"? There is general agreement on the core of settled
meaning. Anyone born on American soil whose parents are citizens of
the United States of American [sic] is a "natural born citizen." Anyone
whose citizenship is acquired after birth as a result of "naturalization" is
not a "natural born citizen." But agreement on these paradigm cases
does not entail that the clause has a clear meaning. (Lawrence B. Solum,
Originalism and the Natural Born Citizen Clause, as quoted by Why
Did Lawrence B. Solum Miss A Critical Point in the Natural Born

Citizen Issue?)
In 2010, Professor Solum published a revised article (SSRN-id1263885.pdf) in

which "parents" (plural) was changed to "American parent" (singular). For a
discussion of this wording change, see The Scrubbing of America.
[04] A poll by Wenzel Strategies, conducted in June, 2009, showed widespread public
uncertainty regarding Barack Obama's eligibility to serve as president:
...a WorldNetDaily/Wenzel Strategies poll in June showed that 49% --

essentially half of all American adults -- are not convinced that Obama
meets the qualifications for the presidency! ... The polling data shows
this is not just a Republican fetish. Even among Democrats, almost one
in every four -- 23% -- said they were either troubled by these questions
about Obama or that he should definitely release all records about the
circumstances of his birth, including his long-form birth certificate -- if
one exists -- to put this question to rest once and for all. Even among
independent voters, 52% said the same thing. (Fritz Wenzel, Poll Stories
of the Year 2009, December 21, 2009)
A Public Policy poll (August 25, 2009) found that, in Arkansas, 55 percent of
respondents doubted or disbelieved that the President was born in Hawaii. 31 percent
believed President Obama was not born in the United States, and another 24 percent
said they weren't sure.
In a New York Times/CBS news poll of 1,580 adults, conducted from April 5 to 12,
2010:
58 percent said Mr. Obama was born in the United States. That leaves a
significant minority who said they thought he was born in another
country (20 percent) or said they did not know (23 percent). (Obama
and the 'Birthers' in the Latest Poll, April 21, 2010)
A survey of 400 Republican Primary voters, published on February 15, 2011, found
that 28% of respondents believe that Obama was born in Hawaii. 51% of
respondents do not believe that Obama was born in Hawaii, and 21% are unsure.
(National 2012 Republican Poll, February 15, 2011).
[05] According to the "consensus" opinion, anyone born in eighteenth-century England
was a natural-born subject, therefore anyone born in the United States must be a
natural born citizen. This reasoning, however, is based on an incomplete
understanding of the term "natural born". At the time, there were two kinds of
English natural-born subjects: actual and naturalized.
Actual natural-born subjects (also called subjects born) were subjects by natural
law. They were born within the king's realm, of parents who were under the "actual
obedience" of the king (see Question 24: Actual obedience).
Naturalized natural-born subjects (also called subjects made) were deemed to be

"natural born" by an act of Parliament. Naturalized subjects included (a) persons
who, as adults, underwent a legal process called "naturalization", and (b) children
who were naturalized, at birth, by statute.
Nearly all children born on English soil were natural-born subjects, but not all of
them were actual natural-born subjects. English-born children of alien parents were

"denizens". They were automatically naturalized, at birth, by a statute that

Parliament had enacted in 1604 and was still in effect when the U.S. Constitution
was being written. Although they were natural-born subjects by law, these children
were not natural-born subjects in fact. As denizens, they had to pay aliens' duties
(see Question 23: English-born children of alien parents) and, prior to 1737, they
were not eligible for English citizenship (see Question 25: English citizenship).
If "natural born" -- as used in "natural born citizen" -- is understood in the general

sense, then all U.S.-born citizens would be "natural born". If "natural born" is
understood in the factual or natural-law sense (which excludes persons who were
naturalized, at birth, by statute), then "natural born citizen" refers only to U.S.-born
children of U.S.-citizen parents.
[06] Here is the relevant portion of the Supreme Court's opinion in Minor v. Happersett
(1874):
were its citizens became themselves, upon their birth, citizens also.
These were natives, or natural-born citizens, as distinguished from
aliens or foreigners. Some authorities go further and include as citizens
children born within the jurisdiction without reference to the citizenship
of their parents. As to this class there have been doubts, but never as to
the first. For the purposes of this case it is not necessary to solve these
doubts. (Minor v. Happersett, 1874, emphasis added)
To be precise, the Supreme Court, Minor v. Happersett, expressed doubts

concerning the citizenship of U.S.-born children of non-citizen parents. However,
one cannot be a natural born citizen without being a citizen. Therefore, if one's
citizenship is in doubt, one's natural born citizenship is in doubt as well.
In U.S. v. Wong Kim Ark (1898), the Supreme Court ruled that, when non-citizen
parents are permanent legal residents of the United States and are doing business in
the United States, their U.S.-born children are U.S. citizens at birth. The Court did
not rule that such children were natural born citizens.
[07] Every post-1787-born president, except Chester Arthur and Barack Obama, was
born in the United States, of parents who were both U.S. citizens (Natural Born
Presidency). However, being born in the United States, of U.S.-citizen parents, does
not, by itself, guarantee against foreign nationality at birth.
For example, in Fitch v. Weber (1847), an Englishman emigrated to the United

States, renounced his British nationality, swore exclusive allegiance to the United
States, became a naturalized U.S. citizen, married an American woman, and settled
permanently in the United States. Nevertheless, he was not fully expatriated from
Great Britain. Consequently, his children and grandchildren -- though born in the
United States, of U.S.-citizen parents -- were born with dual nationality. They were
British subjects, as well as U.S. citizens, at birth.
The citizenship status, at birth, of presidents James Buchanan, Andrew Johnson,

Woodrow Wilson and Herbert Hoover, has been questioned ('President?' Chester
Arthur et. al. -- Why they aren't precedent for Obama's Eligibility). As best we can
determine so far, these four presidents did not acquire foreign nationality from their
parents.
In the cases of James Buchanan and Andrew Johnson, the best available

historical information indicates that their parents were fully expatriated by the
Treaty of Paris (1783), which ended the American Revolutionary War. Under
this treaty, British subjects desiring to become U.S. citizens were released
from their obligation of allegiance to the British Crown and, as a result,
became "aliens" as far as Great Britain was concerned:
Can an American citizen, adult, now inherit lands in England?

Natural subjects can inherit--Aliens cannot. There is no middle
character--every man must be the one or the other of these. ... An
alien is the subject or citizen of a foreign power. The treaty of
peace acknowleges we are no longer to owe allegiance to the king
of [Great Britain]. It acknowleges us no longer as Natural subjects
then. It makes us citizens of independent states; it makes us aliens
then. (Letters of Delegates to Congress: Volume 21 October 1,
1783 - October 31, 1784;Thomas Jefferson's Notes)
In the cases of Woodrow Wilson and Herbert Hoover, their mothers were
British subjects who acquired U.S. citizenship through marriage. These
women were not expatriated by the Treaty of Paris, and therefore remained
British subjects for the rest of their lives. However, under the applicable
British law, children cannot receive British subject status from their mothers;
they can only receive it from their fathers.
At the time of this writing, we are not aware of any post-1787-born U.S. president
(other than Chester Arthur and Barack Obama) who had acquired foreign nationality
at birth.
[08] The Barack Obama's circumstances after his birth are not deemed relevant to his
Constitutional eligibility to serve as president. Children who acquire U.S. citizenship
at birth do not lose their U.S. citizenship merely because they and/or their parents
subsequently acquire citizenship in a foreign country, even if such foreign country
does not recognize dual citizenship.
It has long been a recognized principle in this country that, if a child

born here is taken during minority to the country of his parents' origin,
where his parents resume their former allegiance, he does not thereby
lose his citizenship in the United States provided that, on attaining
majority he elects to retain that citizenship and to return to the United
States to assume its duties. (Perkins v. Elg, 1939)
[09] Ten of the first twelve presidents of the United States were eligible to serve as
president because they were citizens when the U.S. Constitution was adopted in
1787. They were exempt from the natural born citizen requirement.
President Birth date Term in Office Exempt
George February 22, April 30, 1789 -

1 Yes
Washington 1732 March 4, 1797
October 30, March 4, 1797 -

2 John Adams Yes
1735 March 4, 1801

Thomas March 4, 1801 -

3 April 13, 1743 Yes
Jefferson March 4, 1809
March 16, March 4, 1809 -

4 James Madison Yes
1751 March 4, 1817
March 4, 1817 -
5 James Monroe April 28, 1758 Yes
March 4, 1825
John Quincy March 4, 1825 -

6 July 11, 1767 Yes
Adams March 4, 1829
March 15, March 4, 1829 -

7 Andrew Jackson Yes
1767 March 4, 1837
Martin Van December 5, March 4, 1837 -

8 Yes
Buren 1782 March 4, 1841
William Henry February 9, March 4, 1841 - April

9 Yes
Harrison 1773 4, 1841
March 29, April 4, 1841 - March

10 John Tyler No
1790 4, 1845
November 2, March 4, 1845 -

11 James K. Polk No
1795 March 4, 1849
November 24, March 4, 1849 - July

12 Zachary Taylor Yes
1784 9, 1850
First twelve presidents of the United States

(Source: Wikipedia: List of Presidents)
All U.S. presidents after Zachary Taylor were born after 1787, thus were not exempt
from the "natural born citizen" requirement. They had to be natural born citizens in
order to be eligible to serve as president.
[10] In the birthers' view, in order for you to meet the parental citizenship requirement,
your parents must be U.S citizens at the time of your birth. But your parents do not
need to be natural born citizens. It does not matter how your parents became U.S.
citizens. They could have acquired their citizenship by birth. They could have, as
immigrants, acquired U.S. citizenship through naturalization. At one time in
American history, a woman's citizenship was that of her husband. For you to be a
natural born citizen, both of your parents must be citizens at the time of your birth,
but they need not be natural born citizens.
When immigrants from foreign countries become naturalized U.S. citizens and
subsequently give birth to children in the United States, these children are natural
born citizens and could someday serve as president. The fact that your parents were
of foreign origin and/or ethnicity does not disqualify you from the presidency, as
long as your parents were U.S. citizens at the time of your birth.

[11] Tim Adams claims that, while working as an elections clerk in Honolulu during the
2008 presidential election, he learned that Barack Obama does not have a hospital-
generated birth certificate on file in Hawaii (Affidavit by Tim Adams, Jan 20,
2011). Instead, Obama has a non-hospital-generated birth registration document.
According to Adams, the Aloha State issues such a document either (a) when a birth
is registered as an "unattended birth" (a birth which did not take place in a hospital
and was not attended by a physician or midwife), or (b) when a Hawaii resident
gives birth outside of Hawaii (YouTube: Tim Adams interview). For passport
application purposes, the State Department no longer accepts a non-hospital-
generated birth registrations as sufficient proof of birth in the United States (Shame
on State Department).
[12] These sources suggest that Barack Obama might have been born in Kenya:
Affidavit of Reverend Kweli Shuhubia
Affidavit of Bishop Ron McRae
Obama File: Lucas Smith
In a speech before the Kenyan National Assembly, James Orengo, the Kenyan
Minister for Lands, implied that President Barack Obama was born in Kenya:
If America was living in a situation where they feared ethnicity and did
not see itself as a multiparty state or nation, how could a young man
born here in Kenya, who is not even a native American, become the
President of America? It is because they did away with exclusion.
(National Assembly Official Report, Thursday, 25th March 2010, p.31)
The Kenyan Government has implicitly confirmed its possession of documents

(presumably birth documents) pertaining to President Obama:
Government authorities in Kenya have stated that all documents

regarding [President] Obama would be "under seal." That statement
itself raises questions, because if Obama were born in Hawaii, Kenya
would have no Obama birth records to seal. (Fredrick)
[13] These sources suggest that Barack Obama might have been born in Canada:
Stanley Ann Obama births a Canadian
Obama file: Stanley Ann Dunham (Anna)
In September 1961, roughly a month after Barack Obama's birth, Stanley Ann
Dunham was living in an apartment in Seattle and was attending classes at the
University of Washington (Confirmed: Stanley Ann Dunham began studies in
September 1961, not August). As the wife of a British subject, she could have
received government-subsidized maternity care in Vancouver, British Columbia, a
mere 2.5-hour drive from Seattle, across an open border.
There is some speculation that [Stanley Ann] Dunham left Hawaii and
gave birth to Obama in Washington State (or perhaps British Columbia,
Canada) at a facility for unwed mothers -- and then decided to keep the
baby. She then would have returned to Hawaii and registered the child's
birth there, claiming the child was born at home in Honolulu. (Had

Obama been born in Washington State, Dunham would have had no

need to later register his birth in Hawaii, but had he been born in
Canada her doing so would have been understandable.) (Fredrick)
[14] Strictly speaking, the "natural-born citizen" of the United States is defined (by
birthers) as a person who, at birth, owes allegiance to the United States exclusively.
In order to be, at birth, a citizen of the United States exclusively, one must be born
in the United States, of parents who are citizens of the United States exclusively.
When the U.S. Constitution was being written, every adult was presumed to be a
citizen or subject of one -- and only one -- nation, country or state. In England, for
example, all English subjects took the Oath of Supremancy (see England's Oaths
1642), the text of which includes,
"I do utterly renounce and forsake all [foreign] Jurisdictions, Powers,

Superiorities, or Authorities..."
Thus naturalized English subjects were expected to owe allegiance to the English
king exclusively. According to the Naturalization Act of 1795, if an alien wished to
become a naturalized U.S citizen, he or she must, under oath, "renounce forever all
allegiance and fidelity to any foreign prince, potentate, state, or sovereignty whereof
such alien may at that time be a citizen or subject". Thus a naturalized U.S. citizen
was presumed to owe allegiance to the United States only, and not to anyone else.
If you were born with dual citizenship, you were expected, in later life, to renounce
one or the other, thereby becoming a citizen of only one state.
It must be admitted that a man born on this soil, of alien parents, enjoys
a dual nationality and owes a double allegiance. A child born under
these conditions has a right to elect what nationality he will enjoy and
to which of the two conflicting claims of governmental allegiance he
will pay obedience. (Long)
When the U.S. Constitution was being written, adult U.S. citizens were presumed to
owe allegiance to the United States exclusively. Thus, at one time in U.S. history,
birth in the U.S., to U.S.-citizen parents, was (presumably) sufficient to ensure
exclusive U.S. citizenship at birth.
[15] On April 10, 2008, the U.S. Senate expressed a non-legally-binding opinion that
John McCain is a natural born citizen, eligible to serve as President. The Senate's
opinion was based, in part, on the belief that John McCain was born on a U.S.
military base in the Panama Canal Zone.
Whereas John Sidney McCain, III, was born to American citizens on an

American military base in the Panama Canal Zone in 1936 (Senate
Resolution 511)
However, according to his long-form birth certificate and short-form Certificate of

Live Birth, John McCain was born in the City of Colon, which is part of Panama
itself. Colon was never a part of the Panama Canal Zone, and was never under U.S.
administration. It was always under exclusive Panamanian sovereignty and
jurisdiction.
[16] The Constitution includes the 14th Amendment. Therefore, if "natural born citizen"
is not defined in the Constitution, it is not defined in the 14th Amendment.

[17] An article appearing in the Wall Street Journal understands and interprets Federal
law as conferring natural born citizenship to some children at birth:
Someone born overseas and after 1986, but otherwise in identical

circumstances to Obama, would be a natural-born citizen thanks to a
law signed by President Reagan. (James Taranto, "It's Certifiable", Wall
Street Journal, July 30, 2009)
The law that Reagan signed is 1401: Nationals and citizens of the United States at
birth. Neither this law, nor any other existing Federal statute, contains the term
"natural born citizen".
[18] In Italy and elsewhere, citizenship implied subjection to authority:
Other historians nevertheless affirmed that citizenship continued to be

an important social and political tie in early modern Italian cities, with
meaning broader than the individual privileges attached to it. Above all,
citizenship implied the subjection of the individual to a sovereign power
or to a municipal authority. According to this view, most early modern
Italian cities attributed a great deal of importance to citizenship, and
citizenship continued to be an essential prerequisite for obtaining many
rights. (Herzog, p.176)
[19] "Vattel's The Law of Nations was the most influential book on the law of nations for
125 years following its publication." (Trout). Vattel's work was especially influential
in America. See, for example:
Influence of Law of Nations on the Declaration of Independence
Influence of Law of Nations on the U.S. Constitution
[20] A century prior to Vattel, "natives" or "indigenes" were defined as those born in a
society, of parents who are its citizens. In 1673, German political philosopher
Samuel von Pufendorf defined "citizens" as the society's original founders and their
descendants. Thus, in Pufendorf's view, natives or indigenes were those born in a
society, of parents who were, or were descended from, the society's original
founders.
A State or Government being thus constituted, the Party on whom the

Supreme Power is conferr'd, either as it is a single Person, or a Council
consisting of select Persons, or of All in General, is called a Monarchy,
Aristocracy, or a Free State; the rest are looked upon as Subjects or
Citizens, the Word being taken in the most comprehensive Sense:
Although, in Strictness of Speech, some call only those Citizens, who
first met and agreed together in the forming of the said Society, or else
such who succeeded in their Place, to wit, House-holders or Masters of
Families.
Moreover, Citizens are either Originally so; that is, such as are born in
the Place, and upon that Account claim their Privileges: Or else
Adscititious; that is, such as come from Foreign Parts.
Of the first Sort, are either those who at first were present and

concerned in the forming the said Society, or their Descendants,

whom we call Indigenae, or Natives.
Of the other Sort are those who come from Foreign Parts in order to
settle themselves there. As for those who come thither only to make a
short Stay, although they are for that Time subject to the Laws of the
Place; nevertheless, they are not looked upon as Citizens, but are called
Strangers or Sojourners. (Pufendorf, Section XIII, boldface added)
French philosopher Denis Diderot (1713-1784) rejected Pufendorf's definition of

"citizen". In Diderot's opinion, outsiders who join the society and become a part of it
are as much citizens as the descendants of the society's original founders:
Diderot chose to make his point about the quality of the citizen in the
state by replying to Puffendorf distinction between the descendants of
those who founded the state, the only ones who could claim the status of
citizen, and the others. Diderot qualified this distinction as "frivole" and
asserted that all members of the community are equally noble in so far
as they are citizens; the status of 'nobility,' in fact equality here, derives
from sharing in the right to the position of magistrate in the community.
(Veluca, p.15)
Jean Jacques Burlamaqui (1694-1748) argued that citizenship belongs, at birth, not
only to the children of "the first founders of states" but also to the children of "all
those who afterwards became members thereof":
If by an express covenant, the thing admits of no difficulty. But, with

regard to a tacit covenant, we must observe, that the first founders of
states, and all those, who afterwards became members thereof, are
supposed to have stipulated, that their children and descendants should,
at their coming into the world, have the right of enjoying those
advantages, which are common to all the members of the state, provided
nevertheless that these descendants, when they attain to the use of
reason, be on their part willing to submit to the government, and to
acknowledge the authority of the sovereign. (Burlamaqui, paragraph IX)
Although the meaning of "citizen" seems to have evolved over time, the meaning of
"native" or "indigene" has not. For nearly a century prior to Vattel, you were a
"native" or "indigene" of a society if you met two conditions at birth: (a) you were
born in the society, and (b) at least one of your parents was a "citizen" of that
society.
[21] In Latin, urbis means "city", and alumnum means "nourished, brought up;
reared/fostered by; native, brought up locally" (Latin-English Dictionary 1.97FC).
According to Myth of Alumni, the Latin alumnum refers to one's upbringing (which
includes, though is not necessarily limited to, one's parenting):
Tracing its origin, the term "alumni" comes from the Latin verb "alere"
which stands for "bring up" and "nourish". Frequently used in Latin
literature, the term "alumni" was common to indicate "people who are
nourished by a person who is not a natural parent" such as "foster son"
and "apprentice".
Derived from the original meaning of "children nurtured by a person

different from the natural parents", the term "alumni" was extended to

refer to "people who receive intellectual nourishment at school" and

now commonly known as graduates of a school.
Reference: Antonio Pace (2003). The Meaning of Alumni. AO

Dialogue, Volume 16, Issue II, 9. (Myth of Alumni)
Thus alumnum urbis -- the "natives" or "natural born citizens" of a city -- were
persons who were raised and educated by the city, specifically, the city's members or
citizens.
[22] On July 26, 1781, the Continental Congress considered a proposed "treaty of amity
and commerce, between his Most Christian Majesty [of France] and the United
States". Two months later, French troops helped the United States defeat Lord
Cornwallis' British army at Yorktown, thereby, in effect, ending the Revolutionary
War militarily. (Two years later, The Paris Peace Treaty of 1783 ended the
Revolutionary War officially).
The 1781 "treaty of amity and commerce" between France and the United States
contained 29 articles. Article III contained this text (in French):
Les consuls et vice consuls respectifs ne pourront etre pris que parmi les
sujets naturels de la puissance qui les nommera. Tous seront appointes
par leur souverain respectif, et ils ne pourront en consequence faire
aucun trafic ou commerce quelconque ni pour leur propre compte, ni
pour le compte d'autrui. (Article III, Journals of the Continental
Congress 1774-1789: Friday, July 27, 1781, boldface emphasis added)
At the time, Charles Thomson translated Article III as follows:
The respective Consuls and Vice Consuls shall only be taken from
among the natural born subjects of the power nominating them. They
shall all be appointed by their respective Sovereign, and in Consequence
of such appointment they shall not exercise any traffic or commerce
whatsoever either on their own account, or on account of any other.
(English translation, Article 3, Journals of the Continental Congress
1774-1789: Friday, July 27, 1781, boldface emphasis added)
The French word naturels, which was rendered as "natives" in English translations
of Vattel's Law of Nations, was understood (at least by Thomson) to mean "natural
born" in the 1781 treaty. (For further discussion of Thomson's translation, see Mario
Apuzzo: Founders knew and accepted Vattel's French "naturels" to mean "natural
born").
[23] Obama eligibility supports cite Black's Law Dictionary (1991), which defines
"natural born citizens" as:
Persons who are born within the jurisdiction of a national government,

i.e. in its territorial limits, or those born of citizens temporarily residing
abroad. (Black's Law Dictionary, 6th Ed., 1991, p.1026)
According to this definition, virtually anyone who acquires U.S. citizenship at birth
is a natural born citizen. Some Obama eligibility supporters, however, limit their
definition of "natural born citizen" to persons born on U.S. soil. Foreign-born
children of American parents are "naturalized" at birth. Even though they acquire
U.S. citizenship at birth, they are not "natural born".

If President Obama was born in Hawaii, he is "natural born" under either definition.
In this two-page affidavit, candidate Obama declared under oath that he is a "natural
born citizen of the United States".
Obama Affidavit Page 1 of 2
Obama Affidavit Page 2 of 2

[24] U.S.-birth to U.S.-citizen parents does not guarantee exclusive U.S.-citizenship at
birth, unless the parents were fully expatriated from all prior foreign allegiances.
[25] In eighteenth century English common law, and in American "derivative citizenship"
law (from 1855 to 1922), the legal status of a married woman was that of her
husband. Generally speaking, when one's father was a citizen/subject of a particular
country, one's mother was automatically a citizen/subject of that country as well.
According to Lord Coke, the English common law rule, that the status
of the child follows the father, is grounded in the notion of marital unity.
Under common law the legal identity and status of a wife merged with
that of her husband; they became one in the eyes of the law, and that
one was the husband. Therefore, the legal status of the father naturally
governs the legal status of the child. In this respect, English common
law was different from civil law countries where the status of the child
followed the mother. (Banks, pp. 815-6)
Under English common law, when a child was legitimate (born of parents who were
married to each other), the citizenship of the child's parents was the same as the
citizenship of the child's father.
[26] There is general agreement that natural born citizenship is acquired only at birth and
cannot be acquired after one's birth.
What was the original public meaning of the phrase that establishes the
eligibility for the office of President of the United States? There is
general agreement on the core of its meaning. Anyone born on
American soil whose parents are citizens of the United States is a
"natural born citizen." Anyone whose citizenship is acquired after
birth as a result of naturalization is not a natural born citizen.
(Solum, p.1, boldface emphasis added)
[27] The 12th Amendment, ratified in 1804, made natural born citizenship an eligibility
requirement for the Office of Vice President.
But no person constitutionally ineligible to the office of President shall

be eligible to that of Vice-President of the United States. (U.S.
Constitution - Amendment 12)
Chester Arthur was elected Vice President in 1880. When President James Garfield
was assassinated in 1881, Chester Arthur became the first U.S. President, born after
1787, whose parents were not both U.S. citizens at the time of his birth.
[28] In McCreery's Lessee v. Somerville (1824), the U.S.-born children of an alien father
were referred to as "native born citizens", not "natural born citizens".
Thus, where "A" died seized of lands in Maryland, leaving no heirs

except "B", a brother, who was an alien, and had never been naturalized
as a citizen of the United States, and three nieces, the daughters of the
said "B", who were native citizens of the United States; it was held that
they could not claim title by inheritance through "B", their father, he
being an alien and still living.
William McCreery left at his death no children, but a brother, Ralph

McCreery, a native of Ireland, who is still living and who has not been
naturalized, and three nieces, Letitia Barwell, Jane McCreery, and
Isabella McCreery, the latter being the lessor of the plaintiff, who are
the daughters of the said Ralph, and native born citizens of the United
States. (McCreery's Lessee v. Somerville, 1824, boldface emphasis
added).
[29] Under the Constitution, the Federal government established rules by which
immigrants became naturalized citizens. But prior to 1866, each State had the right
to decide, for itself, the manner in which it granted citizenship to (a) children born
within that State, and (b) foreign-born children of citizens of that State. When a
child was, at birth, a citizen of a State, under the laws of that State, such child was
also a citizen of the United States.
Perhaps the first most important thing to understand about national

birthright is that there was no written national birthright rule applicable
within the States prior to the year 1866. One will look in vain to find
any national law on the subject prior to this year, or even any mention
of the right to citizenship by birth under the United States Constitution.
One reason for the absence of an early written national birthright rule is
that States had decided for themselves who were their citizens by virtue
of being born within the limits of the State. Prior to the 14th
amendment, citizens of the United States were strictly defined as the
citizens of each State. (Madison(2007))
There was no national law or common law which dictated the manner in which each
State should confer citizenship on people who were born within, or migrated into, its
territory. Each State decided, for itself, who were its citizens.
Until 1808, each State ... could confer state citizenship upon whomever
it permitted to migrate into the State. ...there was no uniformity
requirement with respect to state citizenship either with respect to
native-born persons, recognized as state citizens, or persons admitted to
live within the geographic borders of the United States and naturalized
as state citizens. (Olson, Titus and Woll, Children Born in the United
States...)
[30] In 1779, Thomas Jefferson wrote a generic citizenship bill that any State could use.
This bill conferred citizenship (or at least made citizenship available) to (a) any
white person who was born in the State, and (b) any foreign-born child of parents
who were citizens of the State at the time of the child's birth.
Be it enacted by the General Assembly, that
all white persons born within the territory of this commonwealth

and all who have resided therein two years next before the passing
of this act, and all who shall hereafter migrate into the same; and
shall before any court of record give satisfactory proof by their
own oath or affirmation, that they intend to reside therein, and
moreover shall give assurance of fidelity to the commonwealth;
and
all infants wheresoever born, whose father, if living, or otherwise,

whose mother was, a citizen at the time of their birth, or who
migrate hither, their father, if living, or otherwise their mother
becoming a citizen, or who migrate hither without father or
mother,
shall be deemed citizens of this commonwealth, until they relinquish

that character in manner as herein after expressed: And all others not
being citizens of any the United States of America, shall be deemed
aliens. (Thomas Jefferson, A Bill Declaring Who Shall be Deemed
Citizens of This Commonwealth, 1779)
Depending on birthplace and parental citizenship, this bill would, in some cases,
grant citizenship to persons who were, at birth, citizens or subjects of a foreign
country. At least one State -- Virginia -- adopted Jefferson's bill (Madison(2007)).
[31] In the United States, "alien" implies residence in the United States, but "foreigner"
does not. That's why the term "illegal alien" makes sense but the term "illegal
foreigner" doesn't. An "illegal alien" is a foreign national who entered and
established residence in the United States without the U.S. government's permission.
In contrast, the word "foreigner" merely reflects one's nationality or national origin,
not one's place of residence. There is nothing intrinsically illegal about being a
"foreigner" (a native, citizen or subject of a foreign country).
[32] In early U.S. history, U.S. citizens were expected to divest themselves of foreign
nationality, but were not expected to deny their foreign origin. It was generally
presumed that all adult U.S. citizens (natural born or otherwise) were citizens of the
United States exclusively. Adult U.S. citizens were, generally speaking, not citizens
or subjects of any foreign country.
During naturalization, an alien was expected to "renounce forever all allegiance and
fidelity to any foreign prince, potentate, state, or sovereignty whereof such alien
may at that time be a citizen or subject." (Naturalization Act of 1795).
A child who acquired both U.S. citizenship and foreign citizenship at birth was
expected to renounce one or the other upon reaching adulthood.
It must be admitted that a man born on this soil, of alien parents, enjoys
a dual nationality and owes a double allegiance. A child born under
these conditions has a right to elect what nationality he will enjoy and
to which of the two conflicting claims of governmental allegiance he
will pay obedience. (Long)
Some U.S. citizens were of foreign origin. They were born in a foreign country or
were citizens or subjects of a foreign country when they were born. Nevertheless,
adult U.S. citizens (natural born and otherwise) were presumed to be devoid of
foreign nationality.

[33] When the original thirteen colonies gained their independence and became the
original thirteen States, they did not abolish their existing government and laws.
Instead of creating a new legal system "from scratch", each State retained the
English common law and modified it as necessary. In general, States retained the
common law "rule" which granted citizenship to children of alien parents who,
though not yet citizens, had sworn an oath of allegiance to the State and had
established residence, or domicile, within the State:
While all States could be said to have recognized place of birth as

conferring State citizenship, it is important to realize many of these
States also required of anyone who desired to become domiciled within
their limits to first swear off all allegiances to other governments and
pledge their allegiance solely to the State. Therefore, a child born to
domiciled parents was "born within the allegiance" of the State -- and
this was truly the prevailing rule [in the United States] ...
Madison(2007))
As a general rule, any child born within a State, of free white parents domiciled
within that State, was a citizen of that State (or could become a citizen by swearing
an oath of allegiance to that State).
[34] This website, Natural Born Citizenship Research, provides a lengthly list of
nineteenth-century writers, including framers of the 14th Amendment, who have
expressed the opinion that all persons born on U.S. soil (except the children of
foreign ambassadors) are, or should be considered as, U.S. citizens. For the most
part, this opinion refected then-existing State laws governing citizenship. As a
general rule, the States granted citizenship to nearly every free white person born
within their borders. But the fact that birthplace alone was sufficient to confer
citizenship under State law does not necessarily mean that birthplace alone confers
natural born citizenship under the Federal Constitution.
As written, 14th Amemdment merely defines a group of people (the "14AC class")
which the States must recognize as citizens. A State may confer citizenship to other
persons as well -- it may, for example, confer citizenship to all persons born within it
borders -- but is not Constitutionally required to do so.
[35] According to the transcripts of the 1866 Congressional debates, the phrase "subject
to the jurisdiction thereof" in the 14th Amendment is understood to mean "not
subject to any foreign power". If you were subject to a foreign power at birth (for
example, if your parents were foreign citizens when you were born), you were not a
14AC-class member, even if you were born on U.S. soil. In 1884, President Chester
Arthur asked Congress to enact laws clarifying the status of non-14AC-class
members, particularly U.S.-born children of non-citizen parents:
Our existing naturalization laws also need revision. ... Section 2172,
recognizing the citizenship of the children of naturalized parents, is
ambiguous in its terms... An uniform rule of naturalization, such as the
Constitution contemplates, should, among other things, clearly define
the status of persons born within the United States subject to a foreign
power and of minor children of fathers who have declared their
intention to become citizens... (Chester Arthur, 1884, as quoted by
Long)
The 14th Amendment merely says that 14AC class members are citizens. It does not
say anything about the citizenship status of non-14AC-class members. Presumably,

the status of such persons is a matter to be decided by the States and/or by

naturalization laws enacted by Congress.
[36] From commentary by Attorney Leo Donofrio:
Chief Justice Marshall ... delivered the opinion of the Court in Marbury
v. Madison. His "form without substance" quote truly made me wonder
what he would say about the natural born citizen clause.
As I thought about it, Chief Justice Marshall's voice came to me right

from the pages of that opinion and I realized suddenly that he did
address the issue when he said:
"It cannot be presumed that any clause in the constitution is

intended to be without effect; and therefore such
construction is inadmissible, unless the words require it."
This must kill the argument that being "a 14th Amendment citizen" has
the same effect on Presidential eligibility as being a "natural born
citizen". If being a "citizen" had the same exact effect as being a
"natural born citizen" then the clause would have no effect. As stated by
Chief Justice Marshall, "such a construction is inadmissible." (POINT II
in Leo Donofrio, SCOTUS has no Original Jurisdiction, 2009)
[37] For commentary regarding United States v. Low Hong (1919), see Mario Apuzzo,
United States v. Low Hong is no precedent on the Question of What is an Article II
"Natural Born Citizen", 2009.
[38] For commentary regarding Judge Dreyer's dicta in Ankeny v. Indiana (2009), see
Leo Donofrio, Eligibility Update: Ankeny v. Daniels.
[39] These sources have raised concerns about the soundness and veracity of the U.S. v.
Wong Kim Ark opinion:
Amicus Curiae Brief in Hamdi v. Rumsfeld
From Feudalism to Consent: Rethinking Birthright Citizenship
Children Born in the United States to Aliens
Thoughts on United States Citizenship
Was U.S. vs. Wong Kim Ark Wrongly Decided?
[40] In Minor v. Happersett (1874), the Supreme Court expressed doubts regarding the
citizenship (therefore, the natural born citizenship) of U.S.-born children of non-
citizen parents:
were its citizens became themselves, upon their birth, citizens also.
These were natives, or natural-born citizens, as distinguished from
aliens or foreigners. Some authorities go further and include as citizens
children born within the jurisdiction without reference to the citizenship
of their parents. As to this class there have been doubts, but never as to
the first. For the purposes of this case it is not necessary to solve these

doubts. (Minor v. Happersett, 1874)
To date, the Supreme Court has not resolved these doubts.

[41] Unless otherwise specified, the word "subject" refers to an English subject -- a
person who owes permanent allegiance to the King of England. In contrast, a
"foreign subject" is a person who owes permanent allegiance to a sovereign other
than the English Crown.
[42] In a monarchial form of government, a subject is defined as a person "who owes
permanent allegiance to the monarch" (Legal definition of "subject").
[43] "Protection" included, but was not limited to, the right to defend one's movable and
non-movable personal property in English courts.
[44] After the American Revolution, England and the United States defined "the people"
differently. In England, "the people" consisted of subjects and alien friends, but not
foreigners. In the United States, "the people" were comprised of U.S. citizens only.
The words "people of the United States" and "citizens" are synonymous
terms, and mean the same thing. They both describe the political body
who, according to our republican institutions, form the sovereignty and
who hold the power and conduct the Government through their
representatives. They are what we familiarly call the "sovereign people,"
and every citizen is one of this people, and a constituent member of this
sovereignty. (Scott v. Sandford, 1856)
[45] In medieval times, subjects and aliens had the same property rights. Both could
acquire English real estate and bequeath it to their heirs. But by the end of the 15th
century, only subjects, not aliens, could hold land.
Throughout early modern Europe, only natural or naturalized subjects

could hold land in each kingdom. Coke listed several reasons for this
restriction. First, aliens might discover "the secrets of the realm."
Second, "[t]he revenues of the realm (the sinews of war, and ornaments
of peace) should [not] be taken and enjoyed by strangers born." Third,
alien landholding would "tend toward the destruction of the realm." It
might also endanger "justice": juries were drawn from freeholders, and
if aliens were allowed to hold land, there might not be enough natural
freeholders to fill a jury. At base, the fear was that alien landholders
would form a "Trojan horse" ever "ready to set fire on the common-
wealth." (Hulsebosch, p.10)
[46] As a general rule, the word "alien," when not qualified, was presumed to mean
"alien friend" -- a citizen or subject of a foreign country which had friendly
diplomatic relations with England. In contrast, alien enemies -- citizens or subjects
of a country which was hostile towards England -- were treated more as foreigners
than aliens. Alien friends were regarded as immigrants. Alien enemies were regarded
as invaders, saboteurs and/or spies.
[47] An alien's status could, at any moment, change from "friend" to "enemy", or vice
versa, as the result of international events outside of the alien's control. If war breaks
out between England and an alien's home country, the alien's legal status changes
from "alien friend" to "alien enemy". Alien enemies are subject to deportation.

[48] In 1608, Lord Coke defined "denizen" as anyone who was subject made:
The second [kind of allegiance] is called ligeantia acquisita [acquired

allegiance], not by nature but by acquisition or denization, being called
a denizen, or rather donaizon, because he is subditus datus [subject
made by gift]. (Coke(1608), p.177, boldface emphasis added)
[49] The word "denizen" had a general meaning and a specific meaning. Sir Edward
Coke (1552-1634) defined "denizen" (in the general sense) as anyone who acquired
English subjecthood by any non-natural means. Francis Bacon (1561-1626) limited
his definition of "denizen" only to those who became an English subject "by the
king's charter", that is, by letters patent issued by the king.
In Bacon's view, there were four categories or "degrees" of persons: 1) alien

enemies, 2) alien friends, 3) denizens, and 4) natural-born subjects. Persons became
natural-born subjects either by birth or by acts of Parliament, but not by denization.
The first degree of persons ... is an alien enemy; that is, such a one as is
born under the obeisance of a prince or state that is in hostility with the
king of England. To this person the law giveth no benefit or protection
at all ...
The second person is an alien friend, that is, such a one as is born under
the obeisance of such a king or state as is confederated with the king of
England, or at least not at war with him. To this person ... the law doth
indue him but with transitory benefit, that is, of movable goods and
personal actions. ...
The third person is a denizen, using the word properly, (for sometimes it
is confounded with a natural born subject): this is one that is subditus
insitivus, or adoptivus, and is never by birth, but only by the king's
charter... To this person the law giveth an ability and capacity abridged,
not in matter, but in time. ... For if he purchase freehold after his
denization, he may take it; but if he have purchased any before, he shall
not hold it: so if he have children after, they shall inherit; but if he have
any before, they shall not inherit. ...
The fourth and last degree is a natural born subject, which is evermore
by birth, or by act of parliament; and he is complete and entire.
(Bacon, Francis, pp.648-649, boldface emphasis added)
In Bacon's view, an alien (a person who was not an English subject by birth) could
become an English subject either by naturalization or by denization. Naturalization
was an act of Parliament; denization was conferred by letters patent issued by the
king. The rights conferred by naturalization were retroactive to the time of birth.
Denization was not retroactive; the rights conferred by denization were effective as
of the time of denization, but not before. In Bacon's opinion, naturalization conferred
"natural-born subject" status but denization (by royal prerogative) did not.
By the time the U.S. Constitution was written (in 1787), the general definition of
"denizen" had disappeared; only Bacon's specific definition remained. However,
when Calvin's Case was decided in 1608, the broader and more inclusive definition
of "denizen" was still in use.

[50] "Protection" was a matter of English law. The English king was expected to
"protect" the people who were within his territory and allegiance. Safe conduct was
a matter of international convention. Foreign countries provided safe-conduct to
Englishmen, as long as England provided safe-conduct to foreigners.
[51] Aliens and foreigners were punished differently for crimes against the king:
By mentioning "alien or foreigner," Cunningham makes the same

differentiation Hamilton and Representatives Vining and Stone did.
There is a difference: "alien or foreigner." Cunningham differentiates
here because although "foreigners" will "be dealt with by martial law,"
on the other hand, "aliens," "living under the protection of the King ...
may be punished only as traitors." An "alien," because of the status as
part of "the People," will be punished differently than a "foreigner," but
in the same manner as a denizen or citizen/subject. (Berry, p.350)
[52] In Blackstone's view, the main difference between "alien" and "foreigner" was
residency:
The main difference between "alien" and "foreigner" for Blackstone

revolves around residency. An "alien" resides in a sovereign's realm
other than the one in which the alien was born, where a "foreigner" can
reside as such, but can also reside extraterritorially or simply not
deserve or expect protection. (Berry, p.343)
[53] As best we can determine, the term "actual obedience" was a reference to English
subjects, not aliens (see Question 24: Actual Obedience).
[54] The word "denizen" had two meanings: a general meaning, and a specific meaning.
In the general sense, all persons who were subjects made (subjects by artifical
means) were called "denizens". Lord Coke's Report on Calvin's Case (1608) used
the word "denizen" in the general sense. By the time the U.S. Constitution was
written (in 1787), the general definition of "denizen" had become obsolete, and the
word acquired a more narrow and specific meaning. In the specific sense, "denizen"
referred only to aliens who were made English subjects by acts of the king (letters
patent, or military conquest of the aliens' home country). Persons who acquired
English subjecthood by statute or naturalization were no longer called "denizens";
instead, they were called "natural-born subjects".
[55] The word "denizen," by itself, implies full rights. Nevertheless, persons made
denizens by the king were often subject to restrictions imposed by the king. Persons
who were naturalized by Parliament were not subject to such restrictions.
But if the Plaintiff's father be made a denizen, and purchase lands in

England to him and his heirs, and die seised, this land shall never
descend to the Plaintiff, for that the King by his Letters Patents may
make a denizen, but cannot naturalize him to all purposes, as an Act of
Parliament may doe; neither can Letters Patents make any inheritable in
this case, that by the common Law cannot inherit. (Coke(1608), p.181)
[56] The King James Version of the Bible, published in 1611, was named after James
Charles Stuart who, at the time, was king of Scotland and England (and,
incidentally, Ireland as well).

[57] The plaintiff in Calvin's Case, Robert Calvin (born in 1603), should not be confused
with the Protestant Reformation leader John Calvin (1509-1564). The two do not
appear to be related in any way.
[58] Robert Calvin (aka Robert Colville) was born in Edinburgh, Scotland. His father and
grandfather were Scotsmen.
...the Post-Natus was one Robert Colville, then three years old. His
exact identity has been question, but there is little doubt that he was the
grandson of Lord Colville of Culross, and son of Robert Colville,
master of Culross. (Galloway, p.148)
There is some mystery about the identity of the plaintiff. He is held to

have been Robert Colville, a grandson of Lord Colville of Culross --
Calvin or Colvin being an alternative rendering of Colville. That the
plaintiff was indeed Lord Colville's grandson is attested by R.P.C. VIII
(1607-10), 557-8; the difficulty is that Lord Colville's "oy" (grandson)
there referred to was named James, not Robert, and was born in 1604
(Scots Peerage, II, 557-8). His father, the Master of Colville, was called
Robert, and possibly this may have led to confusion. Oy, however,
could signify nephew (Scottish National Dictionary, VI, 465); but no
known nephew fits the bill. (Ferguson, p.104)
According to Lord Coke, Calvin was "born under the natural and absolute ligeance
of the king". Coke made the argument that, if children born under "local obedience"
are natural-born subjects, then Calvin, who was born under "natural and absolute
ligeance", must be a natural-born subject "so much the more so".
...for he [an alien friend] owed to the King a local obedience, that is, so
long as he was within the King's protection: which local obedience,
being but momentary and incertain, is strong enough to make a natural
subject; for if he hath issue [a child] here, that issue [child] is a natural
born subject: a fortiori [so much the more so] he that is born under the
natural and absolute ligeance of the King (which as it hath been said, is
alta ligeantia [high allegiance]) as the plaintiff in the case in question
was, ought to be a natural born subject; for localis ligeantia est ligeantia
infima et minima, et maxime incerta [local allegiance is something mean
and small, and extremely uncertain]. (Coke(1608), p.179, boldface
emphasis added)
Francis Bacon explained that the phrases "born within" and "born under" do not refer
to the allegiance that a child acquires at birth. Rather, they refer to the allegiance of
the child's parents. To be "born within the allegiance of the English king" was a
figure of speech, referring to:
...children whose parents were at the time of their birth at the faith and
obeisance of the king of England. (Bacon, Francis, pp.652-653)
Robert Calvin was "born under the natural and absolute ligeance", meaning that,
when Calvin was born, his parents were natural subjects of the Scottish king.
[59] Robert Calvin was born in Scotland, of Scottish parents. When he was denied access
to English property that he had inherited, his guardians filed a lawsuit in English
Court. That lawsuit is known today as Calvin's Case:

The question in Calvin v. Smith was whether a Scotsman born after

James inherited the English throne in 1603 could sue in the common law
courts to vindicate title to land located in England. ... Robert Calvin was
a Scottish infant born after James I's accession to the English throne. He
[Calvin] claimed an inheritance of land in England, and the English
possessors of the land blocked his entry. Calvin's guardian brought an
action against these men under the assize of novel disseisin, a medieval
statute allowing a plaintiff "recently disseised" of land to sue in the
common law courts for repossession. The Englishmen's defense was that
Calvin had no rightful claim [in England] because he was an alien [not
an English subject]. (Hulsebosch, p.10)
[60] Yelverton, one of the judges who heard Calvin's Case in 1608, noted that a subject
by man-made law was not a "real" subject. Parliament may confer subjecthood and
deem someone to be a subject, but can never make someone a subject "indeede" (in
fact):
A parliament may make a man to be accompted as naturalised, and

conclude every man to say but that he is so, but it can never make a
man to be so indeede (Yelverton, as quoted by Galloway, p.157).
According to Cunningham's Law Dictionary (1783), Calvin's Case did not confer
English subjecthood to persons who were naturalized by Irish or Scottish law.
Naturalization (by man-made law) is merely a "fiction of law" which has no effect
except in countries consenting to that fiction. An Irish or Scottish subject acquired
automatic English subjecthood at birth only if such person was an Irish or Scottish
subject by birth (i.e., by natural law).
Naturalizing in Ireland is of no effect as to England; for naturalization is

but a fiction of law, and can have effect but upon those only consenting
to that fiction; therefore it has the like effect as a man's birth hath,
where the law-makers have power, but not where they have not.
Naturalizing in Ireland gives the same effect in Ireland as being born
there; so in Scotland as being born there; but not in England, which
consents not to the fiction of Ireland or Scotland, not any but her own.
(Cunningham, section entitled "Aliens")
[61] Lord Coke's Report regarding Calvin's Case (1608) was considered authoritative in
1787, the year the U.S. Constitution was written.
Statutory regulation largely superceded Calvin's Case after 1844, but in

certain contexts Coke's opinion was still considered authoritative
(Kettner, p.7).
The common law, as thus enunciated in Calvin's Case, continued in

force until 1914... (Ross, p.7).
[62] Coke's reports, and his four-volume Institutes of the Lawes of England, were well
known and widely read in the American colonies:
His legal texts formed the basis for the modern common law, with
lawyers in both England and America learning their law from his
Institutes and Reports until the end of the eighteenth century. ... Coke's

reputation as one of the most influential jurists in Anglo-American

history rests to a significant extent on the central role that his legal
writings have had in the development of the modern common law. Of
greatest importance have been his thirteen volume series of Reports, and
his four volume Institutes of the Lawes of England. Coke's Reports have
been described by the legal historian Sir John Baker as "perhaps the
single most influential series of named reports." (Wikipedia: Edward
Coke)
[63] Natural allegiance is acquired only at birth and has three core characteristics: it is
personal, it is perpetual, and it is exclusive.
Personal:
Natural allegiance is to the king himself, not his Crown or kingdom. One's
natural allegiance is an obligation to serve and obey the person (or the
legitimate successor of the person) who was king at the time of one's birth:
And it was resolved, that [ligeance] was due to the natural person
of the King ... and it is not due to the politique capacity only, that
is, to his Crown or kingdom distinct from his natural capacity...
(Coke(1608), p.190)
The concept of personal allegiance originated in Feudalism:
Feudal government was always an arrangement between

individuals, not between nation-states and citizens. ... There was
no sense of loyalty to a geographic area or a particular race, only
a loyalty to a person, which would terminate upon that person's
death. (Feudalism)
Perpetual:
If you are an English subject by birth, you are bound to remain an English
subject for the rest of your life; you do not have the right of expatriation.
Seeing then that faith, obedience, and ligeance are due by the law
of nature, it followeth that the same cannot be changed or taken
away; ... (Coke(1608), p.197)
Natural allegiance is therefore a debt of gratitude; which cannot

be forfeited, cancelled, or altered, by any change of time, place,
or circumstance, nor by any thing but the united concurrence of
the legislature. An Englishman who removes to France, or to
China, owes the same allegiance to the king of England there as at
home, and twenty years hence as well as now. For it is a principle
of universal law, that the natural-born subject of one prince
cannot by any act of his own, no, not by swearing allegiance to
another, put off or discharge his natural allegiance to the former:
for this natural allegiance was intrinsic, and primitive, and
antecedent to the other; and cannot be divested without the
concurrent act of that prince to whom it was first due.
(Blackstone)
Exclusive:
You may owe simple allegiance to more than one lord at the same time. But

natural allegiance is to one, and only one, sovereign (see Question 28:
Exclusive Allegiance).
And this maxim of the law proceeded upon a general principle,

that every man owes natural allegiance where he is born, and
cannot owe two such allegiances, or serve two masters, at once.
(Blackstone)
Whosoever are born under one natural ligeance and obedience,

due by the Law of Nature to one Sovereign are natural born
Subjects (Coke(1608), p.224, boldface emphasis added)
[64] The term "natural-born subject" did not have precise or consistent meaning:
...the terms "natural-born" and "naturalized" seem to have been used

rather interchangeably in English jurisprudence (Bonner, p.25)
...in 1608 the terms natural-born and naturalized appear to have been
used rather imprecisely (Price, p.87)
[65] During Queen Elizabeth's reign (from 1558 to 1603), aliens who became English
subjects by naturalization were "reputed and taken" to be natural-born subjects:
Twelve private Acts are to be found for the reign of Elizabeth I. About
half of these provide for the making of the person named "a free
denizen" [5 Eliz. No. 20, 8 Eliz. No. 9, 13 Eliz. No. 2, 23 Eliz. No. 3, 43
Eliz. No. 3.]. But in the others the formula is varied, provision being
made, for instance, "that Garsome Wroth, born in Germany, shall be
taken and reputed the Queen's natural-born subject" [1 Eliz. No. 6.];
"that the Lady Jane Sibilla, wife to the Lord of Wilton, born beyond the
Seas, shall be reputed and taken the Queen's natural subject" [18 Eliz.
No. 7.]; ... (Parry)
Giles Jacob's New Law Dictionary defines "naturalization" as a legal process by

which an alien becomes a natural subject in the eyes of the law:
Naturalization, (Naturalizatio) Is where a person who is an alien, is

made the King's natural subject by act of parliament; whereby one is a
subject to all intents and purposes, as if he were born so. (Jacob (1782))
An alien who underwent naturalization was put in "exactly the same state" as if he
were a subject by birth:
Naturalization cannot be performed but by act of parliament: for by this

an alien is put in exactly the same state as if he had been born in the
king's ligeance; except only that he is incapable, as well as a denizen, of
being a member of the privy council, or parliament, &c. (Blackstone)
[66] Don Hector Nunez was born in Portugal, of Portugese parents. During his youth, he
immigrated to England to escape the Inquisition. He was deemed an English natural
subject after living in England for more than 20 years. (January 1576, Calendar of
State Papers Foreign, Elizabeth, Volume 11: 1575-1577). In 1588, Nunez provided
England with invaluable military intelligence regarding the Spanish Armada's

advance towards England (Hutchinson, p.219).

[67] Like the Act of Anne, the British nationality acts of 1730 and 1772 did not explicitly
say that foreign-born children of British fathers are natural-born subjects. These acts
merely said that such children shall be deemed, adjudged, taken and declared to be
natural-born subjects, for all intents, constructions and purposes.
...That all Children born out of the Ligeance of the Crown of England,
or of Great Britain, or which shall hereafter be born out of such
Ligeance, whose Fathers were or shall be natural-born Subjects of the
Crown of England, or of Great Britain, at the Time of the Birth of such
Children respectively, shall and may, by virtue of the said recited Clause
in the said Act of the seventh Year of the Reign of her said late
Majesty, and of this present Act (7 Ann. c. 5. s. 3.), be adjudged and
taken to be, and all such Children are hereby declared to be natural-born
Subjects of the Crown of Great Britain, to all Intents, Constructions and
Purposes whatsoever. (British Nationality Act of 1730)
...That all Persons born, or who hereafter shall be born, out of the
Ligeance of the Crown of England, or of Great Britain, whose Fathers
were or shall be, by virtue of a Statute made in the Fourth Year of King
George the Second, to explain a Clause in an Act made in the Seventh
Year of the Reign of Her Majesty Queen Anne, for naturalizing Foreign
Protestants, which relates to the natural-born Subjects of the Crown of
England, or of Great Britain, intitled to all the Rights and Privileges of
natural-born Subjects of the Crown of England or of Great Britain,
shall and may be adjudged and taken to be, and are hereby declared and
enacted to be, natural-born Subjects of the Crown of Great Britain, to
all Intents, Constructions, and Purposes whatsoever, as if he and they
had been and were born in this Kingdom: ... (British Nationality Act of
1772)
The implication was that the "natural-born subject" status of some children was
actual and self-evident; no man-made law was needed to specify their legal status at
birth. Other children were natural-born subjects only because Parliament had
"deemed" and "declared" them so.
[68] Alien friends were expected to take, or at least comply with, the Oath of Allegiance
(see England's Oaths):
Alien friends -- ... i.e. immigrants from a country on friendly terms with
the English crown -- were protected by the law, owed temporarily
allegiance to the king and were obliged to take the oaths required of
subjects. However, their rights fully to participate economically and
legally in the host society were restricted. (Esser, p.240)
When alien friends took the Oath of Allegiance, they did not necessarily sever their
ties to their home countries. They merely promised that, while on English soil, they
would "bear faith and true allegiance" to the English king. Such wording implied at
least a temporary suspension of competing or conflicting allegiances.
Prior to the Civil War, the U.S. Supreme Court declared, as unconstitutional, a
South Carolina oath swearing "faithful and true allegiance" to the State of South
Carolina, because such oath conflicted with allegiance to the U.S. Federal
government:

In the case of The State v. Hunt, in South Carolina, in 1835, 2 Hill (S.
C), 1, the subject of allegiance, and to whom due under the Constitution
of the United States, was profoundly discussed, and it was declared by a
majority of the Court of Appeals that the citizens owed allegiance to the
United States, and subordinately to the state under which they lived; ...
and that we owed allegiance or obedience to both governments, to the
extent of the constitutional powers existing in each.
The court held that an oath prescribed by an act of the [South Carolina]
legislature of December, 1833, to be taken by every militia officer, that
he should be faithful, and true allegiance bear to the State of South
Carolina, was unconstitutional and void, as being inconsistent with the
allegiance of the citizens to the federal government. The court
consequently condemned the ordinance of the convention of South
Carolina of November, 1832, as containing unsound and heretical
doctrine, when it declared that the allegiance of the citizens was due to
the state, and obedience only, and not allegiance, could be due to any
other delegated power. (Kent, pp. 67-68)
While living on English soil, alien friends were within the king's allegiance. They
temporarily suspended any aspect of their foreign allegiance that might conflict with
their "faith and true allegiance" to the English king. They could resume their foreign
allegiance as soon as they departed from English-controlled territory.
On the other hand, English subjects -- regardless of how they acquired their
subjecthood -- were expected to take, or at least comply with, the Oath of
Supremacy, in addition to the Oath of Allegiance. The English Oath of Supremacy
included a promise to "utterly renounce and forsake" all foreign "Jurisdictions,
Powers, Superiorities, or Authorities". Thus a naturalized English subject did not
merely suspend his foreign allegiance; he renounced it entirely.
[69] Here are Lord Coke's "official" definitions of the four kinds of ligeance (allegiance):
There is found in the law four kinds of ligeances:
the first is, ligeantia naturalis, absoluta, pura, et indefinita [natural,

absolute, pure and unlimited allegiance], and this originally is due by
nature and birthright, and is called alta ligeantia [high allegiance] and
he that oweth this is called subditus natus [subject born].
The second is called ligeantia acquisita [acquired allegiance], not by

nature but by acquisition or denization, being called a denizen, or rather
donaizon, because he is subditus datus [subject made by gift].
The third is ligeantia localis [local allegiance] wrought by the law, and
that is when an alien that is in amity cometh into England, because as
long as he is within England, he is within the King's protection;
therefore so long as he is there, he oweth unto the King a local
obedience or ligeance, for that the one (as it hath been said) draweth the
other.
The fourth is a legal obedience, or ligeance which is called legal,

because the municipal laws of this realm have prescribed the order and
form of it; and this to be done upon oath at the Torn or Leet.

(Coke(1608), pp.177-8, boldface emphasis added)
Those who were born with natural allegiance were subjects born. Those whose
allegiance was acquired were subjects made, also referred to as "denizens" (in the
general sense of the word).
[70] From Timothy Cunningham's Law Dictionary (1771):
Also if one born out the king's allegiance, come and dwell in England,
his children begotten here, are not aliens, but denizens (Timothy
Cunningham, Law Dictionary, 1771, section titled "Aliens", pp.94-102,
italics are as they appear in the original).
[71] From Giles Jacob's New Law Dictionary (1782):
And if one born out the king's obedience comes and resides in England,
his children begotten and born here, are not aliens but denizens (Giles
Jacob, New Law Dictionary, 1782, section titled "Aliens", p.40, italics
are as they appear in the original).
[72] From Samuel Johnson's A Dictionary of the English Language (1755):
If one born out the king's allegiance, come and dwell in England, his
children (if he beget any here) are not aliens, but denizens. (Samuel
Johnson, A Dictionary of the English Language (1755), as quoted by
Berry, p.365, italics are as they appear in the original)
[73] According to the Huguenot Society, when Calvin's Case was decided in 1608, there
was no statutory difference between "naturalization" and "denization".
It is important to bear in mind what is the real nature of the distinction

... between naturalization and denization. The general explanation given
is that naturalization conferred full rights including the most cherished
right of all, that of purchasing, holding and transmitting lands; while
denization conferred only restricted rights. In especial it did not confer
this right as to lands. This explanation is an untrue one for all the period
prior to the Stuarts [1603]. Indeed it is an untrue one altogether. (Shaw,
p.vi)
The only real difference between naturalization and denization was that
naturalization was usually done by Parliament, and denization was usually done by
the king. "Denization" gained a reputation of conferring "restricted rights" because
the king often (but not always) included restrictions in the letters patent that he
issued. Parliament, on the other hand, generally did not include such restrictions in
its grants of English subjecthood.
When the two forms of grant [naturalization and denization] had

become stereotyped (from the time of the Stuarts onward) the real
distinction between them is that grants of denization originated from the
king (or the executive) and were an act of the prerogative or of the
executive; while grants of naturalization originated with the parliament
and were an act of the legislative. The fact that one grant (denization)
came generally to confer only restricted rights while the other

(naturalization) conferred full rights was a mere accident and was due to
the unfettered nature of the prerogative or the power of the executive. In
making his grant of denization by letters patent the king (the executive)
could put into the grant what he pleased or keep out of it what he
pleased. He could grant the right of paying only natives' or single
customs; he could refuse that right and make the denizen pay aliens'
duties; he could grant the right to purchase and hold lands; he could
withhold that right; he could insist on residence or he could dispense
with it; he could restrict the occupation of the denizen so as to forbid
him for instance to be a master of a ship; and so on and so on.(Shaw,
p.vi)
By definition, a denizen is an Englishman with full rights. After transforming an

alien into a denizen, the king may, as an after thought, restrict some of these rights.
But in restricting these rights, the king does not alter the core meaning of "denizen".
But ever and always it must be born in mind that wherever restrictions
are found in the prerogative grants they are an after thought. When a
person was made a denizen by patent the intention was to make him an
Englishman not half an Englishman or three-quarters an Englishman,
and the word denizen is never used legally as implying a class of
Englishman with restricted rights. (Shaw, p.vii)
Except for restrictions that the king might include in his letters patent, there was no
inherent difference between naturalization and denization.
For instance when in the latter half of Elizabeth's reign naturalization

Acts specifically so called come into vogue the words naturalization and
denization are used as interchangeable and equivalent terms. The first
occasion on which the term naturalization is employed is in 1581 (23
Eliz.) but as late as 1601 (43 Eliz.) the term denization is still employed
in an Act of parliament. To make a foreigner a denizen or to naturalize
him were therefore the same thing and both meant to make him mere
[pure] English. (Shaw, p.viii)
[74] In his Report regarding Calvin's Case, Coke repeatedly used the term "actual
obedience" in reference to a city or country of which the king was in actual
possession. When the king took actual possession of a city or country, such city or
country was said to be under the king's "actual obedience".
... that this employment was into France; the greatest part thereof then being
under the King's actual obedience ... (Coke(1608), p.183)
... Lord Talbot went with a company of Englishmen into France, then also
being for the greatest part under the actual obedience of the King ...
(Coke(1608), p.183)
And certainly this was, when Lyons in France (bordering upon Burgundy, an
ancient friend to England) was under the actual obedience of King Henry the
6. (Coke(1608), pp.185-186)
[75] Lord Coke noted that, in Biblical times, children born in Samaria were foreigners
because the people of Samaria were "not under actual obedience".

Samaria in Syria was the chief City of the ten Tribes: but it being
usurped by the king of Syria, and the Jews taken prisoners, and carried
away in captivity, was after inhabited by the Panyms. Now albeit
Samaria of right belonged to Jurie, yet because the people of Samaria
were not under actual obedience, by the judgment of the chief Justice of
the whole world they were adjudged Alienigenae, Aliens: For in the
Evangelist St. Luke, c. 17, when Christ had cleansed the ten Lepers,
Unus autem ex illis (saith the Text) ut vidit quia mundatus

esset, regressus est, cum magna voce magnificans Deum, et
cecidit in faciem ante pedes ejus gratias agens, et hic erat
Samaritanus. Et Jesus respondens dixit, Nonne decem
mundati sunt, et novem ubi sunt? Non est inventus qui
rediret et daret gloriam Deo nisi hic alienigena.
[And one of them, when he saw that he was healed, went

back and with a loud voice glorified God, and fell down on
his face at his feet, giving him thanks: and he was a
Samaritan. And Jesus answering said, 'Were there not ten
that were cleansed? Where are the other nine? None of
them is found to come back and give glory to God except
this foreigner.']
So as by his judgment this Samaritan was Alienigena, a Stranger born,

because he had the place, but wanted obedience. Et si desit obedientia
non adjuvet locus [And, if obedience is lacking, the place does not help].
(Coke(1608), pp.223-4, underlining added)
[76] An "addition" is a title following a person's name, sometimes indicating the person's
place of origin or residence. For example, in the phrase "Queen Elizabeth I of
England", England is the place of addition.
[77] When a king was in actual possession of a country's territory, not every man, woman
and child residing in the country was necessarily under the king's "actual obedience".
Elsewhere in Coke's Report, we find that certain persons, such as foreign
ambassadors and alien enemies, did not owe any allegiance to the king. Such
persons were not under the king's obedience, and their children, even if born within
the king's realm, were not the king's subjects.
[78] Some native Scotsmen, presumably born in Scotland after 1603, underwent
conventional English naturalization or denization, despite the fact that the ruling in
Calvin's Case had supposedly granted automatic English subjecthood to native-born
Scotsmen.
What is also curious is that the denization of Scots persists until very
late in the [seventeenth] century. It would seem almost impossible that
John Thomason, who sought denization in 1661 and was a Scot by birth
and an active merchant, should have been born before [1603]. Nor does
it seem likely that Robert Creighton, the Dean of Wells, whose name
was included in a naturalisation Act in 1663, was an antenatus, though
a Scot. The possibility seems even more remote in the cases of John
Poston or Paston, a mariner of Fife, endenized in 1668, and John
Dicksone, whose grant in 1674 reserved aliens' customs. And it does not
follow that they were the only cases of this period since very often the

origin of the grantee is not recorded. (Parry)
John Thomason's application for denization (1661) reads:
Petition to the King from John Thomason praying denization. Is a Scot

by birth and a trader between Hamburg and Newcastle, and often
transported persons of honour for the late king, epsecially one whom
Parliament forbade on pain of death. (Shaw, p.88)
John Poston was listed on June 5, 1668, as:
John Poston, Fife, Scotland, mariner (Shaw, p.101)
John Dicksone's application for denization was recorded on June 20, 1674:
John Dicksone of St. Martins in the Fields, native of Scotland: with

proviso to pay strangers' customs (Shaw, p.110)
In the Naturalization Act of 1663, Robert Creigton was listed as follows:
Robert Creigton, Doctor of Divinity and Deane of Wells, born in the

Kingdome of Scotland (Shaw, p.90)
[79] Lord Coke listed "conquest" as one of the means of denization. When a king
conquered a country and took actual possession of it, its people became denizens
(adopted subjects) of the king.
And this denization of an alien may be effected three manner of wayes:

by Parliament, as it was in 3 Hen. 6. 55 in Dower; by letters patents, as
the usual manner is; and by conquest, as if the King and his subjects
should conquer another Kingdome or dominion, as well Antenati as
Postnati, as well they which fought in the field, as they which remained
at home for defence of their countrey, or employed elsewhere, are all
denizens of the kingdom or dominion conquered. (Coke(1608), pp.178-
9, boldface emphasis added)
Note that, in 1608, Coke used the word "denizen" in the general sense, referring to
anyone who became an English subject by any artifical means. At the time,
denization was synonymous with naturalization, and both denizens and naturalized
subjects were called "natural-born subjects" in the general sense.
[80] When England conquered Ireland, the Irish people became English subjects:
...the Irish kept their own native laws, but the Irish and English were
nonetheless all subjects who owed a bond of allegiance to the king of
England. It is in this context -- to support the argument that English and
Irish in Angevin times were all subjects of the same king though they
had different national laws -- that Bacon purported to deduce from the
historical evidence the proposition of law that the laws of conquered
countries remain until the king decides to change them. (Loughton,
p.164)
[81] The words "citizen" and "foreigner" had different meanings depending on context.
In an urban context, a "citizen" of a city was someone who had certain rights and

privileges, called "freedom of the city", and a "foreigner" was someone who was not
a citizen of the city in which s/he was visiting or living. This passage, from
Blackstone's Commentaries (1765-1769), is an example of how the English words
"citizen" and "foreigner" were used in an urban context prior to the American
Revolution:
In some cases, the sheriff of London's certificate shall be the final trial:
as if the issue be, whether the defendant be a citizen of London or a
foreigner, in case of privilege pleaded to be sued only in the city courts.
(Blackstone's Commentaries, Book 3, Chapter 22, emphasis added)
However, in an international context, a "citizen" of a state was a full-fledged

member of that state, and a "foreigner" was a native, subject or citizen of some other
state.
[82] In eighteenth-century English cities and towns, "citizenship by birth", also called
"citizenship by patrimony", was available:
...only to the legitimate and natural children of a male (or, since 1976,
female) Freeman who were born after their parent's own Freedom
admission. (City Freedom Archives)
You could claim English municipal "citizenship by birth" if, at the time of your
birth, your father was a citizen:
It may be assumed that those who claimed the franchise by birth were
the sons of well-to-do freemen (Seybolt, p.4)
Freedom by patrimony was granted to sons of citizens who requested

admission to freedom under the auspices of the guild to which their
father belonged. (Herzog, p.178)
[83] Redemption -- the process of becoming a freeman of a city by paying a fee -- was
available only to those who were already "free".
The common law courts also stated that freedom could never be sold.
Buying freedom by paying redemption fees was a fiction. Although
presented as a purchase, in reality this transaction consisted of formally
recognizing that people were already free. Indeed, people who were
truly unfree could not purchase their freedom in this way. (Herzog,
p.181)
[84] The conventional theory of French birthright citizenship is that:
Prior to 1600, the jus sanguinis principle prevailed in France;
During the ancien regime [1650-1789], the jus soli principle became the
primary means of acquiring French nationality; and
After the French Revolution in 1789, jus sanguinis re-emerged as the rule in
France.
According to this theory, the jus soli principle prevailed in France when the U.S.
Constitution was being written.

In 1869, Alexander Cockburn wrote:
By the law of France, anterior to the [French] revolution, a child born

on French soil, though of foreign parents, was a Frenchman, as it was
termed, jure soli (Cockburn, p.14)
According to the majority opinion in U.S. v. Wong Kim Ark (1898), the jus soli
principle was the "rule of Europe" prior to the French Revolution:
But at the time of the adoption of the constitution of the United States in
1789 [sic], and long before, it would seem to have been the rule in
Europe generally, as it certainly was in France, that, as said by Pothier,
"citizens, true and native-born citizens, are those who are born within
the extent of the dominion of France," and "mere birth within the realm
gives the rights of a native-born citizen, independently of the origin of
the father or mother, and of their domicile"; and children born in a
foreign country, of a French father who had not established his domicile
there, nor given up the intention of returning, were also deemed
Frenchmen ...
The general principle of citizenship by birth within French territory

prevailed until after the French Revolution ... The Code Napoleon of
1807 changed the law of France, and adopted, instead of the rule of
country of birth, jus soli, the rule of descent or blood, jus sanguinis, as
the leading principle; but an eminent commentator has observed that the
framers of that code "appear not to have wholly freed themselves from
the ancient rule of France, or rather, indeed, ancient rule of Europe, --
'De la vieille regle francaise, ou plutot meme de la vieille regle europ
eenne,' -- according to which nationality had always been, in former
times, determined by the place of birth."(Wong Kim Ark, 1898)
In 1972, Patrick Weil wrote that, in France prior to the French Revolution, jus soli
"took precedence" over jus sanguinis:
...throughout the ancien regime [1650-1789], the jus soli was the
primary requirement for the attribution of French nationality. And
although, beginning in the seventeenth century the jus sanguinis could
independently be used to access French nationality, it is important not to
be mistaken on this point -- birth on French soil still took precedence
over birth by French parents (regardless of birthplace) as the legitimate
criterion for determining French nationality.
The proof of this can be seen though an example provided by Jean-

Francois Dubost: during this period, children of French parents born
outside of France and residing on French territory needed to request
from the king a letter of naturalization in order to confirm their French
status. Children born in France of foreign parents would not have
needed to do this. (Weil, p.76)
However, Weil was careful to point out that no single principle, by itself, conferred
French nationality. In eighteenth-century France, the jus soli principle did not act
alone; it acted in combination with other principles:
Like all other legislation involving nationality, ever since the

seventeenth century, the French tradition has been based on a mixture,

or a blend -- as in a painting, several colours are mixed to achieve the
desired effect. In the case at hand, two of these 'colours' are always
mentioned: first, the birthplace, or jus soli ... and second, family
blood/ties, or jus sanguinis ...
However, two other 'colours' are often forgotten or neglected. The third
is marital status... Lastly there is past, present or future residence...
The mixture of these four basic 'colours' on the different legal 'palettes'
... determines what one must do in order to be granted French
nationality. (Weil, pp.75-76)
Other historians believe that the importance of jus soli in France, prior to the French
Revolution, has been exaggerated.
In his Commentaries (1765-1769), William Blackstone wrote that children born in

France, of alien parents, were aliens under French law:
The children of aliens, born here in England, are, generally speaking,

natural-born subjects, and entitled to all the privileges of such. In which
the constitution of France differs from ours; for there, by their jus
albinatus, if a child be born of foreign parents, it is an alien.
(Blackstone)
Clive Parry (1954) regards the "conventional theory" as an oversimplification:
For, when the parallel history of French law is examined, it is seen that
it is oversimplification to say that in France there was a period, before
the extension of the kingdom to the whole country, when the
Romanesque or barbaric jus sanguinius held sway, followed by a period
when the jus soli alone ruled until its reign was ended by the
Revolution. The supposition is a false deduction from the rule that
originally no one born out of France was a subject. The antithesis of that
was not, however, that anyone born in France was such. In the early
sixteenth century it was further required that at least one of his parents
should he French. Somewhat earlier it was probably required that both
parents should be French. And even later there were such curious
intermediate rules as that birth in France of parents married in France
sufficed, or that, though birth in France of alien parents would exclude
the droit d'aubaine if the heirs were descendants, it could not do so if
they were ascendants. It was also required, at the time when both French
birth and French parentage were demanded of a claimant of nationality,
that he should further be a rengicole -- in effect a resident. (Parry)
Tamar Herzog (2003) likewise finds that, in eighteenth century France, birthplace
was not as important as it has been made out to be:
The idea that Frenchness depended on birth in a certain territory was

initially linked to the belief that individuals loved the land where they
were born. But after the French kings ascertained their sovereignty, the
importance of birth diminished. Progressively, emphasis was shifted
from territoriality to subjecthood and from community to the king.
(Herzog, p.193)

At various times in French history, three groups of people were required to pay
"alien" taxes.
"true" foreigners
"naturalized" foreigners
persons born in France, of alien parents
Naturalized foreigners, and native-born children of foreigners, were Frenchmen by

law but were not true native Frenchmen in fact. They had some of the rights of true
native Frenchmen, but were nevertheless regarded as "aliens" for taxation purposes:
It was also the case in France that letters of naturalization and even birth
in the territory could fail to transform foreigners into natives. On
different occasions during the seventeenth century, for example, alien
taxation was levied on "true" foreigners, "naturalized" foreigners, and
native French who descended from foreign families. Stressing the
foreignness of these individuals, many of whom were legally French,
these decrees explained their taxation was justified because the presence
of foreigners on French soil was profoundly illegal and because
foreigners "usurped" the privileges of natives. Following this logic, in
1769, campaigns to distinguish true natives from actual (and legal)
foreigners were launched. (Herzog, p.195-6)
Only "true" native Frenchmen -- those born in France, of at least one French parent -
- were exempt from alien taxation.
[85] Foreign-born children of English non-civilian parents were "special cases". Such
children were, at birth, natural subjects of the king, despite the fact that they were
not born within the king's realm. At birth, these children owed allegiance to the
English king only and did not owe allegiance to any foreign sovereign.
English non-civilian parents included:
English ambassadors to a foreign country;

Members of English royalty; and
Senior officers of an army or navy undertaking an invasion and/or occupation
of foreign territory.
According to Vattel, if a parent, while in the diplomatic or military service of his

home country, gives birth to a child in a foreign country, the legal status of the child
is as though the child had been born in its parent's home country.
For the same reasons also, children born out of the country, in the
armies of the state, or in the house of its minister at a foreign court, are
reputed born in the country; for a citizen who is absent with his family,
on the service of the state, but still dependent on it, and subject to its
jurisdiction, cannot be considered as having quitted its territory. (Vattel,
§ 217)
On this one point, Vattel agreed with the English law regarding subjecthood. The
legal status of a foreign-born child of English non-civilian parents (i.e., parents who
were royalty or in the king's military or diplomatic service) was as though the child
had been born in England.
This point has been cited in support of John McCain's natural born citizenship.

McCain was born in a foreign country, of parents who were U.S. citizens in the
service of the United States government at the time of his birth. According to Vattel
and English law, McCain's legal status at birth was as though he had been born in
the United States.
[86] During a radio interview (May 2, 2010), Gov. Linda Lingle stated, "...we issued a
news release at that time saying that the president was, in fact, born at Kapi'olani
Hospital in Honolulu, Hawaii". However, the Hawaii Department of Health has
never issued any press release identifying Kapiolani hospital as Obama's birthplace.
President Obama and his family have, at various times, indicated that he was born in
Queen's Hospital. (The Obama File: Where Was Obama Born?).
Gov. Lingle may have inadvertently (and illegally) disclosed the name of the
hospital shown on Obama's original birth document; or, she may have merely
assumed that Obama was born in Kapiolani Hospital, based on the information
available to her at the time. Gov. Lingle did not say she had seen Obama's original
birth records. However, she was undoubtedly aware of a letter (January 24, 2009)
that President Obama purportedly sent to Kapiolani Medical Center, claiming that he
was born there. At the time of this writing, the White House has not confirmed the
authenticity of that letter, and Kapiolani Medical Center no longer displays the letter
on its website.
[87] Stanley Ann's mother (President Obama's maternal grandmother) was named
Madeline, not Madelyn (The Obama File: Stanley Ann Dunham).
[88] In 1961, forty-two births were registered in Hawaii as "unattended births". Of these
forty-two births, 4 babies were white and 38 were non-white. (See page 205 in Vital
Statistics of the United States, 1961, Volume 1).
Obama's birth announcement, which was published in the local Honolulu

newspapers, lists his parents' address as 6085 Kalanianaole Highway, which is
located in Honolulu County. Honolulu County is the Aloha State's only metropolitan
county. It occupies the entire island of Oahu. All other counties in the State of
Hawaii are classified as "nonmetropolitan".
In 1961, unattended births of white and non-white babies occurred in both urban and
rural portions of Honolulu County.
In the table below, column headings are as follows:
Total
Total number of births
Hospital
Births that took place in a hospital
Physician
Births that did not take place in a hospital, but were attended by a
physician
Midwife
Births that did not take place in a hospital, but were attended by a
midwife
Unattended
Births that did not take place in a hospital and were not attended

by a physician or midwife. The number of unattended births was

calculated by subtracting the number of hospital births, physician-
attended births and midwife-attended births from the total number
of births.
Total Hospital Physician Midwife Unattended
White 5,418 5,406 8 0 4
Non-white 12,198 12,110 50 0 38
All 17,616 17,516 58 0 42
Hawaii 1961 Births by Attendant

(Source: Page 205, Vital Statistics of the United States, 1961, Volume 1)
[89] Although John McCain was born under Panamanian jurisdiction, he did not acquire
Panamanian citizenship at birth:
Today Panama is a country that confers citizenship via jus soli, which if
he was born there today would mean that John McCain would not born
with only American claims to his allegiance. BUT, in 1936 Panama's
sole principle of birthright citizenship was jus sanguinis. Yes, Panama
did include in their Constitution an avenue of Panamanian citizenship
John McCain could have used, but it was not an automatic birthright. ...
The point is that Panama made no claim to John's allegiance at his birth,
John was born with only the United States of America having a claim to
his allegiance. (The Devil makes some Damned Deals)
References
Bacon, Francis Bacon, Case of the Post-Nati of Scotland, 1608. Also, James
Francis Spedding, Works of Francis Bacon, Volume XV.
Bacon, Matthew Bacon, A New Abridgement of the Law, 1736. (This is a 48MB
Matthew PDF document.)
Bancroft George Bancroft, History of the United States, Volume V, 1866-1892.
Banks Taunya Lovell Banks, Dangerous Woman: Elizabeth Key's Freedom Suit,
U. of Maryland Legal Studies Research Paper No. 2005-28, Akron Law
Review, v. 41, 2008.
Berry M. Anderson Berry, Whether Foreigner or Alien: A New Look at the
Original Language of the Alien Tort Statute, Berkeley Journal of
International Law, Vol. 27:2, 2009.
Black Henry Campbell Black, A Dictionary of Law, 1991.
Blackstone William Blackstone, Commentaries on the Laws of England, Book 1,

Chapter 10, 1765-1769.

Bodin Jean Bodin, Six Books of the Commonwealth, Book 1, 1576.
Bonner J. Rebekka Susan Bonner, Who May Be President? Constitutional
Reinterpretation of Article II's 'Natural Born' Presidential Eligibility Clause,
2008.
Bouvier Law Dictionary and Concise Encyclopedia, Volume 3, 1914.
Burlamaqui Jean Jacques Burlamaqui, The Principles of Politic law, Part 1, Chapter 5,
1748.
Carpenter A.H. Carpenter, Naturalization in England and the American Colonies,
2002.
Charlton John Charlton, History of Quo Warranto, 2009.
Cockburn Alexander Cockburn, Nationality, 1869.
Coke (1608) Edward Coke, Selected Writings of Sir Edward Coke: Volume 1, 1608.
(This is a 2.29MB PDF document).
Coke (1628) Edward Coke, Selected Writings of Sir Edward Coke: Volume 2, 1628-
1644. (This is a 2.23MB PDF
document).http://files.libertyfund.org/files/912/0462-02_LFeBk.pdf
Collins George Collins, Are Persons Born within the United States Ispo Facto
Citizens Thereof?, American Law Review, Sept/Oct 1884.
Cowell John Cowell, The Interpreter, 1607.
Cunningham Timothy Cunningham, A New and Complete Law-Dictionary, 1783.
Dellolio Ryan Dellolio, Citizenship and Nationhood: A comparative Analysis of
France and Germany, 2008.
Dowdy Dowdy, Natural Born Citizen, 1967.
Erler Edward J. Erler, "From Subjects to Citizens: The Social Compact Origins of
American Citizenship", in Ronald Pestritto and Thomas West, eds., The
American Founding and the Social Compact, 2003.
Esser Raingard Esser, Citizenship and Immigration in 16th and Early 17th-
Century England, 2006.
Ferguson William Ferguson, Scotland's Relations with England: a survey to 1707,
1994.
Fredrick Don Fredrick, The Obama Timeline.
Galloway Bruce Galloway, The Union of England and Scotland 1603-1608, 2003.
Greschak John Greschak, What is a Natural Born Citizen of the United States?, 2008-
2010.
Henriques Henry Straus Quixano Henriques, The Jews and the English law, 2005.
Herzog Tamar Herzog, Defining Nations, 2003.
Hulsebosch Daniel J. Hulsebosch, The English Constitution and the Expanding Empire:

Sir Edward Coke's British Jurisprudence, Law and History Review, 21 (Fall
2003).
Hutchinson Robert Hutchinson, Elizabeth's spymaster: Francis Walsingham and the
secret war that saved England, 2006.
Jacob
Giles Jacob, A New Law Dictionary, 1782.
(1782)
Jacob
Giles Jacob and T.E. Tomlins, The Law Dictionary, 1811.
(1811)
Kent James Kent, John Melville Gould, Oliver Wendell Holmes, Commentaries
on American law, Volume 2.
Kettner James H. Kettner, The Development of American Citizenship 1608-1870,
1978.
Kim (1996) Keechang Kim, Calvin's Case (1608) and the Law of Alien Status, The
Journal of Legal History, 17:2, pp.155-171, 1996.
Kim (2000) Keechang Kim, Aliens in Medieval Law, 2000.
Knop Karen Knop, Citizenship, Public and Private, 2008.
Long Breckinridge Long, Is Mr. Charles Evan Hughes a 'Natural Born Citizen'
Within the Meaning of the Constitution?, Chicago Legal News, Vol. 146-
148, pp. 220-222.
Loughton Gavin Loughton, Calvin's Case and the Origins of the Rule Governing
'Conquest' in English law, Australian Journal of Legal History, Vol.8, 2004.
Luu Lien Luu, Natural-Born versus Stranger-Born Subjects, 2005.
Madison
P.A. Madison, Was U.S. vs. Wong Kim Ark Wrongly Decided?, 2006.
(2006)
Madison P.A. Madison, What 'Subject to the Jurisdiction Thereof' Really Means,
(2007) 2007.
Madison
P.A. Madison, Defining Natural Born Citizen, 2008.
(2008)
Maskell Jack Maskell, Congressional Research Service, Qualifications for the Office
of President, April 3, 2009.
Mayton William Mayton, Birthright Citizenship and the Civic Minimum, 2007.
McPherson Edward McPherson, The Political History of the United States of American
during the Great Rebellion, 1864.
Morse Alexander Porter Morse, Natural-born Citizen of the United States:
Eligibility for the Office of President, Albany Law Journal, Vol.66 (1904-
1905).
Nickles Don Nickles, Natural Born Citizen Act Summary, 2004. (This is a 2-page
Microsoft Word document.)
Olsen Kirstin Olsen, Daily Life in 18th-century England, 1999.
Parry Clive Parry, British Nationality Law, 1954.

Patsall Ouintilian's Institutes of the Orator, Volume 2, 1774.

Polarik Ron Polarik, Final Report, 2008.
Prak Marrten Prak, Burghers into citizens: Urban and national citizenship in the
Netherlands during the revolutionary era (c.1800), 1997.
Price Polly Price, Natural Law and Birthright Citizenship in Calvin's Case, 1997.
Pufendorf Samuel von Pufendorf, The Whole Duty of Man According to the Law of
Nature, Book II, Chapter VI, 1673.
Ramsay David Ramsay, Dissertation on the Manner of Acquiring the Character and
Privileges of a Citizen of the United States, 1789, as found in Kerchner v.
Obama (Appeal), April 2, 2010.
Rawle William Rawle, A View of the Constitution, 1829.
Reeve Reeve, 1808, as quoted in American Law Register, Volume 3, 1864, p.615.
Ross J.M. Ross, "English Nationality Law: Soli or Sanguinis?", in Charles Henry
Alexandrowicz, ed., Studies in the history of the law of nations, Volume 2,
1972.
Ruddy F.S. Ruddy, "The Acceptance of Vattel", in Charles Henry Alexandrowicz,
ed., Studies in the history of the law of nations, Volume 2, 1972.
Savan Leslie Savan, From Simple Noun to Handy Partisan Put-Down, New York
Times, November 18, 2009.
Seybolt Robert Seybolt, The Colonial Citizen of New York City, 1918.
Shaw William A. Shaw, ed., "Letters of Denization and Acts of Naturalization for
Aliens in England and Ireland, 1603-1700", The Publications of the
Huguenot Society of London, Volume XVIII, 1911.
Solum Lawrence Solum, Originalism and the Natural Born Citizen Clause,
Michigan Law Review, 2008.
Spooner Lysander Spooner, The Unconstitutionality of Slavery, Part 2, Chapter XXI,
1860.
Story Joseph Story, Commentaries on the Constitution, 1833.
Trout Robert Trout, Life, Liberty and the Pursuit of Happiness, reprinted from
FIDELIO Magazine, Vol.VI, No.1, Spring, 1997.
Turley Jonathan Turley, Does John McCain Have an Alexander Hamilton
Problem? A Constitutional Challenge May Loom Over McCain's Eligibility
for President, February 1, 2008.
Vattel Emmerich de Vattel, Law of Nations, Book 1, 1758.
Veluca Adrian Veluca, The Idea of Citizenship: A Historical Survey, 1999.
Vieira Edwin Vieira, Obama must stand up now or step down, October 29, 2008.
See also In the Shadow of Nemesis, December 8, 2008.
Webster Prentiss Webster, A treatise on the law of citizenship in the United States,
1891.

Weigel Dave Weigel, Radio Two: WIN.

Weil Patrick Weil, Nationalities and Citizenship: The Lessons of the French
Experience, in David Cesarani and Mary Fulbrook, eds, Citizenship,
Nationality and Migration in Europe, 1996.
Withington Phil Withington, The Politics of Commonwealth, 2005.
Wolff Joseph H. Drake's English translation (1934) of Christian von Wolff's Jus
Gentium Methodo Scientifica Pertractatum (1749). ISBN 0-89941-956-9.
Wood Charles Wood, Losing Control of the Nation's Future - Part 2, 2005-2006.
Wright Quincy Wright, Book Review: Jus Gentium Methodo Scientifica
Pertractatum, The American Journal of International Law, Vol. 29, No. 3
(Jul., 1935), pp. 552-554.
Acknowledgments
Special thanks to:
Attorney Mario Apuzzo, whose comments and corrections were immensely valuable
during the initial development of this Primer.
Attorney Leo Donofrio, whose extensive legal and historical research is referenced by
this Primer.
All who have sent comments and corrections directly via e-mail and indirectly as posts
on various forums, especially the Leo Donofrio blog and the Right Side of Life.
Nevertheless, the information and opinions in this Primer are solely those of its author and do
not necessarily reflect the views of those who have offered comments and criticisms.
Disclaimer
The author of this Primer is neither a historian nor a lawyer. Nothing in this document should
be construed to be, or used as, legal advice on any matter. If you have comments or questions,
please contact us.
This Primer is intended to be just that -- a primer. Its purpose is to provide a brief
introduction to the Obama presidential eligibility controversy from the birthers' perspective.
Readers are encouraged to use this Primer as a springboard for their own research.
Revision Log
02/21/2010: This Primer was published as a substantial rewrite of an earlier version, dated
June 5, 2009.
02/23/2010: Answer to Question 17 was revised to improve clarity

02/24/2010: Footnote 4 added. Other footnote numbers shifted accordingly.
02/25/2010: Minor wording changes and spelling corrections.
02/26/2010: Fixed broken link in Footnote 3. In Question 22, sentence beginning with "At the
time of this writing" was revised for clarity.
03/01/2010: New material added to Questions 10, 24 and 26.
03/03/2010: Questions 15 and 24 edited for clarity.
03/04/2010: Question 1 was updated to include new information regarding the meaning of the
word "birther".
03/07/2010: All references to the Obama File website have been removed from this Primer,
solely because that website is now accessible by paid subscription only. The site remains a
useful source of information for readers who do not mind paying the subscription fee.
Footnotes 17 and 18 were revised for clarity.
03/09/2010: Updated answer to question 23.
03/12/2010: "The Right Side of Life - News" added to list of information sources under
Question 28.
03/14/2010: The content of footnote 17 was incorporated into a new and separate question
(Question 17). Questions originally numbered 17 through 28 were renumbered as Questions
18 through 29.
03/20/2010: A citation from a Heritage Foundation research paper was added to Section 4.1.
Some material in Section 4.4 was transferred to Question 16 and footnote 18, thereby making
Section 4.4 a bit more concise. Item 7 was added to Question 29. The list of websites in Item
9 (previously item 8) in Question 29 was sorted into alphabetic order.
03/21/2010: Clarified the definition of "birther" in Question 1.
03/23/2010: A citation to Heritage Foundation research was added to the introduction.
03/25/2010: Footnote 4 was reworded.
03/30/2010: Added a "Lucas Smith Kenyan Birth Certificate" link to footnote 10. Item 9,
under question 29, was changed as follows: "Plains Radio Network" was added. The "Obama
File" was re-added, since its research library and historical archives are now available to the
public, without subscription. The Obama File news section remains accessible by paid
subscription only.
04/01/2010: Plains Radio has been removed from the list of sources in Question 29.
05/03/2010: Sections 4.4, 4.5 and 4.6 became questions 16, 17 and 18 respectively. Questions
previously numbered 16 through 29 were renumbered as questions 19 through 32. Sections 4.7
and 4.8 were renumbered as 4.4 and 4.5 respectively. The Orly Taitz website
(www.orlytaitzesq.com) has been removed from Question 29. Information regarding the
difference between "foreigner" and "alien" was added.
05/09/2010: Various grammar and spelling corrections.

05/23/2010: Various grammar and spelling corrections. Added footnotes 18, 19, 21 and 43.
Added Appendix 1.
05/28/2010: Footnote 43 revised.
06/08/2010: Question 23 revised. "Right Side of Life" website added back to Question 32.
Several new footnotes added.
10/02/2010: New information added, regarding the meaning of "actual obedience", and the
definitions of foreigner, alien, and people. The discussions of English common law were
broken down into a larger number of questions, each with shorter answers.
10/04/2010: HTML tags were changed to facilitate HTML-to-PDF conversion.
10/05/2010: Added, to Question 19, a citation from Alexander Cockburn's Nationality (1869).
10/08/2010: Added, to Footnote 14, commentary regarding dual citizenship.
11/01/2010: Added new info about French word "naturels" in 1781 Treaty with France.
11/09/2010: Added Maskell citation to question 4. Added Vieira citation to Question 37.
11/10/2010: Added Appendix 4: Federal Quo Warranto Statute
11/12/2010: Added reference to Bobby Jindal. Reinstated link to Orly Taitz's web site, which
now appears to be virus-free.
11/28/2010: Reformatted Question 17 for clarity.
11/30/2010: Miscellaneous grammar and wording.
12/07/2010: Added information regarding Hector Nunez.
12/14/2010: Added information regarding statute De natis ultra mare (1351) and the
Naturalization Act of 1541.
12/18/2010: Miscellaneous grammar, spelling and working changes
12/19/2010: Added protectourliberty.org to list of information sources
12/26/2010: Correction: Stanley Ann Dunham's mother was named Madeline, not Madelyn.
Added information about Hawaii Governor Linda Lingle's radio interview (May 2, 2010).
Added citations from Cunningham and Jacob.
03/02/2011: The discussion of Calvin's Case has been divided into two separate questions: 17.
What was an English "subject"?, and 18. What was Calvin's Case? Added information
regarding the use of the term "native born" in McCreery's Lessee v. Somerville. Added
information regarding State Department policy of denying passports to persons not born in an
"appropriate medical facility". Added information regarding a revision to Professor Solum's
article, in which "parents" (plural) was changed to "parent" (singular).
03/04/2011: Added information about John McCain's legal status, at birth, under Panamanian
law.
03/05/2011: Miscellaneous grammar and spelling corrections.

03/10/2011: Added clarifying material to Question 5. Added additional quotes by John

Bingham.
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Obama Presidential Eligibility - An Introductory Primer

Obama Presidential Eligibility - An Introductory Primer

Revision date: March 10, 2011

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4.4 English Literature

5. In a nutshell, what is the Obama eligibility controversy?

Appendix 1: Excerpts from Jus Gentium (1749)

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David Weigel believes he was first to coin the term "birther":

The New Oxford American Dictionary defines "birther" as:

a conspiracy theorist who challenges President Obama's U.S. birth certificate.

The Online Slang Dictionary defines "birther" as:

file:///C|/MyDocuments/WebPage/birthers.htm[3/11/2011 12:10:21 PM]

Constitutional Crisis is Brewing, published on the birther website.

2. What are the eligibility requirements for president?

Article II Section 1 of the U.S. Constitution states:

at least 35 years of age,

a birthplace requirement (you must be born in the United States), and

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Modern-day word usage

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According to a Congressional Research Service memorandum (April 3, 2009), the weight of

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Bodin's political works were well-known in early seventeenth-century

According to Bodin, the "natural citizen" of a society is someone who acquires

Just as slaves can be slaves either by birth or by convention, so citizens can

...enthusiasm for Quintilian spread with humanism itself, reaching northern

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Institutio Oratoria contains this Latin sentence:

Guthrie (1756) translated the above sentence as:

Therefore we ought, if we possibly can, to bring our Language and

Patsall (1774) translated the same sentence differently:

The original French-language version of Vattel's Law of Nations contained this

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Bouvier's Law Dictionary (1914) defines "native" as a "natural-born subject" (Bouvier,

At common-law, with the nomenclature of which the framers of the Constitution

In 1874, the Supreme Court said, in effect:

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5. In a nutshell, what is the Obama eligibility controversy?

Obama eligibility supporters present three facts:

Birthers respond with two points:

1) Possibility of birth certificate fraud:

2) Original meaning of "natural born":

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from Parliament or the king.

The President's public admission raises a question:

Is President Barack Obama a natural born citizen of the United States if he

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6. Does the birthers' viewpoint have historical or legal merit?

Birthers point out the following:

From this information alone, we may infer that:

[Birthright citizenship] ... is confined exclusively to the children of those

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who were themselves citizens. ... The citizenship of no man could be

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recognizing the citizenship of the children of naturalized parents, is

A couple of sentences later, Representative Bingham elaborated that a natural born

As to the question of citizenship I am willing to resolve all doubts in favor

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by the express words of the Constitution, as amended to-day [to date], he is

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Permit me to hint whether it would not be wise and seasonable to provide a