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Natural Born Defined: Natural Born Citizen vs. British “Common Law”

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Wong Kim Ark, in a photograph taken from a 190...

Wong Kim Ark, in a photograph taken from a 1904 U.S. immigration document.

Natural Born Defined:
Natural Born Citizen vs. British “Common Law” Natural Born Subject
By T.J. McCann, III

Natural Born Citizen vs. British “Common Law” Natural Born Subject:
Many reference British Common Law in search for a definitive answer as to the meaning of natural born, and resolve, by that Common Law, the definition of natural born to result from birth on the native soil of a country. Justice Gray does a thorough job of delving into British history in the landmark case of U.S. vs. Wong Kim Ark, 169 U.S. 649 (1898), even going back to Lord Coke and Calvin‟s case (1608), some 180 years before this nation‟s founding, and preceding the Ark decision by 290 years.
However, in truth, Lord Coke‟s decision in Calvin‟s case is as fundamentally alien to these United States‟ founding principles as the rest of British Common Law citizenship. Calvin‟s case was landmark in its day, and the early modern common-law mind, for being the first to articulate a theoretical basis for territorial birthright citizenship. Calvin‟s Case was not only influential in establishing the citizenship right of American colonials, but also was much later argued as the basis common-law rule for U.S. birthright citizenship. Calvin’s Case is the earliest, most influential theoretical articulation by an English court of what came to be the common-law rule that a person’s status was vested at birth, and based upon place of birth.
However this recognition of British common law also ignores the inherent conflicts with the fundamental tenets of our Constitution, conflicts so profound philosophically that they were causal in the Revolutionary War and War of 1812. In Lord Coke‟s decision, the law of the Creator is conflated with the law of England and being lain down via edict to the common man from that divine Crown through the judiciary. Even as described by Justice Gray in Wong Kim Ark, the Coke decision involves feudal concepts of “ ‘ligealty,’ ‘obedience,’ ‘faith,‘ or ‘power’ of the ‘King’”. This feudal oblige and extension of the dominion of the Crown to ANY territory held by the King, even making “natural born subjects” of those born in America, contributed to British settlers leaving Britain in the first place and ultimately became a primary factor in the “Declaration of Independence”, with colonists declaring themselves free of such an involuntary burden of the Crown while having no protection and no representation.
In 1765 the British Jurist William Blackstone recognized the mandate of the Crown having changed the inherent meaning of “natural-born Subject”, progressively over time, to be anyone born in British territory, regardless of the parents’ allegiance or citizenship. Initially a child was born a natural-born subject if born on British soil, even if the child’s parents were aliens.
However, Blackstone later wrote in his 1765 Commentaries, the following:

To encourage also foreign commerce, it was enacted by statute 25 Edw. III. st. 2. that all children born abroad, provided both their parents were at the time of the birth in allegiance to the king, and the mother had passed the seas by her husband’s consent, might inherit as if born in England: and accordingly it hath been so adjudged in behalf of merchants. But by several more modern statutes these restrictions are still farther taken off: so that all children, born out of the king’s ligeance, 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.

This passage indicates that even those not born on British territory are to be thenceforth considered “natural born” because of blood lineage no less, and for the purpose of trade (as well as the Treasury), showing that this is not a static understanding of “natural born”, but one evolved over time and by “executive” mandate of the Crown – hardly any sort of “common law.”
What Gray has represented as British “common law” natural born subject, was not static and was the evolution of Crown dictate over time, expressed in statutory law. This statutory definition is far removed from any sort of natural, ‘self-evident’ term employed by the United States in its Constitution.
Only 30 years prior to Blackstone‟s writings, in 1736, British scholar Matthew Bacon recognized the fundamental meaning of “natural-born Subject” to be:

“All those are natural-born Subjects whose Parents, at the Time of their Birth, were under the actual Obedience of our King, and whose Place of Birth was within his dominions.” (Matthew Bacon, A New Abridgement of the Law, 1736, Vol 1, pg 77)

Not only does this indicate that the place of birth must be within the “dominion (British territory) itself, but it also indicates that the parents must be under the “actual obedience” of the King. The emphasis on “actual Obedience” seems to strongly differentiate that from a presumed obedience resulting from mere happenstance of birth within the dominion. Given this, those who had foreign allegiance did not give birth on British soil to British natural born subjects. This is definition by Bacon is the same as our own “Natural Law” definition today, involving (1) the allegiance (citizenship) of both parents and (2) birth within the U.S. territory (dominion).
In Gray‟s majority opinion for Wong Kim Ark, Gray makes two references to natural born citizen which directly conflict with his British common law approach. The first is a reference to Justice Waite‟s opinion from Minor vs. Happersett, in which Waite refers to a Vattel‟s definition of natural born citizen as birth to two citizen parents on country‟s soil.
In the second, Justice Gray quotes from a pamphlet entitled “Alienigenae of the United States”, by Horace Binney, which used the term “natural born” in connection with a child of a citizen, but not in connection with a child of an alien parent.:

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. (Binney‟s statement, as cited by Gray U.S. v. Wong Kim Ark (1898))

While Binney references both children as citizens, only the child born of a citizen is referenced as “natural born”.
Justice Gray‟s articulation of British Common Law in Wong Kim Ark regarding U.S. citizenship should be considered nothing short of an abomination, because it is truly runs contrary to the very origins and hard-won principles of this country. While Gray‟s argument in Wong Kim Ark has had deleterious effect on citizenship, the case did not affect natural born citizen because Gray never pronounced that a natural born citizen was equivalent to a natural born Subject, despite obviously desiring to do so, and Gray never at all undermined the definition provided by Justice Waite from Minor vs. Happersett. While Wong Kim Ark was pronounced a citizen of the United States, Ark was never declared to be a natural born citizen of the United States.
George Mason, 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)

More recently Justice Antonin Scalia confirmed the irrelevancy of British Common Law:

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)


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