My Dad had brought me up with many adages. One was “Don’t dish it out if you can’t take it.” Karl Rove was extremely gracious in answering a nobody like me. I still have a great deal of respect for him personally, his overall intelligence, and his knowledge. However, he had many times described birthers publicly on television in pejorative terms like referring to them as the “nutty right,” and referring to birtherism as “silliness.”  One time his adjectives were as onerous as the descriptors of wackos and cranks employed by other high-ranking conservatives. Rove called us “cranks and conspiracy nuts.”

        For a so-called news outlet, Huffington Post seems to fall short. I do not dispute Huffington Post’s right to control its content, but I do dispute their moderators' belief in the First Amendment. I gave no link that would automatically be caught by a filter against advertising the sale of a product. Therefore, my banning had nothing to do with spamming.

Table of Contents

A Review at Amazon.com by Independent Researcher Stephen E. Tonchen 

Bob Gard's 1761 treatise is a wealth of information for history buffs and Obama eligibility questioners. It is filled with exhibits and supplemental materials, including biographies of the original signers of the Constitution. Unfortunately, this document is not particularly well structured or organized. It occasionally goes off on tangents. Too often, one finds oneself lost in a maze of details.

The U.S. Constitution makes a distinction between "citizen" and "natural born citizen". If you were born after 1787 (the year the Constitution was adopted) and you wish to serve as President, being a mere "citizen" is not enough -- you must be a "natural born citizen" in order to be eligible for the Presidency. With only two exceptions, every U.S. President who was born after 1787 was born in the U.S., of U.S.-citizen parents, and was therefore definitely, without doubt, a natural born citizen.

The two exceptions were Chester Arthur and Barack Obama, each of whom was born of a British father and was therefore a British subject at birth. Arthur hid his British nationality from the voting public; Obama did not. January 20, 2009 was the first time in history that the United States knowing inaugurated a post-1787-born President who was a foreign citizen at birth and therefore, though also a U.S. citizen at birth, is probably not a natural born citizen.

Throughout U.S. history, various commentators, public officials and lower court judges have expressed the opinion that everyone born on U.S. soil is a natural born citizen, regardless of parental citizenship and regardless of any other citizenship also acquired at birth. But prior to 1898, the Supreme Court never gave credence to this viewpoint. Whenever the Supreme Court, in a majority or concurring opinion, referred to an individual as a "natural born citizen," the individual was always born in the United States, to U.S.-citizen parents. On two occasions (1830 and 1884), the Supreme Court ruled that a person born on U.S. soil was not a U.S. citizen (therefore was not a natural born citizen) if, at the time of the person's birth, his father owed allegiance to any sovereignty other than the United States.

In a radical departure from prior precedent, the Supreme Court, in 1898, ruled that Mr. Wong Kim Ark, a U.S.-born child of Chinese immigrants, had acquired U.S. citizenship at birth. The Court did not rule that Wong was a natural born citizen, but the Court's reasoning seems to imply that he was. The Court hinted that, since all persons born in 18th century England were natural-born subjects, it must follow that all persons born in the United States are natural born citizens.

Over the past four years, every judge who has expressed the opinion that President Obama is a natural born citizen, has based his opinion largely, if not entirely, on the Supreme Court's reasoning in the Wong Kim Ark case.

Gard adds his voice to a growing chorus of researchers who have discovered that the Wong Kim Ark reasoning is based almost entirely on outright falsehoods and gross misrepresentations of prior Supreme Court decisions. In the Wong Kim Ark case, the Court asserted that the Framers of the Constitution were guided by English common law. That assertion, according to Gard's research, is provably false.

But Gard goes further, arguing that the term "natural born citizen" is strictly an American invention unrelated to the English meaning of "natural-born subject". Gard makes a credible case that the Framers often ignored English common law, but he is on thin ice when he suggests that the Framers had also ignored English vocabulary.

In 18th century English writings, the term "natural-born" had both a factual meaning and a legal meaning. All English subjects (except persons made denizens by the king), including naturalized subjects and foreign-born subjects, were deemed to be natural-born in the eyes of the law. All persons born on English soil were natural-born subjects in the general or legal sense. But only those persons born within the king's realm, of parents owing actual obedience (allegiance) to the king, were natural-born in fact. Children born on English soil, to alien parents, were statutory denizens; they were automatically naturalized at birth. Like all other naturalized subjects, they were deemed to be natural-born by law, but were not natural-born in any actual or literal sense. I have documented this information here:

http://people.mags.net/tonchen/birthers.htm

Therefore, in my opinion, Gard should not have dismissed the possibility that "natural born", as used in the Constitution, derives from the term's factual meaning in English law.

Regardless of whether you agree or disagree with his analysis and conclusions, Gard's document is a goldmine of information for history buffs and those who are seriously investigating President Obama's "natural born citizen" status. Its "raw" information alone makes this document well worth its price.




Dear Mr. Tonchen:

       I appreciate your review. You point out, “Unfortunately, this document is not particularly well structured or organized. It occasionally goes off on tangents. Too often, one finds oneself lost in a maze of details.” True. The tangents are my digressions into other issues concerning the Constitution. I consciously let centrifugal force fling me on tangential constitutional diversions that could help readers understand unrelated aspects of the Constitution better.

       I was impressed by your web site and your vast knowledge. We are in total agreement about most issues.

       To your critics that attack your lack of legal credentials, I can only respond the same way I did to Karl Rove. I told Karl Rove he was a fool with respect to the meaning of natural born Citizen and I will tell your critics they are fools too. Back in the day of the Constitution, as you can see in my dictionary tables, the definition of a fool was (and still is): One born without the usual powers of reason or understanding. That is a bit different from the definition of those who, like Karl Rove and your critics, yield to others—judges and lawyers—their powers of reason or understanding. Perhaps I should begin labeling these people “voluntary fools” in deference to more precise terms.

       The reason that no lawyer and no judge have ever clearly figured out what American natural-born citizens are is their total commitment to legal credentials. Those credentials chain the owner to look solely for legal precedent as the answer to any legal issue. When Karl Rove and your foolish attackers bet all their chips on legal precedent, they restricted their research to one area. They forsook history and linguistics. To educated people who defer to the American judiciary for reasonable and logical judgments concerning our Constitution, I say simply that they have foolishly relinquished their right to think for themselves.

       The Constitution is written in plain English. Any eighth-grader without an agenda should understand it better than any lawyer or judge with an agenda. For anyone to judge Tonchen on his non-legal background instead of the formidable facts and knowledge contained in his web site gives rise to one of the main reasons that our Constitution has been distorted to the extent that it no longer resembles anything its framers intended. Such people want other people to think for them, to guide them in life. I think they are called liberals and progressives and they belong to the Democratic Party. When they get insulted by facts, they immediately resort to name-calling. They throw sticks and stones. While reaching down for the sticks and stones, they overlook any stone labeled “fact.” How many refutations of facts have you seen in the comments directed at birthers?

       Being a Democrat, I would be remiss to mention that the vast majority of conservatives and Republicans, though not as prone to name-calling, are so afraid of political correctness that they purposely erect a wall of silence against works like Tonchen’s and mine; the less famous we are, the higher the wall. If Andrew Napolitano wrote my eBook, he would sell a lot but he would also be fired from Fox News for breaking certain political correctness standards the television station maintains. That network is still into writing off birthers as wackos under the Karl Rove axiom that re-addressing the issue would cause a detriment to the Romney campaign. I was utterly naive to think that the conservatives would not bury my press release while condemning my eBook to oblivion with the same alacrity as liberals.

       All that aside, Mr. Tonchen, I respectfully disagree with your following conclusion:
 

       But Gard goes further, arguing that the term "natural born citizen" is strictly an American invention unrelated to the English meaning of "natural-born subject". Gard makes a credible case that the Framers often ignored English common law, but he is on thin ice when he suggests that the Framers had also ignored English vocabulary.

 

       In 18th century English writings, the term "natural-born" had both a factual meaning and a legal meaning. All English subjects (except persons made denizens by the king), including naturalized subjects and foreign-born subjects, were deemed to be natural-born in the eyes of the law. All persons born on English soil were natural-born subjects in the general or legal sense. But only those persons born within the king's realm, of parents owing actual obedience (allegiance) to the king, were natural-born in fact. Children born on English soil, to alien parents, were statutory denizens; they were automatically naturalized at birth. Like all other naturalized subjects, they were deemed to be natural-born by law, but were not natural-born in any actual or literal sense. I have documented this information here.

       I never suggested that our framers ignored English vocabulary. How could they? English had several dialects at the time, the two major ones being British English and American English. I pointed out with Axiom 8 that “Different languages [in this case, different dialects] often have words translatable to each other's language [dialects] from the same roots but with substantially different meanings, such that in many cases there is no such thing as a perfect translation.” This addresses the possibility that natural-born subject and natural-born citizen can have different meanings not only in their combined forms but also in the same adjectival modifier "natural-born."

       The first question I would like to pose regards Tonchen’s statement: “Natural citizens are those who, at birth, inherit citizenship from their parents. In some commonweaths [sic], one may acquire citizenship from either one's father or one's mother. In other commonwealths, you receive citizenship at birth only if both of your parents were citizens at the time of your birth.” I would like to know which commonwealths require both parents to be citizens for granting birthright citizenship? What is your source?

       Your references to Bodin are interesting. You state that “Bodin expained [sic—please don’t take issue with my pointing out sics. This is not a criticism; I have plenty in my eBook] that a ‘citizen’ is not the same thing as a ‘subject’.” I agree with Bodin. Then you say that Bodin expressed the belief that  “...every Citizen is a subject, ... But every subject is not a Citizen...” What does that mean concretely other than your example in ancient Greece where both words were used side by side? You gave the example: “Yet true it is that the enfranchised (freed) slaves in Greece were not admitted to be Citizens, although that they were of the same country, and natural subjects.” It is true that our American formulations for citizenship have more to do with Greece’s than with Britain’s. The kind of subject you describe in Greece shared more in common with the pre-Sir-Edward-Coke “subjects” than with post-Sir-Edward-Coke “subjects” in Britain.

       If you refer to British subjects in general, the statement that every subject is not a citizen is false. First, it must be said that the actual usage of “citizens” in Britain, for the political affiliation of a person to his government, had a very short history. It is almost impossible to find where citizens and subjects were heard together during the same historical period. “Citizens,” as defined by almost all international public jurists, have the right of expatriation. As you acknowledge, the British term “natural-born subject” was coined by Sir Edward Coke as the means to unite artificially Scotland and England under Calvin’s Case in 1608. He devised the term solely to rescue his new monarch from a union likely to crumble. Uniting the two countries and avoiding a civil war via a political artifice benefited the new king greatly. Certainly the concept of perpetual allegiance owed equally from both Scots and Englishmen to the king was a benefit beyond compare.

       John Jay coined the term “natural born Citizen,” as opposed to “natural born free Citizens” in the 1777 resolution taken up by the Continental Congress, to identify the highest form of citizenship in America, Vattel’s definition of "indigenes." I always admitted that John Jay might have picked up the term from someone else, but I couldn’t find any link. This terminology was not created for increasing the power of U.S. Presidents in contrast to the creation of natural born subject that was created to increase the power of British kings. The American term was created and included in the U.S. Constitution for the benefit of the people’s sovereignty, not any perpetual allegiance to the President. A natural born Citizen enjoyed the unalienable right to expatriate. It required both parents to be citizens, far beyond the jus soli required by British law or, if born abroad, the British requirement of the father to be a British subject. The laws regarding natural born subject changed several times. The British Constitution can be changed on any one day by Parliament. I touched upon this evolution of the term on page 642, and I traced it on other pages. I spent hundreds of pages showing that the British concept of natural-born subject has almost nothing to do with natural-born citizen, except that the two terms share “natural-born” with different meanings derived from their placement in front of the distinct nouns. Otherwise, you agree with almost everything I contend.

       Others of my critics, none of whom have read my eBook from start to finish, voiced their disappointment that I presented no smoking-gun evidence to prove my contention that the true definition of natural born Citizen originated with Vattel’s “indigenes.” I thought that was why I announced in my title that my proof shall be “beyond a reasonable doubt.” I did not want to disappoint or mislead readers who were looking for the smoking gun. “Beyond a reasonable doubt” is one level below “beyond a shadow of doubt,” which almost always includes a proverbial smoking gun.

       These identical critics called my train of thought pure theory, speculation and conjecture. According to most dictionaries, theory is an assumption or guess based on limited information or knowledge; a supposition or opinion. Okay, say my thought started out as a theory in the same vein as every criminal lawyer in court presents a "theory" as to why his client could not have committed the crime. I’m willing to accept that partially. I can’t accept it a hundred percent because I have argued since I was thirteen years old that the definition of a natural born Citizen had to be a citizen born in an American state of two American citizens. That seemed to me the only definition that coincided with logic, reason and common sense. However, I will accept anyone calling the start of my investigation a means to verify a theory. What I can’t accept is that anyone can call my theory the kind of theory that has not been validated to the level beyond a reasonable doubt.

       Speculation, on the other hand, is a conclusion, opinion or theory reached by speculating. To speculate means to conjecture on a given subject or situation without knowing all the facts. Conjecture is inference based on inconclusive or incomplete evidence. Can my “theory,” proved beyond a reasonable doubt by over a thousand pages of corroborative, correlative and circumstantial evidence, be called speculation or conjecture? It can’t. Corroborations, correlations and circumstantial evidence in the form of notes, letters, documents, and books, many of which are in the handwriting of the framers, are not speculation or conjecture. A huge part of our problem today regarding our Constitution is a complete lack of precise word usage with respect to it.   

       From the beginning to end in my eBook, I repeatedly state that several small leaps of faith are necessary for agreeing with my conclusions. I put forth my claim that all the circumstantial, correlative and corroborative evidence interface well in support of my conclusions, but, by presenting so much evidence in full context, I rely on readers to ultimately make their own decisions.

       Most people believe that cigarette smoking causes cancer. Such people have never seen causal evidence, only correlative in the form of statistical studies. I conceded in the eBook that those people who are waiting for the government to produce causal evidence, hard-copy evidence if you will, have a perfect right to reject my findings and wait for the smoking-gun evidence that will probably never come to light. If that be the case and you as a reader are one of those people that demand proof of causality, my eBook is not for you. Keep smoking tobacco. On the other hand, I believe that my evidence presents overwhelming correlative, circumstantial, and corroborative evidence that points undeniably to my conclusions. It produces reasonable and logical explanations for the questions birthers, Constitutionists and anti-birthers have posed.

       Throughout the eBook, I never claim to have smoking-gun evidence in the form of a hard copy letter or a note. If there had been such evidence, the enigma wouldn't be an enigma. Remember, I said beyond a reasonable doubt, the same level of evidence that can result in an accused murderer being condemned to lethal injection without the existence of the body of the victim in a coroner's morgue. To believe that Scott and Jay did not discuss the four bodies of knowledge providing the foundation of the maritime disputes between England and America, I feel, flies in the face of overwhelming probability. Those bodies of knowledge were origin, nationality, subjectship and citizenship. Do you doubters reasonably believe that such knowledge would not have been discussed in the string of their face-to-face meetings, after which Scott replaced indigenes with natural born citizens in his secretly edited 1797 edition of The Law of Nations? I bring forth the evidence beyond a shadow of doubt that these men met face to face to try to resolve the problem of impressments and prizes between their two countries. I clearly stated that the reader had to make the small leap of faith that the British King’s Advocate of the High Court of Admiralty would have sufficient curiosity to ask the man who had requested Washington to insert natural born Citizen into the presidential eligibility clause what the term meant. If that leap of faith is too hard for the reader to accept, then again, my eBook is not for him.

       I repeat, John Jay went to England to negotiate a treaty that would internationally outlaw impressments and unjustifiable prizes based on England's definitions of naturalized subjects, regular subjects and natural born subjects as opposed to America's definitions of naturalized citizens, regular citizens and natural born citizens. I deem that is undeniable. Jay was given general instructions to get Britain to agree to the validity of the American definitions and to respect them, which, if accomplished, would have ended impressments and drastically reduced prizes. If our definitions of the three categories of citizenship were closely related to Britain's three definitions of subjectship, on what grounds would we have been able to dispute Britain's actions on the high seas? I reason that this conclusion falls within the realm of common sense. Years later Britain conformed to international jurisprudence, thereby joining the international legal community, by dropping the perpetual-allegiance requirement so inherent in her subjectship. This can only be additional proof that natural born citizen did not grow from the root of natural born subject.  

       Natural-born in each vocabulary later meant, as it does today, childbirth without  intervention by midwives or doctors. I cited a reference to this kind of birth in Coke’s Institutes:

“I have known a woman bear a living child, in a perfectly natural way, fourteen days later than nine calendar months and believe two women to have been delivered of a child alive, in a natural way, above ten calendar months from the hour of conception.”  

       In natural-born’s position before “subject,” it entails jus soli and at times jus sanguinis with obligatory perpetual allegiance to a monarch. Before citizen, it entails jus solis and perfect jus sanguinis with voluntary allegiance and an inalienable right to expatriation. By voluntary allegiance, I mean no demand can be made of active support anytime, anywhere, except by military induction and the obligation not to commit treason. That’s a big gap between the two meanings. If I have proved anything in my eBook, it is that natural-born citizen does not have its root in natural born subject.

     "Natural born Citizen" received its notoriety from the 1787 Constitution. The first time it was used in literature after 1787, at least to my knowledge, was in the 1797 edition of The Law of Nations. Do you believe that such an absurd translation would have been inserted into the text by any self-respecting translator of French to English unless there was an overriding reason? Sir William Scott, fluent in French, used the French 1775 Amsterdam edition for his selective  re-translation.

       No framer of the U.S. Constitution subsequent to the 1797 edition of The Law of Nations ever brought up the issue that, linguistically, the new translation was ridiculous. I am the only one to give a logical, reasonable explanation that also conforms to common sense. Yes, there is a leap of faith, the same that would be inherent if a meeting took place between two former quarterbacks wearing Super-Bowl rings. Though they would not be indicted for treason as those could be who divulged secret treaty negotiations, both by the U.S. Congress and by Parliament on recommendation from a mentally unstable George III, the likelihood seems high that they would discuss their Super-Bowl experiences. This was an important aspect of their life experiences. The most important facets in Scott's life were origin, nationality, subjectship and citizenship in his days in the Court of Admiralty presenting England's defense of English impressments and prizes against foreign countries, including many against the United States. Are you ready to diminish the likelihood that Scott would have inquired as to the meaning of natural-born citizenship when no one from the Constitutional Convention had categorically defined it in public, especially when he was in the presence of the man, John Jay, who had begged Washington to make sure it was included in the presidential eligibility clause?          

       I am very grateful to you, Mr. Tonchen, for showing me that Patsall translated the original Roman sentence in the Institutio Oratoria by Marcus Fabius Quintilianus as having natural-born citizen in it: “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. 32) I did not know that. Everything written by Greschak had been pulled off the Internet when I started my study in June of 2010. I now have reviewed all my notes to see whether I could find Patsall’s translation in any reference by John Jay or whether the actual book had been in his library. I found nothing concerning Patsall in relation to John Jay or to any of the framers and founders in my eBook. I must assume that John Jay had never seen the term in Patsall’s translation. I found nothing concerning the Latin work in my historical information about any player in my eBook.

      As you relate, Guthrie translated the same 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). The original Latin seems to be:

“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.)

      My Latin is not good. Nevertheless, I do not see how this sentence could include “natural-born citizens.” Non civitate donata can be translated as naturalized citizen; yet it does not mean native. I believe both translations are off the mark, displaying literary license. I will investigate further by eventually asking someone fluent in Latin, like an older Catholic priest, how he would translate the sentence verbatim, but my guess is that both translations are too flexible, subject more to the translator’s feeling of what the author meant as opposed to what he wrote.  

      I am certain that Jay would not have translated the original sentence to contain natural born citizen. For the moment, I will have to be satisfied with the Google translation: “Why, if it were possible, it can be all things, and the words and the voice of this young foster-son of the city of olive-trees, so that the prayer of the Roman may be seen clearly, it is not freely given to the city.”

     If one were to look up the roots of the Latin words in a Latin-English dictionary, he would get the following:

     Quare (on which account, how, why), si (if, supposing that)  fieri (possible), potest (after) et (and) verba (word) omnia (entirely, every) et vox (a voice, cry, call) huius (exclamation of surprise, eh!) alumnum (nursling, foster child) urbis (walled town or city) oleant (of the olive or olive tree), ut  (with, as)  oratio (speaking, speech, language) Romana (Roman) plane (plain, clear, intelligible) videatur  (appear), non (not) civitate (pertaining to citizenship) donate (giving, donating).” The last three words could be reasonably translated as “not pertaining to donated citizenship” or “not of the naturalized citizen” or something close. But where did Patsall find inspiration for his meaning-changing translation? The translation of natural-born citizen was as ridiculous here as it was in the 1797 edition of The Law of Nations, except the reason for it can be reasonably explained in the latter with a minuscule leap of faith.

     In my eBook I show some common words for citizens in Latin:

“Citoyen. Citoyen, ou Citoyenne, Ciuis.  (Jean Nicot: Le Thresor de la langue francoyse, 1606)

   And, The first dictionary noted the Latin equivalent for citoyen-ciuis. Then the dictionary listed French and Latin terms for natural citizen [not natural-born citizen]—“ Qui n'est point naturel citoyen, Insitus vrbi ciuis.” Vattel could have written “naturels citoyens” or “citoyens naturels” meaning natural citizens, without defining them as “Sont ceaux qui sont nés dans le pays, de parens citoyens.”  Then we wouldn’t be discussing the meaning of natural born citizens because “naturels citoyens” meant native-born citizens. Today in France the phrase will almost always be “citoyens naturels.” Very seldom the adjective is placed before the noun, although it is permissible.

     Other synonyms in Latin for citizen are civis and municeps (the latter meaning a citizen of a particular municipality, which makes it too selective for natural-born citizens). See my dictionary tables in the eBook, especially Table III. Had there been an accepted Latin term for natural-born citizen, I am almost certain it would have been in one of my dictionaries. The company or estate of citizenship in Latin is civitas. Adjectives pertaining to citizens are civilis and municipalis and citizen-like is civiliter and urbané.

      Almost all my birther critics prefer to concentrate on Obama’s birth certificate to disprove his natural-born citizenship. No one has come up with any hard-copy evidence of anyone fraudulently producing the birth certificates. No photos, no written confessions, only interpretations of computer science by Obama's opponents, vehemently denied by Obama's administration. I contend a real, hand-written birth certificate existed, which I plan to prove beyond a reasonable doubt in Part II. I see no hope of finding the original birth certificate. The State Of Hawaii had to be complicit in the fraud if there were fraud. The officers of the Hawaiian registrar and the governor would be the stupidest of individuals if they haven't destroyed the original birth certificate.

       Mr. Tonchen, one must read all 1,700 pages of my eBook as opposed to skimming them (which, forgive me for saying, I suspect you might have) if you really want to understand the evidence for my conclusions. "But maybe it was not done at all [Jay's divulging the American definition of natural born Citizen to Scott]," as declared by another of my critics. I admit to that possibility, here and in the eBook, but I contend the meager possibility does not negate my evidence to the contrary. Until such hard-copy evidence springs forth and proves me wrong, I will stick to my conclusions. I can look my critics straight in their eyes and say that my evidence is plenty to impeach Obama if we had an honest Congress.

Sincerely,

Bob Gard



The ongoing debate between Stephen Tonchen and the author: 

Bob Gard gardbook1@gmail.com            

Nov 3 (9 days ago)                          

to stevenet

Dear Mr. Steven Tonchen,

You reviewed my eBook, "On Gard, Obama . . . " at Amazon. I thank you for that. You were fair in most respects.

You are welcome to read my response at The-Constitutionist.com. Unfortunately, I don't yet understand how to make links so the URL probably won't work except by pasting it. My editor put in the links at the web site.

You will find that I am almost in total agreement with you except for your belief that natural-born subject had more than a superficial connection with natural born Citizen regarding mutual use of natural born.

If you really read the eBook as opposed to skimming it, then I am forced to admit I failed in convincing you.

Why? If you let me know, I will start referring you to relevant pages.

I congratulate you on your primer. I wish I had seen it before you wrote your review. It would have saved me some time in researching certain areas. I would have also discussed Patsall. Do you have any more information on him besides what is in your primer?

Sincerely,

Bob Gard

 

Stephen Tonchen           

Nov 7 (5 days ago)                          

to me

Hi Bob Gard,

My profound appreciation to you for taking the time and making the effort to write your treatise on the Obama eligibility issue.

1) Today, I updated my Primer, section 4.4, so that it contains a new example of an 18th century English-language publication which used the term "natural born citizen" -- Spelman's translation (1758) of Roman Antiquities.

2) My Primer has a link to the full complete text of Patsall's translation of Institutio Oratoria. So far, I have not been able to find much biographical information about Patsall -- who he was, where he was born, etc. 

3) If you are using Microsoft Word, you can create an active link by clicking "Insert" and then clicking "Hyperlink". Once the link is created, the reader of the document may use Ctrl-Click to cause the link to open in a separate window. 

4) As I see it, there is no factual conflict between the English common law definition of "natural born", as used in "natural-born subject", and the American definition of "natural born", as used in "natural born citizen". Let me explain:

The statement, "All underage boys and girls living in Mrs. Clayton's home are Mrs. Clayton's children", is a true statement, but is also a misleading statement. It is misleading because it fails to distinguish between Mrs. Clayton's children in fact (her biological offspring) and Mrs. Clayton's children in law (her children by adoption or marriage).

Likewise the statement, "All children born on English soil are English natural-born subjects," is a true statement, but is also a misleading statement. It is misleading because it fails to distinguish between natural-born subjects in fact, and natural-born subjects by law.

Timothy Cunningham's, A New and Complete Law-Dictionary (published in 1764, and reprinted in 1771), was the only law dictionary that James Madison ordered for the Continental Congress. 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. It was contemporaneously used by various American Supreme Courts for clarification of legal terms.

Cunningham's Law Dictionary gave this factual (as opposed to legal) definition of "natural born subject":

"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."

I don't see how this definition of "natural born" conflicts with Vattel's.

Cunningham and multiple other sources tell us that "true" natural born subjects were persons born within the king's realm, of parents owing actual allegiance to the king. All other so-called natural-born subjects were not "real" natural born subjects; they were merely deemed to be natural-born by "a fiction of law".

I am willing to be shown otherwise, but as it stands now, I see no reason to believe that the Framers of the Constitution rejected Cunningham's definition of "natural born" and then replaced it with an equivalent definition of their own making.

In any event, thank you for contacting me. I hope your book gains the traction and recognition it deserves.

- Steve

 

Bob Gard gardbook1@gmail.com            

Nov 8 (4 days ago)                          

to Stephen

Dear Steven,

                 Thank you as well for your response. You graciously acknowledge that you are “willing to be shown otherwise, but as it stands now, I see no reason to believe that the Framers of the Constitution rejected Cunningham's definition of ‘natural born’ and then replaced it with an equivalent definition of their own making.”

                 You also wrote: "I don't see how this definition of 'natural born' conflicts with Vattel's." I am sure you meant to say something different. Vattel never had anything to do with the phrase 'natural-born citizen.’" He may have never seen it in print or heard it spoken. Please go over my Table V. Vattel obviously was familiar with the British term natural-born subject, which, by the way, he never referred to in The Law of Nations. He had died before the 1777 Continental Congress resolution mentioning natural born free Citizens. As you read in my book, the secret editor of the 1797 edition of The Law of Nations, Sir William Scott, was the one who replaced “indigenes” with "natural-born citizens” after his meetings with John Jay, the man who had urged George Washington to make sure that natural born Citizen was part and parcel of the presidential eligibility clause. Without knowing why Scott had done that, the new translation would have appeared patently ridiculous.

                If you consult my dictionary Tables I and II, you will find that not a single Samuel Johnson dictionary from 1755 to 1854 had an entry for natural born or natural born citizen. Looking at Table III, it is evident from 1703 to 1856 that no non-Samuel-Johnson English dictionary showed an entry for natural-born citizen. In Table IV, you will find that the first dictionary from 1703 to 1883 that had a definition for natural-born by itself--not as a part of natural-born subject or natural-born citizen--was Ogilvie, John, LL.D., The Imperial Dictionary of the English Language, A Complete Encyclopedic Lexicon, Literary, Scientific, and Technological, New Edition, Carefully Revised and Greatly Augmented. Edited by Charles Annandale, M.A., Blackie & Son, 49 and 50 Old Bailey, E.C., London, 1883. You see, there was no commonplace, common-law, or legal definition for natural-born in print as far as I know. Please show me any reference to the “the English common law definition of ‘natural born.’" I never found any.

 

                I am not sure of the significance you intend with “The statement, ‘All underage boys and girls living in Mrs. Clayton's home are Mrs. Clayton's children’, is a true statement, but is also a misleading statement. It is misleading because it fails to distinguish between Mrs. Clayton's children in fact (her biological offspring) and Mrs. Clayton's children in law (her children by adoption or marriage).”  I see no reference to natural-born in this passage.

                Likewise, I don’t see the significance of your reference to Cuningham’s Law Dictionary:

“Cunningham's Law Dictionary gave this factual (as opposed to legal) definition of ‘natural born subject’:

‘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.’"

                It is quite similar to D40 in my Table III. The entry lists Jacob, Giles, New Law Dictionary: containing the Interpretation and Definition of Words and Terms used in the Law; as also the Law and Practice, under the Proper Heads and Titles. Together with such Learning as explains the History and Antiquity of the Law, our Manners, Cuſtoms, and Original Government.  Colleƈted and Abſtraƈted from All Diƈtionaries, Abridgments, Inſtitutes, Commentaries, Reports, Year-Books, Charters, Regiſters, Chronicles, and Hiſtories Publiſhed to this Time. The Ninthe Edition, Now correƈted and greatly enlarged by Owen Ruffhead and J. Morgan, Enquires. For .J Beecroft; W. Strahan, J. F. Rivington; J. Hinton; W. Johnston; R. Horsfield; W. Owen; B. Law; S. Crowder; W. Fuller; Hawes and Co.’; T. Longman; T. Caslon; E. and C. Dilly; P. Uriel; Z. Stewart; T. Cadell; J. Johnston; W. Nicoll; T. Becket and Co.; T. Davies; J. Robson; W. Flexney; Robinson and Roberts; M. Hingeston; W. Otridge; and W. Domville, London, mdcclxxii. (1772) Fig. 55. Neither your Cunningham nor my Giles law dictionary contains a definition for natural-born, only natural-born subject.  Ergo, I contend that natural-born in and of itself had no legal definition at the time. In fact, the term did not even come into play for natural childbirth until much later. The legal meanings were derived from their juxtapositions before subject or citizen, which gives me the reasoning behind my disagreement with you. Therefore, I am forced to conclude, contrary to your cited statement at the top of my response, Cunningham offered no definition for natural-born, whereas he did offer one for natural-born subject. To make assumptions about the definition of natural-born by itself when it never appeared in any common or law dictionary does not seem proper to me.

                Please open my eBook and search for Plowden. Bring up Fig. 193, a photo of the title page of his first book.  His two books bore more fruit about the history of natural-born subject than any others. I probably quoted more than sixty pages verbatim from them.  He is really one of the main reasons I say that natural-born subject had nothing to do with natural-born citizen. Please read the citations from the pages of his two books.  Never once did he make a reference to natural-born all by itself. His two books compose the bible of natural-born subjectship.

Sincerely,

Bob Gard

PS. This is fun. You truly are one of the few people I have had an intelligent conversation with concerning this issue.

 

Stephen Tonchen           

Nov 9 (3 days ago)                          

to me

Dear Bob,

Thanks for your comments.

You are correct. I should have used the adjective "Vattelian" rather than the possessive "Vattel's", to express the (rather loose and indirect) association between Vattel and a later English translation of his work.

I agree that the term "natural born", by itself, is not explicitly defined anywhere. But it is not improper to infer the term's meaning from English usage.

Five points:

1) From 1608 (when Calvin's Case was decided) to 1787 (when the U.S. Constitution was adopted), there were two kinds of natural-born subjects: subjects-born (those who are natural-born subjects by birth), and subjects-made (those who are natural-born subjects by acts of Parliament).

2) A few sources (such as Coke Upon Littleton) construed subject-born as anyone born within the king's realm, without regard to the parents' status or condition. But the vast majority of sources, including Lord Coke's Report on Calvin's Case and many of the sources you've cited, define "subject-born" as one who is born within the realm, of parents owing actual obedience (allegiance) to the king.

3) According to Judge Yelverton (one of the judges who decided Calvin's Case) and at least three 17th-century English court rulings after Calvin's Case, only subjects-born were "real" natural-born subjects.  Subjects-made -- those who were deemed to be natural-born subjects by a private or public act of Parliament -- were taken, reputed, adjudged and/or deemed to be natural-born subjects by "a fiction of law"; they were not natural-born subjects in fact.

4) All English subjects as distinguished from aliens, (except persons made "denizens" by royal charter), regardless of how or when they acquired their subjecthood, were considered as natural-born subjects. There are multiple examples in which the term "natural-born subject" is used in reference to persons who were naturalized by Parliament, and to persons to whom Parliament granted "subject" status by statute (for example, children born abroad to English fathers). But in all of these examples, Parliament never said that such persons actually were natural-born subjects. All such persons were merely deemed to be natural-born subjects.

5) Multiple sources, including some of those that you've cited, say that children born in England, of alien parents, were statutory denizens, as a result of a law that Parliament had enacted in 1604. Statutory denizens were deemed to be natural-born subjects in the legal sense, but they were not subject-born as defined in Lord Coke's Report on Calvin's Case.

Given the above five points, it is no surprise that, in both Cunningham's Law Dictionary, published in 1764, and Matthew Bacon's New Abridgment of the Law, published in 1736, "natural-born subject" (in the factual, as opposed to the legal, sense) is defined as one who is born within the realm, of parents owing actual obedience (allegiance) to the king. All other persons who bear the "natural-born subject" label are natural born subjects in law, but are not natural born subjects in fact.

Thus I contend, there wasn't much difference between "natural born", as used in "natural born subject" in the factual sense, and "natural born" as used in "natural born citizen" in the Vattelian sense. In both cases, "natural born" implied birth in a particular place, to parents owing actual allegiance to the sovereign of that place.

True, "implied" is not the same thing as explicitly defined. But as I see it, the evidence is rather compelling and conclusive. Lord Coke's Report, the various statutes enacted by Parliament, various dictionaries and commentaries that were used in the American colonies, and the English court rulings rendered after Calvin's Case, present a clear, coherent and consistent picture -- but only if we understand that there were two kinds of natural born subjects: real (born) and fictional (made); and the only thing that distinguished the real from the fictional was that the real natural-born subjects were born within the king's realm, of parents owning actual allegiance to the king.

I think we are arriving at the same conclusion -- that the Founding Fathers had rejected the English legal implication of "natural born" (birth within the realm, without regard to the parents' personal status or condition), and had understood "natural born citizenship" as birth within the country of one's parents' citizenship. But we are arriving at this conclusion from different directions.

My only point is that the term "natural born", as used in "natural born subject", had a legal connotation (the jus soli principle, which confers "natural born subject" status to all persons born on English territory, without regard to their parents' nationality) and a factual connotation (birth within a place, of parents owing actual allegiance to the sovereign of that place). Even though the Framers had rejected the legal connotation, the factual connotation remained available to them; and that, in my opinion, is a very plausible source of "natural born" as used in the Constitutional "natural born citizen" provision.

- Steve

 

Bob Gard gardbook1@gmail.com            

Nov 9 (3 days ago)                          

to Stephen

Dear Steven,

Basically we come back to the same issue: Coke defined natural-born subject; he did not define natural-born. Any relation to natural-born by itself is an inference not sustained by facts.

“I agree that the term 'natural born', by itself, is not explicitly defined anywhere. But it is not improper to infer the term's meaning from English usage.” It is improper to infer its meaning by itself as if natural-born as a noun or adjective bestowed legal rights unless it preceded subject.  It is improper to infer its meaning anywhere except in its juxtaposition to subject. Subject gave the meaning to natural-born in its legal sense. The natural-born subject relied on jus soli, imperfect jus sanguinis (father had to be a subject), and male gender of the issue (offspring).  I suggest you re-read my Chapters 8, 9, and 10.

“1)From 1608 (when Calvin's Case was decided) to 1787 [1789] (when the U.S. Constitution was adopted), there were two kinds of natural-born subjects: subjects-born (those who are natural-born [natural, not natural-born] subjects by birth), and subjects-made (those who are natural-born [natural] subjects by acts of Parliament).” If you can, please get a hold of Plowden’s two books on the subject and read them. They are on-line.  Historically, natural-born subject meandered from time to time. It was not a consistent term such that “subjects-born” did not equate in all instances to natural-born subjects but did to natural subjects. If the term subjects-born were equivalent to natural-born subjects, why didn’t women— for most of the years between 1608 and 1787—enjoy the rights of natural-born subjects? They were subjects-born, but they were not natural-born subjects because natural-born subjects composed the envied class that could inherit and bequeath lands. Sometimes the restrictions were eased and they enjoyed these rights here and there. Women were always natural subjects, though.

“2) A few sources (such as Coke Upon Littleton) construed subject-born as anyone born within the king's realm, without regard to the parents' status or condition. But the vast majority of sources, including Lord Coke's Report on Calvin's Case and many of the sources you've cited, define "subject-born" as one who is born within the realm, of parents owing actual obedience (allegiance) to the king.” Is this logical? In the first place, if subjects-born can mean more kinds of subjects than natural-born subjects, it is not equivalent to natural-born subjects.  I refer you to my simple mathematical model in Chapter 2 of n=n, n+1=n+1, but n ≠ n + 1. When  +1 comes into play with a continued belief in equality, logic falters.  I also refer you to Axiom 6 in Chapter 6. You have great knowledge. I think your knowledge would be enhanced by reading Plowden. When it comes to natural-born subjectship, one cannot make definitive conclusions without the aid of Plowden. In the end, all natural-born subjects are subjects-born but not all subjects-born are natural-born subjects, another mathematical concept acting as an impediment to the veracity of your expressed arguments.

“3) According Judge Yelverton (one of the judges who decided Calvin's Case) and at least three 17th-century English court rulings after Calvin's Case, only subjects-born were ‘real’ natural-born subjects [see word equation in the above paragraph].  Subjects-made -- those who were deemed to be natural-born subjects by a private or public act of Parliament -- were taken, reputed, adjudged and/or deemed to be natural-born subjects by ‘a fiction of law’; they were not natural-born subjects in fact.” What you are discussing here was the necessity of being native-born as a requisite to fulfill one of the two requisites for being deemed a real natural-born subject, just as it was necessary to fulfill this one requisite before being deemed a natural-born citizen in America. This was the one thing that natural-born citizenship shared with natural-born subjectship. Both shared this requisite due to the previous history of native-born citizenship or subjectship. No British roots here! I have no problem acknowledging that naturalization gave naturalized subjects the rights of natural-born subjects but did not make them natural-born subjects in fact because they lacked jus soli. By the way, it was not a foregone conclusion that denizens gained all the same rights during the time period you mentioned.  They increasingly gained rights but there was always conflict about their ultimate status. And remember, all subjects, women and denizens included, owed allegiance to the sovereign. Naturalized, native-born and natural-born citizens owed allegiance to the Constitution and to America—a radical difference.

“4) All English subjects as distinguished from aliens, (except persons made ‘denizens’ by royal charter), regardless of how or when they acquired their subjecthood, were considered as natural-born subjects. There are multiple examples in which the term ‘natural-born subject’ is used in reference to persons who were naturalized by Parliament, and to persons to whom Parliament granted ‘subject’ status by statute (for example, children born abroad to English fathers). But in all of these examples, Parliament never said that such persons actually were natural-born subjects. All such persons were merely deemed to be natural-born subjects.” Again, women were subjects or natural subjects but not natural-born subjects. They owed allegiance but they couldn’t bequeath or own lands. You cannot claim that all foreigners made into subjects were deemed natural-born subjects if biologically half of them weren’t considered so. This constitutes a flaw in reasoning. Sometimes historians neglect to recognize reality when they read sentences like, “We are bound by Aƈt of Parliament to believe, that the words children of all natural born ſubjeƈts included the child of every Britiſh father; and I beg to know, what there is contained in thoſe words, to denote the difference of ſex, or in other words, to make the term natural born ſubjeƈts apply to men and not to women?” Somehow these historians think that omissions specifically denying women natural-born subjectship equated to their having it. That was not the case.

The same confusion pertaining to this theoretical debate occurred in the U.S. No woman could run for the presidency in the early days or enjoy suffrage (except in a few locations) even though anyone could make the argument that a woman born in an American state of two American citizen parents was a natural-born citizen. You could talk about it all you want but no woman could run for president or any office, for that matter.

“5) Multiple sources, including some of those that you've cited, say that children born in England, of alien parents, were statutory denizens, as a result of a law that Parliament had enacted in 1604. Statutory denizens were deemed to be natural-born subjects in the legal sense, but they were not subject-born as defined in Lord Coke's Report on Calvin's Case.” Please re-read the chapters I mentioned or simply type denizen in the find function.  The reference about denizens you cited was not written in stone.  Many legal interpretations were tossed back and forth.  Here’s an example:

 

 

      When Coke’s day rolled in, naturalized subjects had gained full rights of natural-born subjects [in the sense of the previously equivalent terminology] through common law and statute but they were still not technically natural-born subjects, more an abstract difference than a real one. “Coke in his Fourth Institutes noted that aliens and denizens were ineligible to sit in Parliament but that this disability was removed by naturalization. ‘An alien,’ he observed, ‘cannot be elected of the parliament, because he is not the king’s liege subject, and so it is albeit he be made denizen by letters patent, etc. for thereby he be made quasi, seu tanquam ligeus: but that will not serve, for he must be made ligeus revera and not quasi, etc.  And we have had such an one chosen and disallowed by the house of commons, because such a person can hold no place of judicature: but if an alien be naturalized by parliament, then he is eligible to this or any other place of judicatures.’”  Coke’s version of naturalization considered an alien thusly naturalized reborn as a natural-born subject, owing the same allegiance to the king. What I have presented as Axiom 6 posed no problem to Coke’s illogical thought process that an alien could give up his allegiance to a foreign prince but an Englishman, newly reborn or not, could not give up his allegiance to the English crown.

                Here’s another example that restricted a privilege to both denizens and naturalized subjects:

      Under his reign as William II, large numbers of Dutch immigrants settled in England, scaring the parliament, which passed the Act of Settlement in 1701 that declared:  

no person born out of the dominions of the kingdoms of England, Scotland, and Ireland or of 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 land, tenements or hereditaments from the Crown to himself or to any others in trust for him.

And:

      From the beginning, reliance on the British system of subjectship cast a shadow over rights to property ownership, inheritance, and, of course, transferability of title for the newcomers. The colonial leaders had always viewed this form of subjectship as detrimental to enticement. They wanted a new form of citizenship that eradicated the impediments ensconced in British subjectship. As the eighteenth century progressed, the colonists started to refer to societal membership in a colony as citizenship rather than subjectship. Their consistent, former rejection of England’s hierarchical ranking of native-born subjects, naturalized subjects, and denizens never relented.  They envisioned an America where the laws of nature and the laws of nations provided the basis for citizenship, but that would have to wait for the revolution.

. . .

      How is a sentence like this consistent with any single theory of citizenship? Free denizens never had all the rights of natural born subjects in Great Britain; denizens were generally not allowed to take office; and subjectship never depended on stipulated years of residence, except in some very restricted decrees and acts.

. . .

      [Madison spoke on 22 May 1789, showing that, in his mind, denizens in Britain did not enjoy full rights:] It is well known to many gentlemen on this floor, as well as to the public, that the petitioner [David Ramsay] is a man of talents, one who would not lightly hazard his reputation in support of visionary principles: yet I cannot but think he has erred in one of the principles upon which he grounds his charge. He supposes, when this country separated from Great Britain, the tie of allegiance subsisted between the inhabitants of America and the king of that nation, unless by some adventitious circumstance the allegiance was transferred to one of the United States. I think there is a distinction which will invalidate his doctrine in this particular, a distinction between that primary allegiance which we owe to that particular society of which we are members, and the secondary allegiance we owe to the sovereign established by that society. This distinction will be illustrated by the doctrine established by the laws of Great Britain, which were the laws of this country before the revolution. [I have shown this to be partially untrue since the colonies passed many laws in direct contradiction to Britain’s.] The sovereign cannot make a citizen by any act of his own; he can confer denizenship, but this does not make a man either a citizen or subject. In order to make a citizen or subject, it is established, that allegiance shall first be due to the whole nation; it is necessary that a national act should pass to admit an individual member. In order to become a member of the British empire, where birth has not endowed the person with that privilege, he must be naturalized by an act of parliament. [Madison knew that the Constitution did not provide for dual citizenship in any way. He must be rolling in his grave now because Congress distorted that fundamental tenet—though not expressly banned in the Constitution. I shall discuss dual citizenship at length in Part II.]

. . .

 

      A denizen may be moulded into a thousand fantastical shapes: he may be a denizen in tail, a denizen for life, a denizen for years, a denizen upon condition, a denizen in one court of justice, and an alien in another.

“Thus I contend, there wasn't much difference between ‘natural born’, as used in ‘natural born subject’ in the factual sense, and ‘natural born’ as used in ‘natural born citizen’ in the Vattelian sense. In both cases, 'natural born' implied birth in a particular place, to parents owing actual allegiance to the sovereign of that place.” The Vattelian sense made it obligatory that a natural-born citizen be issued forth from a union of two citizens of that country. Never so in Britain. [0 ≠ ] 1 ≠  2. Both in Britain and America natural-born meant that, in order for confirmation as natural-born, the conferee had to be native-born, which did not make natural-born equal to native-born. There were other requisites, among [them] the nature of the allegiance owed and to what or whom it was owed. These were distinct in the two countries. If natural-born in America meant natural-born in Britain, then Obama would be a natural-born citizen if his birth certificate were not fraudulent. Britain requires [no parent or]only one parent to be a subject [if born outside the realm]. So you are what I call a birther2?  Birther2 —A person who believes that a presidential candidate must be born of at least one American citizen on the soil of any of the fifty states, starting when Hawaii gained statehood. If that be true, I misinterpreted your stance. A birther2 is closer to the present-day British laws. I understand your arguments better if you have put yourself into this birther category.

I am a birtherbc,1.

Sincerely,

Bob Gard

 

Bob Gard <gardbook1@gmail.com>       

Nov 12                 

to Stephen

Dear Stephen,

Did I send you an email on Nov. 8 with the following information in it?  I was arranging my emails in folders and couldn't find that one. I am almost sure I did because you responded to the incongruity regarding Vattel. I sometimes delete messages by mistake. Did you get the one on November 9 too? I haven't heard back from you. I hope you will respond to my line of thought debating your points. I would hate to think our debate might be over. I repeat, you are perhaps the most knowledgeable of all the birthers I have exchanged emails with. I am ready to be proven off the mark as well. This is too important an issue to treat without absolute open-mindedness. I personally believe that America died last November 6 and that her only chance at resurrection is through the Constitution.

A link to your web site is in my web site. Would you be open to putting a link to The-Constitutionist.com in your web site? The public needs access to intelligent debate on this subject.

Best wishes,

Bob

 

Stephen Tonchen           

Nov 13                 

to me

Bob,

Yes, I received your Nov 9 email. Sorry to have taken so long to respond.

One area where we appear to have a difference of opinion is in regards to the meanings of subject-born, natural subject, and natural-born subject. Here is my understanding of how those terms were defined during the Constitutional era:

1) Regarding the term "natural-born subject", Francis Bacon (the attorney who represented Robert Calvin in Calvin's Case and whose legal argument the English Court ultimately accepted) explicitly and unambiguously defined "natural born subject" as anyone who becomes an English subject either by birth or by act of Parliament. Specifically excluded from the "natural-born subject" category are persons who were endenized by the king. The king can turn an alien into a subject, but only Parliament and Nature have the power to turn anyone into a natural-born subject.

2) Regarding the term "natural subject", it appears to me that "natural subject" and "natural-born subject" are synonymous, one being an abbreviation of other. I cannot find any source suggesting that the two terms have materially-different meanings. The Naturalization Act of 1541 conferred "natural subject" status, at birth, to children born overseas to English fathers. Don Hector Nunez was never naturalized or endenized. Yet, in January 1576, an administrative court deemed him to be a "natural subject" of Queen Elizabeth, by virtue of his continuous 20-year residence in England.  In both instances, "natural subject" is used the same way that "natural-born subject" is used in later writings.

 

3) There were two kinds of natural-born subjects: real (born) and fictional (made). Only those who acquired "natural born subject" status by birth were "real" natural-born subjects. Persons who became "natural-born subjects" by an act of Parliament were merely deemed to be natural-born subjects. They had some legal rights associated with "natural born subject" status. But they were never regarded as true natural-born subjects in fact.

    According to Judge Yelverton (one of the judges who heard Calvin's Case), Parliament may deem someone to be a subject, but it lacks the power to make anyone into a real subject (a subject "indeede").

    According to three 17th-century English court decisions -- Foster v. Ramsey (1656), Collingwood v. Pace (1661-1664), and Craw v. Ramsey (1669-1670) -- persons who became English subjects by an act of Parliament were not "real" subjects. There naturalization is a fiction of law, which as no effect except in countries consenting to that fiction.

When conferring "natural-born subject" status to someone, Parliament was careful not to say that it was making anyone into an "actual" natural born subject. Persons naturalized by Parliament were merely deemed (taken, reputed, adjudged, etc.) to be natural-born.

    During Queen Elizabeth's reign (1558-1603), aliens who were naturalized by Parliament were "taken" and "reputed" to be the Queen's "natural-born subjects".

    According to the Act of Anne (1708), "the children of all natural-born subjects, born out of the ligeance [territory] of her majesty, her heirs and successors, shall be deemed, adjudged and taken to be natural-born subjects of this kingdom...".

    In 1604, Parliament enacted a law granting statutory "denizen" status to children born on English soil, of alien parents. Since these children became English subjects by an act of Parliament, they conform to Francis Bacon's definition of "natural-born subject". But Parliament never said that such children were real or actual natural-born subjects; Parliament merely said that such children were "aliens made denizens".

4) Regarding the meaning of "subjects-born", Lord Coke (in his Report on Calvin's Case) divided all English subjects into two mutually-exclusive categories: subjects-born and subjects-made. "Subjects-made" included those endenized by the king and those who became subjects by acts of Parliament. Therefore, by process of elimination, "subjects-born" must refer only to persons who were natural-born subjects by birth.

Both Timothy Cunningham's Law Dictionary  (1764), and Matthew Bacon's A New Abridgment of the Law (1736),  gave the same exact definition of "natural-born subject" (by birth):

 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.

This definition matches the definition of "subject born" found in Lord Coke's Report on Calvin's Case (1608) and in Giles Jacob's New Law Dictionary (1782).

"Natural-born subject by birth" is synonymous with "subject born" because, in the reference materials that the Framers had used and relied upon, both terms are defined identically.

My main point is that the Vattelian notion of natural born citizen -- those born in a country, of parents who are citizens of that country -- is not inconsistent with the meaning of "natural-born subject by birth" -- those born within the king's realm, of parents owing actual allegiance to the king.

Here are some additional miscellaneous comments:

please get a hold of Plowden’s two books

    The two books by Plowden were published in 1784 and 1785 -- too late for them to have had much influence on the Framers of the Constitution as adopted in 1787.

why didn’t women— for most of the years between 1608 and 1787—enjoy the rights of natural-born subjects?

    Women had property and inheritance rights. A woman could inherit from her father if there were no male heirs. All natural-born subjects (including women) had "core" rights, including the right to acquire and bequeath English real-estate. However, I do agree, that different natural born subjects had different conditions and restrictions placed on their rights, depending on a wide variety of criteria having nothing to do with their "natural-born subject" status.  These conditions and restrictions didn't change the fact that they were all natural-born subjects in the eyes of English law.

“subjects-born” did not equate in all instances to natural-born subjects but did to natural subjects.

    Natural-born subjects consist of two groups: natural-born subjects by birth (subjects-born), and natural-born subjects by act of Parliament (subjects-made). Subjects-born are a subset of natural-born subjects, not the other way around.

subjects-born can mean more kinds of subjects than natural-born subjects, it is not equivalent to natural-born subjects.

    It depends on whether we are talking about "natural born" in the general and inclusive sense (in which all English subjects, except denizens by royal charter, were deemed to be natural-born), or in the narrow specific sense (in which only subjects-born were "true" or "real" natural-born subjects).

Again, women were subjects or natural subjects but not natural-born subjects. They owed allegiance but they couldn’t bequeath or own lands.

    Women's inheritance rights were restricted but not eliminated.  Women were permitted to inherit in cases in which there were no male heirs.

it was not a foregone conclusion that denizens gained all the same rights during the time period you mentioned. 

    According to Francis Bacon, all persons who became subjects by acts of Parliament -- whether by naturalization or endenization by Parliament -- were natural-born subjects. That does not mean that all natural-born subjects had the same rights. Some natural-born subjects had more rights than others, but that doesn't change the fact that they were natural-born subjects.

    As a general rule, all denizens -- including persons who received "denizen" status by virtue of birth on English soil, to alien parents -- had to pay aliens' duties, which were nearly twice the duties imposed on naturalized subjects and English-born children of English parents. Despite the fact that they had restricted rights, persons made denizens by an act of Parliament were natural-born subjects, whereas persons made denizens by the king were not.

    During Elizabeth's reign, naturalization and denization were synonymous. Both conferred full rights. But the agency performing the naturalization or endenization -- whether Parliament or the king -- may, as an after-thought, curtail some of the rights inherent in naturalization or endenization.  Since the king almost always restricted the rights of those he endenized to a far greater extent than did Parliament, those who were endenized by the king were stereotyped as vastly inferior (with respect to status and rights) compared to Parliamentary natural-born subjects.

The Vattelian sense made it obligatory that a natural-born citizen be issued forth from a union of two citizens of that country. Never so in Britain.

    It depends on whether we are talking about "natural born" in the factual sense or in the legal sense.

    According to a law that Parliament enacted in 1604, and according to several 18th-century sources, including Cowell, Viner, Cunningham, Jacob and Johnson, children born on English soil, to alien parents, were denizens by parliamentary statute (as opposed to denizens by royal charter). Such children were naturalized by statute at birth and thus were deemed to be natural-born by law. But they were not true or real natural born subjects. Only those born within the king's realm, of parents owing actual allegiance to the king, were natural-born in fact.

    If we make no distinction between natural-born by birth and natural-born by naturalization, then "natural-born" could be construed as implying the jus soli principle. No one disputes that all persons born on English soil (except the children of foreign diplomats and alien enemies) were natural-born subjects, without regard to parental nationality.

    But, if (as I believe) the Framers understood "natural born" according to its factual meaning, not according to its fictional legal meaning, then natural born implies birth in a particular place, of parents owing actual allegiance to the sovereign of that place -- which is consistent with the Vattelian view.

Both in Britain and America natural-born meant that, in order for confirmation as natural-born, the conferee had to be native-born, which did not make natural-born equal to native-born.

    In English and American law, there is no statutory difference between "natural-born" and "naturalized". In the United States, natural born citizens and naturalized citizens are the same in the eyes of the law. The courts have ruled that, although there is a Constitutional difference between "natural-born" and "naturalized", there is no statutory difference.

    Unlike American law, which distinguishes between "natural-born" and "naturalize", British law often blurs the distinction; it uses the term "natural-born" in reference to both. The term "natural-born", in British law, encompasses, not only those who are natural-born by birth, but also those who are natural-born by naturalization (act of Parliament). In American law, the term "natural-born" is used only in reference to those who are natural-born by birth, not to those who are natural-born by naturalization. In the American system, the phrase "natural-born by naturalization" is a nonsensical oxymoron.

    In both the British and Vattelian systems, natural-born by birth implies birth in a particular place, of parents owing actual allegiance to the sovereign of that place.

Again, I appreciate your comments.

- Steve

 

Response top Nov. 13 missive

Bob Gard <gardbook1@gmail.com>

Nov 13                 

to Stephen

Dear Steven,

I wanted to let you know that I worked quite a bit today on my response. I even gave you two or three citations that superficially support your belief on the issue. I naturally gave my reasons as to why I discount parts of them.  I will be content with the outcome of your understanding my standpoint regardless of your not agreeing with me. In other words, I hope that you will reappraise your opinion that I was "walking on thin ice." I am coming to the conclusion we are walking more on the same patch of ice but wearing different shoes. Yours were made in England and mine were made in America. Of course, I believe myself to be right because my shoes were more sturdily crafted but I will not think that you are unreasonable to want to keep your shoes on. Your analyses came from detailed studies. Everything you bring up supports the depth to which you have researched.

I will not be able to finish my response until next week. From now through Sunday I am booked.

 

Stephen Tonchen <stevenet@mags.net>           

Nov 15                 

to me

Hi Bob,

I am looking forward to your response.

What matters here is how "natural born" was understood by the Framers of the Constitution, not how the term was understood in England. To learn the Framers' understanding of "natural born", we need to look at the writings (commentaries, dictionaries, reports, etc.) that the Framers had in their possession (in America) and were relying upon as they wrote the Constitution.

I agree that "natural born", by itself, is never defined anywhere. But the Framers' understanding of the difference between "natural-born subject" and just plain "subject", provides an important clue as to how the Framers understood "natural born".

If you can prove that the Framers understood "natural born" to mean native-born, then, as I see it, the "natural born citizen" debate is over -- no American court will ever affirm the Vattelian view. No court is going to believe that "natural born", as used in "natural born citizen", means something other than the Framers' understanding of the meaning of "natural born", as used in "natural-born subject".

So the information you provide on this issue, whichever way the information goes, is crucial to the "natural born citizen" debate. I look forward to reviewing it.

- Steve

 

Bob Gard <gardbook1@gmail.com>       

Nov 15                 

to Stephen

     Did you really read my eBook or skim it? You now say, "What matters here is how 'natural born' was understood by the Framers of the Constitution, not how the term was understood in England. To learn the Framers' understanding of 'natural born', we need to look at the writings (commentaries, dictionaries, reports, etc.) that the Framers had in their possession (in America) and were relying upon as they wrote the Constitution."

     Your above reasoning is what my book is all about. The simple links are (1) Jay wrote Washington using a term that was used in combination once in America with "free" in the 1777 Continental Congress resolution. (2) It was only important as to what Jay meant by "natural born Citizen." It was not important what the framers thought before Jay introduced his term through Washington into the Constitutional Convention or what the congressmen who wrote the 1777 resolution thought  "natural born free Citizens" meant.  The delegates to the Constitutional Convention had to be informed by Washington as to Jay's definition, although no hard-copy evidence exists, only corroborative, circumstantial and correlative.  (3)  No publisher changed section 212 in Volume I, Book I, Chapter XIX of The Law of Nations until 1797, where "indigenes" was replaced with "natural-born citizens." (4) I show my proof that Vattel had overwhelming influence on American founders and framers, even on the Declaration of Independence. (5) I show my evidence that Sir William Scott was the secret editor of the 1797 edition of The Law of Nations. (6) I prove how enamored Scott was with The Law of Nations. (7) I prove that Scott and Jay had several face-to-face meetings in London. (8) I ask the reader to take the miniscule leap of faith to accept that Scott and Jay thoroughly discussed British subjectship and American citizenship in an attempt to resolve the prize and impressment issues. (9) I show they became friends. (10) Less than two years after their meetings, the most outrageous change in translation from "indigenes" to "natural-born citizens" took place in section 212 of the 1797 edition of Vattel. (11) Where was the only other reference to it? It was in the Constitution. [I didn't know about Patsall] and (12) I conclude that Jay must have told Scott that the term "natural born Citizen" had been inspired by Vattel's section 212. Everything fits.

     In my eBook, I specifically stated more than once that the Supreme Court has no right to interpret what's in the Constitution. Their jurisdiction is to address the constitutionality of legislation made after and under the Constitution, not in it. The Supreme Court had no right to interpret or judge the supreme law that created the Supreme Court.  What would Christianity say to Christian justices sitting on the bench of the Supreme Court if they declared they had the right to judge their Creator? The Constitution is their creator in the legal realm. The justices must follow the plain English in the document. I give my reasons as well as the reasons of some of the founding fathers. It follows that I don't care about the illegal abuse of power by the courts. Only two powers exist that can determine whether Barack Obama is unconstitutional by simply saying that he is not a natural-born citizen by virtue of his not having two American citizen parents. The powers are the sovereignty of the people and the impeachment authority of Congress.

"So the information you provide on this issue, whichever way the information goes, is crucial to the 'natural born citizen' debate. I look forward to reviewing it." The information is in the eBook you bought. It is packed with letters, notes, reports, documents, commentaries, quotes, and other writings from the framers and founding fathers. I included large tables on dictionaries. What else can I do without smoking-gun evidence?

You have left me very confused.

Sincerely,

Bob

 

Bob Gard <gardbook1@gmail.com>       

Nov 17                 

to Stephen

Dear Steven,

“1) What was the Framers' understanding of the meaning of ‘natural-born’ as used in ‘natural-born subject’ in English law?”  If the framers had an understanding about “natural-born” in and of itself, they never recorded it. I believe that reinforces my contention that natural-born was not contemplated seriously except in reference to its position in front of subject.  The framers discussed natural-born subject before the War of Independence in terms of the same concepts described by British jurists. The framers and the colonists felt that Britain was not conceding to them their British rights as natural-born subjects based on their vast legal knowledge of what natural-born subjects meant under British law.  That was always inherent in the redresses that our American founding fathers sent to King George III. Thus, this whole business about the meaning of natural-born is irrelevant except for the importance attached to it by 21st-century debaters of this issue like you. The only thing that is important is what natural-born subject meant and what natural-born citizen meant in addition to whether the first was the root of the second. I say that no root exists beyond the linguistic sharing of its identity with native born as one of the requisites of being a natural-born subject or a natural born citizen. Natural-born is not the equivalent of native-born but has the meaning of native-born contained in it. You cannot separate the meaning of natural-born from either subject or citizen.  Used with either noun, it means that there exists the requisite of native-born but it entails other conditions for each usage. I don’t know how to express it any other way.

“2) What was the Framers' understanding of the meaning of ‘natural born’ as used in ‘natural born citizen’ in the US Constitution? Your book deals with the second question, but largely dismisses the first as irrelevant.”  

Except for mention of natural-born in my dictionary tables and various other places, I devote few pages to the first question for the stated reasons, after which I dismiss it as irrelevant along with the second question for the same reasons. It is obvious that I believe the meaning of natural-born subject to be also largely irrelevant as seen from what I write in Chapter 10 and repeat in my web site The-Constitutionist .com:

“Natural-born subject” is critical to the discussion of the meaning of natural born citizen because the majority of Americans think it is—not because it is. In other words, it isn’t important because it had nothing to do with “natural-born citizen,” except, perhaps, in the American framers’ rejection of it to describe our highest form of citizenry at the Constitutional Convention. It is important because the average American who knows the term thinks it was the part of English common law that gave natural born citizen its meaning. It is my job to prove that natural born citizen was unique to John Jay in terms of its meaning in the U.S. Constitution and there is no reason to look for British roots. One needs to look for roots in the law of nations in general and in The Law of Nations written by Emer de Vattel in particular. Be clear that I do not intend to claim Emer de Vattel devised the term. I mean to say that John Jay either devised it or absconded with the three words from the four-word combination in the 1777 Journals of the Continental Congress if he was aware of its prior use, accessible only in the records of the Continental Congress. I argue that John Jay attached Vattel’s definition for natives and indigenes to his term.

I can’t be any clearer than that. Please do not infer that I didn’t discuss the issue before I dismissed it as irrelevant. I dismissed it as irrelevant after I researched it in depth. How can you infer I dismissed these things before I researched them? That is what your statement above infers. Otherwise you would have claimed I researched natural-born and natural-born subject but dismissed the importance of both as irrelevant after finding nothing to link them to natural-born citizen beyond native-born as one requisite and only one requisite included in the terminology of natural-born in either specific usage.

“It is my understanding that, during the 17th and 18th centuries, all English subjects (except denizens by royal charter), including naturalized subjects and foreign-born subjects, were deemed to be natural-born subjects by English law. But only those who were born on English soil, to parents owing actual allegiance to the king, were natural-born subjects in fact. The wording of various statutes enacted by parliament, at least three separate 17th-century English court rulings, a variety of 18th century commentaries and dictionaries, and the opinions of scholarly researchers, support this understanding.” We have gone over this several times. And why are we back on it considering you have taken the position that what the Brits thought about “natural-born subject” was not important? I am puzzled, especially since the colonists shared all the same sources for their knowledge about natural-born subject with the Brits. Publishing houses were not common in America until after the Revolutionary War. Americans bought most of their books from London.

I have agreed with you each time that to be a natural-born subject in fact depended on jus solis. I do not understand what bearing this has except for the lengthy discussion in my book concerning America’s early naturalization acts where I argue that the misuse of natural-born citizen in the first act came in part from the British paradigm. Why do you keep repeating this point when you have admitted, “What matters here is how ‘natural born’ was understood by the Framers of the Constitution, not how the term was understood in England?” The Congress that passed the Naturalization Act of 1790 didn’t have enough members in it to understand that they were violating the Constitution with the act. Madison, who did know, spearheaded the crusade to reverse this violation—another correlative proof supporting my conclusions.

“You and I share the same answer to the second question. I was hoping you might provide information relevant to the first question. If you have any, please let me know.” The eBook reveals clearly that there is no archived information available as to how the founders envisioned natural-born except in its relation to subject.   As I have repeatedly argued, it is not important what the framers thought about the term if they never wrote or publicly spoke about it. The key question is: What did John Jay mean by natural born Citizen? What he meant by natural born by itself is irrelevant because he never wrote or spoke publicly about natural born by itself. He only wrote about natural born Citizen without defining it. The bickering between birthers and anti-birthers continues because neither asks the right questions as I pointed out in my eBook, which answers what John Jay meant by natural born Citizen, lacking the smoking gun.  The term found its way into the Constitution through his hand  . . .  no one else’s.  Therefore, please explain the relevancy of your asking the same question over again.  One thing matters—what John Jay meant. You have a perfect right to claim I didn’t prove beyond a reasonable doubt to you that John Jay meant by the term a citizen born in an American state of two American citizen parents. You do not have the right to claim that Jay’s meaning hinged on what the framers in the Constitutional Convention might have thought but never left a record of for posterity. Please excuse my bluntness: to maintain my intellectual honesty, I must tell you that your questions are not pertinent in my analysis of the presidential eligibility clause. And who cares what outsiders like John Adams or Thomas Jefferson, for two examples, thought if neither was informed personally of its meaning by a delegate from the Convention?

Sincerely,

Bob Gard

 

Bob Gard <gardbook1@gmail.com>       

Dec 21 (8 days ago)                        

to Stephen

Dear Steven,

                I delayed a long time before answering your November 13th inquiries.  In part, I had a problem coming out with what I really wanted to say because it conflicted with your style of gentlemanly debate. I did not want to be too harsh but, in the end, I decided for candidness. I have an easily pushed button when it comes to a certain style of reasoning.

                I needed to answer you fully. I don’t like to leave loose ends. This time I will highlight your previous comments and questions in blue. I will reproduce excerpts from my eBook in green. My new comments will appear in black.

                “One area where we appear to have a difference of opinion is in regards to the meanings of subject-born, natural subject, and natural-born subject.” Yes we do. However, I can see more clearly where we disagree and why.

“1) Regarding the term ‘natural-born subject’, Francis Bacon (the attorney who represented Robert Calvin in Calvin's Case and whose legal argument the English Court ultimately accepted) explicitly and unambiguously defined ‘natural born subject’ as anyone who becomes an English subject either by birth or by act of Parliament. Specifically excluded from the ‘natural-born subject’ category are persons who were endenized by the king. The king can turn an alien into a subject, but only Parliament and Nature have the power to turn anyone into a natural-born subject.” True for the most part. We never disagreed on the first sentence. And I never disagreed with you on the second sentence, except that a British king could not naturalize and thus denizens were never totally equivalent to naturalized “natural-born subjects” as you contended and that “made” natural-born subjects had all the rights of “born” natural-born subjects as you also contended.  You constantly swing between telling me that denizens were equivalent to natural-born subjects and that they were not.  At this point in the debate, if you are saying they were not, it seems we are slowly merging on this issue.

“2) Regarding the term ‘natural subject’, it appears to me that ‘natural subject’ and ‘natural-born subject’ are synonymous, one being an abbreviation of other. I cannot find any source suggesting that the two terms have materially-different meanings. The Naturalization Act of 1541 conferred ‘natural subject’ status, at birth, to children born overseas to English fathers. Don Hector Nunez was never naturalized or endenized. Yet, in January 1576, an administrative court deemed him to be a ‘natural subject’ of Queen Elizabeth, by virtue of his continuous 20-year residence in England. In both instances, ‘natural subject’ is used the same way that ‘natural-born subject’ is used in later writings.”

                I can only tell you how I regard your acceptance that natural subject and natural-born subject appear to be synonymous. This is a vital point where some birthers agree with you. I don’t.

                I think I know at least two times when the confusion between the two terms arose. In my eBook I relate the following:

                Throughout my edition of The First Part of the Institutes of the Laws of England, or a Commentary upon Littleton, Coke and the commentators profusely quoted Roman jurists in addition to the renowned British jurists of Braƈton, Hale, Plowden and Blackstone, all of whom shall be mentioned in this chapter. Frequently in the margins were found “Vide Calvin’s caſe . . .” which meant that the reader should usually refer to Calvin’s case in Coke’s Seventh Report unless given another report as reference to gain a better understanding of the paragraph under scrutiny. The principal part of the report on Calvin’s case for the reader of this book was the beginning assumption that little Robert Calvin “From the several and distinct laws of either kingdom, they did reason thus: 1. Every subject that is born out of the extent and reach of the laws of England, cannot by judgment of those laws be a natural subject to the King, . . .” Next is the affirmation of the law of nature and the law of nations: “1. That ligeance or obedience of the subject to the Sovereign is due by the law of nature: 2. That this law of nature is part of the laws of England: 3. That the law of nature was before any judicial or municipal law in the world; 4. That the law of nature is immutable, and cannot be changed.” Third is the nature of perpetual allegiance; “2. There is found in the law four kinds of ligeances; the first is, ligeantia naturalis, absoluta pura, et indefinite, and this originally is due by nature and birth-right, and is called alta ligeantia, and he that oweth this is called subditus natus [natural subject] . . . The second is called ligeantia acquisita, not by nature but by acquisition or denization, being called a denizen, or rather donaizon, because he is subditus datus.” Then finally “. . . one born within the obedience or ligeance of the King, then such a one should be all one with a natural born subject. . . . but so as many times ligeance or obedience without any place within the King’s dominions may make a subject born, but 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. 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. . . . And whosoever is born within the fee of the King of England, though it be in another kingdom, is a natural-born subject, and capable and inheritable of lands in England,. . . If then those that were born at Tournay, Calais, &c. whilst they were under the obedience of the King, were natural subjects, and no aliens, it followeth, that when the Kingdom of France (whereof those were parcels) was under the King’s obedience, that those that were then born there were natural subjects and no aliens. [It seems evident that natural subjects and natural born subjects were being used interchangeably in the report.] . . . Now when the whole was under the actual and real ligeance and obedience of one King, were any that were born in any of those several and distinct kingdoms aliens one to another? Certainly they being born under the obedience of one King and sovereign were all natural-born subjects, and capable of and inheritable unto any lands in any of the said kingdoms. . . . yet it was resolved, that all those that were born under one natural obedience while the realms were united under one sovereign, should remain natural born subjects, . . . ” That’s it. Coke turned everything inside out with a huge number of legal citations going back to ancient times and made everyone in England and Scotland natural-born subjects of James I literally from the day of adjudication to the next.

                The first number 1 tied natural subject to native-born subject. The next number 1 and number 4 were British distortions of the law of nature. Subditus natus was correctly defined and meant native-born subject in many parts of Europe long before Calvin’s case. This is what natural subject really meant. It did not include specifics of allegiance. Most public jurists agreed that natural subjects did not owe allegiance to their prince or king if either did not provide what a prince or king had to provide if allegiance was obligatory. Natural subjects could also owe allegiance to a more general governmental body.  Perpetual allegiance, a unique Cokean component, was never a part of “natural subject” in the law of nature or the law of nations. If there exists anything that made natural-born subject unique, it was perpetual allegiance.

                Subditus datus was its fictional equivalent. In order not to get confused by the apparent interchangeability of natural subject with natural-born subject, you must consider that Calvin’s Case was defining a new term by comparing it to old terms. I argue that, though natural subject was not clearly separated from natural-born subject in many political discourses later, the very act of creating a new term reinforces differences between the two. This is where I will admit to the fact that the confusion was close to the same confusion engendered in the framing of the U.S. Constitution due to a lack of definition for natural born Citizen. The main difference is that natural-born before subject is more closely tied to native-born than the American natural-born in front of citizen, where framers rejected native-born as the only requirement for the presidency. You have to remember that this was a requirement for a president. Kings were not elected in England and sometimes they were not even native-born. A whole different set of conditions applied for the executive between the two countries.

                The next several sentences are crucial. As I stated, “It seems evident that natural subjects and natural born subjects were being used interchangeably in the report.” But this merging was incompatible with the history of “subditus natus,” which required only jus soli. Lawyers deliberately confuse issues to push forward their agenda. Natural-born subject was more than subditus natus (natural subject).

                I also quoted from the Internet a situation that appeared in many birther missives. It was one of the major points used as ammunition by Apuzzo for his lawsuit against Obama on behalf of Mr. Charles Kerchner :

Dancingerabbit brought up a 1781 trade agreement between France and the United States in response to an earlier contribution of his: “A 1781 trade agreement between the US and France, with the agreement shown in both English and French. Within it, ‘naturels’ is translated as ‘natural born’. In this case referring to subjects/sujets. In French.

                ARTICLE III Les consuls et vice consuls respectifs ne pourront être pris que parmi les sujets naturels de la puissance qui les nommera.

And in English

The respective Consuls and Vice Consuls shall only be taken from among the natural born subjects of the power nominating them.

And there you have it. Naturels was understood as "Natural Born". Thus the later translation better reflects what the founders, many of whom were quite literate in French, would have understood.

Les citoyens sont les membres de la societe civile: lies a cette societe par certains devoirs et soumis a son autorite, ils participent avec egalite a ses avantages. Les naturels, ou indigenes, sont ceux qui sont nes dans le pays, de parens citoyens. becomes in English, as understood by the founding generation(s)(Franklin was much older than most, but was one of the francophones):

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.

Posted by: dancingrabbit | August 4, 2010 10:45 PM |”

                Dancingrabbit committed the sin of most birthers and anti-birthers; he or she (oops!) thinks that the issue of natural-born citizenry can be resolved by a few insightful paragraphs. Dancingrabbit has only proof that natural born was used as a modifier of subjects before Jay’s letter, with the exception of natural-born free citizens. The trade agreement in question was proposed by the King of France. The proposal was read on the floor of Congress on July 26, 1781. 1781 was before 1787, the year of the Constitutional Convention, and before the French Revolution of 1789. The king referred to Frenchmen under his power as subjects (sujets). There were no famous citoyens as of yet. At times, the King added “native” to distinguish a subject born in his dominion from a naturalized Frenchman not born on French soil. Does this mean that the founding fathers of the United States would have interpreted the phrase “sujets naturels” as natural born subjects equal in rights to the British version? No, but they probably did feel that the best translation was “natural born subjects.” The King was merely using French terminology for his subjects. He forgot to add “native citizens” [citoyens naturels, which, translated into English meant native citizens, a term used but rarely in the U. S.] to signify the American version in the English language but not equivalent in rights.

                The person who presented the proposed agreement in French was Le Chevalier de la Luzerne on July 24, 1781. Samuel Livermore seemingly translated it for Congress and translated the French “sujets naturels” into “natural born subjects,” as dancingrabbit purports. “Natural born subjects” had been in use since Edward Coke’s coinage at the beginning of the seventeenth century. Why is the translation considered earth-shattering? “Natural born subjects” would have been considered appropriate because it was common to mean persons born in English domains as well as people born of English subjects abroad. So why not use it to translate the French phrase meaning subjects born in French domains? Simple. No deep, erudite meaning. Now, “natural born citizens” would have been earth-shattering, had it been used, since it might have linked natural born subjects to “natural born free Citizens” previously printed in the Journals of Congress (Continental). That would have given circumstantial proof that natural born subject was linked to natural born citizen in the minds of the Congressmen of the Continental Congress. Samuel Livermore had access to the 1777 journals and could have easily written the translation as natural born citizen instead of natural born subject. I contend that he knew there was a difference, whether or not the difference at that time had something to do with Vattel.

                Subditus natus has its own history. The requirement of having a native mother or father was not a part of it. You contend that “The Naturalization Act of 1541 conferred ‘natural subject’ status, at birth, to children born overseas to English fathers.” Yes. But what are you really pointing out? I argue that a child needed an English father in order to overcome his being born overseas so that he was considered native born. I believe expanding on that truth and linking it to natural-born subject is illogical.

“Don Hector Nunez was never naturalized or endenized. Yet, in January 1576, an administrative court deemed him to be a ‘natural subject’ of Queen Elizabeth, by virtue of his continuous 20-year residence in England. In both instances, ‘natural subject’ is used the same way that ‘natural-born subject’ is used in later writings.” As I have mentioned several times, nothing about subjectship in England was written in stone. Nuñez’s lack of qualifications for natural subject [a person born in the realm] were overcome by a court action. Natural-born citizens came later. Nuñez was made equivalent to a natural subject meaning a native-born subject. That is all.

“3) There were two kinds of natural-born subjects: real (born) and fictional (made). Only those who acquired ‘natural born subject’ status by birth were ‘real’ natural-born subjects. Persons who became ‘natural-born subjects’ by an act of Parliament were merely deemed to be natural-born subjects. They had some legal rights associated with ‘natural born subject’ status. But they were never regarded as true natural-born subjects in fact.

According to Judge Yelverton (one of the judges who heard Calvin's Case), Parliament may deem someone to be a subject, but it lacks the power to make anyone into a real subject (a subject ‘indeede’).

According to three 17th-century English court decisions -- Foster v. Ramsey (1656), Collingwood v. Pace (1661-1664), and Craw v. Ramsey (1669-1670) -- persons who became English subjects by an act of Parliament were not ‘real’ subjects. There naturalization is a fiction of law, which [h]as no effect except in countries consenting to that fiction.”

                The way you present this argument now is a little different than you presented it before. I am in complete agreement with what you say now, provided that you don’t go beyond real subject or natural subject as having any condition beyond nativity. Where does it mention the additional requisite of jus sanguinis is in these court decisions?

“When conferring ‘natural-born subject’ status to someone, Parliament was careful not to say that it was making anyone into an ‘actual’ natural born subject. Persons naturalized by Parliament were merely deemed (taken, reputed, adjudged, etc.) to be natural-born. [No, they were adjudged to be natural-born subjects—big difference. “To be natural-born” tends to infer there might be a legal definition of the unattached term. May I have the source of this quote to verify whether it was used in this detached way in that time frame? I don’t think you will be able to produce it since you have admitted previously that you never found any.]

During Queen Elizabeth's reign (1558-1603), aliens who were naturalized by Parliament were ‘taken’ and ‘reputed’ to be the Queen's ‘natural-born subjects’.

According to the Act of Anne (1708), ‘the children of all natural-born subjects, born out of the ligeance [territory] of her majesty, her heirs and successors, shall be deemed, adjudged and taken to be natural-born subjects of this kingdom...’”

                If you want me to pay attention to the above references, you will need to show me a source printed between 1558 and 1603 that mentioned “natural-born subjects” specifically and not “subjects” or “natural subjects.” You provided me with references to Spelman [in your recent update of your Primer] and Patsall concerning natural-born citizens that I was ignorant of. I am hoping you can provide me with those concerning natural-born subjects in statutes and common laws before 1603. English translations of Latin works, such as Spelman’s and Patsall’s, don’t count.

“In 1604, Parliament enacted a law granting statutory ‘denizen’ status to children born on English soil, of alien parents. Since these children became English subjects by an act of Parliament, they conform to Francis Bacon's definition of ‘natural-born subject’. But Parliament never said that such children were real or actual natural-born subjects; Parliament merely said that such children were ‘aliens made denizens’.” We went over this once before. I still beg to differ. The artifice of “natural-born subject” to unite two realms had not been invented. Where is the logic in contending that a form of subjectship not yet to be created can be applied backwards?  How can the children conform to Bacon’s definition of natural-born subject? In a previous statement, you wrote: “Regarding the term ‘natural subject’, it appears to me that ‘natural subject’ and ‘natural-born subject’ are synonymous, one being an abbreviation of other.” Where is the logic in calling a two-word term that came before, the abbreviation of a three-word term that came after? Please substantiate your belief that natural subject is the abbreviation—in your sense of a shorter term—of natural-born subject.

“4) Regarding the meaning of ‘subjects-born’, Lord Coke (in his Report on Calvin's Case) divided all English subjects into two mutually-exclusive categories: subjects-born and subjects-made. ‘Subjects-made’ included those endenized by the king and those who became subjects by acts of Parliament. Therefore, by process of elimination, ‘subjects-born’ must refer only to persons who were natural-born subjects by birth.” Again, we went over this. Subjects-born is the mathematical set for native-born subjects, natural subjects (synonymous to native-born) and natural-born subjects. You claim it is the other way round. Please study the theory of sets or enlighten me.

“Both Timothy Cunningham's Law Dictionary (1764), and Matthew Bacon's A New Abridgment of the Law (1736), gave the same exact definition of ‘natural-born subject’ (by birth)”:

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.

                Remember, there were two conditions here, not one: jus solis and being born under allegiance to the king. Natural subject or real subject had but the one condition, jus solis, although one could argue that obedience to a prince was inferred. Regardless, it was never stated as perpetual.  It is critical not to confuse the two. In Roman times the doctrine of perpetual allegiance existed but was given up early in history. Lord Coke reintroduced it in Calvin’s Case. Britain did not give up the concept till 1870.

                In 1842 Lord Ashburton acknowledged indirectly that  natural-born subject had little to do with natural-born citizen. In a famous letter  to Congressman Webster, he wrote:

                The object of my mission was mainly the settlement of existing subjects of difference, and no differences have or could have arisen of late years with respect to impressment, because the practice has since the peace wholly ceased and cannot, consistently with existing law and regulations for manning her majesty’s navy, be, under the present circumstances, renewed.

                . . .

                I am well aware that the laws of our two countries maintain opposite principles respecting allegiance to the sovereign. [Anti-birthers, the British government admitted that the second tenet of natural-born subject, perpetual allegiance, was not the model for any tenet of natural-born citizen, so why won’t you acknowledge that perhaps the first tenet was not either?] America, receiving every year, by thousands, the emigrants of Europe, maintains the doctrine suitable to her condition of the right of transferring allegiance at will. The laws of Great Britain have maintained, from all time [Calvin’s Case] the opposite doctrine. The duties of allegiance are held to be indefeasible, and it is believed that this doctrine, under various modifications, prevail in most, if not in all, the civilized states of Europe. [This was the same kind of political double-talk that Americans have been forced to listen to every day for the last century.] Emigration, the modern mode by which the population of the world peaceably finds its level, is for the benefit of all, and eminently for the benefits of humanity. The fertile deserts of America are gradually advancing to the highest state of cultivation and production, while the emigrant acquires comfort which his own confined home could not afford him. [The country that is being relieved by encouraging emigration to America will always praise it.]               

                Let me add from my eBook:

                The task at hand in this chapter is to discover as much as we can about the term natural-born subject—who was responsible for creating it, when it was created, why was it created, what did it mean in the beginning, what did it mean by the time the U.S. Constitutional Convention convened, and what rights did it give to its designee. No public jurist covered in Chapter 7, “The Law of Nature and the Law of Nations,” ever mentioned natural born Citizen. [Thank you, Steve, for pointing out that both Edward Spelman and J. Patsall in 1758 and 1777 used the term natural-born citizen in translating several Roman titles. Neither translator was a public jurist nor was mentioned by the framers of the Constitution as far as I could find.] However, in Chapter 8, “The British Constitution and English Common Law,” we were introduced to Edward Coke, a renowned English jurist who tackled the formidable problem faced by James I to unite Scotland and England under his rule. Coke resolved the problem in Calvin’s Case of 1608, which introduced Britain to the term natural-born subject. This meant that the term was not found in ancient history or medieval history. It was fashioned in the last century of the Renaissance with the advent of Calvin’s Case. I have ascribed it to the hand of Edward Coke. This answers the “who” of its birth. If there is a reader out there who can prove otherwise, please let me know.  I never claim to be infallible, only to be right in most cases beyond a reasonable doubt. The date of Calvin’s Case answers the “when” of the term’s birth. By attributing the status of all subjects born in England and Scotland to be natural-born subjects after the assumption of James I to the throne of the combined countries, it answers the “why” of its birth. The fact that its meaning was a birthright based on jus solis along with the responsibility of perpetual allegiance to the King delineates what it meant in the beginning.

                This, too, I encapsulate in my eBook:

                Kettner parroted the belief that American citizenship grew from English roots and never truly contemplated the possibility that it grew from a rejection of many of the important precedents with English roots. He understood, however, that “America inherited a complex set of ideas about the sources and character of ‘subjectship.’ These ideas were rooted deep in the English past, but not until the early seventeenth century were they integrated in a coherent doctrine [Coke].”^[1] He knew that English subjectship still comprised a variety of ranks and relationships.

                Jurists distinguished between natural-born subject, naturalized subject, and ‘denizens,’ all of whom were members of the community in some sense, although there were important differences in the nature of the ties that bound them as subjects and in the rights that they could claim. He [Kettner] recognized that “It was not until Sir Edward Coke’s influential opinion in Calvin’s Case (1608) that a theory of allegiance and subjectship was fully articulated.” [This contradicts your supposition that natural subject and natural-born subject where used in the same manner.] He didn’t understand the incorrectness of his belief that  “subjectship involved a personal relationship with the king, a relationship rooted in the laws of nature, and hence perpetual and immutable.” This was the grievous error that always led researchers astray when it came to unraveling the meaning of natural born citizenship. England did not follow the law of nature in this respect, but America did. Perpetual allegiance was not the overwhelming principle of the law of nations. Expatriation, accepted by America, was. Interestingly, Kettner recognized that the British theory of naturalization included perpetual allegiance and that, “In the colonies this pattern of thinking was reversed. Americans first came to see the allegiance of adopted members as reflecting the character of the naturalization process. This legal procedure involved a form of contract between an alien who chose a new allegiance and a community that consented to adopt him as a subject, and the colonists began to view the allegiance that resulted as volitional and contractual. . . . Naturalized subjects seemed in fact to share the same status as natives; thus their allegiance ought to be the same. Significantly, the colonists took the model of the naturalized subject as their starting point, and they ultimately concluded that all allegiance ought to be considered the result of a contract resting on consent.”

                How could Kettner accept the reversal of perpetual allegiance in America and still believe that American citizenship of any nature was based on British roots? It seems to be an illogical addiction to British heritage and it violates grossly Axiom 6 (Chapter 6 or Glossary). One needs to shed this addiction if he is going to understand the term “natural born Citizen.” The colonists believed that the bond between the individual and the community was not irrevocably perpetual by birth, but rather a voluntary contract that could be nullified by volition. Membership in a free Republican community had to depend on consent and it had to confer equal rights, the dominant philosophy in the colonies and the thirteen states until John Jay came along to tweak it a bit by his July 25, 1787 letter to Washington, which suggested that one office in America, the Presidency, should not be open to every citizen, native or naturalized.

                To trace briefly the English roots cited by Kettner on his level of understanding, it seems best to start with the year 1343 that he used as his point of departure and the statute of 17 Edw. III, Parliament Roll, which dictated that jus soli could not affect the succession to the throne of the king’s children. What happened to the fifteen hundred years of legal history before? Didn’t they count?

                The aforementioned statute, in its application to the King’s family, was strictly for the King’s children, not the rest of the population, but De natis ultra mare, 25 Edw. III, stat. 2 in 1350 stipulated that “all children inheritors, which from henceforth shall be born without the ligeance of the king, whose fathers and mothers, at the time of their birth, be, and shall be, at the faith and ligeance of the King of England shall have, and shall enjoy, the same benefits and advantages . . . as other inheritors aforesaid in time to come; so always that the mothers of such children do pass the sea by license and wills of their husbands.” The concept of jus soli as the basis for the rest of the population to belong to the king’s community was made explicit in 1368 in 42 Edw. III c. 10, which determined that infants born in Calais and “elsewhere within the lands and seignories pertaining to the king beyond the sea” could inherit “as other infants born within the realm,” thereby granting them their subject status.

                A general stagnancy set in; the regulations of inheritance seemed adequate. Jumping to 1640, three judges ruled that the daughter of an English merchant born in Poland after the father’s death, was deemed a subject and could inherent by English common law based on the maxim partus sequitur patrem (the offspring follows the condition of the father), which was a maxim of the law of nations and a part of Emer de Vattel’s famous §212 of Volume I, Book I, Chapter IX. They considered the “mother’s status immaterial, as she was under the power of the husband: ‘sub potestate viri, and quasi under the allegiance of our King.

. . .

                Coke conveniently avoided the moral and logical question whether it was right for England to demand perpetual allegiance and be willing to naturalize subjects of other nations while he maintained that those nations did not have the right to perpetual allegiance from their own subjects. Natural-born subject was a legal fiction created outside the law of nations to demand allegiance from Scottish subjects. Natural-born citizen was a legal creation from Vattel’s unique addition to the law of nations to ensure the citizens of the United States the highest loyalty from her president. If British statute had ruled that the monarch of England had to be a natural-born subject in the American sense for the American reason, then he could never be born in foreign lands as the British law allowed. Natural-born subject was created for the sole benefit of the king; natural-born citizen was created for the sole benefit of the people. Is that not a fundamental difference between the forms of political statuses of inhabitants to their governments?

. . .

                So strong was his [Locke’s] belief that the law of nature had absolutely nothing to do with perpetual allegiance to any king with divine rights that he did not use once the term of “natural-born subject” in his two treatises. What should that tell the reader? Remember that Locke, too, was in all likelihood on every bookshelf of every framer of our Constitution. Locke refused to use the adjectival “natural-born” with the noun “subject” and, for that matter, rarely used the unadorned “subject” but rather used “man” in its place, because perpetual allegiance and king were wrapped up in the term of “natural-born subject.” Given this, why would the framers, who quoted Locke frequently and who had agreed to establish a presidency and not a monarchy, model natural born Citizen after natural-born subject when Locke himself had rejected it?     

                In addition, “Locke . . . expressly denied that citizenship could be determined by birth within a certain territory or under a particular government. Instead, ‘a Child is born subject of no Country and Government. He is under his Father’s Tuition and Authority, till he comes to Age of the Discretion and then he is a Free-man, at liberty what Government he will put himself under, what body politic he will unite himself to.’ Apart from patriarchal rule over wives and children, which Locke endorsed only in weakened form, no type of political membership or subjectship was in any sense natural.”^[1][1]

“This definition matches the definition of ‘subject born’ found in Lord Coke's Report on Calvin's Case (1608) and in Giles Jacob's New Law Dictionary (1782). [Meaning your aforementioned: 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.]

‘Natural-born subject by birth’ is synonymous with ‘subject born’ because, in the reference materials that the Framers had used and relied upon, both terms are defined identically.”

               

 

                My earlier edition of Giles has no entry for subjects-born: