Evolution of a Constitutional ‘Natural Born Citizen’

First off, one needs to ask the question ‘Why the grandfather clause’ in the Constitution? No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution.

British subjects born in the colonies were and have been regarded as ‘Natural Born Subjects’ in The Debates in the Several State Conventions on the Adoption of the Federal Constitution [Elliot’s Debates, Volume 1] GEORGIA [1732] “It was further declared, that all persons born in the province should enjoy all the privileges and immunities of natural-born subjects in Great Britain.”

Even in the Mayflower Compact written in 1620, “In the name of God, Amen.  We whose names are underwritten, the loyal subjects of our dread Sovereign Lord King James, by the Grace of God of Great Britain, France and Ireland, King, Defender of the Faith, etc.”

The Treaty of Paris, 1783, was signed by John Adams, Benjamin Franklin, and John Jay, names hardly unfamiliar with those here.  Acknowledged the Thirteen Colonies to be free, sovereign and independent States, and that the British Crown and all heirs and successors relinquish claims to the Government, propriety, and territorial rights of the same, and every part thereof, that also released jurisdiction and the colonists allegiance to the crown.

It was only after that those born after the Treaty of Paris was signed, the condition of their father changed from jurisdiction and allegiance to the Crown, to the jurisdiction and allegiance to the newly formed  13 colonies, at birth. Jurisdiction and allegiace to the individual state.

Vattel’s Laws of Nations BK 1  §4. What are sovereign states.
Every nation that governs itself, under what form soever, without dependence on any foreign power, is a Sovereign State, Its rights are naturally the same as those of any other state. Such are the moral persons who live together in a natural society, subject to the law of nations. To give a nation a right to make an immediate figure in this grand society, it is sufficient that it be really sovereign and independent, that is, that it govern itself by its own authority and laws.

Vattel’s Laws of Nations BK 1  §10. Of states forming a federal republic.
Finally, several sovereign and independent states may unite themselves together by a perpetual confederacy, without ceasing to be, each individually, a perfect state. They will together constitute a federal republic: their joint deliberations will not impair the sovereignty of each member, though they may, in certain respects, put some restraint on the exercise of it, in virtue of voluntary engagements. A person does not cease to be free and independent, when he is obliged to fulfil engagements which he has voluntarily contracted.

Per the Articles of Confederation, Artile 1, IV;

The better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this Union, the free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States; and the people of each State shall free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions, and restrictions as the inhabitants thereof respectively, provided that such restrictions shall not extend so far as to prevent the removal of property imported into any State, to any other State, of which the owner is an inhabitant; provided also that no imposition, duties or restriction shall be laid by any State, on the property of the United States, or either of them.

 Where the Continental Congress in 1781 described the privileges and immunities to which the citizens of one State are entitled in another. However, the Articles of Confederation which were weak and did not give a strong political or economic base for the newly formed nation that the United States Constitution was formed and eventually ratified.

Letters of Delegates to Congress: Volume 21 October 1, 1783 – October 31, 1784
James Monroe to Thomas Jefferson

In his letter of May 21 Jefferson had asked: “Is there a commission for an additional treaty with France? The instructions made this necessary, and without it we shall be at Paris but private citizens unprotected by the laws of nations, and liable to the jurisdiction of the country.” On June 3 Congress ordered Charles Thomson to prepare commissions for Adams, Franklin, and Jefferson “to make supplementary treaties of commerce with France, the United Netherlands, and Sweden.” JCC, 27:530.

Vattel’s Laws of Nations BK 1 § 212. Citizens and natives.

The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights. The society is supposed to desire this, in consequence of what it owes to its own preservation; and it is presumed, as matter of course, that each citizen, on entering into society, reserves to his children the right of becoming members of it. The country of the fathers is therefore that of the children; and these become true citizens merely by their tacit consent. We shall soon see whether, on their coming to the years of discretion, they may renounce their right, and what they owe to the society in which they were born. I say, that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not his country.

Vattel’s Laws of Nations BK 1 § 215. Children of citizens born in a foreign country.

It is asked whether the children born of citizens in a foreign country are citizens? The laws have decided this question in several countries, and their regulations must be followed.(59) By the law of nature alone, children follow the condition of their fathers, and enter into all their rights (§ 212); the place of birth produces no change in this particular, and cannot, of itself, furnish any reason for taking from a child what nature has given him; I say “of itself,” for, civil or political laws may, for particular reasons, ordain otherwise. But I suppose that the father has not entirely quitted his country in order to settle elsewhere. If he has fixed his abode in a foreign country, he is become a member of another society, at least as a perpetual inhabitant; and his children will be members of it also.

Finally, several sovereign and independent states may unite themselves together by a  perpetual confederacy, without ceasing to be, each individually, a perfect state. They will together constitute a federal republic: their joint deliberations will not impair the sovereignty of each member, though they may, in certain respects, put some restraint on the exercise of it, in virtue of voluntary engagements. A person does not cease to be free and independent, when he is obliged to fulfil engagements which he has voluntarily contracted.
Such were formerly the cities of Greece; such are at present the Seven United Provinces of the Netherlands, and such the members of the Helvetic body.

Vattel’s “Law of Nations” 1758   Book One, Chapter 1 § 10. Of states forming a federal republic.        http://www.constitution.org/vattel/vattel_01.htm

 I am much obliged by the kind present you have made us of your edition of Vattel. It came to us in good season, when the circumstances of a rising state make it necessary frequently to consult the law of nations. Accordingly that copy, which I kept, (after depositing one in our own public library here, and sending the other to the College of Massachusetts Bay, as you directed,) has been continually in the hands of the members of our Congress, now sitting, who are much pleased with your notes and preface, and have entertained a high and just esteem for their author. Your manuscript “Idee sur le Gouvernement et la Royaute” is also well relished, and may, in time, have its effect.         I thank you, likewise, for the other smaller pieces, which accompanied Vattel.  -Ben Franklin (December 9, 1775), Letter 459: Benjamin Franklin to Charles William Frederic Dumas. http://etext.lib.virginia.edu/toc/modeng/public/DelVol02.html

The fundamental regulation that determines the manner in which the public authority is to be executed, is what forms the constitution of the state. In this is seen the form in which the nation acts in quality of a body politic, how and by whom the people are to be governed, — and what are the rights and duties of the governors. This constitution is in fact nothing more than the establishment of the order in which a nation proposes to labour in common for obtaining those advantages with a view to which the political society was established.

Vattel’s “Law of Nations” 1758   Book One, Chapter 3 § 27. What is the constitution of a state.

http://www.constitution.org/vattel/vattel_01.htm

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America

http://www.earlyamerica.com/earlyamerica/freedom/constitution/text.html   1787

The Virginia Declaration of Rights
June 12, 1776

http://odur.let.rug.nl/~usa/D/1776-1800/independence/virdor.htm

The Northwest Ordinance July 13, 1787

http://odur.let.rug.nl/~usa/D/1776-1800/ohio/norwes.htm

The Continental Convention had been authorized merely to draft amendments to the Articles of Confederation but, as Madison later wrote, the delegates “with a manly confidence in their country” simply threw the Articles aside and went ahead with the consideration of a wholly new form of government.  That new form of government based on on the solid foundation of colonial experience, English practice, and French political philosophy. That political philosophy was based on ‘Laws of Nations’ by Vattel. As the keystone of the Constitution, the Convention adopted a brief but highly significant device:

“Congress shall have power . . . to make all laws which shall be necessary and proper for carrying into execution the . . . powers vested by this Constitution in the Government of the United States. (Article I , Section viii.)

“This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.” (Article Vi. )

“In all free states, the constitution is final,” wrote John Adams, second President of the United States.

More Vattel from the Founding Fathers