Reader William Rawle, who commented earlier on the original meaning of "natural born Citizen," sent these further useful thoughts:
While I believe there was no great public debate over the terms citizens versus subjects [Ed.: see his previous thoughts here] that doesn't mean that there were not debates over what constituted a member of the new Republic. Much like the question of whether expatriation is a natural right requiring no Congressional approval or a right that can only be granted by an act of Congress, opinions on how someone became a citizen of the United States varied.
In my opinion, this is best exemplified by the case in Congress of the election of William L. Smith (Ramsay vs. Smith) . The case can be read here.
Pay special attention to James Madison's speech about citizenship and allegiance and Representative James Jackson's rebuttal. Also Dr. Ramsay's dissertation prepared as part of his election challenge is available here.
I know you are familiar with William Rawle's "A View of the Constitution of the United States" but are you also familiar with Judge Samuel Roberts' "Digest of Selected British Statutes…" (Roberts' Digest)? On page 26 he says, "The children of aliens, born within the U.S. are aliens; they do not acquire citizenship by birth".
Apparently, even the Founding generation wasn't sure what constituted a "natural born citizen". Which might explain apparently contradictory statements.
My thanks again for contributions on this issue. I knew about Ramsay (no relation) and tend to consider him an outlier and an advocate for a particular policy position. Madison's contra argument seems stronger. But the Roberts work (published in 1817) is interesting. Roberts is very confident and doesn't appear to have much stake in the matter, but cites nothing and doesn't give any details, and it's not clear if he is talking about the law of Pennsylvaia or U.S. law generally. (According to the title page, Roberts was the President of the Court of Common Pleas of the Fifth Judicial District of Pennsylvania, a point confirmed here). I'm not sure how persuasive this is, but it does show some evidence that the uncertainty about children of aliens born in the U.S. — noted much later in Minor v. Happersett — did reach back (to some extent) at least to the early nineteenth century.
Mr. Rawle adds:
One last point, I agree with Hamilton, who in a 1795 legal brief on carriage taxes began by lamenting the lack of a clear definition of direct and indirect taxes in the Constitution,
"What is the distinction between direct and indirect taxes? It is a matter of regret that terms so uncertain and vague in so important a point are to be found in the Constitution. We shall seek in vain for any antecedent settled legal meaning to the respective terms—there is none." And ends the brief by saying, "…where so important a distinction in the Constitution is to be realized, it is fair to seek the meaning of terms in the statutory language of that country from which our jurisprudence is derived.”
I believe we should apply the same standard to "natural born Citizen" and look for its definition in the language of the English legal system. The only question to me is did he mean both the Common Law and Statutory Law?
I agree. I assume Hamilton meant both common law and statutory law, as applicable. David Ramsay argued that Vattel was a better guide, but I think not, absent some indication that the framers had Vattel in mind on this point. It would be interesting, though, to know what Judge Roberts was relying on.
Posted at 9:05 AM