Speech #900072087

Wong Kim Ark. 169 U.S. at page 655. the court said: "The fundamental principle of the common law with regard to English nationality was birth within the allegiance. also calling ligealty. obedience. faith. or power of the King. The principle embraced all persons born within the Kings allegiance and subject to his protection. Such allegiance and protection were mutualas expressed in the maxim. protecti trahit subjectionem. et subjectio protectionemand were not restricted to naturalborn subjects and naturalized subjects. or to those who had taken an oath of allegiance. but were predicable of aliens in amity. so long as they were within the kingdom. Children. born in England. of such aliens. were therefore naturalborn subjects. But the children. born within the realm of foreign ambassadors. or the children of alien enemies. born during and within their hostile occupation of part of the Kings dominions. were not naturalborn subjects. because not born within the allegiance. the obedience or the power. or. as would be said to this day. within the Jurisdiction of the King." (Thus. a child born in Mexico of English parents was not a naturalborn subject. despite his automatic naturalization by Act of Parliament). Later in the same opinion (I.e. 658) the court said: "It thus clearly appears that by the law of England for the last three centuries. beginning before the settlement of this country. and continuing to the present day. aliens. while residing in the dominions possessed by the Crown of England. were within the allegiance. the obedience. the faith or loyalty. the protection. the power. the jurisdiction of the English Sovereign. and therefore every child born in England of alien parents. was a natural born subject. unless the child of an ambassador or other diplomatic agent of a foreign state. or an alien enemy in hostile occupation of the place where the child was born. "The same rule was in force in all of the English Colonies upon this continent down to the time of the Declaration of Independence. and in the United States afterwards. and continues to prevail under the Constitution as originally established." The same ruling upholding American citizenship of children born in the United States are found in 9 Op Atty Gen 373. and 10 Op Atty Gen 328. 394. 396. The Act of March 26. 1790 (1 Stat 103) provides in pp 104: "And the children of citi. zens of the United States that may be born beyond the seas. or out of the limits of the United States shall be considered as naturalborn citizens." In Osborn v. Bank. 22 US (9 Wheat) 738. l.e. 827. Chief Justice Marshall said: "A naturalized citizen" is indeed made a citizen under an Act of Congress. but the Act does not proceed to give. to regulate. or to prescribe his capacities. He becomes a member of the society. possessing all the rights of a native citizen. and standing. in the view of the Constitution. on the footing of a native. The Constitution does not authorize Congress to enlarge or abridge those rights. The simple power of the national legislature. is to prescribe a uniform rule of naturalization. and the exercise of this power exhausts it. so far as regards the Individual. The Constitution then takes him up. and. among other rights. extends to him the capacity of suing in the Courts of the United States. precisely under the same circumstance under which a native might sue. He is distinguishable in nothing from a native citizen. except so far as the Constitution makes the distinction. The law makes none." Thus the Act of March 26. 1790 would be unconstitutional if it attempted to enlarge the rights of a naturalized citizen to be equal to those of naturalborn citizens under the Constitution. Although it is not within the power of Congress to change or amend the Constitution by means of definitions of languages used in the Constitution so as to mean something different than intended by the framers (amendments being governed by Article V) an argument might be advanced to the effect that the use of identical language by Congress substantially contemporaneously might be considered in later years by a court to reflect the same meaning of the same words by the framers of the Constitution. and under this argument to attach importance to the Act of Congress of March 26. 1790 (1 stat 103). This argument fades away when it is found that this act used the term "naturalborn" through inadvertence which resulted from the use of the English Naturalization Act (13 Geo. III. Cap 21 (1773)) as a pattern when it was deemed necessary (as stated by Van Dyne) to enact a similar law in the United Sates to extend citizenship to foreignborn children of American parents. In the discussion on the floor of the House of Representatives in respect to the proposed naturalization bill of a committee composed of Thomas Hartley of Pennsylvania. Thomas Tudor Tucker of South Carolina and Andrew Moore of Virginia. Mr.