The strange case of Chester Alan Arthur

I don't really wish to return to the ludicrous Obama birth lawsuit that I blogged about earlier, because it's all become tiring, but I thought I should post here for permanent reference a comment that I made on a thread at the Volokh Conspiracy on the 1st of December (which, like most threads even incidentally related to this subject, quickly filled up with cranks) relating a little historical trouvaille that I found:

A long time ago, I wrote about this frivolous lawsuit on my blog, because I thought it symptomatic of a very depressing, and pervasive, kind of constitutional illiteracy among certain self-anointed "defenders of the Constitution".

But even a frivolous lawsuit can lead to interesting discoveries, and I later found an amusing little bit of historical trivia.

There once was a man who became President after having had dual nationality at birth through his father, which he apparently lost years before taking office. However, he was the victim of a smear campaign by some of his opponents, alleging that he had lied about his birthplace and was ineligble under the natural born citizen clause. That man's name? Chester Alan Arthur.

(1) Dual Nationality: Arthur was, as far as I've been able to find, the only President before Obama who ever held dual nationality (excluding those who lived through the Revolution). Arthur's father was born in 1796 in Dreen, Co. Antrim, Ireland, and moved to the United States in the early nineteenth century. Presumably Arthur's father was formally naturalized in the United States, but that was irrelevant as a matter of British law: until 1870, the allegiance of a subject was considered inalienable, with the exception of people residing in British territory at the time of a change in sovereignty. (*) (Those familiar with the issue of impressment before the 1812 war will remember the force of nemo potest exuere patriam in British law.) By the statutes of 4 Geo. II, c. 21, and 13 Geo. III, c. 21, this made Chester Alan Arthur, born 1829 or 1830 in Vermont, a British subject at birth according to British law.

However, in 1870, the Naturalization Act, 33 & 34 Vict. c. 14 was passed, allowing (for the first time) voluntary expatriation by British subjects (and also naturalization of foreigners without case-by-case legislation). Under s. 6 of that act, "Any British subject who has at any time before, or may at any time after the passing of this Act, when in any foreign state and not under any disability voluntarily become naturalized in such state, shall from and after the time of his so having become naturalized in such foreign state, be deemed to have ceased to be a British subject and to be regarded as an alien."

I believe that this means that, as of 1870, Arthur's father would have been deemed retroactively to have expatriated himself on becoming a naturalized American subject (before Arthur's birth), thus taking Arthur himself out of the scope of the 1730 and 1772 Nationality Acts. Thus he would have lost his status as a British subject some eleven years before becoming President.

(A quick look at an old nationality text available online seems to confirm this. 1 Sir Francis Piggott, Nationality: Including Naturalization and English Law on the High Seas and Beyond the Realm (1907) 65, 152ff. But I admit that I'm not an expert, and the Naturalization Act 1870 is anything but clearly written. So it's possible that Arthur might still have been a dual national at the time of his Presidency.)

(2) The Conspiracy Theory: In the 1880s, a man named Arthur Hinman launched a campaign to discredit Arthur, claiming that he had in fact fraudulently concealed his Canadian birth. In 1884, Hinman wrote a book, entitled How a British Subject Became President of the United States . I haven't seen the book, but here's the rough story, as provided by this website:

Hinman, a New York lawyer, brought the issue to the attention of the Brooklyn Daily Eagle in a letter early in August, 1880, while Arthur was yet a candidate for the Vice-Presidency. Arthur evidently had flip-flopped on the issue in the past. One article, dated August 13, quotes a leading Republican in a way reminiscent of more recent campaigns: "Why in —— don't the General come out and say where he was born, and put an end to all this mystery." [ ... ] The following story appeared in the New York Times of Dec. 22, 1880:

MATERIAL FOR A DEMOCRATIC LIE

ST. ALBANS, Vt., Dec. 21.—A stranger arrived here a few days ago, and registered at the American House as A. P. Hinman, of New-York. Since then he has been very busy in the adjoining town of Fairfield, ostensibly collecting materials for a biography of Vice-President-elect Arthur. He has privately stated to leading Democratic citizens, however, that he is employed by the Democratic National Committee to obtain evidence to show that Gen. Arthur is an unnaturalized foreigner. He claims to have discovered that Gen. Arthur was born in Canada, instead of Fairfield; that his name is Chester Allen instead of Chester Abell [sic]; that he was 50 years old in July instead of October, as has been stated, and generally that he is an alien and ineligible to the office of Vice-President.

[ ... ]

[Arthur biographer Thomas C.] Reeves dismisses Hinman's theory, while admitting that President Arthur lied about his age. He cites the Arthur family Bible, held at the Library of Congress, which gives the President's year of birth as 1829, and makes no mention of a child named "Chester Abell."

So what can we learn from this trip through the realm of historical minutiae? Three things, I think:

(1) The present day has no monopoly on political cranks and conspiracy theorists.

(2) Having been a dual national doesn't disbar one from being President. This should be completely obvious, but when people claim otherwise, advancing facially absurd readings of the "natural born citizen" clause, it's nice to have a precedent as well as a textual argument to throw back at them.

(3) We really should get amend the Constitution to rid of the "natural born citizen" provision, not only because it's stupid, but because it attracts deluded partisans like moths to a flame.

(*) This exception was established in the case of Doe d. Thomas v. Acklam, Barn. & Cress. 779, 795, 107 Eng. Rep. 572, 578 (K.B., 1824). It explains why James Buchanan did not hold dual nationality at birth despite his British-born father: Buchanan père emigrated to the U.S. -- just barely -- before 3 September 1783, the date of the Paris Peace Treaty, which (in British law) marks the transfer of sovereignty.

It seems that I'm not the only one to have noticed this. The filer of one of the frivolous lawsuits not only wants Obama thrown out on the grounds of dual nationality, but has filed a supplemental brief claiming both that Arthur case isn't a precedent because he "concealed" the facts of his birth (the source for this seems to be the same as for the Hinman allegations) and also that, because Arthur appointed Justice Horace Gray, who wrote the majority opinion in the Wong Kim Ark case in 1898 (twelve years after Arthur's death), the Supreme Court should revisit that precedent. (Warning: clicking on the link in the previous sentence leads one into a world occupied by--well, the kind of people who make arguments like that.)

I have to say this anti-Obama argument seems like a pretty good case for rule 11. (Although, on the question of what --if anything--actually constitutes a frivolous argument, see a hilarious essay by Stanford Levinson, 'Frivolous Cases: Do Lawyers Really Know Anything at All?', 24 Osgoode Hall Law Journal 353 (1986).)

(Incidentally, lots of people on the right, particularly anti-immigration advocates, hate Wong Kim Ark, because it definitively stated that citizenship in the United States is governed by jus soli (as constitutionalized in the Fourteenth Amendment). United States v. Wong Kim Ark, 169 U.S. 649 (1898); for the best judicial discussion of the common-law jus soli principle as it stood in the America before the Fourteenth Amendment, see Lynch v. Clarke, 1 Sand. Ch. 583 (N.Y. Ch., 1844). I have no intention of going into the argument here, but (as I once mentioned in yet another Volokh comment thread) I think Justice Gray's majority opinion an exemplary instance of sound, learned judicial craftsmanship: for a short summary of the speciousness of the pseudo-originalist anti-jus soli arguments, see James C. Ho's "Defining 'American': Birthright Citizenship and the Original Understanding of the Fourteenth Amendment", 9 Green Bag 2nd 367 (2006).)

I have nothing substantive to add to my earlier posting, except for the text of the relevant statutes under which Arthur was born a British subject, which I left out for reasons of space:

The background to the two statutes is De natis ultra mare 1351, 25 Edw. I stat. 1, 1 Stat. Realm 310, which provided

[ . . . ] q[ue] touz les enfantz heritiers, qi s[er]ront neez desore dehors la ligeance le Roi, des queux enfantz les piere & miere au temps du nestre sont et s[er]ront a la foi & de la ligeance du Roi Denglet[er]re, eient & enjoient meismes les b[ene]fice & avantage dav[er] & porter heritage deinz la dite ligeance, come les aut[ers] heritiers avantditz, en temps avenir; l[ai]ssint totes foitz q[ue] les mieres de tieux enfantz passent la meer p[ar] conge & volunte de lour barons.

[ . . . ] 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 enjoy the same Benefits and Advantages, to have and bear the Inheritance within the same Ligeance, as the other Inheritors aforesaid [the children of the King and some named individuals, born outside the realm, to whom the earlier parts of the statute guaranteed their inheritance on the same terms as native-born subjects] in Time to come; so always, that the Mothers of such Children do pass the Sea by the Licence and Wills of their Husbands. [Record Commission trans. at 1 Stat. Realm. 310]

This is, of course, anything but pellucid; it was long debated (and to some degree still is) whether it was declaratory or amendatory of the common law, whether it applied only to the first generation or "to all generations", as Francis Bacon argued as Attorney-General in the case of the post-nati (Calvin's Case, 2 How. St. Tr. 559, 585 (Ex. Ch., 1608)); and whether both parents would have to be English, or only one (and if so, whether the parent had to be the father). For a very lengthy discussion, see Clive Parry, British Nationality Law and the History of Naturalization (Milan, 1954).

The next important statute was the Foreign and Protestants Naturalization Act 1708, 7 Anne, c. 5, 9 Stat. Realm 63, which provided (§1) that all Protestants "born out of the Ligeance of Her Majesty Her Heires and Successors" might be naturalized by taking the Oaths of Supremacy and Allegiance and meeting a few other conditions and, (§3)

That the Children of all natural born Subjects born out of the Ligeance of Her Majesty Her Heires and Successors shall be deemed adjudged and taken to be natural born Subjects of this Kingdom to all Intents Constructions and Purposes whatsoever

In 1711, §1 was repealed, but §3 remained in force (10 Anne, c. 9 [c. 5 in other editions], 9 Stat. Realm 557).

(In British Nationality Law, p. 77, Clive Parry notes an interesting sidenote: by expressing allegiance as the status of one who is a subject of the Kingdom, rather than a subject of the King, the 1711 act seems to deny the doctrine of Calvin's Case that allegiance is due to the King in his natural rather than politic capacity. For more on this distinction, see--it more or less goes without saying--Kantorowicz's magisterial The King's Two Bodies.)

The act relevant in Arthur's case, the British Nationality Act 1730, 4 Geo. II, c. 21, did not profess to be setting down new law, but instead styled itself "An Act to explain a Clause in an Act made in the seventh Year of the Reign of her late Majesty Queen Anne, For Naturalizing foreign Protestants, which relates to the Children of the natural-born Subjects of the Crown of England, or of Great Britain". The first section provides:

Whereas by an Act of Parliament made in the seventh Year of the Reign of her late Majesty Queen Anne, intituled, An Act for naturalizing of foreign Protestants, it is, amongst other Things, enacted, That the Children of all natural-born Subjects, born out of the Ligeance of her said late Majesty, her Heirs and Successors, should be deemed, adjudged and taken to be natural-born Subjects of this Kingdom to all Intents, Constructions and Purposes whatsoever: And whereas in the tenth year of her said late Majesty's reign another Act was made and passed to repeal the said Act (except what related to the Children of her Majesty's natural-born Subjects, born out of her Majesty's Allegiance): And whereas some Doubts have arisen upon the Construction of the said recited Clause in the said Act of the seventh Year of her late Majesty's Reign: Now for the explaining the said recited Clause in the said Act, relating to Children of natural-born Subjects, and to prevent any Disputes touching the true Intent and Meaning thereof, May it please your most Excellent Majesty that it may be declared and enacted, and be it declared and enacted by the King's most excellent Majesty, by and with the Advice and Consent of the Lords Spiritual and Temporal, and the Commons, in this present Parliament assembled, and by the Authority of the same, That all Children born out of the Ligeance of the Crown of England, or of Great Britain, or which shall hereafter be born out of such Ligeance, whose Fathers were or shall be natural-born Subjects of the Crown of England, or of Great Britain, at the Time of the Birth of such Children respectively, shall and may, by virtue of the said recited Clause in the said Act of the seventh Year of the Reign of her said late Majesty, and of this present Act, be adjuged and taken to be, and all such Children are hereby declared to be natural-born Subjects of the Crown of Great Britain, to all Intents, Constructions and Purposes whatsoever.

5 Stat. at Large (Ruffhead and Runnington's edn.) 573.

It might still be thought unclear whether this clause applied only to the first generation, or ad infinitum, but a negative answer by implication was given with the British Nationality Act 1773, 13 Geo. III, c. 21, §1 ("An Act to extend the Provisions of [4 Geo. II, c. 21] [ . . . ] which relates to the Children of the natural-born Subjects of the Crown of England, or of Great Britain, to the Children of such Children"):

Whereas [ . . . ] no Provision hath hitherto been made to extend farther than to the Children born out of the Ligeance of His Majesty [ . . . ] be it enacted [ . . . ] That all Persons born, or who hereafter shall be born, out of the ligeance of the Crown of England, or of Great Britain, whose Fathers were or shall be, by virtue of [4 Geo. II, c. 21] [ . . . ], shall and may be adjudged and taken to be, and are hereby declared and enacted to be, natural-born subjects of the Crown of Great Britain, to all Intents, Constructions, and Purposes whatsoever, as if he and they had been and were born in this Kingdom [ . . . ]

In Doe d. Duroure v. Jones, 4 T.R. 300, 100 Eng. Rep. 1031 (K.B., 1791), the Court, without ruling explicitly on De natis ultra mare, held that if jus sanguinis citizenship for the children born abroad of English mothers and foreign fathers had ever existed, it was extinguished by the 1730 and 1773 Acts. A similar result with respect to the 'infinite generations' problem was reached in De Geer v. Stone, 22 Ch.D. 243 (1882).