Are “Common Law” Grand Juries Valid?

INTRO: With various applications of common law grand juries currently being popular, such as the case in Dixie County Florida, where Terry Trussell, formerly of Operation American Spring, is facing 14 felony charges for “Impersonating a Pubic Officer” and “Unlawful Use of Simulated Legal Process”, among other charges, now facing the possibility of the remainder of his life behind bars, or the Nevada common law grand jury claiming to have proved the “missing” 13th Titles of Nobility amendment was actually ratified by Virginia and thereby an actual amendment to the Constitution, or  National Liberty Alliance’s own “Quo Warranto” (pdf) petition to various federal judges, these issues are obviously increasing in number, and should be considered.

5) CONCLUSIONS: What is evident.


Some have claimed that Common Law Grand Juries are supported by the Constitution itself, and even cite  Supreme Court decisions, particularly United States v Williams (1992), as supporting these ad hoc common law grand juries.  However these claims do not appear to have any actual truth to them.

The only place the U.S. Constitution specifically references “common law” is the 7th Amendment, where it is actually referenced to prohibit the common law practice of Courts creating law from the bench in cases where there is no written law, and does this by affirming the right to a trial by jury, thereby prohibiting government dictate of what the law is,   and minimizing a source  of tyrannous dictate.  As a result, the 7th Amendment is actually undermining that common law, rather than affirming common law practice as any sort of guiding philosophy of this country.  This is discussed further in the comments section.

In 1992, Antonin Scalia made citations to the Grand Jury in United States v Williams, and referenced a few Supreme Court cases in doing so:

Hannah v. Larche (1960): “Rooted in long centuries of Anglo-American history.”

United States v. Chanen (1977, citing Nixon v. Sirica, 1973): “the grand jury is mentioned in the Bill of Rights, but not in the body of the Constitution. It has not been textually assigned, therefore, to any of the branches described in the first three Articles. It is a constitutional fixture in its own right.”

Scalia also stated: “the grand jury is an institution separate from the courts, over whose functioning the courts do not preside…”

Scalia there also indicated:

“In fact, the whole theory of its function is that it belongs to no branch of the institutional Government, serving as a kind of buffer or referee between the Government and the people. See Stirone v. United States, 361 U.S. 212, 218 (1960); Hale v. Henkel, 201 U.S. 43, 61 (1906); G. Edwards, The Grand Jury 28-32 (1906). Although the grand jury normally operates, of course, in the courthouse and under judicial auspices, its institutional relationship with the Judicial Branch has traditionally been, so to speak, at arm’s length. Judges’ direct involvement in the functioning of the grand jury has generally been confined to the constitutive one of calling the grand jurors together and administering their oaths of office. See United States v. Calandra, 414 U.S. 338, 343 (1974); Fed.Rule Crim.Proc. 6(a). [504 U.S. 36, 48] “

Of note, all of the above references are specifically to “Grand Jury” and nowhere particularly indicating “common law grand jury”, thereby not serving to validate those common law grand juries, contrary to claims.

In fact the idea of an ad hoc common law grand jury being formed entirely independently of the judicial system is undermined by Scalia’s above statement, “in the courthouse and under judicial auspices”.  These Supreme Court references in no way serve to validate “common law grand juries”, as they are currently being envisioned and formed, but rather provide cause to question their validity.

The claim is made that these common law grand juries actually have precedent in American history, which is somewhat true, but overall inaccurate.  During America’s early history, when there were municipalities or districts without any established court of their own, circuit judges would indeed travel from district to district and sometimes rely on the presentment “charges” of temporary grand juries composed of the local populace, in order to hold trials.  However these grand juries were not formed from hand-picked jurors, resulting in a stacked jury, nor did they involve claims of absolute authority above any existing courts, as is currently being done.  There is no validation for what is currently being done in America’s past, or Britain’s common law either.

Attorney Leo Donofrio, who led two of the earliest court challenges to Obama’s qualification to hold the Presidency in New Jersey and Connecticut, has also been an early proponent of using Grand Juries to pursue government wrong-doing. In fact Donofrio wrote an early article titled “The Federal Grand Jury is the 4th Branch of Government”, in which citizens use these Grand Juries to counter and correct government wrong-doing and corruption. However Donofrio later removed that article from his blog when a Georgia Grand Jury, allegedly inspired by Donofrio himself, indicated it had authority to confiscate people’s property, and even take their homes, which would be criminal acts.

That article is still available on the Internet “Wayback” archive site here:
The Federal Grand Jury is the 4th Branch of Government

Take note, in that article title Donofrio specifies that it is the “Federal” Grand Jury that is the 4th branch of government, not just any Grand Jury, and notably not “common law”.

Donofrio then wrote an article titled, “The Georgia Citizens Grand Jury Must Be Condemned” in which Donofrio made the following clarification of his previous discussion of FEDERAL Grand Juries:

We are governed by our Constitution, not common law.

My grand jury 5th amendment “power of presentment” articles were meant to educate people as to their power ONCE SWORN IN AS A FEDERAL GRAND JUROR in a federal court.

The articles weren’t meant to encourage citizens to form their own grand juries and prosecute at will. There is no such guarantee in the Constitution. And I am a true believer in the Constitution. Are you?

Here Donofrio indicates that there is no such authority for people to independently form their own “common law” Grand Jury, under the belief they might prosecute “at will”.

Unfortunately we have very extreme, ill-formed, and even dangerous beliefs held by these common law grand jury proponents, none of which are valid.

The  National Liberty Alliance indicates (pdf) indicates the source of authority for these common law grand juries is the common law itself, stating, “”The Common Law is the jurisdiction that our founders set in motion when creating the United States of America” and “Common Law is Natural Law, America was founded on Common Law.”  None of these claims are even remotely true.  This country’s original foundation in British common law, did not involve any separate jurisdiction, and that common law was not actually relied on by the Constitution, which brought the United States of America into existence, but rather is profoundly rejected by that Document.  Furthermore, “common law” is not at all the same thing as Natural Law and, in fact, the two considerations are entirely separate from one another, even by definition!  While the States originally utilized some terms, principles and practices inherited from British common law, that common law was never a founding principle of this country, and the Constitution in no way relied on common law.

” The common law of England is not the common law of these states.”
George Mason, “Father of the Bill of Rights”
Debate in Virginia Ratifying Convention, 19 June 1788
“The common law is gone. The federal courts never applied the common law and even in the state courts it’s codified now.”
Justice Antonin Scalia, Federalist Society address, Nov 22, 2008

There is a glaring irony in NLA’s “Quo Warranto” asking “by what authority” those federal judges act, and this irony involves  questioning the very authority by which NLA itself demands those judges fill out their questionnaire, and demands they provide a “surety bond”, or else provide their detailed financial statement, with the obvious presumption being that NLA itself will act entirely illegally to confiscate that bond, or those financial assets, when NLA deems they have not adhered to unspecified common law principles that do not exist, and are not a part of this country!

The Nevada “Superior Court Common Law Venue” indicates its own jurisdiction to to be “Original and Exclusive Jurisdiction”, and prominently declares ahead of its findings that, “Its decision cannot be reviewed by any other court of the land.”  Oh really? It is impossible that a grand jury formed in 2014, without any authority under law, to have any “original” jurisdiction at all, much less “exclusive” jurisdiction.  Furthermore, every single American should be disturbed by any group willing to declare itself entirely UN-contestable, above any law and court, and unable to even be questioned, much less challenged.


There is a gross misunderstanding of what the “common law” is on the National Liberty Alliance site, and by “common law grand jury” proponents generally.  The Common Law is not something sacrosanct in this country, and is NOT at all synonymous with our own understanding of Natural Law unalienable rights.

British common law is nothing more than the cumulative decisions, practices and general principles of the British courts that were never codified into law.  That’s it!

British common law, which we inherited as British ourselves, is nothing fact “common law”  nothing more than “case law”, or reliance on case “precedent”.

Common law (also known as case law or precedent) is law developed by judges through decisions of courts and similar tribunals that decide individual cases, as opposed to statutes adopted through the legislative process or regulations issued by the executive branch.

As recognized in the United States, that “common law” got its name for the laws that were derived from the various decisions made by British circuit court judges actually empowered to make the law themselves. Originally these judge-derived laws were all made locally. When these local judge-derived laws were recognized by a large number of those various circuit courts, those laws were recognized as being held in common across the land, and thereby given more weight than laws that only had local recognition. Over time these un-codified Court-decreed laws, commonly recognized across Britain, became recognized as the “common law”.

British common law is founded on Feudal philosophy of noblesse oblige wherein a person is born into a position in society with obligation to those above them.

British common law actually references the “Law of Nature”, in representing this “natural” feudal obligation to those above oneself in society, as discussed at length in Lord Coke’s decision in Calvin’s Case, 1608:

This Law of Nature, which indeed is the eternal Law of the Creator, infused into the heart of the creature at the time of his creation, was two thousand years before any Laws written, and before any Judicial or Municipal Laws. (Coke(1608), p.196)

It hath been proved before, that ligeance or obedience of the inferior to the superior, of the subject to the Sovereign, was due by the Law of Nature many thousand years before any Law of man was made: Which ligeance or obedience (being the onely mark to distinguish a subject from an alien) could not be altered; therefore it remaineth still due by the Law of Nature. (Coke(1608), pp.197-8)

It is “natural” for persons to be subservient to those above them.  Thus the common law view of the “law of nature” is in direct and total conflict with our own “natural law”  unalienable rights, coming from “Nature’s God”, upon which this nation was founded.  In fact it by the deliberate intent to severe the common law authority of the state upon our lives, that the First Amendment to the Constitution prohibits Congress from enacting any law establishing religion.

These feudal common law principles result in the doctrine of “Perpetual Allegiance,” an indelible obligation to  Crown, country and one’s superiors that can never be broken, never severed by one’s own choice, unless by death itself.   As Americans, we specifically rejected that feudal common law doctrine of Perpetual Allegiance in the War of 1812.

Under British common law, the law of the Creator is conflated with the law of England and being lain down via edict to the common man under authority of the divine Crown through the judiciary. The King is viewed as both head of the Anglican church and state as well.   By this,  under common law,  anyone in disagreement with the state is viewed as a hostile, with Jews being recognized as enemies with no real standing in Court, and having little assurance as to property rights.

Natural Law is recognized, by definition, as being entirely outside of man-made Positive Law.  That man-made Positive Law consists of “statute”, those laws that are codified and written down, and those things that are not codified as any singular law but still recognized as directing principle, “case law”, with this generally including what is referenced as “common law.” However “common law” is not necessarily recognized as being binding.  Common Law is a part of that man-made Positive Law, and entirely outside of Natural Law.

Natural Law and Common Law really have nothing to do with one another.

Given these facts, the claim that “common law” grand juries have some overriding authority, and are founded in American principles protecting individual rights, is a stunning ignorance demonstrating a failed understanding of both this country, as well as the issues these groups claim authority regarding.  Beyond that, such a reliance on Common Law invites the very despotism that we seek to free ourselves from. .


If such a thing were ever recognized, it would eventually result in citizen’s grand juries being formed at a whim, and “stacked” with people intending to reach a pre-ordained conclusion, resulting in presentments or indictments for things that really are not all that legitimate.   Someone might even be criminally charged for eating a pastry into the shape of a gun.

Then there’s always the old cliche, “a grand jury would indict a ham sandwich.”

Imagine the pure Hell that would be unleashed if the angry mobs in Ferguson could legitimately form their own “common law Grand Jury”, and then pronounce a true bill presentment charging Officer Wilson with First Degree Murder, overruling the previous Grand Jury, and  the Missouri State Attorney would then be obligated to follow up on that charge, by arresting and trying Wilson for his very life. This could still happen despite a Grand Jury having already resolved that there was no evidence to charge Wilson.

Why wouldn’t a grand jury formed by and from those angry mobs of Ferguson be valid? There is no special process involved in forming or validating those “common law” grand juries, and certainly everything inviting them to be “stacked” with people of whatever belief. That “angry Ferguson mob” could form their own “common law” grand jury, every bit as legitimate as any other common law grand jury.

Seriously, pause and consider if this were true,  any group of people could go off and form their own legitimate “common law” grand jury, and suddenly you yourself might have to answer to that jury’s charges in an official court of law.

Or WORSE!  If they can do their own charges (presentments), why not their own convictions too?  We might have to answer to some unknown body of people, formed under unknown terms, acting entirely outside of the legal system, perhaps not even convening inside a courthouse, perhaps with a serious grudge against us for whatever reason, and they would be able to actually put us on trial for  something, anything, perhaps having us fight in their fabricated court for our very lives!

If such things were allowed, none of us, not-a-one, would ever be safe from wild charges coming out of nowhere, or trials for our very life, liberty, and property in “no holds barred” makeshift courts in the middle of nowhere. No one would ever be truly safe.

This is not how we fix things. It is how the justice system and society itself would become forever broken, subject to mob rule, and America lost in absolute Anarchy, never to be a Republic again.


As noted previously, above, the common law grand jury proponents claim that Scalia actually supports common law grand juries, in United Stats vs. Williams  . However to assert this, these claimants themselves  must mentally impose, or replace, every instance of “Grand Jury” with  “common law grand jury”, which is nowhere indicated in the decision of the case.

Beyond that, to claim the legitimacy of the broad powers they do, these common law proponents must entirely ignore other indications by Scalia in UNITED STATES vs. WILLIAMS 504 U.S. 36 (1992)

For example,  Scalia makes several references to the investigative powers (i.e. “presentments“) of a Grand Jury acting independently of the court and prosecutor:

Scalia: “The grand jury’s functional independence from the judicial branch is evident both in the scope of its power to investigate criminal wrongdoing, and in the manner in which that power is exercised. “Unlike [a] [c]ourt, whose jurisdiction is predicated upon a specific case or controversy, the grand jury `can investigate merely on suspicion that the law is being violated, or even because it wants assurance that it is not.’United States v. R. Enterprises, 498 U. S. ___, ___ (1991) (slip op. 4) (quoting United States v. Morton Salt Co., 338 U.S. 632, 642-643 (1950)). It need not identify the offender it suspects, or even “the precise nature of the offense” it is investigating. Blair v. United States, 250 U.S. 273, 282 (1919).”

Scalia: “The grand jury requires no authorization from its constituting court to initiate an investigation, see Hale, supra, at 59-60, 65, nor does the prosecutor require leave of court to seek a grand jury indictment.”

It is clear that a Grand Jury has the authority to independently investigate wrongdoing, and do so without any direction from the Court.

However NOWHERE  does Scalia, or any of the  citations provided in U.S. vs. Williams, indicate that the Grand Jury has the same independent authority to prosecute, indict and pronounce guilt.   Why is this?

There is no reference to independent Grand Jury indictments, because the Grand Jury has no lawful authority itself to summon witnesses, to demand testimony under oath, or to compel the production of evidence!

The Grand Jury has no authority beyond the action of its own body, thereby being incapable itself  of acting with any authority to compel or order others. Scalia touches on this fact by indicating:

True, the grand jury cannot compel the appearance of witnesses and the production of evidence, and must appeal to the court when such compulsion is required. See, e. g., Brown v. United States, 359 U.S. 41, 49 (1959). And the court will refuse to lend its assistance when the compulsion the grand jury seeks would override rights accorded by the Constitution, see, e. g., Gravel v. United States, 408 U.S. 606 (1972)

The authority of the Court itself must be sought for any sort of force to compel others to act, otherwise other individual’s rights would necessarily be at risk in the process.   This is to prohibit  that the Grand Jury from acting as judge, jury and “executioner” —  a kangaroo court.

Yet this is not what we see coming from these “common law grand juries”, whose first violation of legitimacy is to suppose themselves having lawful investigative power to indicate charges (presentments), when they are nothing but a body that is stacked with like-minded people to reach a pre-ordained conclusion.   This is what Terry Trussell did when he formed his own common law grand jury.   Of itself, the formation of this common law grand jury and reaching a conclusion, resolving  allegations of wrongdoing, is not a violation of law.   Such action is nothing more than what people themselves do every day when they gather together and have a common opinion. However when Trussell  tried to insert that Common Law Grand Jury into the position of the previous Grand Jury, even occupying the Courthouse, and providing its presentments to the court as legitimate, then Trussell was violating the law, by “UNLAWFUL USE OF A SIMULATED LEGAL PROCESS” and “IMPERSONATING A PUBLIC OFFICER”.

Numerous people are of the opinion that Trussell is being wrongly prosecuted, and should be free of all charges, among them Colonel Harry Riley.   Unfortunately these people do not realize the gravity of Trussell’s offenses.  The fact that Florida is a “common law state”, really does not mean what John “Darash” of National Liberty Alliance teaches it to mean.  The common law nowhere provides the sort of authority and license that is being claimed.  Furthermore, not even the Florida Constitution provides the County Commissioners the authority to empanel a common law grand jury to review Trussell’s case, despite Trussell’s supporters indicating that it does so, making their appeal nothing but poor understanding compounded by poor research, asking for a remedy that the County Commissioners have no authority to provide.

These “common law” grand juries typically make gross presumptions of authority that they do not have. We see this in the Nevada Grand Jury claiming “Original and Exclusive Jurisdiction” and that “its decision cannot be reviewed by any other court of the land”.    We see this presumed authority again with NLA’s “Quo Warranto” demanding questionnaires be answered,  bonds be provided, and threatening repercussions, even while providing unclear and inaccurate terms of what must be adhered to (the “common law”), and with those repercussions necessarily involving that “common law grand jury” acting as “judge, jury and executioner”.

None of these investigations, conclusions, charges, or even ignorant letters making demands,  pose any real legal problem, …  until they are actually acted upon, and then they  become evidence of deliberate intent to violate both the law, and person’s rights.  Being ignorant is not itself a crime, but acting on that ignorance often can be.  Conspiracy charges might even be brought against all those common law grand jury members involved.

This is serious stuff, folks, and all of it is entirely contrary to the U.S. Constitution.  Do you actually stand by that Constitution, and uphold it?

Thankfully, America does not have any such tradition providing authority for these “Kangaroo” proceedings, nor does any sane country in the history of mankind.  The reason this authority does not exist, is the protection of each of our individual rights, including you and me, and those “common law” grand jury members themselves.  Think about that.


What is clear from the evidence thus far considered regarding Grand Juries, generally, and more narrowly, the so-called “common law” grand juries:

1)  Grand Juries are not, and have never been, recognized by the legal system unless they operate “within the courthouse and under judicial auspices.”   By our own consistent history, any group acting outside the legal system, and pretending  legal authority, is operating [only] under the color of law  and is, at minimal, extra-legal  if not actually “unlawful” and “illegal”, and is recognized as a “mob” or kangaroo court.   Such groups have generally become defendants before the very Law they attempt to falsely wield.

2)  That same “common law” Case Law precedent, by which National Liberty Alliance (NLA), and other groups,  claim that these ad hoc grand juries have their authority,  is the very means by which our Constitution and laws have been subverted, relying on (common law) precedent that is progressively ever-more outside of actual law, and the Constitution itself.  Given this, reliance on that “common law” precedent cannot reasonably remedy the problems at hand.

3)  The “common law” is not now, nor has it ever been, a governing principle of this country, is not the source of our unalienable rights, even by definition, and reference to such ‘common law” cannot reasonably provide any loose body of people any sort of legitimate authority whatsoever, much less an absolute authority, as is the claim,

4)  Application of the adjectives “common law”, or “Citizen’s”, or “People’s” to an ad hoc body of people acting as if a Grand Jury,  does not provide that group with any actual legal authority whatsoever, and nowhere in history has it ever done so.

5)  Grand Juries have legitimate authority  only over that body itself. Every assertion of authority beyond that self-direction, including interactions with evidence, witnesses, oaths, and testimony, comes to that Grand Jury only via association with the established legal system itself.

6)  Grand Juries (generally) may investigate whatever they want, and may draw their own accusations of wrongdoing, and do so at-will, just as any gathering of people might do on their own.

7)   No Grand Jury, not even one empaneled within the legal system, has any absolute assurance that the legal system will recognize and act upon its charges, much less any authority to compel the legal system to act on those charges. .

8)  Grand Juries CANNOT, of their own  authority, by power held by that body itself, compel testimony, or demand evidence, demand questionnaires be answered, demand Quo Warranto’s be answered, demand provision of bond, etc.,  when this information is not provided of free will.

9)  Grand Juries, of their own authority, acting independently of any legal system, CANNOT administer an oath, compel testimony under oath, nor adjudge the material violation of an oath which that body itself had no authority to administer in the first place.

10)  Grand Juries  CANNOT “indict at will”,  and have no authority in that body itself to exact any sort of penalty in real terms.

NEW EVIDENCE: Intent of 1790 Naturalization Act

 NEW EVIDENCE:  Intent of 1790 Naturalization Act


1) In 1969 Pinckney McElwee uncovered evidence in the House Committee notes from 1795  which indicate that the reason  the reference to natural born citizen (NBC),  included in the 1790 Naturalization Act, but entirely removed from the 1795 Naturalization Act, was that people would wrongly infer that that Act was actually intending that those born overseas outside the country  were to become natural born citizens.  Clearly Madison was not wanting to make natural born citizens of the children born overseas to American parents.  On June 14, 1967, Representative John Dowdy introduced McElwee’s unpublished article, “Natural Born Citizen” (pg 10), on the House floor, to the U.S. House of Representatives.  Until recently, the import of this evidence has been largely unrecognized.

2) If they were not intending to make them natural born citizens, as McElwee’s evidence from the 1795 House Commitee notes indicates, THEN the founders were using the reference to NBC in the original 1790 Naturalization Act in some other way than to actually confer NBC status.   That other intended use involves  the reference to “natural born citizen” being employed as “SIMILIE: (comparing two unlike things or conditions) in order to argue for the  mere citizenship of those born overseas,  and  NOT to confer Natural born citizen status upon them.  This is an antiquated rhetorical device more commonly employed in the 18th Century in order to present a sort of pro forma argument, in this case, for the mere citizenship of those born overseas.

3)  Some  have argued that the terms of the Constitution might be altered merely by Congressional legislation, rather than an Article V amendment,  with this intention being particularly applied to the term of art “Natural Born Citizen” utilized only in Article II, thereby enabling Congress to change the requirement for President at its whim, such as:

  • Matthew Spalding Ph.D.,  formerly the Vice President of American Studies at the Heritage Foundation, and currently  Dean of Educational Programs at Hillsdale College, who appeared before a 2004  Senate Judiciary Committee hearing  (page  19) held for the purpose of expanding the original meaning of “natural born citizen” to make the office of President more inclusive,  even to include naturalized persons,   and those born to parents overseas in service of the military, and other things.  Spalding specifically testified that the 1790 Naturalization Act’s reference to natural born citizen “clearly” (in his biased opinion) shows that the Founders viewed it was within Congress’ authority to establish a “uniform rule of naturalization”.  Spalding even closed by disclosing his own personal bias, referencing his adoption of two Russian orphans, whom he described being “as natural born citizens.”    We should instinctively recognize this argument as false due to the fact that natural born citizen status has nothing to do with any sort of naturalization, and does not fall under that authority of Congress.    We can now recognize Spalding’s entire argument referencing the 1790 Naturalization Act as establishing precedent for Congress to alter the terms of the Constitution by mere legislation, as entirely false and corrupt.

Both Matthew Spalding and Jack Maskell, allegedly American history scholars,  each conspicuously failed to address the fact that the 1795 Naturalization Act entirely repealed the 1790 Naturalization Act, and was a near-verbatim repeat of that Act, except entirely removing the reference to “natural born citizen”.   The failure to address this conflict with their arguments strongly indicates an agenda in disregard of fact.

  • Numerous legislation attempts to redefine “natural born citizen” by statute or amendment, including but not limited to Senate Bill  S. 2678, “Children of Military Families Natural Born Citizen Act”, which intended to modify the meaning “natural born citizen” by inappropriate means, when the phrase is a term of art from Natural Law, which is by definition outside of man-made Positive Law, and entirely beyond the reach of such statutory manipulation.

The evidence indicates these approaches to altering the Constitution are entirely invalid. 1790 Naturalization Act – “Considered As” That 1790 Naturalization Act, this country’s very first act of naturalization,  indicates:

“And the children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States, shall be considered as natural born Citizens .,,”

Many have believed the phrasing “shall be considered as natural born Citizens” was intending to confer natural born citizen status upon those born overseas. However new information has surfaced indicating this to not be the case. In 1789, only a year before the 1790 Act,  James Madison made a similar reference addressing natural born, also employing the same phrasing “considered as.”  Many employ this Madison reference similarly to the 1790 Naturalization Act,  to argue against the two citizen-parent terms:

“It is an established maxim, received by all political writers, that every person owes a natural allegiance to the government of that country in which he is born. Allegiance is defined to be a tie, that binds the subject to the state, and in consequence of his obedience, he is entitled to protection… The children of aliens, born in this state, are considered as natural born subjects, and have the same rights with the rest of the citizens”

Madison, 1789

In this address Madison references the children of aliens born on American soil, as being “considered as” natural born .  I believe this reference is not actually intending to confer on those alien children “natural born” status, nor even recognize them as just “citizens”, but rather was Madison’s indication these alien children born on U.S. soil are entitled to fundamental rights,  i.e.  property, due process, etc. Many assume that these two references to “natural born” represent the deliberate expansion of the terms for natural born citizen, but evidence exists showing such interpretations to not actually be the case. THE EVIDENCE: Only 5 years after that 1790 Naturalization Act, Congress specifically repealed that Act, replacing it with the 1795 Naturalization Act, which was a nearly verbatim repeat of the previous 1790 Act, except without any reference to natural born citizen whatsover.  Many “authorities” conspicuously overlook reference to this 1795 Act’s specific and deliberate repeal of that 1790 Act.

What if the 1790 reference to “natural born citizen” is not actually an expansion of the terms at all? And what explains the abrupt removal of that language in 1795, never to have it appear again in any naturalization law over the course of this country’s history? Perhaps these two concerns are linked. On June 14, 1967, Representative John Dowdy introduced an unpublished article to the U.S. House of Representatives. The unpublished article was written by Pinckney G. McElwee, titled “Natural Born Citizen”.    In 1795, James Madison himself actually expressed concern that some might erroneously infer, from the 1790 Act, that the foreign-born children of American parents actually “are” (not merely “considered as”) natural born citizens. McElwee indicates:

Mr. James Madison, who had been a member of the Constitutional Convention and had participated in the drafting of the terms of eligibility for the President, was a member of the Committee of the House, together with Samuel Dexter of Massachusetts and Thomas A. Carnes of Georgia when the matter of the uniform naturalization act was considered in 1795. Here the false inference which such language might suggest with regard to the President was noted, and the Committee sponsored a new naturalization bill which deleted the term “natural-born” from the Act of 1795. (1 Stat 414) The same error was never repeated in any subsequent naturalization act.

(McElwee, Natural Born Citizen, 1967, Page 10)

Again recollect that the previous Madison 1789 quotation and the 1790 Naturalization Act both use the exact same phrasing of   “considered as natural born” (citizens/subjects).   By McElwee’s own report, Madison was involved in having the “natural born citizen” reference in the 1790 Naturalization Act, entirely removed in the 1795 Naturalization Act, so that the reference would not be misunderstood.   Given the similar phrasing in the quotation, perhaps Madison was even influential in drafting that 1790 Naturalization Act. What “Considered As” Actually Intends

Rather than any actual intent to expand the terms of “natural born” by statutory means, which is now known to be untrue given McElwee’s reference,  these writings are actually using an archaic rhetorical device, no longer employed. The 1790 Naturalization Act’s use of “considered as”, and Madison’s 1789 quote as well, are actually employing SIMILE, comparing two inherently unlike things, to argue for the citizenship of offspring not otherwise recognized as being citizens, and not to confer natural born citizen status upon those born overseas.  “Considered as” does not equate to “shall now become.” This use of simile was a common rhetorical form used in the 18th century,  so as to provide a pro forma argument, in the case of the 1790 Naturalization Act,  promoting the mere citizenship status of those born overseas.   Such an argument for mere citizen status is more reasonably the purpose of any naturalization act, and NOT to declare them natural born citizens. This fact would explain why the phrase was entirely removed from the subsequent 1795 Naturalization Act, never to be seen again in American statute. It certainly makes no sense that, before the ink was even dry on the Constitution,  those same founders who so deliberately set the terms for President, would then leap to expanding the phrase natural born citizen to a group of persons that might never set foot on American soil. This is supported by the 1795 Naturalization Act, written by largely the same congress, which specifically REPEALS the 1790 Act, and recreates it nearly verbatim, except excluding any reference to natural born citizen, as well as the discovery by McElwee of the motivation of the House Committee for removing the phrasing, as detailed in 1 Stat 414 . ref