I recently discovered a document from 1796 which confirms the prevalence of birthright citizenship in the early days of the republic. It's a circular that was sent out by Oliver Wolcott Jr. who was George Washington's Secretary of the Treasury. The circular was written and distributed at Washington's request and with the advice of Attorney General Charles Lee and Secretary of State Timothy Pickering. I've uploaded a photo of the entire document below followed by an explanation of its relevance to the birthright citizenship debate.
The first paragraph of the circular refers to the 1796 Act for the Relief and Protection of American Seamen. That Act was designed to protect American sailors from being impressed into the navies of foreign nations. Part of that protection consisted of giving American sailors certificates of citizenship certifying to foreign governments that they were in fact citizens of the United States. Here is the text of from the 1796 Act requiring these certificates to be made available:
"And be it further enacted, That the collector of every district shall keep a book or books, in which, at the request of any seaman, being a citizen of the United States of America, and producing proof of his citizenship, authenticated in the manner hereinafter directed, he shall enter the name of such seaman, and shall deliver to him a certificate, in the following form, that is to say: “I, A. B., collector of the district of D., do hereby certify, That E. F., an American seaman, aged years, or thereabouts, of the height of feet inches, [describing the said seaman as particularly as may be] has, this day, produced to me proof in the manner directed in the act, intituled “An act for the relief and protection of American seamen;” and, pursuant to the said act, I do hereby certify, that the said E. F. is a citizen of the United States of America: In witness whereof, I have hereunto set my hand and seal of office, this day of .” And it shall be the duty of the collectors aforesaid, to file and preserve the proofs of citizenship produced, as aforesaid."
Notice the phrase "authenticated in the manner hereinafter directed." It was this phrase which authorized the publication of the circular from the Secretary of the Treasury. The circular was distributed to every collector of customs in the United States for the purpose of establishing a consistent means of authenticating a sailor’s claim to be an American citizen. The circular began with a list of which categories of seamen were authorized to receive certificates of citizenship. The first category in that list is:
"Free white persons born within the limits of the United States, or of any of them, and free white persons born in any foreign country but actually settled within the limits of the United States on the third day of September in the year one thousand seven hundred and eighty three."
Thus, according to this circular, any white male seaman could request and receive a certificate of citizenship if he had been born within the limits of the United States. However, he could not receive a certificate just by making the claim. He had to provide evidence that his claim was true, and the circular outlined exactly what type of evidence was required for each of the categories of sailors.
The type of evidence required for sailors claiming to have been born in the United States was given as follows:
"Every person claiming citizenship as a native of the United States is to produce an extract from the register of births or baptisms where such is kept, in the civil or religious society to which the applicant belongs, certified by the proper officer of such society in the usual manner, and supported by the affidavit of at least one credible witness testifying that the applicant is the person mentioned in such extract: or if no such extract is produced, the affidavit of at least one credible witness testifying that the applicant was born within the limits of the United States and describing the country and state in which he was born."
Any white sailor could receive a certificate of citizenship if he could produce a record of his birth along with a sworn statement identifying him as the individual mentioned in that record. If he did not have a record of his birth, then he could still receive a certificate of citizenship if he could find a single witness who could testify that he had been born in the United States.
No other evidence was required to prove that a sailor was a native born citizen of the United States. He did not have to prove that either of his parents were citizens. He did not have to prove that he had pledged his allegiance. All he had to do was give evidence that he had actually been born in the United States. Such evidence alone was sufficient to establish him as a natural born American and to entitle him to a certificate of citizenship.
This method of determining citizenship is based on the doctrine of jus soli. Being born on American soil was enough to make these individuals citizens. This was not the case for the other categories of sailors. For example, the fifth category was:
"Children of citizens of the United States or any one of them, born at any place out of the limits of the United States."
The sailors in this category would have been those who claimed that they were not born on American soil, but that they were still citizens because they were born to American citizens. The requirements for establishing the citizenship status of individuals in this category were given as:
"In cases where citizenship is claimed by persons as being children of citizens of the United States, or of any of them, born out of the limits of the United States, the citizenship of the parents under whom the applicants claim, shall be proved as before prescribed in like manner as if the citizenship was claimed by the parents themselves: and further it must be proved by the affidavit of at least one credible witness that they are reputed and believed to be the children of the persons under whom they derive their citizenship."
This method of determining citizenship is based on the doctrine of jus sanguinis. The sailors in this category did not have to prove that they were born on American soil. Instead, they had to prove that their parents were American citizens. But look at how the citizenship of the parents was to be established:
"the citizenship of the parents under whom the applicants claim, shall be proved as before prescribed in like manner as if the citizenship was claimed by the parents themselves."
In other words, the citizenship of the parents of a foreign born sailor was to be established by the exact same method that was used for determining the citizenship of a native born sailor, and we have already seen that the method for determining the citizenship of a native born sailor is based on the doctrine of jus soli. Thus, even though the citizenship of foreign born sailors in this category was determined through a method based on the doctrine of jus sanguinis, that method still reverts back to a method based on the doctrine of jus soli.
Now, one of the arguments that I have received against using this circular as evidence of birthright citizenship is that the circular was published just 13 years after the Treaty of Paris was signed in 1783. This is claimed to be significant because the Treaty of Paris made everyone resident in the United States a citizen of the state in which he resided. Thus it may be argued that every sailor who applied for a certificate of citizenship based on his birth in the United States would have been born before 1783 and thus would have been a citizen because of the Treaty of Paris and not because of his place of birth.
There are multiple flaws in this argument, but perhaps the most glaring one is that there are records of certificates of citizenship being given to boys as young as 10 years of age. Any boy under 13 who received a certificate of citizenship in 1796 would have been born after the Treaty of Paris was signed. And the same would be true for boys under 14 who received certificates in 1797, boys under 15 who received certificates in 1798, and so on.
Are there any records of boys too young to have been born before the Treaty of Paris? Yes there are. The registers that were kept in accordance with the circular tell us that Luke Kimbal received a certificate of citizenship at the age of 10 on September 23, 1796 because he was born in Lisbon, Connecticut. Ichabod Powers also received a certificate of citizenship at the age of 10. His certificate was granted on April 17, 1797 based on his being born in New London, Connecticut. William Cowell received a certificate of citizenship at the age of 12 in February of 1799 based on his birth in Marblehead, Massachusetts. Elias Davis received a certificate at the age of 12 in 1797 because he was born in Gloucester, Massachusetts. Isaac Davis received a certificate at the age of 12 in 1796 because he was born in Groton, Connecticut. Jeremiah Dickinson received a certificate at the age of 12 in 1798 because he was born in New London, Connecticut. William Dow received a certificate at the age of 12 in 1797 because he was born in Manchester, Massachusetts. Etc, etc, etc…
Additionally, we can see from the certificates themselves that mere birth within the territory of the United States was sufficient to qualify any sailor to receive a certificate of citizenship. The certificate issued to Ceaser Shaw in 1795 and the certificate issued to Levi Case in 1817 can be found online as demonstrations of this fact. In both cases, the certificate was issued based solely on the fact that the sailor was born within the territory of the United States. No further proof of citizenship was required. All a sailor had to do to receive a certificate of American citizenship was provide either a record of his birth in America or provide a credible affidavit testifying that he was born in America.
One would think that the ease with which citizenship could be claimed by this method would generate a large amount of fraudulent claims from foreign seamen seeking American protection from impressment, and that was indeed the case. Shortly after Albert Gallatin became the Secretary of the Treasury under John Adams, he sent a letter to then Secretary of State James Madison recommending that the President change the original instructions in the 1796 circular which were still being followed. Gallatin was concerned by the large number of false claims to citizenship, and he wrote:
“The instructions having confined the proof of Natur⟨alization⟩ to copy of a record & admitting the affidavit of on⟨e witness?⟩ to prove citizenship by birth or residence in 1783, it is much more easy for an alien seaman to obtain a protection as a natural born than as a naturalized citizen. Perhaps the collectors might be instructed generally not to grant certificates unless they have received satisfactory pro⟨of⟩ of the birth when citizenship is claimed on that ground.”
Gallatin was not opposed to granting certificates to the sailors who claimed citizenship by birth. He simply wanted a stricter requirement of proof in the hopes that it would lower the number of fraudulent claims. Claims to citizenship by naturalization were required to be proven through documentation, but claims to citizenship by birth and claims to citizenship by residence at the time that the Treaty of Paris was signed only required an affidavit from a credible witness. It was much easier for alien sailors to find a citizen willing to give a false affidavit than to find a forger to produce false documentation. Consequently, many alien sailors attempted to claim American protection from impressment by claiming to have been born on American soil.
David Lenox also sent a similar complaint to James Madison in that same year (1801). According to Lenox, his office in London had received about 500 probable false claims of citizenship in 1799 alone, and he opined that all of those fraudulent claims were claims to have been born within the United States.
These complaints only make sense if the instructions given in the 1796 circular for determining citizenship by birth were founded on the doctrine of jus soli. If the doctrine of jus sanguinis had been the foundational doctrine of American citizenship, then the instructions themselves would have required evidence of parental citizenship even for those claiming to be citizens by birth within the United States. The fact that this requirement was not present and the fact that it was not even assumed (as evidenced by the complaints of fraud) only make sense under the doctrine of jus soli.
This circular letter sent to the collectors of customs in 1796 and the subsequent records of the citizenship of American seamen provide first hand evidence of the prevalence of birthright citizenship during the founding era of our nation. The protection of American sailors was one of the most critical issues that our government faced in the late 18th and early 19th centuries, and this circular played a central role in that issue. Some of the most notable figures of that time were instrumental in either drafting or maintaining the instructions for determining citizenship that are found in this circular, and the collection of certificates identifying seamen as citizens based solely on the location of their birth is by far the largest body of evidence that could be produced by either side of the birthright citizenship debate.
Click here to read more of my research on birthright citizenship.
Bill Fortenberry is a Christian philosopher and historian in Birmingham, AL. Bill's work has been cited in several legal journals, and he has appeared as a guest on shows including The Dr. Gina Show, The Michael Hart Show, and Real Science Radio.
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