The time may ere long arrive when the minds of men will be prepared to make an effort to recover the Constitution, but the many cannot now be brought to make a stand for its preservation. We must wait a while.
N.Y. Historical Society’s Collections (Lee Papers), vol. III, 1873
I have the Honor to be with great respect Sir, Your Most Humble and Obedient Servant. – George Washington
OVERVIEW
There were three types of citizens at the time of the signing of the Constitution:
1. Those who pledged their lives, their fortunes and their sacred honor to the Declaration of Independence. On that day, July 4, 1776, millions of former British subjects became citizens of a sovereign America.
2. The children, their heirs, born of those pledged citizens, were the first natural-born citizens of the new nation.
3. A person naturalized into citizenship through an act of law requiring an oath and and renunciation to any former allegiance.
We are either a United people, or we are not. If the former, let us, in all matters of general concern act as a nation, which have national objects to promote, and a national character to support. If we are not, let us no longer act a farce by pretending to it.
George Washington, letter to James Madison, November 30, 1785
INTRODUCTION
The scope of this writing is to focus on the intent of the Framers of the Constitution of the United States as it pertains to the clause in Article II, Section 1, Clause 5:
No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States.
This study explores the historical, legislative and judicial areas for factual evidence that defines the intent behind the clause. While it by no means gives the bulk of the research justice, for that would require a book, it should provide a sufficient template that destroys the theory that the definition was allegedly an ambiguous or an otherwise unanswerable question. Breaking it down into the three aforementioned parts, we are able to see a contiguous pattern that is easily digestable using the credibility of those who were living and present during those eras. It is crucial to set the stage during the American Revolution, for we find that it was the experience drawn from this event that provides the foundation from which everything else is drawn that embodies the spirit of the Constitution itself.
In GULF, C. & S. F. R. CO. v. ELLIS, 165 U.S. 150 (1897), the court advocated, as well as over 100 other courts who similarly advised, to look to this period for direction when applicable:
“… and while in all cases reference must be had to the organic law of the nation for such limits, yet the latter [The Constitution] is but the body and the letter of which the former [The Declaration of Independence] is the thought and the spirit, and it is always safe to read the letter of the Constitution in the spirit of the Declaration of Independence.”
So we start at this point in history and provide a historical review of the events that shed light on the intellect that manifests itself later into the Constitution and subsequent legislation and jurisprudence.
HISTORICAL
We pick up events after the French and Indian War1 where King George III attempted to tax the colonists in an effort to recoup his losses incurred by the war. This event also gave the king the excuse he needed to gain control over the now flourishing and prosperous States. America was no longer a band of menial pioneers who struggled through long winters and devastating plagues with little to no help from the distant Crown. It was now a fully functional, vast community of largely, self-sufficient States, rich in resources with the potential of becoming more powerful and independent by the day. The king seized the post-war opportunity to call for reining in that power and wealth for the benefit of the mother country. The colonists objected, having no representation in Parliament; a violation of the often ignored, yet existing, constitution2 between them. By 1775, the conflict from a series of levies by Parliament and resistance by the colonists had come to a head. Shocking intelligence revealed that the king was actually intending to utilize the Hessians (Germans) as mercenaries in conjunction with his own army to crush the Americans by force. The plan threatened imminent doom for America as they knew it. Despite the colonists hopes, the long-awaited resolution was not to come and an Act was passed by Parliament throwing them out of the king’s protection. Dr. David Ramsay3, notable historian, physician, one in service to the Continental Congress and president in the Senate, wrote:
Though new weight was daily thrown into the scale, in which the advantages of independence were weighed, yet it did not preponderate till about that time in 1776, when intelligence reached the colonists of the act of parliament passed in December 1775, for throwing them out of British protection, and of hiring foreign troops to assist in effecting their conquest. 4
The colonists were now faced with the prospect of seeking aid themselves or facing up to the possibility of being crushed by an onslaught that was stacked in Great Britain’s favor. Where that aid might materialize from was not evident. What was clear was that the colonial States together with England, had just gotten over participating against the French in a seven-year long conflict that spanned throughout Europe. While tensions with France weren’t as nearly as bad as that of England, it certainly wasn’t optimal or trusting. In addition, there were many other obstacles to overcome. Word of the king’s plan needed to be conveyed to the people. They needed to arrive at a decision for independence and then declare it. This was so that, in the eyes of the law of nations, their sovereignty would demand recognition. Otherwise, they would be viewed as a people engaged in a civil war that other nations would be loathe to get involved in. Dr. Ramsay further explains,
While the public mind was balancing on this eventful subject, several writers placed the advantages of independence in various points of view. Among these Thomas Paine in a pamphlet, under the signature of Common Sense, held the most distinguished rank. 5
An important impact from Thomas Paine’s Common Sense was the suggestion that no government could be instituted with the blessing from Heaven, that revealed,
… convincing proof, that Great-Britain had thrown them out of her protection, had engaged foreign mercenaries to make war upon them, and seriously designed to compel their unconditional submission to her unlimited power. It found the colonists most thoroughly alarmed for their liberties, and disposed to do and suffer any thing that promised their establishment. 6
With the realization of Great Britain’s plan against the people and pondering the oppressive ramifications of subjugating themselves to it, the colonists declared their independence. On that day, July 4, 1776, millions pledged their lives, their fortunes and their sacred honor for the sake of liberty and freedom and rejected “lusting after kings” to rule and provide over them; embracing republican ideas instead. These millions of former British subjects became the first citizens of a sovereign America and are included in the Constitution as being a party to it at the time of its execution. This was the cornerstone ideology of the new nation to come and deserves clarification in the history books; that what was on the line was far more serious than just taxation without representation. It was about a power grab at its core.
However the conviction of the colonists may be measured, it was still no match for the sheer logistical numbers of the British troops and their mercenaries. France was keenly aware that it was in her best interests to support the independence of the United States rather than have England continue to dominate. Dr. Ramsay records the pivotal events:
The news of the capitulation of Saratoga reached France, very early in December, 1777. The American deputies took that opportunity to press for an acceptance of the treaty, which had been under consideration for the preceding twelve months. The capture of Burgoyne’s army convinced the French, that the opposition of the Americans to Great Britain was not the work of a few men who had got power in their hands, but of the great body of the people, and was like to be finally successful.7
It was therefore determined to take them by the hand, and publicly to espouse their cause. The commissioners of Congress were informed by Mr. Gerard one of the secretaries of the King’s council of State, that it was decided to acknowledge the independence of the United States and to make a treaty with them. That in the treaty no advantage would be taken of their situation to obtain terms which, otherwise, it would not be convenient for them to agree to. …
That his most Christian Majesty was fixed in his determination not only to acknowledge, but to support, their independence. That in doing this he might probably soon be engaged in a war, yet he should not expect any compensation from the United States on that account, nor was it pretended that he acted wholly for their sakes, since besides his real good will to them, it was manifestly the interest of France, that the power of England should be diminished, by the separation of the colonies from its government.
Marquis de la Fayette8, a French soldier who was enamored with the American cause and despite the order for his arrest on account of it, had already joined the Revolution in June of 1777 of his own accord. He was among the first to receive news of a treaty and alliance between France and America signed on February 6, 1778. However, the caliber of dedication in comparison to de la Fayette’s character was striking. These French counterparts to the cause varied from obliged volunteers, to demanding stipulations for pay, then advanced pay and ultimately rank within Washington’s army. When the latter was assumed, a morale disturbance and upset was felt among the American troops. The situation was summed up best by George Washington’s numerous letters addressing the subject directly:
“You are not to enlist any person who is not an American born, unless such person has a wife and family, and is a settled resident of this country.” George Washington, Given at headquarters, at Cambridge, this 10 July, 1775.
Here we see the first seeds of nativity, connections to the country and residency as being the fundamental criteria of fidelity. Then later, adding to the list, Washington’s preference for natives who own property. In a letter from Gen. Washington to Col. Spotswood, dated in 1777, in a publication entitled “Maxims of Washington,” p. 192, the following passage occurs: —
“You will therefore send me none but natives, and men of some property, if you have them. I must insist that in making this choice you give no intimation of my preference for natives, as I do not want to create any individual distinction between them and foreigners.”
The same is promulgated in Washington’s subsequent General Orders, where we see Washington raise the bar again to include verification. In Commander Washington’s General Orders of July 7, 1775 given at Head Quarters, Cambridge by Horatio Gates, Adj. General to Parole-Dorchester, Countersign-Exeter:
“The General has great Reason; and is highly displeased, with the Negligence and Inattention of those Officers, who have placed as Centries at the out-posts, Men with whose Character they are not acquainted. He therefore orders, that for the future, no Man shall be appointed to those important Stations, who is not a Native of this Country, or has a Wife, or Family in it, to whom he is known to be attached. This Order is to be consider’d as a standing one and the Officers are to pay obedience to it at their peril.” – 11 Fox, Adj. Gen. of the day. 9
Sound reasoning existed behind what may seem a harsh edict at first glance to those without any military experience. However, the explanation is contained in Washington’s many pleas to Congress expressing what was being experienced on the battlefield as justification for his actions. There was a morale problem and there was an abuse problem affecting the operations of Washington’s military. The problem was so severe, the tone was reflected in literally hundreds of letters, speeches and essays, all the way through to his infamous Farewell Address.10 Some of his direct misgivings are noted in the following examples.
Regarding the morale problem noted on May 7th, 1777 at Morristown:
“Dear Sir: I take the liberty to ask you what Congress expects I am to do with the many foreigners that have at different times been promoted to the rank of field-officers, and by their last resolve two of that of colonels? These men have no attachment for the country further than interest binds them. Our officers think it exceedingly hard, after they have toiled in the service and have sustained many losses, to have strangers put over them, whose merit perhaps is not equal to their own, but who effrontery will take no denial. It is by the zeal and activity of our own people that the cause must be supported, and not by the few hungry adventurers. I am, &c., GEO. WASHINGTON.”
Regarding the frustration, future reflections and regret; a letter to Gouverneur Morris, Esq., White Plains, July 24th, 1778:
“Dear Sir: The design of this is to touch cursorily upon a subject of very great importance to the well-being of these states, much more so than will appear at first sight – I mean the appointment of so many foreigners to offices of high rank and trust in our service.
The lavish manner in which rank has hitherto be bestowed on these gentlemen, will certainly be productive of one or the other of these two evils, either to make us despicable in the eyes of Europe, or become a means of pouring them in upon us like a torrent, and adding to our present burden. But it is neither the expense nor the trouble of them I most dread; there is an evil more extensive in its nature and fatal in its consequence to be apprehended, and that is, the driving of all our officers out of the service, and throwing not only our own army, but our military councils, entirely into the hands of foreigners. …
The expediency and policy of the measure remains to be considered, and whether it is consistent with justice or prudence to promote these military fortune-hunters at the hazard of our army. Baron Steuben, I now find, is also wanting to quit his inspectorship for a command in the line. This will be productive of much discontent. In a word, although I think the Baron an excellent officer, I do most devoutly wish – that we had not a single foreigner amongst us, except the Marquis de Lafayette, who acts upon very different principles from those which govern the rest.
Adieu. I am, most sincerely yours, GEORGE WASHINGTON.”
Regarding the abusive greed fostered by a lack of personal resolve. A letter of George Washington to Gouverneur Morris. White Plains, 24th July, 1778
“… The officers, my dear sir, on whom you most depend for the defence of this cause, distinguished by length of service, their connections, property, and, in behalf of many, I may add, military merit, will not submit, much if any longer, to the unnatural promotion of men over them, who have nothing more than a little plausibility, unbounded pride and amibition, and a perseverance in application not to be resisted but by uncommon firmness, to support their pretensions; men, who, in the first instance, tell you they wish for nothing more than the honor of serving in so glorious a cause as volunteers, the next day solicit rank without pay, the day following want money advanced to them, and in the course of a week want further promotion, and are not satisfied with any thing you can do for them.” 11
With the success and security of the country in mind, it became incumbent and necessary to review this portion of history that lays down the initial rules and conditions required from the direction of the first Commanding Officer. It encapsulates how fidelity was identified, measured and enforced in order to secure the objectives of liberty and freedom. The evidence begins with the Revolution as it illustrates the evolved requirements in leadership that take shape as a matter of course and experience. It illuminates the criteria set in choosing those worthy and trusting of rank; that being: A native-born American, who has verifiable connections and family who reside and hold property within the country.
This sets the stage for the legislative review of the second section which further developes this criteria in the same vein as George Washington, the “father genius” of the Revolution and framer of the Constitution of the United States of America.
“His last scene comported with the whole tenor of his life. Although in extreme pain, not a sigh, not a groan escaped him; and with undisturbed serenity he closed his well-spent’life. Such was the man America has lost — such was the man for whom our nation mourns.
‘Cease, sons of America, lamenting our separation. Go on and confirm, by your wisdom, the fruits of our joint councils, joint efforts, and common dangers; reverence religion; diffuse knowledge throughout your lands; patronize the arts and sciences; let liberty and order be inseparable companions. Control party spirit, the bane of free government; observe good faith to, and cultivate peace with, all nations; shut up every avenue to foreign influence; contract rather than extend national connections; rely on yourselves only; be Americans in thought, word and deed. Thus will you give immortality to that union which was the constant object of my terrestrial labors; thus will you preserve undisturbed, to the latest posterity, the felicity of a people to me most dear; and thus will you supply (if my happiness is now ought to you) the only vacancy in the round of pure bliss high Heaven bestows’.
Methinks I see his august image, and hear falling from his venerable lips these deep-sinking words“; —
Recollections of George Washington by Henry Lee in Washington’s funeral oration before the House of Congress on December 26, 1799.
… to be continued
-Undead Revolution
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1. The French and Indian War (Summary) – http://www.sparknotes.com/history/american/frenchindian/summary.html
2. The Magna Carta – http://www.magnacharta.com/articles/article04.htm
3. Dr. David Ramsay – Princeton Short-Biography
http://etcweb.princeton.edu/CampusWWW/Companion/ramsay_david.html
4. Dr. David Ramsay, The History of the American
Revolution, vol. 1 [1789] pg. 237 http://oll.libertyfund.org/title/814
5. Thomas Paine, Common Sense, February 14, 1776, Philadelphia: W. & T. BRADFORD, 1776; and New York: Bartleby.com, 1999 – http://www.bartleby.com/133/index.html
6. Dr. David Ramsay, The History of the American Revolution, vol. 1 [1789] pg. 237 http://oll.libertyfund.org/title/814
7. Dr. David Ramsay, The History of the American Revolution, vol. 2 [1789] pgs. 44-45
http://oll.libertyfund.org/title/547
8. Marquis De Lafayette – http://www.marquisdelafayette.net
9. Image – Commander Washington’s General Orders dated July 7, 1775: http://memory.loc.gov/cgi-bin/ampage?collId=mgw3&fileName=mgw3g/gwpage001.db&recNum=10
10. Washington’s Farewell Address – http://avalon.law.yale.edu/18th_century/washing.asp
11. The Rover, Vol. 3, Edited by Seba Smith, New York, S.B. Dean & Co. 1844, pg. 364
Undead Revolution 