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Case of James McClure as submitted by Publius, 1811

Richmond, Virginia

THE ALEXANDRIA HERALD

Monday, OCTOBER 7, 1811

CASE OF JAMES McCLURE.

The Case of this man has made a good deal of stir in the U. States -- and has lately been received by a letter from a Mr. John Rodman, dated Paris, 4th, Jule, 1811, and addressed to the Editor of the United States Gazette

The facts appear to be these:

James McClure was born in the U.S. , on the 21st of April, 1785. Some months after his birth (that is, on the 30th Feb 1786) his father was duly naturalized, under the laws of the State of South Carolina.

The son remained in the U.S. until the year 1795 when he was sent to England for his education. He has not since returned to this country; but resided for some years in England, and then made a trip to Holland and some other parts of the continent. His father also has left the U.S. and returned to his native country: G. Britain.

Some time in the year 1807, Mr. James McClure, dispatched from England, the famous ship "Horizon", destined to Lima, which was shipwrecked on the "rocks of Morlaix," and, as is generally known, was the very first case to which the Berlin Decree was put into execution against the U.S. Mr. McC. went to France to reclaim his property of the ship; carrying with him a Passport from the American Minister of London, confessing him to be a native citizen of the U.S.

On the 12th April, 1810, an order was issued by the Minister of War, directing, "that in consequence of information to (him) from the minister of general police, and which he has received from the Minister plenipotentiary of the U. States, Mr. James McC. should be detained in France as an 'English prisoner of France.'" Accordingly, he was arrested at L'Orient , sent under parole, and placed under surveillance at Tours. Gen. Armstrong would not interfere in his behalf.

On the 16th March, 1810 he writes him that the certificates of his father's naturalization, and of his own birth and baptism, were not sufficient; they only prove that his father is an American Citizen, and that he himself was born in the US, and that "the evidence that will reach the case & substantiate (his) claim, is a certified copy of the act of S.Carolina, 'naturalizing' (his) father, provided that the "act naturalizes also the children of (his) "father born before his own date:"

Mr. Rodman afterwards met with Mr. McClure at Tours, and being touched with his situation, determined to intercede with Gen. A. on his return to Paris. The general was however about to leave France --- and Mr. R. thought fit to address himself to Mr. Russell, Charge d'affaires at Paris.

In reply, Mr. R. tell him that, "Mr. McC must claim to be a citizen of the United States either under a law thereof, or under a law of the state of S. Carolina; that Gen. A. not considering the law of the U.S. to embrace the case of Mr. McC., required that he should show himself to be within the provisions of the state statute: that the words, 'if dwelling in the U.S.' appear to occasion the whole difficulty in deciding on the rights of Mr. McC.

" 'Is this dwelling'" (continues Mr. R.) "to be at the time of the naturalization of the father, at or after passing the law, or the time of claiming to be considered a citizen? Gen. Armstrong, it seems, decided against the first, and the two last are conclusive against Mr. McClure. As I act under Gen. A. in this legation, it is not competent in me to admit appeals from his judgement."

Mr. Rodman also applied to Mr. McRae, our consul in Paris, to whose department the granting of passports had been transferred. Their correspondence went off upon a subordinate point, which it is not necessary to state. It is certain, these applications did no good to Mr. McC. who yet remains perhaps under surveillance at Tours.

In my Judgement, however, our minister has erred in his decision -- and Mr. McClure ought to have been held as a citizen of the United States. Mark! We are not considering what the law ought to be; but what it is. If the case of Mr. McClure comes within any of the U.S. Acts, it is the 4th section of the Act of April, 1802 -- which is in these words:

"The 'children' of persons duly naturalized under any of the laws of the United States, or who previous to the passing of any law on the subject, by the government of the United States, may have become citizens of any one of the said states, 'under the law' and, thereof, being 'under the age' of twenty-one years, at the time of their parent's being so naturalized, or admitted to the rights of citizenship, shall, 'if dwelling in the U.S.' be considered as Citizens of the United States, shall, though born out of the limits and jurisdiction of the U.States: 'Provided,' that the right of citizenship shall not descend to persons whose fathers have never resided within the U.States, &c,&c."

And, now, what is the case of James McC?

His father was a citizen of the state of S. Carolina, before any act was passed by the United States "on the subject."

James McClure is then the child of a naturalized citizen. He was "under the age of 21 at the time of his naturalization." So far his case is within the law. The only doubt is, as Mr. Russel says, as to the expression: "if dwelling in the United States." When must he have dwelt in the United States? To what period of time does the section point? If to the time of "passing the law," the expression would not have been vague -- Congress would have put in some definite phrase, as "at this time" or "now," as they do immediately after in the same section. If to the "time of claiming" to be considered a citizen," then is the party both a citizen and not a citizen; a citizen in the United States, but not one out -- in which case, the citizen father has greater rights than his citizen son, because the father has all the rights of one, both within the United States and elsewhere. By the same rule it is that if a man were to be naturalized for 20 years, and then to marry and have a child, that child could not dwell in a foreign country without an absolute forfeiture of his rights. It is doubtful whether the legislature of the United States have ever contemplated such a state of things.-- for by this rule, thousands who are now considered as citizens would really cease to be such.

To my eye, the spirit of the act appears to be this: that the child should be with the parents, dwelling in the United States with him at the time of his naturalization. Thus distinguishing between those children who are with him at time, and those whom he has left behind him in his native country. The law naturalizes the former with him by saying grace once over them, as Dr. Franklin said: presuming that as they are here at that time, they will remain here for life; but the same grace does not extend to those who have remained behind.

Mr. Rodman hints, that it would have been sufficient for James McClure to have been born in the United States . He is mistaken. The law of the United States recognizes no such claim.

The law of Virginia, of 1792, does -- for, "'all free persons born' within the territory of this commonwealth," is deemed a citizen. The law of Virginia considers him as a son of the soil. An alien, as well as a citizen, may beget a citizen, but the U.States' act doesn't go so far. A man must be naturalized to make his children such.

If it be said that the law is defectives, we shall not dispute the point. We shall not say, but that it ought to deprive every naturalized foreigner of the privileges with which it had clothed him, provided he returns for a certain series of years to that native domicile he had abandoned. And again, might there not be an United States' expatriation law? For, as we permit a man to enjoy the rights of a freeman to move from his country to that call of his own interests, we ought also to permit him to snap the ties which bind him to that country. Thus, if found in arms against us, would he not be treated as a rebel, instead of a prisoner of war?

These ideas are suggested with a considerable diligence. The case of James McClure is clearly a nice one -- and even if I had not the best reasons to ascribe the purest motives to general Armstrong in this transaction, still there is that dubious complexion in the case which might lead me to think, that a very honest and enlightened man might honestly differ with me on the occasion.

Publius, aka: James Madison

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