User:Arne Eickenberg/Chester Arthur
Concerns about Chester Arthur's Presidential ineligibility
Allegations of foreign birth
Arthur P. Hinman: The initial controversy
During Chester Arthur's Vice-Presidential campaign alongside James A. Garfield, Arthur P. Hinman, an attorney who had been hired by members of the Democratic party, explored the "rumors that Arthur had been born in a foreign country, was [therefore] not a natural-born citizen of the United States, and was thus, by the Constitution, ineligible for the vice-presidency." When Hinman's initial claim of a birth in Ireland failed to gain traction, he maintained instead that Arthur was born in Canada and lobbied the press for support while searching in vain for Arthur's birth records. Hinman's allegations were widely known due to several national publications. In 1881 the New York Sun maintained after an independent inquest that Hinman's claims were unsubstantiated, whereas Samuel J. Tilden stated in 1882 that the evidence showed that Arthur was Canadian-born and was therefore a usurper to the Presidency.
Chester Arthur's responses
1880: The Brooklyn Eagle debate
Chester Arthur continuously gave false information on his family's history, thereby obscuring the circumstances and chronology of his own birth. Arthur knew of Hinman and his allegations and defended himself against the original claim that he was not a native-born citzen by stating that his father "came to this country when he was eighteen years of age, and resided here several years before he was married", whereas in reality his father William emigrated from Ireland to Canada at the age of 22 or 23. Arthur further claimed that "his mother was a New Englander who had never left her native country—a statement every member of the Arthur family knew was untrue." In a second interview he repeated some of the historical revisions and further stated that his father had been forty years of age at the time of his birth, which was revealed by Hinman to be a lie. Furthermore Arthur falsified the year of his birth for ambiguous reasons (see below).
1881: Arthur's post-election speech
In what is possibly Chester Arthur's only recorded public speech, held in February 1881 before his inauguration, the Vice-President-elect referred to the past election campaign and declined to comment on his alleged foreign places of birth to avoid potential negative repercussions from the press:
I don't think we had better go into the minute secrets of the campaign, so far as I know them, because I see the reporters present, who are taking it all down; and, while there is no harm in talking about some things after the election is over, you cannot tell what they make of it, because the inauguration has not yet taken place, and while I don't mean to say anything about my birthplace, whether it was in Canada or elsewhere, still, if I should get to going about the secrets of the campaign, there is no saying what I might say to make trouble between now and the 4th of March.
XYZ: The other theory
Hinman's new theory: Chester Abell Arthur
After Arthur had become President due to Garfield's assassination, Hinman resumed his research and published a booklet that was aimed at casting doubt on Arthur's presidential eligibility during his re-election campaign. Since President Arthur was disowned by his party and did not run for a second term, Hinman's pamphlet went widely unnoticed.
XYZ: Content of Hinman's book
Primary sources and historiography
No member of the Arthur family is referenced in the town records of Fairfield, Vermont. There are also no official records of Arthur's birth in Vermont, because neither the state nor the town of Fairfield began receiving and archiving birth records before 1857. The Arthurs' family bible provides the only written primary source that Arthur was born in Fairfield on October 5, 1829, and the vast majority of his later biographers has never argued or assumed otherwise. It is commonly assumed that he was born as Chester Alan Arthur, although this assumption does not accord to many contemporary historiographical sources and witness testimonies.
Chester Arthur's birth name is unclear. The earliest independent written source states that Arthur was born in Franklin County, Vermont, on October 5, 1830, as Chester Absalom Arthur. A 1888 a biographical dictionary maintains that Arthur was born as Chester Absalom Arthur, however in St. Albans, Vermont. Many sources also misspell one of his known names as Chester Allan Arthur or Chester Allen Arthur. A 1903 genealogical source states that Arthur was born in Fairfield on October 5, 1830, as Chester Abell Arthur. This middle name is in accordance with Hinman XYZ.
George F. Howe dismissed Hinman's book as fiction, while biographer Richard L. Tobin reported more thoroughly on Hinman's accusations and stated that it is "conceivable that Chester Alan Arthur was […] literally ineligible for the office". Thomas C. Reeves dismissed Hinman's theory, but noted that
Vermont Historical Society debate.
1829 accepted (Reeves, family bible: 1829, but no Chester Abell Arthur, only doctor, p. 435)
Legal situation: Citizenship and foreign birth
At the time of Chester Arthur's birth a child born outside of U.S. jurisdiction only received U.S. citizenship, if both parents were citizens. Since Arthur's father was at the time still a British subject (v.i.), Arthur would not have been a U.S. citizen at birth and therefore ineligible for the office of President, had it been verified beyond doubt that he was born in Canada. However, the fact that William Arthur had not naturalized at the time of Arthur's birth, was unknown to Arthur's opponents (v.i.), and the allegations concerning Arthur's ineligibility were therefore based on a different legal fact.
A child born outside of U.S. jurisdiction of two citizen parents was for a short time declared a natural born citizen of the United States. First Congress had enacted this statute in the Naturalization Act of 1790, applying a legal principle from British common law that had always declared children born of a British subject father outside of the crown's dominion to be natural born subjects. Five years later Third Congress specifically repealed the natural born citizen clause in the Naturalization Act of 1795. Since then a child born outside of U.S. jurisdiction of U.S. citizen parent(s) has only been declared a citizen, not a natural born citizen, and the 1790 Naturalization Act remains the only instance of statutory natural born citizenship in American history. So even under the assumption that Arthur's father was a U.S. citizen at Chester Arthur's birth, Arthur would only have been a statutory citizen, not a natural born citizen, and was therefore slandered as an ineligible candidate by his adversaries, who alleged that he was born in Canada.
Due to the public focus on the unprovable allegations regarding Chester Arthur's foreign place of birth, it remained unknown that Arthur was nevertheless a natural-born subject of the British monarch by ius sanguinis, because his British-Irish father William Arthur did not naturalize as a U.S. citizen until August 1843, when Chester Arthur was thirteen years of age, and had not even been a denizen of the State of Vermont at the time of Arthur's birth. William Arthur's late naturalization was first noted in passing by Gregory J. Dehler in his 2006 biography of Chester Arthur, while the endamaging ramifications on Arthur's Presidential eligibility were uncovered in late 2008 by attorney Leo C. Donofrio.
Legal situation: Ius sanguinis and foreign subject father
The British common law status of natural-born subject and the concept of natural born citizen of the United States, the latter being one of the constitutional requirements for the offices of President and Vice-President, were specificially differentiated in United States v. Rhodes. In Minor v. Happersett the Supreme Court granted the status of natural born citizen only to persons born on U.S. territory of two citizen parents. With regard to "children born within the jurisdiction without reference to the citizenship of their parents" the court would not use the term natural born citizens, while fundamentally stating that there were doubts that these children were even U.S. citizens to begin with.
Chester Arthur was born a British subject and a subject of Vermont under the common law of the state, long before the Civil Rights Act of 1866 and the Fourteenth Amendment, which codified federal citizenship rule for U.S. territory. Even if applied retroactively, the 14th Amendment at the time was equivalent to Section 1992 of the Revised Statutes and only covered citizens born under complete U.S. jurisdiction, whereas Arthur's status at birth was governed by British common law. Section 1992 and the 14th Amendment in its original meaning did not confer citizenship on persons born in the United States as foreign subjects. Therefore Chester Arthur's only available path to U.S. citizenship was by his 1843 co-naturalization as the minor of his naturalized father in accordance with Section 2172 of the Revised Statutes.
These strict citizenship laws … Collins, contemporary legal opinion.
(1) Arthur still Prez; according to Collins' own arguments, Prez Arthur would have been ineligible; but he didn't mention him, so he can't have known about his British subjecthood (2) Natural born citizens are not the same as natural born subjects (3) Framers followed the law of nations, which stated in vattel xyz
Evidence of Chester Arthur's Presidential ineligibility
In 1885, as Secretary of State under Grover Cleveland, Thomas F. Bayard decreed that a person born in the United States and subject to a foreign power was not a U.S. citizen under the Constitution or a federal statute, which not only indicates that Secretary Bayard knew nothing about President Arthur's foreign subjecthood at birth, but which also proves that Arthur would have been deemed ineligible for the office of President under the contemporary laws and the policies of the United States Department of State, had his citizenship status and British subjecthood been known.
Judicial legacy: Chester Arthur, Justice Horace Gray and Wong Kim Ark
In 1882 Chester Arthur nominated Horace Gray as U.S. Supreme Court Justice. A few months after George D. Collins had published his legal treatise on U.S. citizenship (v.s.), the Supreme Court ruled in Elk v. Wilkins that a person born in the United States subject to a foreign power was not a U.S. citizen, thereby affirming the prevalent interpretation of the 14th Amendment citizenship clause. Only one month later Chester Arthur addressed the topic of citizenship in his 1884 State of the Union address, where he reminded the legislature to revise the existing naturalization laws. He openly referred to sections 1992 and 2172 of the Revised Statutes, which had directly effectuated his own problematic citizenship status with regard to Presidential eligibility: Arthur pointed out that the statute granting citizenship to minors of naturalizing parents was "ambiguous", and that the rule of naturalization did not yet define "the status of persons born within the United States subject to a foreign power". Since Chester Arthur was himself a natural-born subject of the British monarch, his remarks before Congress prove that he considered himself to be a naturalized U.S. citizen at best.
It remains unknown if Horace Gray at some point learned about Chester Arthur's secret ineligibility problem, and if he ever attempted to retroactively legitimize his appointment as Supreme Court Justice, but a few years later Gray nevertheless about-faced on his previous decision in Elk v. Wilkins by writing the controversial ruling and majority opinion in the seminal case United States v. Wong Kim Ark, which used the citizenship regulations in British common law to redefine the meaning of "subject to [U.S.] jurisdiction" in the 14th Amendment, severed the previously joined concepts of territorial and complete political jurisdiction, and thereby managed to extend the right to 14th Amendment citizenship to children born on U.S. territory of foreign subject parents, who have permanent residence and domicile in the United States. If Arthur, already by appointing Gray, ever intended to sanitize his own eligibility problems, he failed posthumously, because the court under Justice Gray only ruled that Wong Kim Ark was a citizen, while Gray in fact indicated that Wong Kim Ark was not natural born.
Chester Arthur has been called "the most obscure President" in American history, which was largely "by design", because he was a "clever" and "at times unscrupulous" politician.
Biographical confusion: Forged year of birth
Along with Arthur's lies about his family's history and chronology (v.s.), he also created 1830 as a false year of his birth. Arthur himself apparently stated that he was born in 1830 in Waterville, Vermont. The forged year was introduced at the earliest in the 1870s and probably in 1880, when Arthur ran for Vice-President, which caused considerable biographical confusion, because it has been quoted in several publications to this day and had also been engraved on his tombstone (see image). Arthur's motivation for the one-year change from 1829 to 1830 is unknown, but there were several possible reasons:
- The change was meant to cause confusion about the correct year of birth, keep Arthur's later biographers occupied with the imperfections of his biography and obscure his father's citizenship history.
- The change was made out of vanity.
- Abell connection???
- jurisdiction/denizenship connection???
- No change, but Arthur simply didn't know (Dehler)
Documents from Chester Arthur's military career as well as his marriage records, which should be on file at the Calvary Church in New York, are "curiously missing". Shortly before his death Arthur caused several Presidential materials, which had been in his private possession, to be destroyed, which was overseen by his son Chester A. Arthur II on the President's orders, while other historical documents pertaining to Arthur's life and presidency, which had been transferred to a New York store house, were destroyed by the Custom House officer on duty at the personal request of the dying President.
- New York Times 1880.
- Reeves 1991, 202 sq.
- Nation 1880, 123.
- E.g. in the New York Tribune in June 1880; New York Times 1880; Cincinnati Enquirer 1881; see below for Arthur's own responses in the Brooklyn Eagle debate.
- Sun 1881.
- Cincinatti Enquirer 1882.
- Hinman 1880a.
- Brooklyn Eagle 1880a.
- Reeves 1991, 202 sq.
- Brooklyn Eagle 1880b.
- Hinman 1880b.
- Wayne MacVeagh in Reeves 1970, 300, n. 33.
- New York Times 1881, s.v. "An Address by Gen. Arthur."
- Hinman 1884.
- Only a short summary was printed (Brooklyn Eagle 1884).
- Cf. Reeves 1970, 293, after inspecting the card files at the Division of Vital Statistics in the Office of the Vermont Secretary of State.
- Cf. statements by Vermont State Archivist Gregory Sanford and Fairfield Town Clerk Amanda Forbes in Curran-Shafner 2009.
- I.a. Reeves 1991; Dehler 2006; DeGregorio 1993; nevertheless many biographers referenced Arthur's forged year of birth (v.i.).
- Chester was presumedly named in honor of the attending physician Chester Abell; cf. i.a. Feldman 2007, 10.
- Buttre 1877–80, 3.367. The fact that the biographical sketch mentions Arthur's nomination as candidate for the office of Vice-President, is evidence that volume 3 of this publication was written or extended in 1880. A later edition published after Arthur's inauguration changed his name to Chester Allan Arthur (Buttre 1877–1881, 2.419).
- Thomas 1888.
- I.a. Doyle-Swaney 1881.
- Crocker 1913, 444.
- Carelton 1903, 2.523. It is not clear whether the reference to Abell in New York Times 1880 means that the New York Times themselves supposed that his middle name was Abell, not Alan, or (more likely) that they were simply reporting Hinman's theory without evaluation.
- Howe 1934, 5 sq.
- Tobin 1961, 120.
- Naturalization Act 1790, 2.3.1, 104:
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 […].
- V.i., Blackstone Commentaries.
- Naturalization Act 1795, 2.10.3–4, 416:
3. […] and the children of citizens of the United States, born out of the limits and jurisdiction of the United States, shall be considered as citizens of the United States […].
4. [The Naturalization Act of 1790] is hereby repealed.
- In any case, it is unknown if such a statutory natural born citizen would have been eligible for President, because the U.S. Department of State Foreign Affairs Manual, referring explicitly to the 1790 Naturalization Act, stated that while "this statute is no longer operative, […] and its formula is not included in modern nationality statutes […], the fact that someone is a natural born citizen pursuant to a statute does not necessarily imply that he or she is such a citizen for Constitutional purposes" (7 FAM 1131.6-2.d: "Eligibility for Presidency").
- "Of People, Whether Aliens, Denizens or Natives" (Blackstone 1765-69, 1.10):
British common law with regard to patrilineal ius sanguinis and natural-born subjects of foreign birth was later codified in the British National and Status of Aliens Act of 1914.
all children, born out of the king’s ligeance, whose fathers were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes, without any exception;
- Cf. William Arthur's certificate of naturalization (v.s.), State of New York, 08-31-1843 (Arthur Papers).
- The family took up permanent residence in the newly founded parish north of Fairfield, Vermont, in 1829 (v.i.). Therefore Arthur's father William would have become a denizen at the earliest in 1830, one year after their settlement, and a few months after Arthur's birth; cf. Vermont Constitution 1786, 36:
Every [foreigner] person, of good character, who comes to settle in this State, having first taken an oath or affirmation of allegiance to the same, may purchase, or by other just means acquire, hold and transfer land, or other real estate; and after one year's residence, shall be deemed a free denizen [of this State;] thereof, and entitled to all the rights of a natural born subject of this State; except that he shall not be capable of being elected governor, lieutenant-governor, treasurer, councillor, or representative in assembly, until after two years residence.
- Dehler 2006, 1.
- Donofrio 2008, 2-6, based on research by Leo C. Donofrio, Gregory J. Dehler et al.
- United States v. Rhodes, 27 Fed. Cas. 785 (1866). This distinction was later reiterated in United States v. Wong Kim Ark (v.i.):
All persons born in the allegiance of the king are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country… since as before the Revolution.
- Minor v. Happersett, 88 U.S. 162 (1874):
The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first.
- Vermont Constitution 36 (v.s.). State citizenship and U.S. citizenship were not equivalent, and federal law at the time prohibited the conferment of U.S. citizenship in Arthur's case (v.i.).
- "Citizenship: Who are Citizens" in Revised Statutes 25.1992, 350 (originally codified in the first Civil Rights Act, Chapter 31, 14 Stat. 27, 04-09-1866):
All persons born in the United States and not subject to any foreign power […] are declared to be citizens of the United States.
- Trumbull-Howard 1866. Trumbull:
The provision is, that 'all persons born in the United States, and subject to the jurisdiction thereof, are citizens.' That means 'subject to the complete jurisdiction thereof.' What do we mean by 'complete jurisdiction thereof?' Not owing allegiance to anybody else. That is what it means.
Cf. Schuck-Smith 1985, 72-89; cf. also the ruling in 14 Op. U.S. Attorney General, 300:
[…] a full and complete jurisdiction […] the same jurisdiction in extent and quality as applies to every citizen of the United States now [i.e. under the 1866 Civil Rights Act].
The word “jurisdiction” must be understood to mean absolute and complete jurisdiction, such as the United States had over its citizens before the adoption of this amendment… Aliens, among whom are persons born here and naturalized abroad, dwelling or being in this country, are subject to the jurisdiction of the United States only to a limited extent. Political and military rights and duties do not pertain to them.
- "Naturalization: Children of persons naturalized under certain laws to be citizens" in Revised Statutes 30.2172, 380 (federal law since 04-14-1802):
The children of person who have been duly naturalized under any law of the United States […], being under the age of twenty-one years at the time of the naturalization of their parents, shall, if dwelling in the United States, be considered as citizens thereof […].
- Collins 1884, 831 sqq..
- On Bayard's ruling cf. Nation 1894, 134 sq.:
In 1885, Secretary Bayard decided that ‘the son of a German subject, born in Ohio, was not a citizen under the statute or the Constitution, because “he was on his birth ’subject to a foreign power,’ and ‘not subject to the jurisdiction of the United States’“.
- Elk v. Wilkins, 112 U.S. 94, 5 S.Ct. 41, 28 L.Ed. 643 (1884).
- The Supreme Court followed the dicta in the earlier Slaughter-House Cases, where the court (including the dissenting opinion) stated that the phrase subject to its jurisdiction "was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States."
- Arthur 1884:
Our existing naturalization laws also need revision. […] Section 2172, recognizing the citizenship of the children of naturalized parents, is ambiguous in its terms and partly obsolete. […] "An uniform rule of naturalization" such as the Constitution contemplates should, among other things, clearly define the status of persons born within the United States subject to a foreign power (section 1992) and of minor children of fathers who have declared their intention to become citizens but have failed to perfect their naturalization.
- United States v. Wong Kim Ark, 169 U.S. 649 (1898). For an overview of the Supreme Court's profound reinterpretation of the 14th Amendment citizenship clause cf. Eastman 2005, 7–10.
- Justice Gray distinguished between citizens who acquired their citizenship by natural birth and those who acquired it under the ruling in Wong Kim Ark:
The foregoing considerations and authorities irresistibly lead us to these conclusions: The fourteenth amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens… Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. His allegiance to the United States is direct and immediate… and his child, as said by Mr. Binney in his essay before quoted, 'If born in the country, is as much a citizen as the natural-born child of a citizen…'
- Reeves 1970, 291.
- And possibly 1831 (Thomas 1883, v.s.).
- Dehler 2006, 1, without primary sources.
- The false year of birth was probably first referenced in 1880, either in Buttre 1877–1880, 367 (v.s.), Brisbin 1880, 538, or Nevin 1880, 89; cf. Reeves 1970, 292.
- For example, the false year is given in Carelton 1903 (v.s.), in an early biography of Presidents Garfield and Arthur (Doyle-Swaney 1881, 183), in New York Times 1886, and in modern works, i.a. Duffy-Hand-Orth 2003, 42.
- "No doubt out of simple vanity" (Reeves 1991, 5). However, Reeves failed to explain why Arthur would then change his birthdate by only one year.
- Reeves 1970, 294.
- Drake 2003, 2365; cp. Arthur III:
You may be sure that I am as interested as you are in having the Arthur papers finally come to rest in the Library of Congress. The ones that I have in my possession have traveled a good deal—over to Europe, back to Colorado, California, and now here. During his lifetime, my father would never let anyone see them—not even me. When they finally came into my possession I was amazed that there were so few… Charles E. McElroy, the son of Mary Arthur McElroy who was my grandfather’s First Lady, tells me that the day before he died, my grandfather caused to be burned three large garbage cans, each at least four feet high, full of papers which I am sure would have thrown much light on history.
- Interview with Chester A. Arthur III (07-26-1969) in Reeves 1970, 291.
- Arthur Papers (introduction):
For many years President Arthur was represented in the Manuscript Division by a single document… Beginning in 1910 and continuing to the present, successive chiefs of the division have done what they could do to assemble surviving Arthur manuscripts. For the first of these chiefs, Gaillard Hunt, who in that year intitiated the search for the main body of Arthur Papers, there was little but discouragement as a result of his inquiries. However, his persistence and what he was able to learn were to encourage his successors. He wrote first to Col. William G. Rice and learned the address of Mrs. John E. McElroy, Arthur’s sister and official hostess during his administration. Mr. Hunt wrote to her and learned from her that Chester A. Arthur, Jr., controlled the papers. After several attempts, Mr. Hunt learned Mr. Arthur’s address and wrote to him. The reply—written on March 13, 1915, five years after the search began—provided the first concrete but frustrating evidence:
"I beg you will excuse my tardiness in replying to your letter of November 4th . The question of my father’s papers is a very sore subject with me. These papers were supposed to be in certain chests which were stored on their receipt from Washington, in the cellar of 123 Lexington Avenue. After my father’s death, they were removed, I believe, by direction of the executors to a store house recommended by Mr. McElroy at Albany. Several years ago on making my residence in Colorado, I sent for these chests of papers and found in them nothing but custom house records of no particular value or importance. Where the papers they were supposed to contain have vanished, is a mystery."
- Interview with Charles Pinkerton, son-in-law of President Arthur (06-06-1970) in Reeves 1970, 291, n. 1:
Cf. Masten 1912.
[…] shortly after the turn of the century [Pinkerton] talked with an officer of the New York Custom House who had destroyed a quantity of Arthur papers in 1886 at the personal request of the dying President.