Posted on 04/30/2011 12:49:21 AM PDT by djf
Lately, we have been bombarded by various people trying to say what is was/wasn't that Vattel had to say, and whether his opinions mattered
or were even known to the founders and early America.
So I did a bit of research.
Emmerich De Vattel was born 1714 of Swiss parentage. At an early age he became interested in literature and philosophy. Now there are much better and detailed biographies on the web, so I won't bore everybody with all the details I read. Suffice to say he spent many years with positions provided by the courts (the royal courts) and composed a number of works.
He was deeply influenced by an earlier work called "The Law of Nations" by Christian Wolfe, the problem with the earlier work being that it had been composed in Latin and was not a work for general use.
He (Vattel) completed his first edition of "Le Droit des Gens, ou Principes de la Loi Naturelle", or what we now call "The Law of Nations" in 1758.
It was a two volume work.
He died in 1767, in what I believe was France, though I haven't verified it yet.
Now the arguments about using Vattel as a reference have taken a couple forms. First, there seems to be an argument that he was perhaps a more obscure reference at that time and was not internationally accepted.
Another argument is that he never used the exact term "natural born citizen", so that what he was speaking of does not apply.
A little study of history show that both arguments fail miserably.
Vattel was aware of what was happening in America before his death. At least in terms of the settling of America.
At the end of Chapter XVIII, Occupation of a Territory by a Nation, he says "However we can't help but admire the moderation of the English Puritans who were the first to settle New England. A;though they bore with them a charter from their sovereign, they bought from the savages the lands they wished to occupy. Their praiseworthy example was followed by William Penn and the colony of Quakers that he conducted into Pennsylvania"
Vattels work was known in Europe and to the founders that had traveled there. There are a number of historical references that prove that which the reader can find on his own.
In 1775, eight years after his passing, Charles Dumas, a Swiss living in Holland, brought out a new edition and sent 3 copies to Benjamin Franklin. Franklin wrote "It came to us in good season, when the circumstances of a rising State make it necessary frequently to consult the Law of Nations". This was in December, 1775.
The founding fathers were aware of and impressed by Vattels mentions of New England and Pennsylvania, and took it to heart. The work became an almost instant classic in pre-revolutionary Ameria.
By 1780 his work was considered a classic and was a textbook at the best universities.
So did the founders really know of the work?
They knew of it enough so that it is quoted in Supreme Court decisions even before the Constitution was written or ratified. In Miller v. The Cargo of the Ship Resolutions, the court said "Vattel, a celebrated writer on the laws of nations, says, 'when two nations make war a common cause, they act as one body, and the war is called a society of war; they are so clearly and intimately connected, that the Jus Postliminii takes place among them, as among fellow subjects.'" This decision was by the Federal Court of Appeals, Aug, 1781. Cited as 2 US 1 or 2 Dall 1
We see that not only was it known to the founders, it was already being used in the universities and quoted as operative law in the fledgling courts of the United States justice system.
So. What exactly did he say?
First, anyone who reads the item whether translated or in the original French has to admit he never used the exact phrase "natural born citizen".
But!!! On reading what he said, the wording and the context, there can be no doubt at all of EXACTLY what he meant.
I shall here cite the section in English and in the original Francais.
The section is from Chapter XIX, entitled "One's Country and various matters relating to it". Sec. 212, Citizens and Natives. It is on pps.
87 of the english translation.
"The members of a civil society are it's citizens. Bound to that society by certain duties and subject to it's authority, they share equally in the advantages it offers. Its natives are those who were born in the country of parents who are citizens. As the society cannot maintain and perpetuate itself except by the children of it's citizens, these children naturally take on the status of their fathers and enter upon all the latters rights. The society is presumed to desire this as the necessary means of its self-preservation, and it is justly to be inferred that each citizen, upon entering into the society, reserves to his children the right to be members of it. The country of a father is therefore that of his children, and they become true citizens by merely tacit consent. We shall see presently whether, when arrived at the age of reason, they may renounce their right and the duty they owe to the society in which they are born. I REPEAT THAT IN ORDER TO BELONG TO A COUNTRY ONE MUST BE BORN THERE OF A FATHER WHO IS A CITIZEN; for if one is born of foreign parents, that land will only be the place of one's birth, and not one's country."
(the above is from: Les droit des gens, Translation of the 1758 edition, Charles G. Fenwick, published Carnegie Institute of Washington,
Washington, 1916.
En Francais.
Les citoyens sont les membres de la Societe Civile; Lies a cette Societe pars certains devoirs, & formie a son Autotiteil particiant avec egalite a les avantages. Les NATURELS, ou INDIGENES, sont ceux qui sont nes dans le pays, de Parens Citoyens. La Societe ne pouvant se soutenir & se perpetuer que par les enfans des Citoyens; ces enfans y suivent naturellement la conditionn de leurs Peres, & entrent dans tous leurs droits. La Societe est cenflee le vouloir ainfi; par une suite de ce qu'elle doit a la propre confervation; & l'on presume de droit que chacque Citoyen, en entrent dans la Societe; reserve a les enfans le droit d'en etre membres. La Patrie des Peres est dons celles des enfans & ceux-ci deviennent de veritables Citoyens, par leur simple consentement tacite. nous verrons bien-tot; si parvenus a l'age de raison, ils peuvent renoncer a leur droit, & ce-qu'ils doivent a la Societe dans laquelle ils sont nes. Je dis que pour etre d'un pays, IL FAUT ETRE ne D'UN PERE CITOYEN; car si vous y etes ne d'un Etranger, ce pays sera seulement le lieu de votre naissance, sans etre votre Patrie"
Note: The above is from the 1758 edition. As with early American English, it was common to write an "S" as an "f". I have tried with my limited knowledge of French to make the corrections, and think this is pretty darn close to the original.
Another note: Vattel uses the phrase "Les Naturelles ou Indigenes" which pretty much translates to "The naturals or natives"
_____________________________________________________________________________________________________________________
Now I doubt anyone can read the above and not know EXACTLY what the founders meant by "natural born citizen". They wanted someone who, in Vattels words, "Belong(ed) to the Country, which means a person born on the soil of parents who were citizens, at the very least born on the soil OF A FATHER who IS A CITIZEN!
If Obama was born in Hawaii, were both his parents Citizens? No. Was Obamas FATHER a citizen? No.
Does Obama "Belong to the Country?"
Vattel, and the founders of our great Republic, would have to say no.
you read French?
Until 1783, the colonists were "natural-born subjects" of the British Crown, and the phrase "natural-born subject" was well-defined in English common law. Moreover, the phrase really was "natural-born subject" in the English language; it was not a specific translation of four French words written by a Swiss legalist.
You're saying that a reasonable person in 1788 would've used de Vattel's definition because in your opinion, de Vattel's definition is more "natural" (literally--no pun intended). It may very well be more "natural" to you, but it remains that "natural-born subject" as a legal concept existed and was well-defined in English common law. The two definitions differ, so which would a reasonable person in 1788 have used?
Given that a reasonable person in 1788 had been a "natural-born subject" of the British Crown a mere five years earlier, I argue that he would use the English common law definition of "natural-born subject" applied to "natural-born citizen." About a century later, in Minor, Chief Justice Waite recognized that the Constitution doesn't define "natural-born citizen" and hence, resort must had "elsewhere" to define it. Chief Justice Waite immediately looked to (English) common law; he did not cite de Vattel at all in the Court's opinion, which was unanimous.
The Founders didn't define "natural-born citizen" in the Constitution. No one doubts this. Quite a few of you, however, insist that if it isn't defined, we must consult the English translation of a book written by a Swiss legalist in French. Uh, why? Why not consult English common law, which actually has a phrase that would be identical if not for our lack of a monarchic system?
I skimmed the posts, so I’m not sure if anyone posted this, but any doubt that THIS BOOK was important to the Founding Father’s was erased by the FACT that our first President, George Washington, checked this book out of the Library and neglected to return it.
That did it for me.
And that shows the flaw and political corruption of such jurisprudence. What was the point of the founders writing one more word after the "commerce" and "general welfare" clauses if the "proper" interpretation of those negates all that follows?
The United States in 1961 recognized the allegiance of the child at birth to be that of the adult father or adult parent, while reserving the possibility the child could elect to renounce natural born foreign allegiance and natural born foreign citizenship upon reaching the majority age of an adult and thereafter exercise only U.S. native born citizenship.
Is that so? Where does it say that in the Constitution or U.S. code?
To save time, see:
The State Department Has “Always” Recognized And Abided By Foreign Laws Concerning US Citizens Born With Dual Nationality.
“The country where one is born, how accidental soever his birth in that place may have been, and although his parents belong to another country, is that to which he owes allegiance.”
Using this logic, children born abroad to American citizens should not be considered American citizens, but citizens of the country they were born in and denied entrance to the U.S. when the parents want to return home to raise their foreign born offspring. Also any child born of foreign parents in the U.S. should not be permitted to leave the U.S. with their foreign citizen parents as child belongs to the birthplace not the parents. Such nonsense...
Or am I? My parents are Swiss citizens, too, and by Swiss nationality law, I'm Swiss by jus sanguinis. Moreover, by de Vattel's definition, I'm also part of "les naturels ou indigènes" in Switzerland; I am a natural-born citizen of the Swiss Confederation.
Or am I? Can you be a natural-born citizen of more than one country? Does de Vattel have anything to say about that?
Everyone on here who has claimed that Vattel says that Obama is not a Natural Born Citizen has been has said that “Natural Born Citizen” means born in the U.S. to two U.S. citizen parents. Obama was clearly NOT born in the UK, and was clearly NOT born to two UK citizen/subject parents. How can he be a Natural Born UK citizen? How can it be that a UK subject absentee father makes him a natural born UK citizen, but birth in the US to a US citizen mother does not make him a natural born US citizen?
The Churchill situation is different, as Churchill was not born here.
This is a bunch of crap. Vattel pointed out that England chooses to naturalize at birth the children of aliens. That's fine, but those people are still naturalized. They are not natural, indigenous, or natural born. You have been corrected on this point before yet you keep posting this false information. Please stop posting lies to FreeRepublic.com.
The impunity with which the disloyalty of today is rewarded is one reason the people of today lack the commonsense to understand the starkly simple linkage between loyalty, allegiance, and citizenship.
“Vattel pointed out that England chooses to naturalize at birth the children of aliens.”
That was Vattel’s term for it, writing from a continental perspective. That is NOT how the English saw it. They were not naturalizing the baby, but the baby had a natural obligation to the king.
Vattel isn’t God. He screwed things up. He had not gone to England, and had no particular expertise on English law.
As the US Supreme Court put it:
“II. The fundamental principle of the common law with regard to English nationality was birth within the allegiance, also called “ligealty,” “obedience,” “faith,” or “power” of the King. The principle embraced all persons born within the King’s allegiance and subject to his protection. Such allegiance and protection were mutual — as expressed in the maxim protectio trahit subjectionem, et subjectio protectionem — and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance, but were predicable of aliens in amity so long as they were within the kingdom. Children, born in England, of such aliens were therefore natural-born subjects. But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the King’s dominions, were not natural-born subjects because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction, of the King...
...It thus clearly appears that, by the law of England for the last three centuries, beginning before the settlement of this country and continuing to the present day, aliens, while residing in the dominions possessed by the Crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, the jurisdiction of the English Sovereign, and therefore every child born in England of alien parents was a natural-born subject unless the child of an ambassador or other diplomatic agent of a foreign State or of an alien enemy in hostile occupation of the place where the child was born.
III. The same rule was in force in all the English Colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established.”
I don’t know how the US Supreme Court could have made it any clearer.
“Using this logic, children born abroad to American citizens should not be considered American citizens, but citizens of the country they were born in and denied entrance to the U.S. when the parents want to return home to raise their foreign born offspring.”
That is why Congress had to pass laws to solve the situation. Those children are citizens by law, and some say they are also NBC, but that has been disputed. Still, McCain was allowed to run, so I don’t think we’ll see it disputed again...
Or am I? My parents are Swiss citizens, too, and by Swiss nationality law, I'm Swiss by jus sanguinis. Moreover, by de Vattel's definition, I'm also part of "les naturels ou indigènes" in Switzerland; I am a natural-born citizen of the Swiss Confederation.
Or am I? Can you be a natural-born citizen of more than one country? Does de Vattel have anything to say about that?
At the time of the adoption of the U.S. Constitution, the circumstances were in principal much simpler. Under international law and custom of the time, the sovereigns refused to recognize dual citizenship. People who attempted to exercise dual citizenship were often treated as spies and traitors subject to the death penalty in many instances.
Since women were treated by the law as chattel in the 18th Century, it was typical for the law to rely upon the allegiance and citizenship of the father. The mother acquired the allegiance and citizenship of the husband upon marriage. When the allegiance of the father could not be determined, the allegiance and citizenship was often determined by the allegiance and citizenship of the child's male guardian, although the citizenship of the chattel mother sometimes was another factor used in the determination. Consequently, the opportunities for a conflict to exist between the allegiance and citizenship of teh parents was not permitted to exist. This is one of the resons why, generally speaking, Vattel was able to write about both parents being of the same citizenship, with the exception of rare and special circumstances.
In the 18th Century, your parents could not be lawful dual U.S. and Swiss citizens. Your mother had to be the same citizenship as your father, and your father had to choose to be an aliien resident in the U.S. or naturalize himself and thereby his wife and minor children as U.S. citizens.
In the 20th Century and 1961, you could be a natural born U.S. citizen for the purposes of the U.S. Constitution only if your parents had renounced Swiss citizenship and naturalized as U.S. citizens before your birth. Note:
U.S. Department of State Foreign Affairs Manual Volume 7 - Consular Affairs [….] 7 FAM 1130 ACQUISITION OF U.S. CITIZENSHIP BY BIRTH ABROAD TO U.S. CITIZEN PARENT (CT:CON-204; 11-01-2007) (Office of Origin: CA/OCS/PRI). [….] 7 FAM 1131.6-2 Eligibility for Presidency. (TL:CON-68; 04-01-1998). [….] b. Section 1, Article II, of the Constitution states, in relevant part that “No Person except a natural born Citizen...shall be eligible for the Office of President;” [….] d. [….] In any event, 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.
Notice how the State Department made a special distinction between unknown special circumstances for a potential statutory natural born citizens versus the known circumstance of a natural born citizen for the Constitution's purpose of excluding candidates from eligibility for the Office of the President.
From the point of view of Vattel in the 18th Century, there was generally no conflict, because dual citizenship was not allowed, and spouses were required to be of the same allegiance and citizenship. From our point of view in the 20th Century the permitting of the exercise of dual citizenship has created new conflicts in divided allegiances and divided citizenship rights and duties.
Why was it unnecessary? The English common law definition of "natural-born subject" differs significantly from de Vattel's "les naturels ou indigènes." "Natural-born subject" allowed for jus soli, whereas "les naturels ou indigènes" was strictly jus sanguinis.
The Founders were familiar with both English common law and de Vattel. They could have made it clear that they were following de Vattel's "les naturels ou indigènes," but they did not. Given that de Vattel himself never used the phrase "natural-born citizen," you need to argue that "les naturels ou indigènes" means that, and it is not obvious that it does. By contrast, at the time of ratification, English common law had a well-defined concept of "natural-born subject" in the English language. I need only argue that "natural-born subject" became "natural-born citizen," which is easier to do because the phrases are identical except for the system of government (monarchy vs. republic).
Anyone with half of a brain knew a person was born with the father's allegiance, hence natural born allegiance and natural born citizenship that goes along with the allegiance.
But there were a lot of "anyone[s] with half of a brain" who lived in 1788 who were "natural-born subjects" of the British Crown prior to 1783, and "natural-born subject" included children of aliens who were not diplomats.
Obviously, you like de Vattel's definition better than the English common law one. But what you like is not relevant here. The question, as I've repeatedly stated, is what would a reasonable person in 1788 have understood "natural-born citizen" to mean? If he had been a "natural-born subject" of the British Crown up to 1783 and he knew that "natural-born subject" was defined in English common law to include children born to non-diplomat aliens, then it's a stretch to argue that "natural-born CITIZEN" takes on the definition from a specific French-to-English translation of a Swiss legalist's writings.
de Vattel's definition indeed may be more "natural" to you. If that's the case, then you're expending effort on the wrong issue. Barack Hussein Obama II is a "natural-born citizen" as explained by Justice Gray in Wong Kim Ark. You don't like that because he only had one citizen parent. You're well within your rights to not like that, but then you should be clamoring for a Constitutional amendment to make our nationality law closer to that of Switzerland, or even stricter, not arguing that BHO II isn't a "natural-born citizen" by a Swiss legalist's definition.
Why do I say "stricter"? Even if we had a nationality law like Switzerland's, BHO II would still have been a "natural-born citizen" because his mother was a citizen. For BHO II to not qualify as a "natural-born citizen" under the more restrictive Swiss criteria, you'd have to abolish jus soli and restore patriarchy.
Switzerland recognizes that there's one problem with patriarchy; absent a paternity test, you can never be sure who the father is. But if you left your mother's womb, you are your mother's child, and hence, at minimum, you should take on your mother's citizenship. That is why a child born to a Swiss father and unmarried non-Swiss mother does not automatically have Swiss citizenship; the father has to acknowledge paternity, or a paternity test has to show that he is, in fact, the father.
The Founders obviously rejected British citizenship concepts along with their British citizenship. That does not give you an excuse to post lies about Vattel. Please stop posting lies to FreeRepublic.com.
“The Founders obviously rejected British citizenship concepts along with their British citizenship.”
That would explain why our laws so closely match theirs...
So, where is your evidence that US law has citizenship follow paternity?
“The Founders obviously rejected British citizenship concepts along with their British citizenship. That does not give you an excuse to post lies about Vattel. Please stop posting lies to FreeRepublic.com.”
Your problem is with the truth. You desperately want to believe your crank legal theory, so when clues to reality are laid out before you, you have to try and make them go away.
Two or three real courts actually addressed them meaning of “natural born citizen” in eligibility suits. The U.S. District Court for the Central District of California did so by citing an academic paper: Charles Gordon, Who Can Be President of the United States, The Unresolved Enigma, 28 Md. L. Rev. 1, 19 (1968). Right from the top, the paper explains, “It is clear enough that native-born citizens are eligible and that naturalized citizens are not.”
The unanimous opinion of a three-judge panel of the Court of Appeals of Indiana was more direct: “Based upon the language of Article II, Section 1, Clause 4 and the guidance provided by Wong Kim Ark, we conclude that persons born within the borders of the United States are ‘natural born Citizens’ for Article II, Section 1 purposes, regardless of the citizenship of their parents.” [Ankeny v. Daniels]
How do you know that? And even if it were true that the Founders intended to reject "British citizenship concepts," why is that relevant? We care not about intent; we care only about what a reasonable person in 1788 would have understood "natural-born citizen" to have meant.
Would he have defined it based on a specific French-to-English translation of a Swiss legalist's writings? Or would he have defined it much as how "natural-born subject" had been defined in English common law for centuries leading to the ratification?
There's a reason why in Minor Chief Justice Waite resorted to "common law" and not de Vattel to ascertain the meaning of "natural-born citizen."
So, in your opinion, legal authority and precedent are not material and neither is the intent of the Framers in choosing the phrase? Do we understand that correctly? In your opinion then, how is the meaning of a phrase in the Constitution determined? By blogging and twittering on the Internet? Or perhaps by polling? Just how?
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