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 There are a number of historical references that prove that which the reader can find on his own.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.
All I'm saying is, dicta in Minor and Wong Kim Ark--that is, "authorative" but non-binding statements--do not follow your reasoning. You're saying that it doesn't even matter what de Vattel said in French; anyone with "half of a brain" at the time of ratification defined NBC the way you do.
I repeat my question, which you did not answer: Then why did Chief Justice Waite consult "common law"?
Original Intent is a branch of originalism, yes, but the dominant branch is Original Meaning, which doesn't care at all about intent but rather what words would've meant to a "reasonable person" who lived at the time of ratification.
Sections II and III of Wong Kim Ark form the bulk of Justice Gray's thorough analysis of the meaning of "natural-born citizen." However, as WhiskeyX is quick to point out, Wong Kim Ark did not deal with the question of who a "natural-born citizen" is. Therefore, Sections II and III, are dicta: "authoritative" but not binding.
WhiskeyX correctly notes that Justices who sign on to others' Opinions don't endorse every letter and word of the Opinion, but given how long Sections II and III are, if any of the other five Justices disagreed, they would've written separate or concurring opinions, indicating that they didn't join those parts of Justice Gray's opinion.
Notice that the two dissenters cited de Vattel once in their dissent, demonstrating their disagreement with Sections II and III of Justice Gray's Opinion. The lack of a separate or concurring opinion from any of the five remaining Justices in the majority distancing themselves from Sections II and III suggests that they AGREED with it.
Justice Grey opined that birth in the United States was sufficient to be defined as a natural born citizen. However, since this was a form of dicta and therefore not binding as a precedent, later courts are free to use the contradictory opinions of prior courts or formulate their own opinions.
Honestly, I could say. I guess I haven't been keeping up. LOL!
The point is.... a court can ONLY see the particulars before it, and Arks issue before the court clearly states he is petitioning as a NATIVE born citizen.
Ark does nothing to define natural born.
Yes, of course Vattel wrote in French. I find your point in post 176, “that de Vattel defined a phrase in English that he never used”, to be deliberately confusing. So we can only quote the French version? Or we have to say, “In French he said...”
Yes, you are correct of course; he did say it in French. But hm ... I find that kind of “truth” to be slick, oily, and well, insincere. You hurt yourself with that I think.
What an absurd claim! Are you TRYING to be deceptive? Not only did Chester Arthur lie to the interviewers about his father emigrating directly to the United states. He also lied when he said that his father was naturalized as a U.S. citizen BEFORE the birth of Chester Arthur. If that had been true, instead of a lie, then the voters would not have been deceived into voting for a candidate they were led to believe had a father who was a naturalized U.S. citizen at the time of birth. In other words, Hnman tried to persuade voters to believe Chester Arthur was born in Northern Ireland. He wasn't. He was born in the United States. The voters were informed by Chester Arthur that his father was born in Northern Ireland and was a naturalized U.S. citizen. No one ever told the voters Chester Arthur's father was not a naturalized U.S. citizen when Chester Arthur was born.
So, your comment is false and deceptive.
My layman’s view is different; it is the intention behind the meaning that counts. For example, our Founding Fathers wrote in the preamble to “Provide for ... the General Welfare.” Their intention was not to create Social Security. It was just in the preamble. Maybe people back then could have interpreted that “providing for the general welfare” means a Federal charity, but the location of the words [preamble] was never intended to hold any weight of law, right?
We have an airforce even though the meaning of “airforce” didn’t exist. It was the intention of defense that allowed a reasonable interpretation.
And then there’s the Commerce Clause. Our Founders never indended for the Commerce Clause to restrict personal freedoms. They just wanted smooth trade. Fuzzy memory alert: didn’t Justice Marshall respected the intention of the commerce clause more than the meaning? His court settled Commerce interpretation for some time in a reasonable way if I recall reading. But the courts later used a jackhammer to bust through our freedoms with loose interpretations.
OK so now it’s getting deep: dicta v. precedent. Ouch.
The actual word, “natural born” was used? OK. So when was the Constitution amended to allow sons of foreign men to qualify as President? The only TRUE way the Constitution is changed is through an amendment.
I personally wouldn’t mind such an amendment — if the mother is a U.S. citizen, fine, unless she’s underage [in the case of Obama’s mother]. I don’t think it’s an urgent amendment however.
I'll dispute that statement. Nonetheless, it is moot in either event, because no court case has ever made a binding decision on the definition of the natural born citizen phrase in the Constitution. There are a number of opinions for and against. There are more authoritative opinions supporting the ineligibility than eligibility.
There's the rub.
While the federal government has every authority to decide the terms of native born, i.e. naturalized at birth, it has no authority to redefine natural-born.
That lies within the purview of Nature and natural Law, which determines one can only become a natural born citizen in one way - by inheriting it from your parents.
-----
§ 214. Naturalization.
A nation, or the sovereign who represents it, may grant to a foreigner the quality of citizen, by admitting him into the body of the political society. This is called naturalization. There are some states in which the sovereign cannot grant to a foreigner all the rights of citizens, — for example, that of holding public offices — and where, consequently, he has the power of granting only an imperfect naturalization. It is here a regulation of the fundamental law, which limits the power of the prince. In other states, as in England and Poland, the prince cannot naturalize a single person, without the concurrence of the nation, represented by its deputies. Finally, there are states, as, for instance, England, where the single circumstance of being born in the country naturalizes the children of a foreigner.
Chapter XIX, Law of Nations, Emmerich de Vattel
(emphasis mine)
-----
IMHO, the Natural born / natural Law connection seems pretty simple to me.
I don't understand why some folks insist on trying to make it complicated.
It’s because some folks want to blur the distinction and then altogether eliminate the concept of allegiance and loyalty to the United States Constitution as it stands.
It’s because some folks want to blur the distinction and then altogether eliminate the concept of allegiance and loyalty to the United States Constitution as it stands.
In that, I have no doubt you are correct.
“You think a reasonable person in 1787 would’ve chosen de Vattel’s definition over the English common law one when prior to 1783, he was a “natural-born subject” of the British Crown? “
Absolutely, they knew the difference between “subject” and “citizen” and would have accepted the definition that recognized that they were not subjects anymore but citizens!
Your handle is disrespectful of those who died in the USS Cole bombing, btw.
Chief Justice Marshall relied upon a pre-1797 edition of Vattel’s text. The 1797 translation was adopted by the Supreme Court in Minor v. Happersett, 88 U.S. 162 (1874), where Chief Justice Waite stated:
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. ...
It’s significant that this decision was issued six years after the 14th Amendment was enacted. As such, Minor illustrates that the 14th Amendment simply defines who is a citizen, not which citizens are natural born.
Read more: Why Obama is ineligible – regardless of his birthplace http://www.wnd.com/index.php?fa=PAGE.view&pageId=134881#ixzz1LDTD00Bc
Because it was pertinent to the question of whether or not the Constitution determined who was and was not eligible for suffrage, which was the purpose of of the case and its decision.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.