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 There are a number of historical references that prove that which the reader can find on his own.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"
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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.
“It does not need to contain the exact phrase.
He used the word “naturels”.”
Then why didn’t the Founders write, “The President must be indigenous”, or “The President must be a natural citizen”, or even, since it would be a change from the law that held sway in the colonies, “The President must be born of citizen parents”?
Why would they use a legal phrase with a known meaning if they disagreed with that meaning?
Chief Justice Waite observed this in Minor:
Chief Justice Waite recognized that "Resort must be had elsewhere to ascertain that."
But where? Some of you are pointing to an English translation of de Vattel's words, "les naturels ou indigènes," as evidence that the Founder's had his definition in mind when they wrote the "natural-born citizen" requirement.
Setting aside that the dominant branch of originalism, original meaning, does not care about INTENT, did Chief Justice Waite look to de Vattel to find out what "natural-born citizen" meant? No. He resorted to (English) common law:
Chief Justice Waite acknowledged that it was unclear whether children born to aliens counted as natural-born citizens and did not pursue the matter further. But the key is that he did NOT look to de Vattel; he looked to common law, which is an English tradition. (The continental Europeans use civil law.) Furthermore, in Wong Kim Ark, Justice Gray performed a detailed analysis of English common law and concluded that "natural-born subjects" included children born to alien parents, so long as they were not on diplomatic missions, and that the definition was used at the time of the ratification.
Tellingly, Chief Justice Waite did not cite de Vattel at all in his opinion, and the decision was unanimous. There was not even any separate opinion or concurrence.
Vattel is used in international law - the “Law of Nations”. He is not used to determine US citizenship.
First, intent is irrelevant in the dominant strand of originalism, original meaning. We concern ourselves only with, "What would a reasonable person living at the time of ratification have understood these words to mean?"
Second, as detailed by Justice Gray in Wong Kim Ark, English common law included children born to alien parents as "natural-born subjects" so long as their parents weren't diplomats of other nations.
So to answer the originalist's question, a reasonable person in 1788 would've used the English common law definition, not a specific translation of de Vattel's French writing, because the reasonable person was a "natural-born subject" of the British Crown until 1783.
I don't dispute what he said, or that what he said can be interpreted as referring to "natural born citizens." However, as has been noted, a reasonable person reading the phrase "natural born citizen" would have been far more likely to interpret it in the context of the long-established British concept of "natural born subject" than they would in the context of Vattel's statement in the French. The British common-law was one of the strongest influences on the development of our own legal concepts.
As others have already observed, you are taking the subject matter and many of the quotations out of context and reversing their meaning. For example, Vattel was making the point that England had acquired the habit of claiming the children born to alien parents in England as natural born English citizens, and such a practice was contrary to previous international custom and law by denying the millenia old right of a person to expatriate and naturalize as a citizen owing allegiance to a foreign sovereign.
The brand new Republic of the United States of America chose to adopt many selected principles of law contrary to English/British precedents and consistent with international practices. The right to emigrate and naturalize was one of these legal principles, and we declared war upon the United Kingdom of great Britain in substantial part to defend the right against Britain's forceful violations of it on the High Seas by impressment of our seamen and seizure of our ships and cargoes.
When you see some judiciary and individuals claiming the United States Government continued and/or adopted English Common Law as U.S. common law, you know you are dealing with erroneous and invalid arguments. The United States Government never adopted English Common Law. The United States developed its own common law and its own statutory laws using its own reasoning of natural law and sometimes by reference to international custom, Continental law, and English law.
In fact I think it was Erie vs. Thompkins where it was stated the United States (the federal United States) has no common law.
It is a creature of the Constitution and Declaration.
The common law that exists, exists in the States.
If the founders intended to move away from the concept of "natural born subjects," why did they use a phrase that is so similar to "natural born subjects"?
When you see some judiciary and individuals claiming the United States Government continued and/or adopted English Common Law as U.S. common law, you know you are dealing with erroneous and invalid arguments. The United States Government never adopted English Common Law. The United States developed its own common law and its own statutory laws using its own reasoning of natural law and sometimes by reference to international custom, Continental law, and English law.
I don't think that anyone argues that the United States adopted English common law. Rather, the argument is that courts in the United States have often (since the early days Republic) looked to English common law on questions of Constitutional and statutory interpretation (among other issues).
That is flat out wrong. The United States and its Constitution would not even exist if that were even remotely true. The United States developed its own common-law, often in direct opposition to English common-law. The idea of the United States was emulated in the broadest outline the earlier Dutch republic.
The United States Army adopted the French style of officer's insignia in the form of the strap with insignia of rank on the shoulder. Each state adopted its own law of immigration, until the Federal government superceded them in the early 19th Century.
American jurists did not even have much effective access to the English common-law, which was squirreled away among the documents in the offices of the London courts and unpublished in America. By the time an extensive system of court reporting existed by which U.S. jurists could reference the decisions of other courts in the United States, much less Britain, the United States had already developed its own independent and unique common-law.
You want to argue that "chose to adopt many selected principles of law contrary to English/British precedents and consistent with international practices." Fine. Then why didn't the Founders define "natural-born citizen" in the Constitution? Why didn't they instead say
You can't say it's obvious that a reasonable person would've used de Vattel's definition if until 1783, all reasonable persons in the nascent United States were "natural-born subjects" of the British Crown and understood that "children born to alien parents in England [were] natural born English citizens."
"Natural-born citizen" isn't defined in the Constitution. As Chief Justice Waite noted in Minor, resort must be had "elsewhere" to find out, and Chief Justice Waite resorted to (English) common law, not de Vattel.
Blackstone's Commentaries were published in the 1760s, and was widely available in the U.S. Tucker published a version of Blackstone's Commentaries, annotated with references to the U.S. Constitution and laws, in 1803. Blackstone and Tucker's annotations of Blackstone, have been cited by hundreds of times by the Supreme Court (and tens of thousands of times by lower courts). To argue that the English common law has not been a strong influence on our own law is, frankly, preposterous.
To argue that the English common law has not been a strong influence on our own law is, frankly, preposterous.
That is part of the problem you are having. The Founding Fathers were not moving away from the concept of natural born citizens. They were moving closer to the concept of natural born citizens as it had been practiced in most Occidental societies for millenia. It was the English practice which was a more recent and aberrant example. You have to read Blackstone's Commentaries very carefully with an understanding of the prior centuries of experience.
The English monarchy made a unique change in English law by making the decree that any person born in the domain of the sovereign owed their protection and therefore their allegiance to the sovereign for the remainder of that person's lifetime without an opportunity for expatriation. Henceforth, no person could expatriate from their English citizenship and allegiance to the English sovereign no matter what else may transpire.
This new policy was exactly contrary to previous general practice in which a foreign citizen's allegiance to the domestic sovereign was only temporary, during periods of non-belligerancy while the foreign citizen and children of the foreign father were temporarily resident within the domain of the domestic sovereign. Once the decree was made that the English sovereign commanded the lifelong allegiance and no expatriation of any child born in the domains of the English sovereign, including any child of a foreign citizen father, it must follow that the end result must be that any such child will be born with English citizenship and thusly be described as a natural born English subject or citizen by virtue of the decree of such a policy.
Conversely, a sovereign who did not command the allegiance or lifelong allegiance of a child born in the sovereign's domain and whose father is a foreign citizen, owes a temporary allegiance to the domestic sovereign only while resident in that sovereign's domains during periods of peace or non-belligerancy like any other foreigner, while otherwise owing permanent allegiance to the father's sovereign or another sovereign after expatriation. Such a child is said to be a natural born citizen of the domain whose sovereign the father owes permanent allegiance at the time of the child's birth. This was the policy and practice of most nations on the Continent when Vattel wrote his Law of Nations to reflect the predominant principles in practice and philosophy. Vattel was specific in part to refute the novel English practice of depriving foreign fathers and citizens the right to command the allegiance of their children born within English domains and right of expatriation.
I don't think that anyone argues that the United States adopted English common law. Rather, the argument is that courts in the United States have often (since the early days Republic) looked to English common law on questions of Constitutional and statutory interpretation (among other issues).
That is a common misconception with respect to the Colonial Period and the Period of the Early Republic. In the Early Republic the American jurists generally did not have access to the English common-law decisions because the court reporting publications did not yet exist. The papers documenting the English court decisions were accesible only to the English jurists in the London offices where they were archived. Instead, the American jurists invented their own common-law based upon commonsense, the Chrisitan Bible, some customs brought from Britain and the Continent, and the rare instances in which a jurist happened to learn of a European court precedent. By the time that the court reporting publications made the British common-law court decisions availble to American jurists, the United States aleady had a centuries old common-law tradition of its own with many aspects starkly unique and different from those of English common-law and Continental legal codes. The reference to domestic court and foreign court decisions came much later in the late 19th Century and early 20th Century, after court reporting publications became routinely available to the jurists.
So, when Marshall cited Blackstone in Marbury v. Madison, for example, he wasn't actually talking about the English common law?
One simple question: According to Vattel, would Obama be considered a natural-born citizen of any country?
How do you know? More importantly, why does it matter? With original meaning, you need only answer, "What would a reasonable person living at the time of ratification have understood these words to mean?" Intent doesn't factor in.
Given that a reasonable person in the United States of 1788 had been a "natural-born subject" of the British Crown prior to 1783, it seems exceedingly unlikely that he would understand "natural-born citizen" based on a specific English translation of de Vattel's French writing.
It was true in England-Great Britain only because the sovereign, the King/Queen, commanded it to be so. In the domains of other states, the sovereign did not command it to be so. Consequently, a child whose father was a foreigner and was born in those domains was NOT commanded to owe allegiance at birth to the sovereign of the domain in which the birth occurred. In those domains the child was the natural born citizen of the state to whom the father owed permanent allegiance to its sovereign.
You want to argue that "chose to adopt many selected principles of law contrary to English/British precedents and consistent with international practices." Fine. Then why didn't the Founders define "natural-born citizen" in the Constitution? Why didn't they instead say
No person except a natural born Citizen, that is, born to two citizen parents, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President...
You can't say it's obvious that a reasonable person would've used de Vattel's definition if until 1783, all reasonable persons in the nascent United States were "natural-born subjects" of the British Crown and understood that "children born to alien parents in England [were] natural born English citizens." "Natural-born citizen" isn't defined in the Constitution. As Chief Justice Waite noted in Minor, resort must be had "elsewhere" to find out, and Chief Justice Waite resorted to (English) common law, not de Vattel.
On the contrary, I can do so. It was a very easily undrstood concept in that day and age, even for the people who could not read or write. People understood the concept of loyalty and allegiance, in part, because the failure to respect the demands for loyalty and allegiance resulted in catastrophic and personal consequences. It was easy to understand who was and who was not a natural born subject by simply looking to whom the child and the child's father owed allegiance at the time of the child's birth.
If the child's father owed allegiance to the King of France and/or the French Republic, and the child was born in the domains of the King or Queen of England or Great Britain, the child was regarded by England or Great Britain as a natural born English or British citizen for life without possibility of expatriation while in England or Great Britain, its other domains, or on the High Seas. The same child was regarded by France as a natural born French citizen while in the domains of France, other sates, or the High Seas.
Consequently, the competing and exclusive claims upon the natural born citizenship of the child led to unreconciled conflicts and disputes over the question of to whom the child owed allegiance. U.S. citizens had an acute understanding of these problems because of the consequences they suffered every time the sovereigns quarreled and waged war in North America and on the High Seas during the French & Indian Wars, the American Revoultionary War, the French Quasi-War, and the War of 1812.
They understood quite well that their citizenship was whatever the sovereign of the state in which they were present said their citizenship was to be. If the sovereign commanded that the child owed allegiance at birth to that sovereign and not the father's sovereign, then the child was born with allegiance to that sovereign and natural born citizenship in that soveriegn's domains. If the sovereign commanded that the child owed allegiance to the father's sovereign and not the sovereign, then the child was born with allegiance to he father's sovereign and natural born citizenship in the domains of the father's sovereign. Citizenship and natural born citizenship is whatever the sovereign commanded the child's allegiance to be.
Whenever and wherever two sovereigns dispute the allegiance owed by a child, there exists a conflict which may cause undesirable consequences for that child. It was true in the 18th Century, and it is still true in the 21st Century.
Vattel reported what was obvious and apparent to everyone. A natural born citizen is born with the allegiance of the parents and therefore the citizenship of the parents, otherwise the parents' society would cease to exist. In this way Vattel was implying the English or British practice of commanding the allegiance of the children of foreign citizens constituted the conquest and extinguishment of a society and its culture. Vattel likely had this problem in mind at the time he wrote the passage. He was likely thinking about the fate of the non-English communities in British North America and elsewhere around the world following the Treaty of Paris 1763.
Likewise, the Constitutional Convention and the Founding Fathers were conscious of the threat presented by the English-British policy of commanding the allegiance of the children of parents foreign to the English kingdom and British Empire. The natural born citizen clause in the Constitution represented just one modest part of an effort to restrain the influence and control of foreign born pretenders to the domination of political affairs in the new Republic of the United States of America. The English-British policy of commanding the allegiance of every person born in the British domains presented a threat to every non-English-British community by coopting their children's loyalties.
Vattel, 18th Century British law, 20th Century British law, and 20th Century U.S. law all concur in finding that Obama was a natural born British citizen as a consequence of his father's British citzienship and his mother's inability to confer U.S. citizenship as a consequence of being a miinor for such purposes under U.S. and international law at 18 years of age. If Obama was born within the sovereign domain of the United States, he would also qualify as a native born U.S. citizen upon reaching the age of majority and electing to renounce British-Kenyan citizenship, but he would not qualify as a natural born citizen since he was also natural born with his father's allegiance to the sovereign of Britain.
Sir Winston Churchill's mother was born an American citizen. It required a special Act of Congress to confer honorary U.S. citizenship upon him. No such Act of Congress has yet conferred honorary U.S. citizenship upon Obama because his mother was a U.S. citizen at birth.
It is super simple. Citizenship is whatever the sovereign commands the allegiance to be. Whenever two sovereigns dispute the allegiance owed to them by a person, that person may suffer terrible consequences.
Natural born citizenship is based upon the allegiance owed to a sovereign at birth. When the sovereign commands the allegiance owed at birth to be determined by the allegiance of the father, then the natural born citizenship of the newborn child is that of the father as observed by Vattel. When the sovereign commands the allegiance owed at birth to be determined by the sovereign of the domain in which the birth occurred, then the natural born citizenship of the newborn child is that of the domain to whom the child owes allegiance at birth.
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.
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