Vattel’s Law of Nations

“The Law of Nations; The Philosophy  of Natural Law”

Of Presidential Eligibility, Doubling Down and Linguistic Torts, Part 2

by Joseph DeMaio, ©2012

De Vattel’s The Law of Nations, § 212
Residing at the core of the debate is the proper interpretation of § 212 of Emmerich de Vattel’s tome The Law of Nations.  First published in 1758 in French (Page 190  – page 191, and first translated into English in 1760, that section states (in English) as follows:

§ 212. Of the citizens and natives.

“The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens.  As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights. The society is supposed to desire this, in consequence of what it owes to its own preservation; and it is presumed, as matter of course, that each citizen, on entering into society, reserves to his children the right of becoming members of it. The country of the fathers is therefore that of the children; and these become true citizens merely by their tacit consent. We shall soon see whether, on their coming to the years of discretion, they may renounce their right, and what they owe to the society in which they were born. I say, that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not his country.” (Emphasis added).

The Congressional Research Service Report (CRSR) by Maskell dismisses in toto even the potential that this provision of de Vattel’s tome had anything to do at all with the Founders’ intent in placing into the Constitution the “natural born Citizen” eligibility requirement.  The report makes much ado over the fact that, at the time of the Constitutional Convention in 1787, there was, purportedly, no French word or phrase equating with “natural born Citizen” and that therefore, the Founders, in using the term, must have meant to adopt the analogous term “natural born subject” from  the English “common law.”  The CRSR argues that the French terms “Les naturels ou indegenes” as appearing in de Vattel’s original work in French could not, at least in 1787, be accurately translated as the equivalent of “natural born Citizen.”  The problem with the CRSR analysis, however, is that it ignores the words following that phrase, and whether evaluated in French or in English.

Specifically, and without regard to what the proper translation of “naturels” or “indigenes” may be, de Vattel explains that whatever meaning one assigns to those terms, collectively they mean “… sont ceux qui sont nés dans le pays, de parens citoyens….” or, in English: “are those who are born in the country, of citizen parents.”  Stated otherwise, whether denominated a “naturel,” an “indigene,” a “natural born Citizen” or a parrot, the entity at issue – in order to match its antecedent – needed to be born in the country to parents who also were citizens.  Disputable nomenclature and labels aside, that concept is the crux of § 212, so that, whether one is called “natural born,” “indigenous” or some other term, in order to qualify as such, one needed to be born in the country where the parents were also, at the time of birth, citizens.

In addition, the CRSR ignores the seventh and final sentence of § 212, which reads in French thusly: “Je dis que pour être d’un pays, il faut être né d’un pere citoyen; car si vous y êtes né d’un étranger, ce pays sera seulement le lieu de votre naissance, sans être votre patrie.”  Translation: “I say that in order to be of the country, it is necessary to be born of a citizen father; for if [you] are born there of a foreigner, it will be only the place of your birth, without being your country.”

Later English translations have altered the colloquial “second person” language of the original (i.e., “you” and “your”) to “third person” generic (i.e., “one,” “he” and “his”), but there is no alteration of the substantive import of the seventh and final sentence: if a person is born in a country to a father who is in that country as a foreigner, and not as a citizen, then the country is only the place of the person’s birth and cannot properly be deemed to be the person’s country, since the person’s country, wherever that may be, is that of the foreign father, whether the father be Peruvian, Japanese… or Kenyan.

If § 212 were a statute (and concededly, it is not), in construing and determining the underlying intent, it would be subjected to certain rules of interpretive construction.  One such rule requires that the “statute” be read as a whole, rather than as a collection of unrelated, disassociated words, in order to glean the overall intent of the drafters.  If that principle were to be applied here – an action seemingly both “foreign” as well as “alien” to the Congressional Research Service – there could be little question that, quite apart from nuances in the definitions and/or translations of such of the terms “naturels,” “indigenes” “citoyen” and “natural born citizen,” the core content and intent to be gleaned from de Vattel in § 212 was to convey the principle that only if a person’s father were a citizen of the nation where the person was born at the time of birth could that person be deemed to be “of” that country.  Otherwise, “…ce pays sera seulement le lieu de votre naissance, sans être votre patrie: the country will be only the place of your birth, not your country.”

Finally, in dismissing de Vattel’s influence on the Founders, the CRSR frequently cites to a 1921 Yale Law Journal article, “Dual Nationality and Election,” 30 Yale Law Journal 535 (April, 1921), authored by the then-Assistant Solicitor of the U.S. Department of State, Richard W. Flournoy, Jr.  The CRSR relies heavily upon the first of the two-part article for its discussions of the differences and interrelationships between the doctrines of “jus soli” (law of the soil) and “jus sanguinis” (law of bloodline).  Mr. Flournoy also discusses, much to the pleasure of the CRSR, the circumstance that much (if not the entirety) of the “common law” of England formed the basis for principles of American law.  To this extent, the CRSR finds tangential support in the first part of Mr. Flournoy’s article.  However, oddly, the CRSR avoids any reference at all to the second part of the article, 30 Yale Law Journal 693 (May, 1921).

Specifically, at the end of Part 1, Mr. Flournoy states: “(To be concluded in May).”  While there are many additional matters discussed in the concluding “Part 2” of the article (30 Yale Law Journal 693, “Dual Nationality and Election,” May, 1921), perhaps one of the reasons the CRSR does not venture into that part of the article is because of its favorable discussion of the work of one… Emmerich de Vattel in his tome, The Law of Nations.

In particular, Mr. Flournoy addresses the issue of dual citizenship and the problems it creates and states (30 Yale Law Journal at 706): “The solution of the problem of dual nationality advocated by a number of the leading authorities on international law is simply the adoption by all countries of a single uniform rule for determining native citizenship, such rule to be based upon the principle of jus sanguinis. Vattel favored this principle, with a very important qualification. ‘By the law of nature,’ he declared [fn. 91], ‘children follow the condition of their fathers, and enter into all their rights; the place of birth produces no change in this particular, and cannot, of itself, furnish any reason for taking from a child what nature has given him; I say ‘of -itself,’ for civil or political laws may, for particular reasons, ordain otherwise. But I suppose that the father not has entirely quitted his country in order to settle elsewhere. If he has fixed his abode in a foreign country, he is become a member of another society, at least as a perpetual inhabitant; and his children will be members of it also.’”  (Emphasis added).

The footnote referenced in the Flournoy quote above (fn. 91) is to § 215 of de Vattel’s Law of Nations, which in turn articulates the same principle of § 212 of that work, that is, that the “children follow the condition of the father.”  Since elsewhere, the CRSR consistently tries to marginalize de Vattel’s work as being akin to a “philosophical treatise” rather than a serious legal work and characterizes persons who read de Vattel as “enthusiasts,” as if they were fans of a mystic, it is understandable that the CRSR would not want readers to know that one of the primary sources upon which it relies – Mr. Flournoy’s article – references and cites de Vattel favorably with regard to resolving difficult questions involving citizenship and how nations deal with these issues.

Interestingly, in the foregoing quote of de Vattel set out in the second installment of the Flournoy article (30 Yale Law Journal at 706), the 1833 Chitty translation of § 215 of de Vattel’s work, and taken from the French, is replicated.  But there appears in the Chitty translation of that quote an additional reference missing from the Flournoy quote.  The missing language takes the form of a parenthetical reference after the language “children follow the condition of their fathers….”  The reference is specifically to § 212 of de Vattel’s prior explanation of the importance of parental citizenship in distinguishing between a child born of such citizen parents – the “natural born citizen” – and a child born of alien parents, which children are “native born citizens.”

The important point to remember, however, and one ignored in the CRSR Memo, is that Mr. Flournoy in his article recognizes the efficacy of de Vattel’s teachings, unlike the approach taken by the CRSR, i.e., to dismiss and trivialize de Vattel’s work as having no bearing or relevance to the proper analysis of the question presented. But unless one reads beyond the first part of Mr. Flournoy’s article and examines the second part, one would be unaware that Mr. Flournoy speaks well of de Vattel.  One might even call him a de Vattel “enthusiast” on the points noted.

Thus, § 212 of de Vattel’s Law of Nations cannot properly be dismissed as immaterial to the analysis.  In this regard, the CRSR is plainly wrong. [deliberately wrong!]

To reiterate, the Supreme Court, through reference to Kent’s Commentaries on American Law, has recognized de Vattel as being “… the international jurist most widely cited in the first 50 years after the Revolution.” (Emphasis added).  It would thus appear that (1) James Kent and the U.S. Supreme Court deem de Vattel to be a “jurist” of high repute as opposed to a mere “philosopher” with a crowd of “enthusiasts” in tow, as suggested in the CRSR and (2) since the adoption of the Constitution took place in 1787, a mere 11 years after the “Revolution” and well within the “first 50 years after the Revolution,” it seems safe to assume that de Vattel, his teachings and the concepts emanating from those teachings may have been far more prevalent at the Philadelphia Constitutional Convention in 1787 than the CRSR would wish one to believe.

here is what Chief Justice Fuller, with Associate Justice Harlan concurring, actually stated in the dissent: “Considering the circumstances surrounding the framing of the C]onstitution, I submit that it is unreasonable to conclude that ‘natural born citizen’ applied to everybody born within the geographical tract known as the United States, irrespective of circumstances; and that the children of foreigners, happening to be born to them while passing through the country, whether of royal parentage or not, or whether of the Mongolian, Malay, or other race, were eligible to the presidency, while children of our citizens, born abroad, were not.” See Wong Kim Ark, 169 U.S. at 715.

In the Venus Case, Justice Livingston, who wrote the unanimous decision, quoted the entire §212nd paragraph from the French edition, using his own English, on p. 12 of the ruling:

Vattel, who, though not very full to this point, is more explicit and more satisfactory on it than any other whose work has fallen into my hands, says:
“The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives or indigenes are those born in the country of parents who are citizens. Society not being able to subsist and to perpetuate itself but by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights.

“The inhabitants, as distinguished from citizens, are strangers who are permitted to settle and stay in the country. Bound by their residence to the society, they are subject to the laws of the state while they reside there, and they are obliged to defend it…

Luria v. U.S., 1913
“Under our Constitution, a naturalized citizen stands on an equal footing with the native citizen in all respects save that of eligibility to the Presidency.”

Minor v. Happersett , 88 U.S. 162 (1875)

This case concerned Mrs. Happersett, an original suffragette, who in virtue of the 14th Amendment attempted to register to vote in the State of Missouri, and was refused because she was not a man.  The Chief Justice of the Supreme Court in that year, wrote the majority opinion, in which he 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.”

Puzo1 has left a new comment on the post “All That Is Wrong with Georgia State Judge Michael…”:

Dr. Conspiracy has an article attacking me at his blog entitled, “Bearding Apuzzo, accessed at Dr. Conspiracy proclaims that he has all these great attorneys on his blog who got the best of me. That sure is news to me. I am now aware of one argument that his attorneys ever won. I sure would like for him to point one out to me.

On the contrary, the only thing they keep repeating is that the English common law defines an Article II “natural born Citizen.” I have discredited this falsehood many times over.

Then they say that Minor v. Happersett was about voting and not about citizenship. Do they really say that with a straight face? That’s like saying that Dred Scott v. Sandford was about jurisdiction and not about citizenship.

They admit that Minor v. Happersett said NBC=soil + citizen parents. But they say that because the Court did not say soil does not =NBC, then soil=NBC.

They also say that the Court really said soil+citizen parents=NBC which does not rule out that soil=NBC also.
They follow up and say that Wong then came along and decided for Minor what NBC is when Minor only left open the question of what C (a Citizen) is and Wong only decided C anyway.

Then they cite Wong Kim Ark and magically take the holding which says C, and magically convert it to it saying NBC. They also hide the Court’s statement that Wong was C, not NBC.

And let us not forget their reading of the Fourteenth Amendment. Like what they do to Wong, the Amendment says C, and they say it says NBC.

Finally, regarding Article II, Section 1, Clause 5, they admit that a NBC=NBC. But they say that it is also true that any BC=NBC

They also pray to the altar of a state case that was overruled by the State legislature, i.e., Lynch v. Clarke (1844). There are so many problems with Lynch. I will mention just one. The court just invented things when it came to interpreting the early naturalization Acts. There the court said regarding the Naturalization Acts of 1790, 1795, 1802, 1804 that even though Congress didn’t say that the clause regarding the children born to aliens (who became naturalized when their parents naturalized) applied only to children born abroad, the general language chosen by Congress was over inclusive and not necessary. Hence, the court simply rewrote the statutes to suit its own purpose.

I have already said enough about Ankeny, their only other desperate hope, which dismissed plaintiff’s complaint with prejudice, but forgot to rule whether Obama was born in the United States and in fact is a “natural born Citizen.”

And all this from Dr. C’s lawyers who he says won all the arguments.

I would like to make one last point. Dr. Conspiracy says, in referring to my blog, “[t]he picture above is an Italian landmark, La Bocca della Verità (the “Mouth of Truth” in English). Apuzzo uses the image of this landmark on his blog for some reason which I have been unable to figure out.” Dr. Conspiracy questions why I use an Italian landmark on my blog, but he does not question why we have a British/Kenyan citizen by birth acting as our Commander in Chief of the Military.

“Contrary to popular opinion, voters are not the final arbiters of whether an individual is qualified to hold office. In a constitutional republic the power of the majority is limited and cannot infringe upon constitutionally protected rights of a minority,” the brief argues. “The Constitution is an anti-majoritarian document; meaning that it protects individuals from invasions and usurpations by the majority.”

Top constitutional expert Herb Titus contends that a “natural-born citizen” is born of parents who were U.S. citizens at the time of the birth. The argument also is supported by a 19th-century U.S. Supreme Court decision, Minor vs. Happersett in 1875. The case includes one of very few references in the nation’s archives that addresses the definition of “natural-born citizen.”

That case states: “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.”

An extensive analysis of the issue was conducted by Titus, who has taught constitutional law, common law and other subjects for 30 years at five different American Bar Association-approved law schools. He also was the founding dean of the College of Law at Regent University, a trial attorney and special assistant U.S. attorney in the Department of Justice.

“‘Natural born citizen’ in relation to the office of president, and whether someone is eligible, was in the Constitution from the very beginning,” he said. “Another way of putting it; there is a law of the nature of citizenship. If you are a natural born citizen, you are a citizen according to the law of nature, not according to any positive statement in a Constitution or in a statute, but because of the very nature of your birth and the very nature of nations.”

If you “go back and look at what the law of nature would be or would require … that’s precisely what a natural born citizen is …. is one who is born to a father and mother each of whom is a citizen of the U.S. or whatever other country,” he said.

One Response to Vattel’s Law of Nations

  1. icouldahad says:

    Excellent commentary. Thank you.

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