Skip to comments.Research - Vattel & the meaning of the Constitutional term "Natural Born Citizen"
Posted on 05/12/2010 12:36:53 PM PDT by rxsid
Article II, Section 1, Clause 5 from the U.S. Constitution states:
"No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty five years, and been fourteen Years a resident within the United States."
Who, or "what" constituted a natural born citizen was well known to the framers. Jay would not have made such a suggestion to the others (Washington & the rest of those in attendance at the Constitutional Convention) unless there was a clear understanding of what that term meant. The definition comes from a source that not only were the framers familiar with, but the founders (many who were both) as well. And yes, even though most could not speak French, most read French (except, notably, Washington who would defer to Jefferson when such interpretation was needed).
NBC in the Constitutional drafts:
June 18th, 1787 - Alexander Hamilton suggests that the requirement be added, as: "No person shall be eligible to the office of President of the United States unless he be now a Citizen of one of the States, or hereafter be born a Citizen of the United States." Works of Alexander Hamilton (page 407).
July 25, 1787 (~5 weeks later) - John Jay writes a letter to General Washington (president of the Constitutional Convention): "Permit me to hint, whether it would be wise and seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government; and to declare expressly that the Commander in Chief of the American army shall not be given to nor devolve on, any but a natural born Citizen." [the word born is underlined in Jay's letter which signifies the importance of allegiance from birth.] http://rs6.loc.gov/cgi-bin/query/r?ammem/hlaw:@field%28DOCID+@lit%28fr00379%29%29:
September 2nd, 1787 George Washington pens a letter to John Jay. The last line reads: "I thank you for the hints contained in your letter"
September 4th, 1787 (~6 weeks after Jay's letter and just 2 days after Washington wrote back to Jay) - The "Natural Born Citizen" requirement is now found in their drafts. Madison's notes of the Convention
The proposal passed unanimously without debate.
Original French version of Vattel's Law of Nations:
Emer de Vattel, Le droit des gens, ou Principes de la loi naturelle, vol. 1 (of 2) 
From Chapter XIX, 212 (page 248 of 592):
Title in French: "Des citoyens et naturels"
To English: "Citizens and natural"
French text (about citizens): "Les citoyens sont les membres de la societe civile : lies a cette societe par certains devoirs et soumis a son autorite, ils participent avec egalite a ses avantages."
To English: "The citizens are the members of the civil society: linked to this society by certain duties and subject to its authority, they participate with equality has its advantages."
French text (about "natural" born citizens): "Les naturels, ou indigenes, sont ceux qui sont nes dans le pays, de parens citoyens"
To English, gives this: "the natural, or indigenous, are those born in the country, parents who are citizens"
Prior to the Constitution
"This 1758 work by Swiss legal philosopher Emmerich de Vattel is of special importance to scholars of constitutional history and law, for it was read by many of the Founders of the United States of America, and informed their understanding of the principles of law which became established in the Constitution of 1787. Chitty's notes and the appended commentaries by Edward D. Ingraham, used in lectures at William and Mary College, provide a valuable perspective on Vattel's exposition from the viewpoint of American jurists who had adapted those principles to the American legal experience."
Vattel's Law of Nations, built upon "natural law - which has it's roots in ancient Greece, was influenced by Leibniz.
Even Blackstone affirmed the basis of natural law:
"This law of nature, being co-eval with mankind and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original (1979, 41). In this passage, Blackstone articulates the two claims that constitute the theoretical core of conceptual naturalism: 1) there can be no legally valid standards that conflict with the natural law; and 2) all valid laws derive what force and authority they have from the natural law."
A detailed, historical, etymology of the term "Natural Born Citizen" can be found here: http://www.greschak.com/essays/natborn/index.htm
Thomas Jefferson (for one example) had the 1758 version as well as a 1775 version in his own library:
Thomas Jefferson's Library: A Catalog with the Entries in His Own Order (under a section he titled "Ethics. Law of Nature and Nations."
In AUTOBIOGRAPHY by Thomas Jefferson, he states: "On the 1st of June 1779. I was appointed Governor of the Commonwealth and retired from the legislature. Being elected also one of the Visitors of Wm. & Mary college, a self-electing body, I effected, during my residence in Williamsburg that year, a change in the organization of that institution by abolishing the Grammar school, and the two professorships of Divinity & Oriental languages, and substituting a professorship of Law & Police, one of Anatomy Medicine and Chemistry, and one of Modern languages; and the charter confining us to six professorships, we added the law of Nature & Nations..." This was 8 years prior the the writing of the Constitution! [See the "Law of Nature & Nations" section of his personal library to get an idea of what he included in this curriculum in America's 1st law school].
Note: Vattel, is one of only 10 "footnotes" in Jefferson's Biography, from Yale.
Prior to Jay's famous letter to those in attendance at the Constitutional Convention, we see (one of many exchanges between the founders) a letter from Madison ("father" of the Constitution) to Jay:
"James Madison, as a member of the Continental Congress in 1780, drafted the instructions sent to John Jay, for negotiating a treaty with Spain, which quotes at length from The Law of Nations. Jay complained that this letter, which was probably read by the Spanish government, was not in code, and "Vattel's Law of Nations, which I found quoted in a letter from Congress, is prohibited here."
From: Life, Liberty, and The Pursuit of Happiness. How the Natural Law concept of G.W. Leibniz Inspired America's Founding Fathers.
After the Constitution
Founder and Historian David Ramsay Defines a Natural Born Citizen in 1789.
David Ramsay (April 2, 1749 to May 8, 1815) was an American physician, patriot, and historian from South Carolina and a delegate from that state to the Continental Congress in 1782-1783 and 1785-1786. He was the Acting President of the United States in Congress Assembled. He was one of the American Revolutions first major historians. A contemporary of Washington, Ramsay writes with the knowledge and insights one acquires only by being personally involved in the events of the Founding period.
Ramsay REAFFIRMS the definition a Natural Born Citizen (born in country, to citizen parents (plural)) in 1789 A Dissertation on the Manners of Acquiring the Character and Privileges of a Citizen (1789)
The Naturalization Act of 1790, which states (in relevant part) "that the children of citizens [plural] of the United States that might be born beyond the sea, or out of the limits of the United States, should be considered as natural-born citizens"
Of course, the Act of 1790 was repealed by the Act of 1795 (which did NOT attempt to define or extend the definition for NBC). What the 1st Congress had tried to do in 1790 was to EXTEND the known definition (of born in country to citizen parentS) to those born outside of sovereign territory, to citizen parentS. Of course, they can't do that. Congress (by itself) doesn't have the Constitutional authority to define (or EXTEND) the Constitutional term "Natural Born Citizen." Only a SCOTUS decision on the intent of the framers, or an amendment to the Constitution can do that.
The same definition was referenced in the dicta of many early SCOTUS cases as well...some examples:
"THE VENUS, 12 U.S. (8 Cranch) 253, 289 (1814) (Marshall, C.J. concurring) (cites Vattels definition of Natural Born Citizen)
SHANKS V. DUPONT, 28 U.S. 242, 245 (1830) (same definition without citing Vattel)
MINOR V. HAPPERSETT, 88 U.S.162,167-168 ( 1875) (same definition without citing Vattel)
EX PARTE REYNOLDS, 1879, 5 Dill., 394, 402 (same definition and cites Vattel)
UNITED STATES V WARD, 42 F.320 (C.C.S.D. Cal. 1890) (same definition and cites Vattel.)"
The New Englander, Volume 3 (1845) states: "The expression citizen of the United States occurs in the clauses prescribing qualifications for Representatives, for Senators, and for President. In the latter, the term natural born citizen is used and excludes all persons owing allegiance by birth to foreign states."
Note: the "New Englander" was NOT a student law review. The first student law review appeared 30 years later, in 1875/76 at the Albany Law School..
John Bingham, "father" of the 14th Amendment, the abolitionist congressman from Ohio who prosecuted Lincoln's assassins, REAFFIRMED the definition known to the framers by saying this:
commenting on Section 1992 said it means every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen. (Cong. Globe, 39th, 1st Sess., 1291 (1866))"
SCOTUS, in an 1887 case stated:
"Vattel in his Law of Nations, which was first printed at Neuchatel in 1758, and was translated into English and published in England in 1760" U S v. ARJONA, 120 U.S. 479 (1887)
It's interesting to note that (non binding) Senate Resolution 511, which attempted to proclaim that Sen. John McCain was a "Natural Born Citizen" because he was born to citizen parentS, even they referenced the (repealed) Naturalization Act of 1790: "Whereas such limitations would be inconsistent with the purpose and intent of the `natural born Citizen' clause of the Constitution of the United States, as evidenced by the First Congress's own statute defining the term `natural born Citizen'".
Obama, himself, was a signatory of that resolution knowing full well (no doubt) the requirement has always been about 2 citizen parents.
The point is, with the exception of the repealed Act of 1790 which tried to EXTEND the definition, the meaning of the term "Natural Born Citizen" has ALWAYS been about being born within the sovereign territory or jurisdiction of the U.S. to 2 citizen parents (& therefore parents who do NOT owe allegiance to another, foreign, country).
"Research - Vattel & the meaning of the Constitutional term "Natural Born Citizen"
"The facts were these: Francis Villato was born within the dominions of the King of Spain; he came from New Orleans to Philadelphia in the beginning of the year 1793, and, on the 11th of May following, he took and subscribed, before the Mayor of the City, the oath specified in the third section of the act of Assembly, passed on the 13th of March 1789. 2 Vol. Dall. Edit. p. 676. He afterwards went to the West Indies, entered on board a French privateer, and acted as prize-master of the American brig John of New York, which the privateer had taken, while he was on board, and procured to be libelled and condemned at Cape Francois.The United States v. Villato (Circuit Court, Pennsylvania District. April Term, 1797)
If, then, the act of assembly is in force, an alien naturalized under it, having the rights of the old, is in a situation preferable to a natural born citizen under the accumulative restraints of the new constitution."
"It has also been observed that an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains, and consequently can never be construed to violate neutral rights, or to affect neutral commerce, further than is warranted by the law of nations as understood in this country."Murray v. Schooner Charming Betsy, 6 US 64 - Supreme Court 1804 (Chief Justice Marshall)
Doesn't that contradict Vattel's definition?
Actually no, in fact it holds the Law of Nations/Nature in its purest form. That is, that citizenship is derived by heredity from the parent, not that of the soil which is the feudal definition. Natural law as laid out in the law of nations was & is the code of International law but not all countries held fast to it as they do today. Even merry ole England has now dropped their feudal form and changed their laws to state that children born to aliens are not English citizens at birth.
However, during the revolution, it was England's feudal definition that had to be contended with. American citizens who traveled to England and other countries that still practiced feudal citizenship were subject to having foreign citizenship forced upon their children born there. Those children were registered and during the war of 1812, the Brits would board ships and any male found to have been born in England, regardless of parentage was taken and forced into the British Army. But is wasn't always that way. When England was founded, it was the citizenship laws of nature/nations that was originally founded and that is the ancient laws the founders spoke of and the laws they put in place for the new country.
I'm talking about the specific quote from Law of Nations, which is tossed around here a lot, which says a natural-born citizen is "those born in the country, of parents who are citizens."
It seems to me that the first Congress contradicted this definition when they said someone born outside the country could be a NBC.
I got it, sorry, I confused the issue. You are correct, the 1790 wording did contradict that and it was repealed in 1795. In Madison’s papers, he goes into how the 1790 Act was too lax and thus it was changed in 1795.
Yes, of "natural born citizen" at least, except in the case of children born to military or diplomats serving the nation, but outside of it. It may have been an attempt to extend just plain old citizenship to such persons, and later they realized they had overstepped in trying to define a Constitutional term. In fact in 1795 they dropped the "Natural Born" language when they repealed the 1790 and replaced it. The language is thus no longer in effect and has never appeared again in the statutes. The relevant part of 1795 Naturalization act follows.
(It's in Section 3, on the next page.)
...; and the children of citizens of the United States, born out of the limits and juridiction of the United States, shall be considered as citizens of the United States: Provided, Theat the right of citizenship shall not descent to persons whose fathers have never been resident in the United States.
Vattell however would have such persons be born citizens:
It is asked whether the children born of citizens in a foreign country are citizens? The laws have decided this question in several countries, and their regulations must be followed. By the law of nature alone, children follow the condition of their fathers, and enter into all their rights (§ 212); 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 has not 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.
Of course BHO Sr, did no such thing, He did not "quit his country", but rather returned to it after completing his educatoinal sojurn in the US.
“It is an established maxim that birth is a criterion of allegiance. Birth however derives its force sometimes from place and sometimes from parentage, but in general place is the most certain criterion; it is what applies in the United States; it will therefore be unnecessary to investigate any other.”—Document 6, James Madison, House of Representatives; 22 May 1789
Justice Story, concurring opinion, “Inglis v. Sailors Snug Harbor,” 3 Pet. 99, 155,164. (1830)
The 5th section of the 2d article provides, that no person except a natural born citizen, shall become president. A plain acknowledgment, that a man may become a citizen by birth, and that he may be born such.
a trade agreement between the US and France, with the agreement shown in both English and French. Within it, "naturels" is translated as "natural born". In this case refering to subjects/sujets.
ARTICLE III Les consuls et vice consuls respectifs ne pourront être pris que parmi les sujets naturels de la puissance qui les nommera.
And in English
The respective Consuls and Vice Consuls shall only be taken from among the natural born subjects of the power nominating them.
And there you have it. Naturels was understood as "Natural Born". Thus the later translation better reflects what the founders, many of whom were quite literate in French, would have understood.
Les citoyens sont les membres de la societe civile : lies a cette societe par certains devoirs et soumis a son autorite, ils participent avec egalite a ses avantages. Les naturels, ou indigenes, sont ceux qui sont nes dans le pays, de parens citoyens. becomes in English, as understood by the founding generation(s)(Franklin was much older than most, but was one of the francophones):
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.
We also know that the founders had access to several copies of "Law of Nations" in French. We do not know if the delegates had a copy in English. We do know that Jay was a French speaker as well (in fact his paternal grandfather was from France). I can't find the referance now, but I recall that he had more than one edition of "Law of Nations", in French.
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