Research - Vattel & the meaning of the Constitutional term "Natural Born Citizen"

http://www.loc.gov/index.html ^ | 5/12/2010 | many

[DiogenesLamp]

I happened to run across this interesting piece of commentary.

In the first seventy-five years of our independence, many Americans – lawyers included – attacked the common law and advocated strongly for codification of all American law, in part, for the better security of citizens from arbitrary rule by judges. The common law was denounced as a barbaric, feudalistic relic of medieval England that imposed ex post facto, retroactive law on parties whenever judges found a new tort or new common law crime.50 Jefferson wrote in a private letter in 1788 that courts in America should be forbidden to cite any English decision since the accession of Lord Mansfield to the bench (in 1756),51 and in a private letter in 1812 that it was improper to quote in American courts any English authorities later than the accession of George III (in 1760).52 During the early codification movement three states – New Jersey in 1799,53 Kentucky in 1808,54 and Pennsylvania in 1810, 55 passed statutes specifically forbidding citation of English cases decided after July 4, 1776. The statutes did not last long in force, and there is some evidence that they were not enforced.56 In New Hampshire, a rule of court was adopted forbidding English citations.57

But all of this was Anglophobia, not xenophobia. Proponents of American codification pointed with admiration and envy to the success of France’s Code Napoléon, parts of which were translated almost immediately in America’s first law journal, and other codes of law.58 Pennsylvania’s statute expressly approved the citation of post-1776 British precedent about the law of nations.

Kinda gives a little more background on this.

Pennsylvania Legislature Act of March 19, 1810

§ 1503. Applicability of colonial law.

(a) English law.--The common law and such of the statutes of England as were in force in the Province of Pennsylvania on May 14, 1776 and which were properly adapted to the circumstances of the inhabitants of this Commonwealth shall be deemed to have been in force in this Commonwealth from and after February 10, 1777.

(b) Provincial statutes.--The statutes enacted on or before May 14, 1776 under the authority of the late Proprietaries of the Province of Pennsylvania have the same validity and effect as statutes enacted under the authority of this Commonwealth.

(c) Exceptions.--The rules specified in subsections (a) and (b) of this section shall not be applicable to any statute or law which:

(1) has been heretofore or is hereafter amended or repealed or which has expired by its own limitation;

(2) orders the taking or subscribing any oath, affirmation or declaration of allegiance or fidelity to the British crown;

(3) acknowledges any authority in the heirs or devisees of William Penn, Esq., deceased, the former Governor of the Province of Pennsylvania, or any other person whomsoever as Governor of the Province of Pennsylvania; or

(4) is repugnant to the Constitution of this Commonwealth or of the United States.

Sort of ties it together neatly.

[DiogenesLamp]

Alexander Smythe, House Floor, 1820.

Topic very much related to my argument regarding Rawle.

Link:

[DiogenesLamp]

From Wednesday June 27, 1787 Madison Debates on the US Constitution:

Mr L. Martin speaking:

In order to prove that individuals in a State of nature are equally free & independent he read passages from Locke, Vattel, Lord Summers- Priestly. To prove that the case is the same with States till they surrender their equal sovereignty, he read other passages in Locke & Vattel, and also Rutherford: that the States being equal cannot treat or confederate so as to give up an equality of votes without giving up their liberty: that the propositions on the table were a system of slavery for IO States: that as Va. Masts. & Pa.

Looked up Rutherford. Turns out to be Samuel Rutherford (and for whom the Rutherford institute is named.) He writes about Natural law. I'll point out something he wrote in the next post.

[DiogenesLamp]

— 1. There is a subjection in respect of natural being, as the effect to the cause; so, though Adam had never sinned, this morality of the fifth command should have stood in vigour, that the son by nature, without any positive law, should have been subject to the father, because from him he hath his being, as from a second cause.

Arg. 2. — Man is born by nature free from all subjection, except of that which is most kindly and natural, and that is fatherly or filial subjection, or matrimonial subjection of the wife to the husband; and especially he is free of subjection to a prince by nature; because to be under jurisdiction to a judge or king, hath a sort of jurisdiction, (argument, L. Si quis sit fugitivus. F. de edil. edict. in S. penult. vel fin.) especially to be under penal laws now in the state of sin. The learned senator Ferdinandus Vasquez saith, (lib. 2. c. 82. n. 15,) Every subject is to lay down his life for the prince. Now no man is born under subjection to penal laws or dying for his prince.

Arg. 7. — What is from the womb, and so natural, is eternal, and agreeth to all societies of men; but a monarchy agreeth not to all societies of men; for many hundred years; de facto, there was not a king till Nimrod's time, the world being governed by families, and till Moses' time we find no institution for kings, (Gen. vii.) and the numerous multiplication of mankind did occasion monarchies, otherwise, fatherly government being the first and measure of the rest, must be the best; for it is better that my father govern me, than that a stranger govern me, and, therefore, the Lord forbade his people to set a stranger over themselves to be their king. The P. Prelate contendeth for the contrary, (c. 12, p. 125,) "Every man (saith he) is born subject to his father, of whom immediately he hath his existence in nature; and if his father be the subject of another, he is born the subject of his father's superior." —

Pretty heavy on the Jus Sanguinus argument being "Natural law."

Link:

[DiogenesLamp]

4. Fatherly government and power is from the bosom and marrow of that fountain law of nature; but royal power is not from the law of nature, more than is aristocratical or democratical power. Dr. Fern saith, (part 1, sec. 3, p. 8,) Monarchy is not jure divino, (I am not of his mind,) nor yet from the law of nature, but ductu natura, by the guidance of nature. Sure it is from a supervenient commandment of God, added to the first law of nature, establishing fatherly power. 5. Children having their life and first breathings of nature from their parents, must be in a more entire relation from their father than from their prince. Subjects have not their being natural, but their civil, politic and peaceable well-being from their prince. 6. A father is a father by generation, and giving the being of nature to children, and is a natural head and root, without the free consent and suffrages of his children, and is essentially a father to one child, as Adam was to one Cain; but a prince is a prince by the free suffrages of a community, and cannot be a king to one only, and he is the politic head of a civil corporation.

link

[MamaTexan]

Great find. The Founders were well versed in the concept of Natural Law, and for Vattel to be a non-issue 9acording to some people) they sure mentioned him a lot! LOL!

The opening line from the source in particular caught my eye:

Mr. L. MARTIN contended at great length and with great eagerness that the General Govt. was meant merely to preserve the State Governts.: not to govern individuals:

I new it sounded familiar, and sure enough:

Having given you this general idea and description of the law of nations; need I expatiate on its dignity and importance? The law of nations is the law of sovereigns. In free states, such as ours, the sovereign or supreme power resides in the people. In free states, therefore, such as ours, the law of nations is the law of the people.
Let us again beware of being misled by an ambiguity, sometimes, such is the structure of language, unavoidable. When I say that, in free states, the law of nations is the law of the people; I mean not that it is a law made by the people, or by virtue of their delegated authority; as, in free states, all municipal laws are. But when I say that, in free states, the law of nations is the law of the people; I mean that, as the law of nature, in other words, as the will of nature's God, it is indispensably binding upon the people, in whom the sovereign power resides; and who are, consequently, under the most sacred obligations to exercise that power, or to delegate it to such as will exercise it, in a manner agreeable to those rules and maxims, which the law of nature prescribes to every state, for the happiness of each, and for the happiness of all.
Of the Law of Nations, James Wilson, Lectures on Law

-------

Sorry about what probably appeared to be a FReepmail unrelated to your post. I swear that link went to a different place entirely the first time.

:-)

[DiogenesLamp]

I new it sounded familiar, and sure enough:

I've noticed quite a lot that the writers on natural law all tend to sound similar. I think it is because their reasoning always grows from the same root. Good find regarding James Wilson, by the way.

Sorry about what probably appeared to be a FReepmail unrelated to your post. I swear that link went to a different place entirely the first time.

Yes, that was very confusing. I hadn't mentioned slavery at all in my message, so I thought I had given you the wrong link or something.

It would appear to me that Rutherford and Vattel were in pretty close agreement about the Father's role in natural law. I'm probably going to look through Locke for some similar supporting commentary.

[DiogenesLamp]

From :"New Englander and Yale Review, Volume 3". 1845.

Link:

"In the latter, the term "natural born citizen" is used, and excludes all persons owing allegiance by birth to foreign states: in the other cases, the word "citizen" is used without the adjective, and excludes persons owing allegiance to foreign states, unless naturalized under our laws." Also "Vattel" mentioned specifically.

[Ray76]

FYI

http://commdocs.house.gov/committees/judiciary/hju67306.000/hju67306_0.HTM

[DiogenesLamp]

Link:

[DiogenesLamp]

From Thomas Jefferson:

Th: Jefferson.

LETTER CLXVII.—TO JOHN JAY, November 14, 1788

TO JOHN JAY.

Paris, November 14, 1788.

With respect to the consular appointments, it is a duty on me to add some observations, which my situation here has enabled me to make. I think it was in the spring of 1784, that Congress (harassed by multiplied applications from foreigners, of whom nothing was known but on their own information, or on that of others as unknown as themselves) came to a resolution, that the interest of America would not permit the naming any person not a citizen, to the office of consul, vice-consul, agent, or commissary. This was intended as a general answer to that swarm of foreign pretenders. It appears to me, that it will be best, still to preserve a part of this regulation. Native citizens, on several valuable accounts, are preferable to aliens, and to citizens alien-born.

http://www.gutenberg.org/files/16782/16782-h/16782-h.htm

[DiogenesLamp]

Slaughterhouse Cases

The first observation we have to make on this clause is that it puts at rest both the questions which we stated to have been the subject of differences of opinion. It declares that persons may be citizens of the United States without regard to their citizenship of a particular State, and it overturns the Dred Scott decision by making all persons born within the United States and subject to its jurisdiction citizens of the United States. That its main purpose was to establish the citizenship of the negro can admit of no doubt. The phrase, "subject to its jurisdiction" was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.

It was contended that the statute in this particular was in conflict with that clause of the Constitution which declares that "the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States." But the court answered, that corporations were not citizens within the meaning of this clause; that the term citizens as there used applied only to natural persons, members of the body politic owing allegiance to the State, not to artificial persons created by the legislature and possessing only the attributes which the legislature had prescribed;

http://www.law.cornell.edu/supremecourt/text/83/36#writing-USSC_CR_0083_0036_ZO

[DiogenesLamp]

Between alien friends, who are temporary subjects, and subjects naturalized or natural born, a species of subjects intermediate is known to the law of England. They are distinguished by the appellation of denizens. The power of denization is a high and incommunicable portion of the prerogative royal. A denizen is received into the nation, like a person who is dropt from the clouds. He may acquire rights, but he cannot inherit them, not even from his own parent: he may transmit rights to his children, who are born after his letters patent of denization; but not to those who were born before.

James Wilson , Collected Works, vol. 2, Lectures on Law http://www.freerepublic.com/focus/f-news/3166623/posts?page=42#42

[rxsid]

Notes of a course of lectures on Vattel's Law of Nations from the University of Virginia

http://babel.hathitrust.org/cgi/pt?id=uva.x000883938;view=2up;seq=54;skin=mobile

Click the side of the pages to go backward or forward.

[DiogenesLamp]

Thanks to Mamma Texan for pointing this out. Justice Joseph Story, whom the Obot Trolls have constantly cited as being on their side, Stated Clearly that a person can be born in the United States, yet NOT be an American citizen.

Justice Joseph Story:

With these principles in view, let us now come to the consideration of the question of alienage in the present case. That the father and mother of the demandant were British born subjects is admitted. If he was born before 4 July, 1776, it is as clear that he was born a British subject. If he was born after 4 July, 1776, and before 15 September, 1776, he was born an American citizen, whether his parents were at the time of his birth British subjects or American citizens. Nothing is better settled at the common law than the doctrine that the children even of aliens born in a country while the parents are resident there under the protection of the government and owing a temporary allegiance thereto are subjects by birth. If he was born after 15 September, 1776, and his parents did not elect to become members of the State of New York, but adhered to their native allegiance at the time of his birth,then he was born a British subject. If he was in either way born a British subject, then he is to be deemed an alien and incapable to take the land in controversy by descent unless he had become at the time of the descent cast an American citizen by some act sufficient in point of law to work such a change of allegiance.

Inglis v. Trustees of Sailor's Snug Harbor 28 U.S. 99 (1830)

[Ray76]

A popular claim of late is that “natural born citizen” and “citizen of the United States at birth” are synonymous. This is easily refuted.

Naturalization statutes can and do grant citizenship at birth. See, for example, Pub.L. 82–414 § 301(a)(7); 66 Stat. 236. (available at http://constitution.org/uslaw/sal/066_statutes_at_large.pdf ).

There is no question that this statute naturalizes since the citizenship granted is temporary and provisional, for a child who acquires citizenship by § 301(a)(7) to retain citizenship the child must meet the requirements of § 301(b).

A natural born citizen does not need to take affirmative actions to retain citizenship.

This demonstrates that a “citizen of the United States at birth” can be a naturalized citizen, hence “citizen of the United States at birth” and “natural born citizen” are not synonymous.

The Supreme Court in U.S. v. Wong Kim Ark is quite clear on this point: statutes “conferring citizenship upon foreign-born children of citizens” is naturalization.

Some who the claim that “natural born citizen” and “citizen of the United States at birth” are synonymous then bootstrap that to claim that the 14th Amendment made natural born citizens, even though the term is never used in the Amendment.

Lies upon lies.

[DiogenesLamp]

A natural born citizen does not need to take affirmative actions to retain citizenship.

Have pointed this out till i'm blue in the face. It simply doesn't register.

They cannot grasp the concept that conditional citizenship isn't natural citizenship.

[okie01]

A natural born citizen does not need to take affirmative actions to retain citizenship.

"Have pointed this out till i'm blue in the face. It simply doesn't register."

And Ted Cruz did not need to take any action to maintain his citizenship, conferred at birth by his mother.

Case closed.

[DiogenesLamp]

Let us not discuss any eligibility challenges to Ted Cruz. The Liberals will do that as soon as they get a chance. Let's not help them.

As far as I'm concerned, He would make a great President.

[Ray76]

I’m not discussing any individual. I did not post in a thread about any individual. So GET LOST.