The framers rejected the notion that the United States was under English Common Law, “The common law of England is not the common law of these States.” —George Mason one of Virginia’s delegates to the Constitutional Convention.
Blackstone states that any person, freeman or alien, except those of diplomats who were born in the realm of the King of England was a natural born subject. There is a problem with a simple substitution of citizen in place of subject, that some people think are synonymous. In England, not all natural born subjects of the Crown can become the King. This is reserved for a very small subset of natural born subjects called the royalty. This is drastically dissimilar to the American concept that any Natural Born Citizen can become President. Under Blackstone’s subjects only a very, very small subset of Natural Born Subjects could rise to be King, the American Presidency is drawn from the largest class of citizens, the natural born. Like the analogy of a field of clover, the Founding Fathers were not looking for that elusive genetic mutation of a four-leaf clover, they were looking for the common, naturally occurring three-leaf clover to be President.
The use of Blackstone's definition of 'natural born subject' gave Great Britain claim over US Citizens, which lead to the war of 1812, when Britain went about impressing American sailors into their navy because English law did not recognize the right of our Founding Father’s naturalizing themselves into our new country. “Once an Englishman, always an Englishman,” was the reason the British used to impress our citizens into service for the Crown. This law and concept of claim to the subjects to the Crown, regardless of place of birth is still in effect in Great Britain, and had the effect of Congress passing a law that required all the officers and three fourths of the seamen on a ship of the United States be natural born citizens. (Journal of the House of Representatives of the United States, February 9, 1813) Further, the Crown passed a law that made it treason for former British subjects, even though they were now American citizens to participate on the side of America during the war of 1812. (Journal of the Senate of the United States of America, February 23, 1813.) If the Founding Fathers accepted Blackstone’s definition of a natural born subject, then impressments of American-British citizens into the Royal Navy would not have been a casus belli, for the War of 1812. The fact that Madison included the impressments of American Citizens as a reason for a state of War clearly indicates that they rejected Blackstone’s definition of a natural-born subject.
John Jay’s letter to Washington address this dual and permanent loyalty to England that Blackstone introduces. To George Washington, President of the Constitutional Convention, Jay writes “Permit me to hint whether it would not 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 command in chief of the American army shall not be given to, nor devolve on any but a natural born citizen.” Jay not only knew of Vattel, , as can be seen from his correspondence with James Madison in 1780 during treaty negotiations with Spain, but he was also a proponent of Vattel as well.
Founder historian, David Ramsay, who in his A Dissertation on the Manners of Acquiring the Character and Privileges of a Citizen (1789) told us that after July 4, 1776, birthright citizenship was preserved only for a child born to U.S. citizens, making no mention of place of birth. In his 1789 article, Ramsay first explained who the “original citizens” were and then defined the “natural born citizens” as the children born to citizen parents. He said concerning the children born after the declaration of independence, “[c]itizenship is the inheritance of the children of those who have taken part in the late revolution; but this is confined exclusively to the children of those who were themselves citizens….” Id. at 6. He added that “citizenship by inheritance belongs to none but the children of those Americans, who, having survived the declaration of independence, acquired that adventitious character in their own right, and transmitted it to their offspring….” Id. at 7. He continued that citizenship “as a natural right, belongs to none but those who have been born of citizens since the 4th of July, 1776….” Id. at 6. As we can see, Ramsay put forth a definition of a “natural born Citizen” that only depended upon the child being born to U.S. citizen parents with no mention of place of birth.
Inglis v. Sailors’ Snug Harbor, 28 U.S. 99, 3 Pet. 99, 7 L.Ed. 617 (1830) (the majority, which included Chief Justice John Marshall, cited Vattel on the right of election to change one’s allegiance and thus citizenship in the context of the new nation being formed after revolution. The Court found on principles consistent with Vattel’s jus sanguinis and not on the English common law rule of jus soli, that simply being born in New York, after July 4, 1776 and before September 15, 1776, when the British took possession of New York, was not sufficient to establish one’s status as an American citizen, for a child of minor years is incapacitated from making any citizenship election but rather followed the citizenship held or chosen by the father. On the contrary, relying upon principles of the English common law, Justice Johnson and Justice Story, who wrote separate minority concurring opinions, would have found the child born in New York during the same time period a citizen of the State of New York or American citizen, respectively, regardless of the citizenship of his parents. Id. 136 and 164. This case shows what the majority rule was on citizenship and that it followed the Vattelian doctrine that a child when born took on the national character of his or her father (meaning father and mother under the doctrine of merger of the wife’s citizenship into the husband) and did not acquire his or her citizenship from the territory in which he or she was born); Dred Scott v. Sandford, 60 U.S. 393 (1857) (Justice Daniels concurring cited Vattel and The Law of Nations and provided his definition of natural born citizens and took out of Vattel’s definition the reference to “fathers” and “father” and replaced it with “parents” and “person,” respectively, and stated: “'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 society cannot perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their parents, and succeed to all their rights.' Again: 'I say, to be of the country, it is necessary to be born of a person who is a citizen; for if he be born there of a foreigner, it will be only the place of his birth, and not his country. . . .'”);
Perkins v. Elg, 307 U.S. 325 (1939) (confirmed that a child born in the United States to a naturalized U.S. citizen father and naturalized citizen mother, the mother being derivatively naturalized by marrying a U.S. citizen, was a “natural born Citizen.”
On Vattel: The correct title of Vattel's Book I, Chapter 19, section 212, is “Of the citizens and naturals”. It is not “Of citizens and natives” as it was originally translated into English. While other translation errors were corrected in reprints, that 1759 translation error was never corrected in reprints. The error was made by translators in London operating under English law, and was mis-translated in error, or was possibly translated to suit their needs to convey a different meaning to Vattel to the English only reader. In French, as a noun, native is rendered as “originaire” or “indigene”, not as “naturel”. For “naturel” to mean native would need to be used as an adjective. In fact when Vattel defines "natural born citizens" in the second sentence of section 212 after defining general or ordinary citizens in the first sentence, you see that he uses the word "indigenes" for natives along with "Les naturels" in that sentence. He used the word "naturels" to emphasize clearly who he was defining as those who were born in the country of two citizens of the country. Also, when we read Vattel, we must understand that Vattel's use of the word "natives" in 1758 is not to be read with modern day various alternative usages of that word. You must read it in the full context of sentence 2 of section 212 to fully understand what Vattel was defining from natural law, i.e., natural born citizenship of a country. Please see the photograph of the original French for Chapter 19, Section 212, here in the original French if you have any doubts (I speak French and Russian, by the way.) Please do not simply look at the title as some have suggested that is all you need to do. Vattel makes it quite clear he is not speaking of natives in this context as someone simply born in a country, but of natural born citizens, those born in the country of two citizens of the country. Our founding Fathers were men of high intellectual abilities, many were conversant in French, the diplomatic language of that time period. Benjamin Franklin had ordered 3 copies of the French Edition of “Le droit des gens,” which the deferred to as the authoritative version as to what Vattel wrote and what Vattel meant and intended to elucidate.".
The person who translated “les naturels, ou indigenes” into late 18th-century English as "natural born citizens," in full knowledge that that phrase was used in Article II of the new Constitution, can only mean that the translator's expert opinion was that that was what those words meant in context. The translator chose that phrase precisely because, in his professional opinion, de Vattel's "les naturel, ou indigenes" meant the same as what the Framers meant by "natural born Citizen." And de Vattel's usage of "ou" (or) to connect "les naturels" with "indigenes" by logical conjunction indicates he meant those terms to be understood as synonyms, at least as he was using them.
We are not under common law, but common law provided the legal language. NBC = NBS, and the meaning of NBS was found in the common law.
When the USA became independent, every NBS automatically became a NBC, because the terms are equivalent. As the Supreme Court agreed, citing The Supreme Court of North Carolina:
“Before our Revolution, all free persons born within the dominions of the King of Great Britain, whatever their color or complexion, were native-born British subjects; those born out of his allegiance were aliens. . . . Upon the Revolution, no other change took place in the law of North Carolina than was consequent upon the transition from a colony dependent on an European King to a free and sovereign [p664] State; . . . British subjects in North Carolina became North Carolina freemen; . . . and all free persons born within the State are born citizens of the State. . . . The term “citizen,” as understood in our law, is precisely analogous to the term “subject” in the common law, and the change of phrase has entirely resulted from the change of government. The sovereignty has been transferred from one man to the collective body of the people, and he who before as a “subject of the king” is now “a citizen of the State.”
The French phrase for NBC/NBS is “sujets naturel”, as can be found in legal documents of the time. Vattel never used the phrase.
The passage you birthers cite was admittedly not about England - which the US was a part of at the time - and indigene does NOT translate NBC.
Further, that bad translation was not made until 10 years AFTER the Constitution, so the error could not have inspired the Founders.
What was the source? A common legal term, found in the laws of the ratifying states, or the French word “indigene”? It takes a remarkably dishonest person to reply, “Indigene!”
