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The Conflict of Law – USA/England v Europe

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Vattel Emer de (1714 – 1767)

COMMENT: I believe you are wrong about the meaning of natural born citizen in you blog Does it Matter If You Are Born Outside USA to be President? You are a natural born citizen only if BOTH parents are citizens.

REPLY: The site you refer to notes the definition which comes from Emer de Vattel (1714 – 1767) who was a Swiss philosopher, diplomat. Those who were trying to make arguments against Obama were relying upon Vattel because it suited their desired result. Vattel’s definition was in his 1758 “the Law of Nations”:

Book I, Chapter 19, section 212, is “Of the citizens and naturals”

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.


This is all fine and good. However, there is a conflict of law between the English “Common Law” and the law of Continental Europe. This is taught in the very first semester of law.  Emer de Vattel was NOT any real influence in establishing the US Constitution. That distinction goes to William Blackstone (1723-1780).  Blackstone wrote the Commentaries On The Laws Of England. This is what the framers of the Constitution relied upon for here is the interpretation that the Supreme Court will turn to – Blackstone not Vattel.

Commentaries 1:354, 357–58, 361–62.

When I say, that an alien is one who is born out of the king’s dominions, or allegiance, this also must be understood with some restrictions. The common law indeed stood absolutely so; with only a very few exceptions: so that a particular act of parliament became necessary after the restoration, for the naturalization of children of his majesty’s English subjects, born in foreign countries during the late troubles. And this maxim of the law proceeded upon a general principle, that every man owes natural allegiance where he is born, and cannot owe two such allegiances, or serve two masters, at once. Yet the children of the king’s ambassadors born abroad were always held to be natural subjects: for as the father, though in a foreign country, owes not even a local allegiance to the prince to whom he is sent; so, with regard to the son also, he was held (by a kind of postliminium) to be born under the king of England’s allegiance, represented by his father, the ambassador. To encourage also foreign commerce, it was enacted by statute 25 Edw. III. st. 2. that all children born abroad, provided both their parents were at the time of the birth in allegiance to the king, and the mother had passed the seas by her husband’s consent, might inherit as if born in England: and accordingly it hath been so adjudged in behalf of merchants. But by several more modern statutes these restrictions are still farther taken off: so that all children, born out of the king’s ligeance, whose fathers were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes, without any exception; unless their said fathers were attainted, or banished beyond sea, for high treason; or were then in the service of a prince at enmity with Great Britain.

The children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such. In which the constitution of France differs from ours; for there, by their jus albinatus, if a child be born of foreign parents, it is an alien.

Those who relied upon Vattel to support their argument that Obama was not a natural born citizen simply were looking for someone to agree with them. Then McCain would not qualify either or anyone born to an ambassador while posted overseas or a child of someone in the military stationed overseas. Even in the tax code, Canadians with one single American parent born in Canada were all being sent notices from the IRS that they owed taxes in Washington because they were citizens. I had a friend in Switzerland who married an American girl and they had a son. When he was 13, they took him to the bank to open his first account. The bank refused to allow the child to open an account because he was an American and they would have to report under FATCA to the USA everything he did.

The definition is clearly different from that of Continental Europe. You could have applied for an EU passport even as an American if your grandfather was born in Europe. If your grandmother was born there instead of your grandfather, you were not eligible. The right to citizenship only followed the male line – not the mother.

There is a huge conflict of laws between USA/UK and that of European which is based upon Canon Law from the Catholic Church. Under the Common Law (USA/UK), the only privilege is that a wife cannot testify against her husband. They can force your children to testify against you. Under Continental Law, nobody in your family can testify against you even a brother or sister-in-law – NOBODY. There are those who argue it is time to change that as well.