Emer de Vattel, Adolf Hitler, America’s Youth, and the Natural Born Citizen Clause
Mario Apuzzo, Esq.
December 11, 2011
I read with interest the story published on December 10, 2011 at WND entitled, “4th-graders brainwashed with Occupy 'propaganda'-Student's dad complains to Scholastic News publisher." The 4th grade child’s father, who I will call “father Edward,” complained to Scholastic because in his view the publisher only provided one side of the “Occupy Wall Street” debate, only putting forth the view that those who are protesting are innocent victims of American society’s oppression but not reporting the conduct of those protesters and who is politically behind those protesters. Read more: 4th-graders brainwashed with Occupy 'propaganda'
http://www.wnd.com/?pageId=376177#ixzz1gFmocVmk. One probably would then say why would I write about that and how does the title to his article really all stay together. Well, let us take a look at how such events are really part of a much bigger picture and why I used the title that I did.
Emer de Vattel, gave us a time-honored definition of a “natural born Citizen” which the Founders and Framers used when drafting the Constitution. That definition is a child “born in the country, of parents who are citizens.” Emer de Vattel, The Law of Nations, Section 212-231 (London 1797) (1st ed. Neuchatel 1758). Accepting natural law and the law of nations of which Vattel wrote and reported, the Founders and Framers gave the critical task of being President and Commander in Chief only to future “natural born Citizens.” These were to be the children born in the United States to parents who were born or naturalized Citizens of the United States.
This natural law and law of nations definition has been adopted as part of American common law as confirmed by the following decision of our United States Supreme Court and lower courts:
(1) The Venus, 12 U.S. (8 Cranch) 253, 289 (1814): Chief Justice John Marshall, concurring and dissenting for other reasons, cites Vattel and provides his definition of natural born citizens and said: “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.’”
(2) Inglis v. Sailors’ Snug Harbor, 28 U.S. 99, 3 Pet. 99, 7 L.Ed. 617 (1830): The majority 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, 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.
(3) Shanks v. Dupont, 28 U.S. 242, 245 (1830): same Vattelian definition without citing Vattel, stated: “If she was not of age, then she might well be deemed under the circumstances of this case to hold the citizenship of her father, for children born in a country, continuing while under age in the family of the father, partake of his national character as a citizen of that country.”
(4) Dred Scott v. Sandford, 60 U.S. 393 (1857): Justice Daniel concurring cites Vattel and The Law of Nations and provides his definition of natural born citizens and takes out of Vattel’s definition the reference to “fathers” and “father” and replaced it with “parents” and “person,” respectively, 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. . . .”
(5) Minor v. Happersett, 88 U.S. 162, 167-68 (1875): Even though the Fourteenth Amendment had already been passed, Minor did not rely upon that amendment to define either a “natural born Citizen” or a “citizen.” Rather, it applied the American “common-law” definition of those terms. Providing Vattel’s law of nations definition of a “natural-born citizen,” but without citing Vattel, and not in any way referring to the English common law, it laid down the definition of a “natural-born citizen” as follows:
“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. As to this class there have been doubts, but never as to the first. For the purposes of this case, it is not necessary to solve these doubts. It is sufficient, for everything we have now to consider, that all children, born of citizen parents within the jurisdiction, are themselves citizens.” Id., at 167-68.
(6) Ex parte Reynolds, 20 F.Cas. 582, 5 Dill. 394, No. 11,719 (C.C.W.D.Ark 1879): same Vattelian definition and cites Vattel, said: “[T]he offspring of free persons…follows the condition of the father, and the rule partus sequitur patrem prevails in determining their status. 1 Bouv. Inst., 198, § 502; 31 Barb. 486; 2 Bouv. Law Dict. 147; Shanks v. Dupont, 3 Pet. [28 U.S.] 242. This is the universal maxim of the common law with regard to freemen -- as old as the common law, or even as the Roman civil law… No other rules than the ones above enumerated ever did prevail in this or any other civilized country. In the case of Ludlam v. Ludlam, 31 Barb. 486, the court says: ‘The universal maxim of the common law being partus sequitur patrem, it is sufficient for the application of this doctrine that the father should be a subject lawfully, and without breach of his allegiance beyond sea, no matter what may be the condition of the mother.’ The law of nations, which becomes, when applicable to an existing condition of affairs in a country, a part of the common law of that country, declares the same rule. Vattel, in his Law of Nations (page 101), says: ‘As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, these children naturally follow the condition of their fathers and succeed to their rights. * * * The country of the father is, therefore, that of the children, and these become true citizens merely by their tacit consent.’ Again, on page 102, Vattel says: ‘By the law of nature alone, children follow the condition of their fathers and enter into all their rights.’ This law of nature, as far as it has become a part of the common law, in the absence of any positive enactment on the subject, must be the rule in this case.”
(7) Ludlam v. Ludlam, 26 N.Y. 356 (1883): In this case, it appeared that Richard L. Ludlam, a citizen of the United States domiciled in New York, went at the age of eighteen to Peru for business purposes, but took no steps toward naturalization in Peru, or toward a permanent change of domicil. He remained in Peru fourteen years and when in Peru married a Peruvian woman, who also was a native of that country. A child was born to him in Peru. This child was held by the Court of Appeals to be a citizen of the United States, domiciled in New York. From the opinion of the court which was delivered by Selden, J., we learn the following:
"It seems to me to result of necessity from these principles, that the children of English parents, though born abroad, are nevertheless regarded by the common law as natural born citizens of England. The decision upon the plea in Calvin's case, which was merely repeating what was decided in Cobbledike's case, as early as the reign of Edw. I, see Calvin's case, p. 9 b., necessarily implies that a child may owe allegiance to the king (i.e., not merely local or temporary, but natural and permanent allegiance), although born out of the king's dominions; and also that this was a broad general rule, not confined to a few exceptional cases, because if this was an exception the plea could not have been held bad on demurrer, as it was in both Cobbledike's and Calvin s cases; but the exception must have been pleaded.
Now, upon what ground can allegiances in such cases be claimed ? If natural allegiance or allegiance by birth, does not depend upon boundaries or place, as Calvin's case asserts, upon what does it depend? There can be but one answer to the question. It is impossible to suggest any other ground for the obligation than that of parentage. It must, I apprehend, be transmitted from the parents to the child, or it could not exist. This being then the nature of permanent allegiance, it follows that the king of England may properly claim allegiance from the children of his subjects, wherever born. If then the child of English parents, though born abroad, is subditus natus a born subject of the king, he must also be a born citizen of the kingdom. Allegiance and citizenship are as we have seen, correlative terms, the one being the consideration of the other. So long therefore as the parents continue to owe allegiance to the crown of England, so long will their children, by the rules of the common law, whether born within or without the kingdom, owe similar allegiance, and be entitled to the corresponding rights of citizenship.
* * * *
I suppose the doctrine that children, if legitimate, follow in regard to their political rights and duties, the condition of their fathers, to be found in natural law, and to be substantially the same in most, if not all, civilized countries. Vattel says: " Society not being able to subsist and perpetuate itself, but by the children of its citizens, those children naturally follow the condition of their fathers and succeed to all their rights." B. 1, ch. 19, § 212. In a subsequent action the same author says: " 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 it is necessary to follow their regulations. By the. law of nature alone, 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 the civil law, or politics, may order otherwise from particular views. Id., § 215.
It is shown by Vice Chancellor Sandford, in Lynch v. Clark, 1 Sandf. Ch. 583, 675, that the law of France, Spain, and Portugal is in accordance with this doctrine, by express enactment it is true, as it is now in England and in this country. But the uniformity goes to show that it is founded upon a law of nature, and of course prevails in every country, unless, as Vattel says, it is changed from the municipal law from particular views.”
(8) Elk v. Wilkins, 112 U.S. 94 (1884): “This section [Section 1 of the Fourteenth Amendment] contemplates two sources of citizenship, and two sources only: birth and naturalization. The persons declared to be citizens are 'all persons born or naturalized in the United States, and subject to the jurisdiction thereof.' The evident meaning of these last words is, not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance. And the words relate to the time of birth in the one case, as they do to the time of naturalization in the other. Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterwards, except by being naturalized, either individually, as by proceedings under the naturalization acts; or collectively, as by the force of a treaty by which foreign territory is acquired.”
(9) United States v. Ward, 42 F.320 (C.C.S.D.Cal. 1890) (same Vattelian definition and cites Vattel): “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.”
(10) U.S. v. Wong Kim Ark, 169 U.S. 649, 708 (1898): It distinguished between an Article II “natural born Citizen” and a Fourteenth Amendment “born . . . citizen of the United States.” It relied on the English common law and Calvin’s Case (1608) to hold that a child born in the United States to domiciled alien parents was a “born . . . citizen of the United States” under the 1868 Fourteenth Amendment. But concerning a 1787 Article II “natural born Citizen,” it cited Minor and quoted its American common law definition of a “natural-born citizen.”
Minor, clearly stating what the firmly established American common law rule (not the British common law rule) was by which the Founders and Framers were guided, had no doubts about who a "natural-born citizen" was, defining one as a child born in the country to citizen parents. Minor said that under that same American common law rule there were doubts as to whether a child born in the United States to alien parents is even a "citizen." Wong Kim Ark resolved those doubts and held that Wong, who was born in the United States to domiciled alien parents, was a Fourteenth Amendment "born . . . citizen of the United States." But in so doing, it did not alter or amend the original and long-standing American common law rule of what a “natural born Citizen” was and therefore did not hold that Wong was an Article II "natural born Citizen." There is no other U.S. Supreme Court case following Wong Kim Ark which changed the Minor original American common law definition of a "natural-born citizen."
We have seen that Vattel informed us what a “natural born Citizen” is and, as our U.S. Supreme Court and some lower courts have confirmed throughout the span of American history, our Founders and Framers, when drafting the presidential eligibility requirements included in Article II, Section 1, Clause 5, adopted that definition. But there is another important message in what Vattel wrote which is really the basis for the Founders and Framers choosing Vattel’s definition of a “natural born Citizen.” Vattel also warned us that we cannot preserve our society but through the children of its citizens. Vattel said in Section 212 The Law of Nations that a society cannot fundamentally preserve itself other than through the children of its citizens who he calls the “natives, or natural-born citizens.” Vattel told us that it is the youth of any society that will eventually, upon reaching the age of majority (then it was 21 and today it is 18), assume the power to administer and preserve that society. Vattel was perfectly correct in what he said and Adolf Hitler knew it also.
Hitler, who was not born in Germany and was therefore not a "natural born citizen" of that nation, made his plans for the youth of Germany publicly known when he said: “He alone who owns the youth, gains the future.” -- Adolf Hitler, speech at the Reichsparteitag, 1935. "One of the most important functions of the Hitler Jugend was to prepare the youth for membership in the Party and its formations. Hitler said at the Reichsparteitag, 1935:
'He alone, who owns the youth, gains the Future! Practical consequences of this doctrine: The boy will enter the Jungvolk (boy 10-14) and the Pmpf (members of the Jungvolk) will come to the Hitler Youth, and the boy of the Hitler Youth will join the SA, the SS and the other formations, and the SA man and the SS man will one day join the Labor Service, and from there he will go to the Armed Forces, and the soldiers of the people will return again to the organization of Movement, the Party, the SA, the SS, and never again will our people be so depraved as they were at one time.' (2656-PS; 2401-PS). "
http://www.nizkor.org/hweb/imt/nca/nca-0… Almost the same words were said by Vladmir Lenin, when he said: “Give me just one generation of youth, and I’ll transform the whole world.”
Hitler knew that it was not going to be easy for him to win the hearts of all Germans. “He realized that he would never be able to convert all Germans to National Socialism. He converted many, but many others saw through the official propaganda. The younger generation was a different matter. They came to the Hitler Youth as more of a clean slate which were much more vulnerable to ideological manipulation. He was skeptical about the schools, especially the schools he inherited in 1933. The Hitler Youth was a program that the NAZIs could completely control. Not only did the Hitler Youth provide the vehicle which the future generation of Germans could be shaped, but the youth could be used in many other ways by Hitler and the NAZIs.”
http://histclo.com/youth/youth/org/nat/hitler/hitler.htm.
From what Vattel teaches, we can see that allegiances and values are nurtured in the family. And Hitler knew that, too. He also knew that “Youth is easily deceived, because it is quick to hope.”—Aristotle. The First Hitler Youth Law proclaimed: "The future of the German people depends on its youth. Therefore, all of the German youth must be prepared for its future duties." Two subsequent Hitler Youth Laws were designed mostly to prevent families from evading the requirement to enroll their children in the HJ.
http://histclo.com/youth/youth/org/nat/hitler/hitler.htm. In studying the Hitler Youth, we find that “[f]amily attitudes are especially interesting because part of the purpose of the HJ [Hitler Jugend] was to break down family allegiances and cement loyalty to the Party and Führer.” “The boys were encouraged to question or even reject some authority figures, such as parents or church leaders, which appealed to many boys. They were required, however, to accept NAZI principles without question.”
http://histclo.com/youth/youth/org/nat/hitler/hitler.htm.
It also does not take much time to fundamentally transform a nation’s youth. NAZI youth organization began in 1922. The NAZIs seized power in 1933. Independent youth groups were absorbed into the Hitler Youth or abolished. The NAZIs by 1935 had enrolled 60 percent of Germany's youth into their youth movement.
http://histclo.com/youth/youth/org/nat/hitler/hitler.htm. The Hitler Youth consisted of two sections, the Deutsche Jugend for the younger (10-14) boys and the Hitler Jugend proper for the older (15-18) boys. “The Hitler Youth grew from a group with a handful of boys to one of the most important uniformed youth group in Europe. No group so thoroughly succeeded in their stated purpose. Had the NAZIs succeeded, the elite of Europe would have been raised and trained through the Hitler Youth. Membership increased from about 1,000 boys in 1923 to nearly 8 million in 1939 when Hitler launched World War II.”
http://histclo.com/youth/youth/org/nat/hitler/hitler.htm.
Arthur Axmann, a Hitler Youth Leader, presented Hitler with a newly formed division--the 12th SS Panzer Division Hitlerjugend--on his birthday in April 1944. The Division was composed of HJ youth born in 1926, making them 17-18 years old. The senior NCOs and officers were mostly SS veterans from the Eastern Front. This Division played a prominent role in the Normandy fighting.
How does any of this relate to America? The message that we should learn is that we should not take so lightly the Occupy Wall Street, text messaging, text+, iPhones, YouTube, Facebook, Twitter, Tumblr, Droid, etc. movements and networks, especially if someone attempts to use those channels of education and communication to influence and manipulate American youth the way Hitler did German youth. While Scholastic states on its web site that it is committed to publishing all information for the sake of preserving a free society (see the WND article) and it has perceived that there is an important need to “educate” our children about the “Occupy Wall Street” movement, I have not seen one word in its publications about the ongoing national debate about whether President Obama is an Article II “natural born Citizen.” Omission of the “natural born Citizen” issue from its publications, but inclusion therein of the “Occupy Wall Street” movement, should surely raise grave suspicions on the part of any sound thinking concerned American.
What our nation’s youth learns through any medium is, indeed, vital to the survival of our nation as we known it. Therefore, let us be, as father Edward is, forever vigilant about what someone is trying to teach our children, no matter what that subject or the professed motivation for teaching that subject might be.
Mario Apuzzo, Esq.
December 11, 2011
http://puzo1.blogspot.com/
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