The tug of war continues between the denialists of President Obama’s eligibility for office and their opponents over the role of Emmerich de Vattel, Swiss jurist and author of The Law of Nations (short English title of the French work) — one side attempting to drag him into obscurity and the other literally making him a god.
Vattel was an influential writer on international law, and his work highly respected at the time the United States came into being. The debate should, in my opinion, be focused on the narrow question of how influential Vattel was on the subject of citizenship, and what he said on that topic. Evidence of such influence is generally lacking.
The denialists have of late cited the work of Arthur Nussbaum, A Concise History of the Law of Nations, making a claim:
Vattel was by far the most quoted legal source in pleadings in American cases, by almost a factor of 4, between 1790 and 1820. (Nussbaums Concise History of the Law of Nations, 1962).
I was able to obtain a copy of the 1954 edition and used it to research the claim and to look more broadly on the question of Vattel’s influence on our topic of interest.
I hit the index and found that in this 362 page book, Vattel is mentioned only on pages 156-164. I got rather a chuckle as I read one quote (p 158) from Vattel in particular:
by my birth I am a friend of all nations
something one could almost hear the internationally-minded Barack Obama say.
Nussbaum is not all that enamored by Vattel, writing:
The weakness of Vattel’s reasoning was aggravated by his lack of legal training. His diplomatic experience, not very extensive when he wrote the book [The Law of Nations], nevertheless furnished one of its more valuable features, but was inadequate for the task undertaken. This task required a familiarity with juristic methods and literature which he did not possess. It is probable that the defects of Vattel’s training are primarily responsible for the striking ambiguity of his formulas and for the inconsistency of many of his conclusions. [p 159]
In a matter closer at hand, Nussbaum wrote:
In a case involving the confiscation of enemy property, decided in 1814 by the Supreme Court of the United States, Vattel’s position was relied upon in the majority opinion written by Chief Justice Marshall, as well as in the minority opinion written by Mr. Justice Story. Interestingly enough the latter — well known as an eminent legal scholar — questioned the existence of the custom alleged by Vattel, as well as Vattel’s qualification as a jurist.
Among the legal learned Vattel has never met with much praise….
Nussbaum, however, admits that “in the English-speaking countries, and especially in the United States, Vattel acquired an even higher authority” perhaps based on Vattel’s admiration for the English Constitution. Vattel was unknown in the United States until Charles Dumas sent Benjamin Franklin 3 copies in 1775, almost a decade after the writer’s death. Franklin is quoted as saying that the book “came to us in good season where the circumstances of a rising state make it necessary frequently to consult the law of nations [lower case].”
Then follows on page 162, the fateful chart of citations referenced by the denialist claim, which I reproduce here with some of the context:
The claim fails to disclose that the comparison is only against three other writers on international law, and not law in general. Indeed courts cited Vattel only 38 times in 31 years, barely more than once a year. Nussbaum himself discounts the validity of this compilation saying: “It should be mentioned, however, that such citations or quotations … do not always indicate real influence on the part of the cited author.”
Summing up his section on Vattel, Nussbaum concludes: “Outside the United States and England one finds very little evidence that Vattel’s status was one of authority in the the courts or in the legal profession; in the former countries, too, such evidence vanished in the twentieth century.”
The other question I hoped to explore was to what extent citizenship was a topic of the law of nations (international law). “Citizenship” does not appear in Nussbaum’s index, but “jus soli” appears once in Appendix II where it is part of an arcane discussion about the superiority of Grotius to the Spanish Scholastics. (Vattel is not mentioned in this discussion.) The point relates to the citizenship of Spaniards born in Indian territory. Nussbaum interjects: “As far as the United States is concerned, it did not occur to [James Brown] Scott to look at the English tradition which is at the root of the American jus soli“.