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Framer cites Vattel on citizenship

John Rutledge of South Carolina

One of the lesser-known framers of the US Constitution was John Rutledge of South Carolina. In addition to being one of the men who met in Philadelphia to draft the US Constitution, he was the first Governor of South Carolina and the second Chief Justice of the US Supreme Court. It has been said by some that Rutledge was responsible for the Americans defeating the British during the Revolutionary War: he insisted that the Americans shoot from behind trees rather than standing out in the open.1 He also took with him to the Constitutional Convention a draft Constitution, about 1/3 of which was incorporated into the final document, and chaired the Convention’s five-member Committee of Detail that turned the debate into written language. Rutledge, the product of a London legal education, was appointed Chief Justice by Washington while the Senate was in recess, and he served until Congress adjourned because his appointment was not confirmed.

During the short term of Chief Justice Rutledge, the Supreme Court decided two cases, one of which included a question of citizenship, Talbot v Janson. This case was one of a naval encounter where one ship and crew took possession of another in international waters. The question was whether this was an act of piracy, or a lawful seizure under the laws of war. The decision rested in part on the citizenship of the captor, since if he was American the capture was illegal because the US was  by treaty neutral in the conflict. The ship’s captain was born a citizen of Virginia but had renounced his citizenship2.

Sir William Blackstone was cited by the court, but not approvingly because under English law, a man may not expatriate himself. Given the fact that the United States was founded upon the principle that a British subject may declare that he is no longer a British subject, English law is unsatisfactory as an authority on this point. The court looked elsewhere, to Grotius, Vattel, Pufendorf and several others whose names are abbreviated. If, however, I understand the reasoning of the Court, it appears that the most important authority is a 1792 Virginia statute which specifies the process by which may renounce citizenship.

This court decision is one of many that divides citizens into two classes, native (natural born) and naturalized (foreign born).

Upon a capture under a commission, to a French citizen, indeed, whether he is a native citizen or naturalized, the thing must be the same in effect, to foreign neutral powers.

What we can take away from this story is that this Framer was widely-read and used a variety of sources of authority as it suited him. Vattel is cited on topics of international law (as here) but never on the acquisition of citizenship — possibly because his views were contrary to the American view. In every case, however, it was the laws of the United States which took precedence, and the law in Virginia at the time (not cited in this case) was that anyone born in Virginia was a citizen, no matter who his parents were. From the law of 1783:

That all free persons, born within the territory of this commonwealth… shall be deemed citizens of this commonwealth.


1This is a gross oversimplification. Rutledge realized that American partisans were not suited to the regimentation of the armies of Europe, and implemented harassing guerrilla tactics. See Mr. Rutledge of South Carolina by Barry.

2 I rather enjoyed this evocative image:

Not being a citizen of Virginia, he cannot be deemed a citizen of the United States. Shall he be called a citizen of the world; a human balloon, detached and buoyant in the political atmosphere, gazed at wherever he passes, and settled wherever he touches?

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34 Responses to Framer cites Vattel on citizenship

  1. avatar
    ballantine June 28, 2011 at 10:46 am #

    You are right that citation to Vattel were generally limited to issues of international law such as disputes on the high seas. I would point out that the issue of expatriation was very controversial up until 1868. While some thought it a natural right, others felt one couldn’t have a country or fight a war it anyone would expatriate anytime they want. England maintained the feudal doctrine because it claimed it couldn’t maintain its fleet and impress sailors with out the doctrine. Kent, in the most influential of all early treatises, addresses the issue comprehensively.

    His conclusion on Talbot:

    “The majority of the supreme court gave no opinion upon the question; but the inference from the discussion would seem to be, that a citizen could not divest himself of his allegiance, except under the sanction of a law of the United States; and that until some legislative regulations on the subject were prescribed, the rule of the common law must prevail.”

    Kent continues with the opinion of framer Oliver Ellsworth:

    “In 1797, the same question was brought before the Circuit Court of the United States for the district of Connecticut, in the case of Isaac Williams,b and Ch. J. Ellsworth ruled, that the common law of this country remained as it was before the revolution. The compact between the community and its members was, that the community should protect its members, and that the members should at all times be obedient to the laws of the community, and faithful to its defence. No member could dissolve the compact without the consent or default of the community, and there had been no consent or default on the part of the United States.”

    Kent addresses a bunch of other cases on the issue and concludes:

    “From this historical review of the principal discussions in the federal courts on this interesting subject in American jurisprudence, the better opinion would seem to be, that a citizen cannot renounce his allegiance to the United States without the permission of government, to be declared by law; and that, as there is no existing legislative regulation on the case, the rule of the English common law remains unaltered.”

    No early authority ever said that the issue of whether allegiance was perpetual had anything to do with the allegiance one was born with. For example, the statute you cite form Virginia (supposedly written by Jefferson) had birth birthright citizenship and also had the right to expatriate. Madison indicated he was unclear on the right of expatriation, but was clear we followed jus soli. Kent, as just shown, thought the issue of expatriation unclear, but could not be clearer that we following the English common law with the respect to citizenship and allegiance generally.

  2. avatar
    J.Potter June 28, 2011 at 11:51 am #

    “…he insisted that the Americans shoot from behind trees rather than standing out in the open.”

    Rutledge is given credit for inventing common sense? for the experience of 150 years of frontier warfare based of small-unit, guerilla tactics? I am sure some inexperienced voices called such fighting cowardice, but once men take the field, anything goes (unfortunately).

  3. avatar
    Dr. Conspiracy June 28, 2011 at 12:09 pm #

    There was a remarkable lack of common sense found in the commanders of both sides during the Revolutionary War. Washington’s attempt to implement European style discipline led to high rates of desertion. Partisan harassment: sneak up, attack, melt back into the trees, demoralized and wore out British troops.

    Barry said Cornwallis surrendered because “he could not fact those Carolinians again; each man a general, each sharpshooter a sovereign!”

    J.Potter: Rutledge is given credit for inventing common sense? for the experience of 150 years of frontier warfare based of small-unit, guerilla tactics? I am sure some inexperienced voices called such fighting cowardice, but once men take the field, anything goes (unfortunately).

  4. avatar
    J.Potter June 28, 2011 at 1:21 pm #

    Very true, and a common occurence in war, not matching tactics to reality (particularly in the civil war) … and I can certainly see pride insisting on beating them on their own terms, no matter how suicidal, Nut, as you footnoted, giving Rutledge credit for promoting common sense is surely a bit much. Many commanders were already doing so, based on their own experience, and because nothing else was possible/realistic. Now, if he was instrumental in convincing key figures in seeing the error of their ways, then God bless Rutledge.

    Dr. Conspiracy:
    There was a remarkable lack of common sense found in the commanders of both sides during the Revolutionary War. Washington’s attempt to implement European style discipline let to high rates of desertion. Partisan harassment: sneak up, attack, melt back into the trees, demoralized and wore out British troops.

  5. avatar
    john June 28, 2011 at 1:21 pm #

    As usual Doc, you are being interlecturely dishonest. The title of your post says “Framer cites Vattel on citizenship” but in the article you directly contradict it with the following: “this Framer was widely-read and used a variety of sources of authority as it suited him. Vattel is cited on topics of international law (as here) but never on the acquisition of citizenship…”

    Perhaps you should put a big ? after title. Perhaps you are being manipulative to attract hopeful readers that Obama’s ineligiblity will be advanced only to let down the opposite path.

    Perhaps you are looking to attract readers to your website because you views or visits to your site have dropped.

    You are being dishonest.

    [No James, you are being stupid. The headline correctly states that Vattel was cited on a topic of citizenship. However, as the article details it was about citizenship in the area of expatriation, not acquisition. Your inability to read and pay attention is not my fault. Doc.]

  6. avatar
    misha June 28, 2011 at 1:34 pm #

    “Framer cites Vattel on citizenship”

    I thought you wrote “farmer.” You know, like Michele Ambler Bachmann.

  7. avatar
    J.Potter June 28, 2011 at 1:55 pm #

    “Human balloon” status could be very convenient, thanks for that image. All “free” persons. A telling phrase with a long legacy, that (by tortured reasoning) works into the idea that the 14th amendment didn’t make certain classes of people “real” citizens, but rather “federal citizens”. This birther business encompasses so many angles, all of them bunk. An everything including the kitchen sink collection of junk. I guess the mass and variety is supposed to make it more convincing? All it does for me it increase the appearance of desperation and nuttiness.

    Anyway, thanks for an insightful, anecdote, Doc!

  8. avatar
    Dr. Conspiracy June 28, 2011 at 2:06 pm #

    Actually he was. Of course, we believe the Revolutionary War was essentially won in North and South Carolina. See also Dr. Edgar’s book: Partisans and Redcoats.

    J.Potter: Now, if he was instrumental in convincing key figures in seeing the error of their ways, then God bless Rutledge.

  9. avatar
    J.Potter June 28, 2011 at 2:20 pm #

    The “South” was certainly key … that the British were engaged on multiple fronts kept them strung out, divided, prolonged the conflict until allies were found and they could be challenged toe-to-toe, driving home the pointlessness of fighting an entrenched insurrection. Sure, they could capture the cities, good luck pacifying the countryside!

    Since this is a great note yet further illuminating the basis of birthright citizenship, and that birther’s are wrong about the founder’s thinking regarding Art. II, Sect. 1, I present for comparison, the direct opposite … what one birther presented to me as airtight logic that the birther overcomplication of “natural born citizen” is correct:

    “When we is call someone a natural-born athlete, we don’t mean they were born in Yankee Stadium.”

    I don’t know if that was original to him, or if it is a favorite in birther circles … but, man, you can’t make this stuff up.

  10. avatar
    misha June 28, 2011 at 2:34 pm #

    john: As usual Doc, you are being interlecturely dishonest.

    And as usual, you can’t spell.

  11. avatar
    Nathanael June 28, 2011 at 4:53 pm #

    Prompted by the issue of illegal immigration, there has been a lot of debate recently over the 14th Amendment’s “subject to the jurisdiction”, with some arguing the phrase is only properly interpreted consonant with Senator Trumbull’s alleged consensualism — which argues that, America being governed with the consent of the governed, citizenship was intended to be a social contract by mutual consent.

    I don’t know whether Trumbull was actually a consensualist. I don’t know how far back consensualism can be traced in American thought. I don’t know if I even have a point to make, except to wonder whether there were some sort of nascent consensualism underpinning the issues in Talbot v. Janson.

    –Nathanael

  12. avatar
    Sef June 28, 2011 at 5:04 pm #

    J.Potter: “When we is call someone a natural-born athlete, we don’t mean they were born in Yankee Stadium.”

    But the “real” Yankee Stadium no longer exixts.

  13. avatar
    ballantine June 28, 2011 at 5:33 pm #

    Nathanael: Prompted by the issue of illegal immigration, there has been a lot of debate recently over the 14th Amendment’s “subject to the jurisdiction”, with some arguing the phrase is only properly interpreted consonant with Senator Trumbull’s alleged consensualism — which argues that, America being governed with the consent of the governed, citizenship was intended to be a social contract by mutual consent.I don’t know whether Trumbull was actually a consensualist. I don’t know how far back consensualism can be traced in American thought. I don’t know if I even have a point to make, except to wonder whether there were some sort of nascent consensualism underpinning the issues in Talbot v. Janson.–Nathanael

    My view is the theory of mutual consent has little basis in history as no one in the early republic spoke in those terms. Consent makes no sense if one is going to define citizenship as birth as a baby cannot consent and has no control of his parent or place of birth. The proponents of the theory seem to be trying to superimpose their theory on history straining to see elements of consent where ever they can. The history shows a general common law rule where exceptions were made on account of racism or the unusual circumstances of the revolution. The proponants try to turn the exceptions into the rule because they sometimes relied on what might be called consentual arguments. Also, the tying of issue of perpetual allegiance (which had consentual elements on one side) to native citizenship is without historical merit. They were always treated as two separate issues. A theory of mutual consent would allow the nation to expatriate anyone at any time which has never been suggested.

    Trumbull was certainly not a consentualist and the way his statements have been twisted is somewhat criminal. Mutual consent would mean that the government could withhold citizenship to any class of persons it wanted such as in Dred Scott. This clearly the opposite of what Trumbull wanted as he made clear that any person born in the US, including children of aliens, children of Chinese aliens, and even children of tamed indians, were to be citizens. He statements make no referance to consent on either side. His view on indians is most instrucive. He argued that as long as they stayed with their tribes that we treated as foreign nations, their children would not be citizens. However, if they came and lived amongst us, subjecting themselves to our laws, their children would be citizens. No need to our consent.

    “whenever they [indians] are separated from their tribes, and come within the jurisdiction of the United States so as to be counted, they are citizens of the United States.” Senator Trumbull, Cong. Globe, 39th Cong., lst Sess. 572 (1866).

    “If they are there and within the jurisdiction of Colorado, and subject to the laws of Colorado, they ought to be citizens…” Senator Trumbull, Cong. Globe, 39th Cong., lst Sess. 2893 (1866).

    “birth entitles a person to citizenship, that every free-born person in this land is, by virtue of being born here, a citizen of the United States.” Senator Trumbull, Cong. Globe, 39th Cong. 1st session. 600 (1866)

    “And, as is suggested by a Senator-behind me, even the infant child of a foreigner born in this land is a citizen of the United States long before his father.” Senator Trumbull (reply to President Johnsons’s Veto), William Horatio Barnes, History of the Thirty-ninth Congress of the United States, pg. 254 (1868).

    “I understand that under the naturalization laws the children who are born here of parents who have not been naturalized are citizens. Is not the child born in this country of German parents a citizen?” Senator Trumbull, CONG. GLOBE, 39th Cong., 1st Sess. 497 (1866).

    “Undoubably.” Sen. Trumbull, Cong. Globe, 39th Cong. 1st Sess. 498 (1866)(in reply to Sen. Cowen’s question whether [the Civil Rights Act] will not have the effect of naturalizing the children of Chinese and Gypsies born in this country).

  14. avatar
    misha June 28, 2011 at 5:39 pm #

    Sef: But the “real” Yankee Stadium no longer exixts.

    Psssst…Jimmy Hoffa is buried there.

  15. avatar
    J.Potter June 28, 2011 at 5:44 pm #

    I’m assuming the any athletic venue will do, that specifying Yankee Stadium was just a bit of hyperbole … and he was pointing out that “natural-born athletes” could be born anywhere. Was he implying they had to have athlete parents? Y’know, stupid just doesn’t translate. Really no point in trying to parse it. I have no idea how the statement was supposed to support the birther cause. I just admired it as-is.

    Sef: But the “real” Yankee Stadium no longer exixts.

  16. avatar
    Sef June 28, 2011 at 6:03 pm #

    J.Potter:
    I’m assuming the any athletic venue will do, that specifying Yankee Stadium was just a bit of hyperbole … and he was pointing out that “natural-born athletes” could be born anywhere. Was he implying they had to have athlete parents? Y’know, stupid just doesn’t translate. Really no point in trying to parse it. I have no idea how the statement was supposed to support the birther cause. I just admired it as-is.

    The snark tags must have been silent in my post.

  17. avatar
    J.Potter June 28, 2011 at 6:05 pm #

    No, Sef, I got the snark, was just trying to up the snark!

    Sef: The snark tags must have been silent in my post.

  18. avatar
    Paper June 28, 2011 at 8:18 pm #

    I saw a snark once.

    J.Potter:
    No, Sef, I got the snark, was just trying to up the snark!

  19. avatar
    katahdin June 28, 2011 at 9:23 pm #

    misha: Psssst…Jimmy Hoffa is buried there.

    I thought Jimmy Hoffa was buried between the goal posts at Giants Stadium. That guy gets around.

  20. avatar
    Keith June 28, 2011 at 10:37 pm #

    katahdin: I thought Jimmy Hoffa was buried between the goal posts at Giants Stadium. That guy gets around.

    I am pretty sure he’s in a landfill in Tucson. They found his fingers there in the early 80’s.

  21. avatar
    Nathanael June 28, 2011 at 11:30 pm #

    ballantine: Mutual consent would mean that the government could withhold citizenship

    “Mutual” was a misspeak, a force of habit. “Consent of the governed” isn’t mutual, but in fact obliges the government. I’m not very familiar with consentualism, so it may not hold that the government can withdraw consent.

    ballantine:

    My view is the theory of mutual consent has little basis in history

    I’m not meaning to suggest that consensualist doctrine was ever influential enough to shape law, just wondering how far back to doctrine can be traced historically. “There is nothing new under the sun” I’m sure applies to political theories, so I’d be surprised if no trace of it could be found (say, in Locke?) in revolutionary times. Which, unfortunately, is all that’s required to feed the revisionists.

  22. avatar
    Nathanael June 28, 2011 at 11:32 pm #

    Keith: I am pretty sure he’s in a landfill in Tucson. They found his fingers there in the early 80′s.

    Wow, I guess it’s true he had his fingers into everything. Even Arizona waste processing.

    Question: how’d they know it was Hoffa’s fingers? Surely there couldn’t have been enough left to lift prints from.

  23. avatar
    Plutodog June 29, 2011 at 1:56 am #

    Now that’s just silly, Doc! Everybody knows that it was the Oregon Territory that won the Revolutionary War for us. Everybody!

    Dr. Conspiracy: e of Isaac Williams,b and Ch. J. Ellsworth ruled, that the common law of this country remained as it was before the revolution. The compact between the community and its members was, that the community should protect its members, and that the members should at all times be obedient to the laws of the community, and faithful to its defence. No member could dissolve the compact without the consent or default of the community, and there had been no consent or default on the part of the United States.”

  24. avatar
    misha June 29, 2011 at 4:31 am #

    Plutodog: Now that’s just silly, Doc! Everybody knows that it was the Oregon Territory that won the Revolutionary War for us. Everybody!

    I am tired of the misinformation on this site.

    The decisive factor was the slaves freed by the Founding Fathers. Just ask Michele Ambler Bachmann.

  25. avatar
    misha June 29, 2011 at 4:37 am #

    Oops. That should have been: Just ask Michele Ambler Bachmann Turner Overdrive.

    You know, the one who is a farmer legislator.

  26. avatar
    misha June 29, 2011 at 6:35 am #

    Speaking of Michele Bachmann, and her tireless fight against socialism:

    “Michele Bachmann hates on Medicaid because it helps poor people, and that’s socialism. Yet since 2005, her husband has accepted $137,000 in Medicaid funds to “quality Christian-counsel” people”

    http://gawker.com/5816567/mr-michele-bachmann-accepted-medicaid-money

  27. avatar
    Keith June 29, 2011 at 8:59 am #

    Nathanael: Wow, I guess it’s true he had his fingers into everything. Even Arizona waste processing.

    Question: how’d they know it was Hoffa’s fingers? Surely there couldn’t have been enough left to lift prints from.

    Can’t find the reference on the interwebs. But like everything Hoffa related it was probably a false alarm.

    Severed fingers were found in at Tucson land fill in a paper bag, and the land fill was searched and dug up looking for more body parts. The fingers were tested, to determine if they could have belonged to Hoffa. I think the results were inconclusive. Perhaps today’s technology could do better.

    Where I found Jimmy Hoffa

  28. avatar
    Nathanael June 29, 2011 at 9:23 am #

    john: As usual Doc, you are being interlecturely dishonest.

    misha: And as usual, you can’t spell.

    Not at all. He means Doc’s telling untruths between classes.

  29. avatar
    Arthur June 29, 2011 at 10:28 am #

    misha: And as usual, you can’t spell.

    All John needs is a discanary from the lyeberry.

  30. avatar
    Scientist June 29, 2011 at 12:12 pm #

    misha: Speaking of Michele Bachmann, and her tireless fight against socialism:
    “Michele Bachmann hates on Medicaid because it helps poor people, and that’s socialism. Yet since 2005, her husband has accepted $137,000 in Medicaid funds to “quality Christian-counsel” people”

    Bachmann has no respect for capitalism. She used Tom Petty’s song “American Girl’ without permission at her rally. Petty’s lawyer has sent a cease and desist letter. Petty allowed Hillary Clinton to use the song in 2008, but he can’t stand Bachmann and is incensed that she used the song

  31. avatar
    misha June 29, 2011 at 1:22 pm #

    Scientist: Bachmann has no respect for capitalism.

    To her and her ilk, “free market” means free to her crowd.

  32. avatar
    misha June 29, 2011 at 2:04 pm #

    Here’s a MAJOR story on Bachmann!! It’s a must read:

    http://www.borowitzreport.com/2011/06/28/in-major-gaffe-bachmann-confuses-ass-hole-in-ground/

  33. avatar
    Dr. Conspiracy June 29, 2011 at 2:56 pm #

    There are some first class zingers in that story including this:

    But Dr. Logsdon added that Rep. Bachmann remains an attractive candidate, especially for those Republican voters who find former Alaska Governor Sarah Palin “too cerebral.”

    misha:
    Here’s a MAJOR story on Bachmann!! It’s a must read:

    http://www.borowitzreport.com/2011/06/28/in-major-gaffe-bachmann-confuses-ass-hole-in-ground/

  34. avatar
    Thrifty June 29, 2011 at 4:05 pm #

    Scientist: Bachmann has no respect for capitalism. She used Tom Petty’s song “American Girl’ without permission at her rally. Petty’s lawyer has sent a cease and desist letter. Petty allowed Hillary Clinton to use the song in 2008, but he can’t stand Bachmann and is incensed that she used the song

    Cease and desist? Why the half measures? No lawsuit?