Comment by French attorney, Lupin
For argument’s sake and to save everyone some time here is my annotated translation of that famous Book 1, XIX. Art. 212 of Vattel which the birthers rely on:
Book 1, xix. $212. Citizens are members of a civil society (1) and are linked to said society by certain duties and since they subject to its authorities, they enjoy some of its rewards. Natives or indigenes (2) are those born in that country from blood relatives (3) who are already citizens. (4) A society being only able to survive and perpetuate itself through the children of its citizens, said children inherit the status of their fathers and all their rights and obligations. (5) A society is supposed to want this as a consequence of its own desire for self-perpetuation and one shall assume that each citizen who becomes a member of said society will by right bequeath that same status to his own children. (6) The homeland (7) of the (8) will therefore also be that of their children, and they become citizens in turn by simple tacit consent. We shall see later if, when they reach their majority, they can renounce their rights and what then they owe to the society in which they were born. I say that to belong to a homeland, one must be born of who are citizens. (9) For if you are born of a foreigner, then that country is your place of birth without being your homeland.(10)
(1) Note Vattel does not say country (pays) when he could have. So an assumption must be made here.
(2) At no point does Vattel equate them with “citizens” despite the last sentence of the paragraph, so there is ambiguity here; there is also no reason to assume this means “natural-born” when English has words like “Natives” and “Indigenes” which are closer literal translations.
(3) in French, “parens”
(4) Taken literally this means everyone who is a native is indeed a citizen, hence the distinction between “nbc” and just citizen is wrong.
(5) This reaffirms the point made in (4). This is simple jus sanguinis with no further distinctions being made.
(7) Vattel uses the word “patrie” (homeland) and not “pays” (country); it is a mistake to just equate one with the other, especially when Vattel could have used the other word.
(8) This is when Vattel first uses the word “père” (father) in French in the first edition.
(9) Ditto. This of course depending on one’s interpretation contradicts the beginning of this paragraph.
(10) This is where the difference between “country” and “homeland” comes to play, to the effect that (as was the case with Ancient Greece, esp. Athens; I refer you to what I wrote here on that topic several months ago) one might be a citizen of a country, and still not be a son or daughter of the homeland. We are now veering into distinctions of citizenship which are not elucidated further by Vattel and frankly contradict his opening paragraph.
Ultimately the point is: there is not and indeed CANNOT BE a uniformly acceptable translation of Vattel, because certain assumptions may vary, and they do matter a lot in a case like this. The most charitable thing I can say (being kind) in that the “version” used by Apuzzo and Donofrio is, say, 75% heavily loaded against, and 25% actually incorrect.
The best and most objective thing one can say with any degree of certitude is that there is no “smoking gun” here to “torpedo” Obama’s legitimacy.
Note that in Art. 214, Vattel concludes: “And then there are other states such as England in which the mere birth in that country is enough to make the children of a foreigner a citizen,” removing any doubts as to his acceptance of jus soli.
Additional notes by Paul Pieniezny:
(2) naturels. The problem is that Vattel is putting up a word here that later in French for some time became a term of art, but later was replaced as term of art by “francais de naissance”. The Royal Decree of December 1790 seems to use “naturels francais” in the meaning “native born”. Personally, as a translator, I think my choice would be between “naturals” (do not forget that before Vattel “naturels” did not mean much) and ” native born” – I know that invokes citizenship, which is not really in the text. Since 1790 is AFTER the writing of the constitution, I tend towards “naturals”. Some translators argue that you should not choose on historical relevance. E.g. Shakespeare probably never thought of all the meanings philosophers (particularly existentialists) were to attach to his words “To be or not to be” – but that is usually not deemed a reason to change traditional translations of the soliloquy because everybody now thinks of Camus when reading it. Well, of course, birfers do not read Camus.
(3) correct, “parens” definitely did not mean the same as present-day English parents. Unfortunately, the translated text as it is does not reflect that “parens” is a grammatical, and not necessarily semantical plural. In other words, ONE uncle would be enough. May be too difficult to fix though.
(7) and (10) no problem on the first level here. On the meta level, you miss the opportunity to point out that Vattel himself may have considered himself a son of Switzerland, though Prussia was the state he was born (and died) a subject of. Not sure of the patrie-pays relationship there. “J’irai voir ma Normandie …”