©2011 The Birthers
(cross-posted with permission…)
The Constitution of the United States was based on English Common Law or the Law of Nations?
Very soon a new debate will arise in America as the 2012 Presidential elections take place. This debate will not be about where of Obama was born, but rather which definition of a natural born citizen did the founding fathers use. Many pundits will say that a natural born citizen is nothing more than a English natural-born subject, because it is the definition they want to have applied to Obama. Others will say it is a definition taken from Emmer Vattel’s work called the Law of Nations.
Will you believe that the Constitution of the United States was influenced by this man and his writings?
Sir William Blackstone (10 July 1723 – 14 February 1780) Commentaries on the Laws of England February 1766
There is a school of thought that uses the ruling of Justice Thomas Stanley Matthews, as the definitive mandate that we use English Common Law as the source for interpreting the terminology used in the Constitution.
Thomas Stanley Matthews (July 21, 1824 – March 22, 1889)
“There is no common law of the United States in the sense of a national customary law, distinct from the common law of England as adopted by the several states each for itself, applied as its local law and subject to such alteration as may be provided by its own statutes.” Justice Matthews, SMITH V. ALABAMA, 124 U. S. 465 (1888)
They will even state that this ruling was only the codification of the precedent to interpret the terminology of the Constitution that was implied by one of America’s most respected chief Justices John Marshall in the UNITED STATES V. WILSON, 32 U. S. 150 (1833)
John Marshall (September 24, 1755 – July 6, 1835) Chief Justice of the United States (1801-1835)
But would they be mistaken? The events and correspondence surrounding the framing of the Constitution would differ from later revisionists concepts of the importance of English Common law. There is no doubt that English common law was adopted by the several states, but not in its entirety or in the purity of Blackstone’s Commentaries. Each state not only adopted portions of English common law that were in effect at the time, they also transformed English common law to suit their local customs. Nothing can be clearer on the subject of the abrogation of the tradition of English common law in the drafting of the Constitution then the words of the man called the Father of our Constitution. James Madison.
James Madison, Jr. (March 16, 1751– June 28, 1836) our fourth President and the man called the Father of our Constitution wrote to George Washington concerning the progress of the convention.
“What can he mean by saying that the Common law is not secured by the new Constitution, though it has been adopted by the State Constitutions. The common law is nothing more than the unwritten law, and is left by all the constitutions equally liable to legislative alterations. I am not sure that any notice is particularly taken of it in the Constitutions of the States. If there is, nothing more is provided than a general declaration that it shall continue along with other branches of law to be in force till legally changed.
What could the Convention have done? If they had in general terms declared the Common law to be in force, they would have broken in upon the legal Code of every State in the most material points: they wd. have done more, they would have brought over from G.B. a thousand heterogeneous & antirepublican doctrines, and even the ecclesiastical Hierarchy itself, for that is a part of the Common law. If they had undertaken a discrimination, they must have formed a digest of laws, instead of a Constitution.” Letter to Geo Washington October 18, 1787
Madison’s letter to George Wasgington was echoed not 47 years later in the case of Wheaton V. Peters, by Justice John McLean.
John McLean (March 11, 1785 – April 4, 1861) American jurist
It is clear there can be no common law of the United States. The federal government is composed of twenty-four sovereign and independent states, each of which may have its local usages, customs, and common law. There is no principle which pervades the union and has the authority of law that is not embodied in the Constitution or laws of the union. The common law could be made a part of our system by legislative adoption. WHEATON V. PETERS, 33 U. S. 591 (1834)
Another founding father, George Mason IV (December 11, 1725 – October 7, 1792) a delegate from Virginia to the U.S. Constitutional Convention, who is called the “Father of the Bill of Right,” had said during the debate on ratification in Virginia that Constitution was not founded on English common law through a single example on treaties, bluntly stated that English common law was not the common law of the United States.
Though the king can make treaties, yet he cannot make a treaty contrary to the constitution of his country. Where did their constitution originate? It is founded on a number of maxims, which, by long time, are rendered sacred and inviolable. Where are there such maxims in the American Constitution? In that country, which we formerly called our mother country, they have had, for many centuries, certain fundamental maxims, which have secured their persons and properties, and prevented a dismemberment of their country. The common law, sir, has prevented the power of the crown from destroying the immunities of the people. We are placed in a still better condition — in a more favorable situation than perhaps any people ever were before. We have it in our power to secure our liberties and happiness on the most unshaken, firm, and permanent basis. We can establish what government we please. But by that paper we are consolidating the United States into one great government, and trusting to constructive security. You will find no such thing in the English government. The common law of England is not the common law of these states. I conceive, therefore, that there is nothing in that Constitution to hinder a dismemberment of the empire. George Mason, June 19, 1788
Thomas Jefferson (April 13, 1743 – July 4, 1826,) a Founding Father and author of the Declaration of Independence who found the term subject so distasteful he did not cross it out from a draft of the Declaration of Independence, he obliterated it.
If not English common law then which political philosophy could have influenced our Founding Fathers. Overlooked is the importance of the Law of Nations written 8 years before Blackstone’s Commentaries, and of which Blackstone refers to on several occasions.
Emer (Emerich or Emmerich) de Vattel (April 25, 1714 – December 28, 1767) codified The Law of Nations or the Principles of Natural Law in 1758.
The Law of Nations has been referred to by a host of our Founding fathers.
Benjamin Franklin’s (a signer of our Constitution) letter to Charles W.F. Dumas, December 1775
“I am much obliged by the kind present you have made us of your edition of Vattel. It came to us in good season, when the circumstances of a rising state make it necessary frequently to consult the Law of Nations. Accordingly, that copy which I kept (after depositing one in our own public library here, and send the other to the College of Massachusetts Bay, as you directed) has been continually in the hands of the members of our congress, now sitting, who are much pleased with your notes and preface, and have entertained a high and just esteem for their author”?
James Wilson (1742 – 1798) was one of the Founding Fathers of the United States and a signer of the United States Declaration of Independence. Wilson was a major force in drafting the United States Constitution. He was one of the six original justices appointed by George Washington to the Supreme Court of the United States.
“When the United States declared their independence, they were bound to receive the law of nations, in its modern state of purity and refinement.” Justice James Wilson Ware v. Hylton, 3 Dall. 199, 281 (1796) ”
James Otis Jr. American Statesman and cconsidered father of the American Revolution. The phrase “”taxation without representation is tyranny,” is often associated with him.
In his pamphlet “The Rights of the British Colonies Asserted and Proved,” he argues that the colonial charters were constitutional arrangements. He then goes on to quote Vattel, that the right to establish a constitution lies with the nation as a whole, and the Parliament lacked the right to change the fundamental principles of the British Constitution.
Samuel Adams (1722 – 1803) was an American statesman, political philosopher, and one of the Founding Fathers of the United States. Member of the First and Second Continental Congress.
“Vattel tells us plainly and without hesitation, that ‘the supreme legislative cannot change the constitution,’ ‘that their authority does not extend so far,’ and ‘that they ought to consider the fundamental laws as sacred, if the nation has not, in very express terms, given them power to change them.’” Samuel Adams, 1772
John Adams(1735 – 1826) was member of the First and Second Continental Congress, appointed to the committee to draft the Declaration of Independence, and second President of the United States.
“The Idea of M. de Vattel indeed, scowling and frowning, haunted me.” John Adams
Alexander Hamilton (1757 – 1804 ) American revolutionary war hero, lawyer and founding father.
Multiple citations of Vattel and the Law of Nations are attributed to him.
Lawyers for the plaintiff argued that the legislature was the supreme law-giving authority of the state, and was subject to no control except that of the people. However, the New York State Constitution had adopted the common law of England, as part of the Constitution of New York. This British feature, of making past precedents part of the Constitution, Hamilton turned on its head, by arguing that, since the law of nations was part of the common law, the decisions of the New York Legislature must be consistent with the law of nations, in order to have validity. And Hamilton used Vattel as the standard for defining the law of nations.
James Duane (1733 – 1797) American jurist, member of the committee of Sixty which started the revolutionary war in New York, member of the Continental Congress, signer of the Articles of Confederation, member of the New York Convention to ratify the US Constitution.
Duane placed his praise for Vattel into the court record in the Rutgers v. Waddington case, over which he presided as judge, while Hamilton appeared for the defense. Comparing Vattel to a previous author on the law of nations, Duane stated, “This last work, says a writer, is evidently rather an introduction than a system; and it served only to excite a desire to see it continued with equal perspicuity and elegance. The honor of this task was reserved for the great Vattel, whose work is entitled to the highest admiration!”
Chief Judge JAMES DUANE, for the court, declared that the state constitution embodied the COMMON LAW and that the common law recognized the law of nations. Duane also declared that the union of the states under the ARTICLES OF CONFEDERATION constituted “a FUNDAMENTAL LAW, ” according to which Congress had exclusive powers of making war and peace: “no state in this union can alter or abridge, in a single point, the federal articles or the treaty.” His logic having led him to the brink of holding the Trespass Act void, Duane abruptly endorsed the prevailing Blackstonian theory of legislative supremacy. When the legislature enacted a law, “there is no power which can controul them … the Judges are not at liberty, altho’ it appear to them to be unreasonable, to reject it: for this were to set the judicial above the legislative, which would be subversive of all government.” Duane then declared that the legislature had not intended to revoke the law of nations and that the court had to expound the statute to give the legislature’s intention its effect, whereupon the court emasculated the statute. The judgment was that for the time the property was held under military order, acts done according to the law of nations and “buried in oblivion” by the treaty could not be redressed by the statute; Rutgers could not recover for trespass. Synopsis of Duane’s ruling, 1784
George Washington (1732 – 1799) American revolutionary leader and hero, Commander-in-Chief of the Continental Army, first President of the United States.
Besides borrowing Vattel’s Law of Nations from the New York City library for over two hundred years, Washington relied heavily on Vattel’s work to the point that he was accused by Citizen Genet, the Ambassador from the French Republic of supporting Vattel’s Law of Nations over France’s quarrel with England, by writing, “you bring forward aphorisms of Vattel, to justify or excuse infractions committed on positive treaties.”
In closing this essay there are so many more references to the importance Vattel and the Law of Nations played in both our Declaration and Independence it is very difficult to reference them all here. I would strongly suggest you check out the excellent research by rxsid over at the freerepublic which can be seen here.
But you need to make a choice, will you allow your heritage to be stolen from you as you sleep and awake to lick the boots of your masters have placed on your neck as you become nothing more than a subject of the government?
Or, are you willing to bend your knee to the Divine Providence that our founding fathers had no shame to kneel before and ask for the strength to regain the heritage of a citizen of free and independent nation?
If you wonder what the difference is between a citizen and a subject, a subject has mailable privileges granted to him by the government, while a citizen has inalienable rights guaranteed by nature’s God. The choice between the two has always been yours to make.