CHAPTER I

THE REVOLUTIONARY PERIOD

The Declaration of Independence declared the right of the people to establish a new government. Yet earlier the Continental Congress had exercised authority to declare certain Tories to be out of the protection of the United States, and had ordered that any person refusing its bills should be deemed an enemy of his country and be refused all intercourse with the inhabitants of the colonies.1

The early continental congresses required no oath from even their members. Soldiers at enlistment merely declared that they had voluntarily enlisted and did bind themselves to conform to the rules for the government of the army. Late in 1776 they were sworn "to be true to the United States of America and to serve them honestly and faithfully.' "2 Congress early resolved "that no oath by way of test be . required of any of the inhabitants of these colonies, by any military officers." A law of January 3, 1776, required certain officers of the government, chiefly

1 Journals of Congress, II, 8, 21; January 11, 1776.

Ibid., I, 118; II, 367.

Ibid., II, 88.

those in charge of funds and supplies, to take an oath truly and faithfully to discharge their duties. Congress later established an oath for all officers in the continental service and for all holding civil office from Congress, as follows:

I do acknowledge the Thirteen United States of America, namely, . to be free, independent and sovereign states, and declare that the people thereof owe no allegiance or obedience to George the Third, King of Great Britain; and I renounce, refuse, and abjure any allegiance or obedience to him: and I do swear that I will to the utmost of my power support, maintain and defend the said United States against the said King George, etc.

Even before the adoption of the Declaration of Independence the Continental Congress defined the citizenship of the colonies. It resolved, June 6, 1776, while considering a report of its Committee on Spies, "that all persons abiding within any of the United Colonies and deriving protection from the laws of the same owe allegiance to the said laws, and are members of such colony." Persons only temporarily in a colony were declared to owe allegiance to it during their temporary stay, and it was made treason for such to levy war.7

4 Op. cit., I, 187.

5 October 21, 1776; February 3, 1778.

Journals of Congress, II, 426. January 16, 1777, Congress ordered that the oath of fidelity be published (ibid., III, 20). ↑ Ibid., II, 229.

Hamilton accepted this position, and developed its application to those who had been within the British lines during the war, and to Tories generally, in his Letters from Phocion, written in 1784. In opposition to proposed New York legislation hostile to Tories, he pleaded both their legal status and their treaty rights. The treaty, he held, forbade attainting individuals for war crimes, and for the state to disfranchise or punish whole classes of its citizens by general descriptions and without a trial was tyranny. To say, on the other hand, that by espousing the cause of Great Britain the Tories became aliens, and that it would satisfy the treaty to confine them to the privileges of aliens, was to admit that subjects might at pleasure renounce their allegiance to the state of which they were members and devote themselves to d foreign jurisdiction. That was a principle contrary to law, and subversive of government; also it would lead to forfeiture of property by a fraudulent subterfuge that was more odious than an open violation of the treaty. The state could not deprive a citizen of his right without an offense ascertained by a trial, and the treaty forbade prosecution and trial.

The idea of suffering the Tories to live among us under disqualifications is equally mischievous and absurd. It is

necessitating a large body of citizens in the State to continue enemies to the government.

By the Declaration of Independence, acceded to by the New York convention, July 9, 1776, the late colony of New York became an independent state. All the inhabitants who were subjects under the former government, and who did not withdraw themselves upon the change which took place, were to be considered as citizens owing allegiance to the new government. This, at least, is the legal presumption; and this was the principle in fact, upon which all the measures of our public councils have been grounded.

Thus, according to Hamilton, residents of New York, formerly British citizens, had the opportunity of making choice of American or British citizenship immediately after July 9, 1776. By choosing the latter they chose to become alien enemies in the place of their residence, and were under the necessity of withdrawing from the state. Persons who remained were, and continued to be, American citizens, although the fortunes of war later left them within the enemy's lines, where they owed a temporary and qualified obedience, and although they took voluntary part with the enemy and became traitors thereby. He held that the idea of citizens transforming themselves into aliens by taking part against their state was altogether unknown and inadmissible.

Lodge, Works of Alexander Hamilton, III, 449-70.

Bancroft states the theory of citizenship resulting from the Declaration of Independence thus: He that had owed primary allegiance to Great Britain now owed primary allegiance to the United States, but it was no treason to adhere to the king's government, Yet those who chose to remain on the soil, by residence accepted the protection of the new government, and have owed it allegiance. He adds that this was why for twelve years in American state papers "free inhabitants" and "citizens" were convertible terms, either or both being used."

During the Revolutionary War repeated efforts were made to detach the foreign element from the British army by offers of land and citizenship. First, in August, 1776, Congress adopted the report of a committee to devise plans for encouraging the Hessians and other foreigners to quit the British service. They declared it to have been

the wise policy of these states to extend the protection of their laws to all those who should settle among them of whatever nation or religion they might be and to admit them to a participation of the benefits of civil and religious freedom.

They asserted that the "benevolence" and "salutary effects" of this practice advocated its continuance. They resolved that • Bancroft, History of the United States, V, 200.