Article 1, Section 8, Clause 4 (Citizenship)

Document 3

Alexander Hamilton, A Second Letter from Phocion

By the declaration of Independence on the 4th of July, in the year 1776, acceded to by our Convention on the ninth, [Volume 2, Page 559] 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. Duties have been exacted, and punishments inflicted according to this rule. If any exceptions to it were to be admitted, they could only flow from the indulgence of the state to such individuals, as from peculiar circumstances might desire to be permitted to stand upon a different footing.

The inhabitants of the southern district, before they fell under the power of the British army, were as much citizens of the state as the inhabitants of other parts of it. They must, therefore, continue to be such, unless they have been divested of that character by some posterior circumstance. This circumstance must, either be--

Their having, by the fortune of war, fallen under the power of the British army.

Their having forfeited their claim by their own misconduct.

Their having been left out of the compact by some subsequent association of the body of the state, or

Their having been dismembered by treaty.

The first of these circumstances according to the fundamental principles of government, and the constant practice of nations could have no effect in working a forfeiture of their citizenship. To allow it such an effect, would be to convert misfortune into guilt; it would be in many instances, to make the negligence of the society, in not providing adequate means of defence for the several parts, the crime of those parts which were the immediate sufferers by that negligence. It would tend to the dissolution of society, by loosening the ties which bind the different parts together, and justifying those who should for a moment fall under the power of a conqueror, not merely in yielding such a submission as was exacted from them, but in taking a willing, interested and decisive part with him.

It was the policy of the revolution, to inculcate upon every citzen the obligation of renouncing his habitation, property, and every private concern for the service of his country, and many of us have scarcely yet learned to consider it as less than treason to have acted in a different manner. But it is time we should correct the exuberances of opinions propagated through policy, and embraced from enthusiasm; and while we admit, that those who did act so disinterested and noble a part, deserve the applause and, wherever they can be bestowed with propriety the rewards of their country, we should cease to impute indiscriminate guilt to those, who, submitting to the accidents of war, remained with their habi[ta]tions and property. We should learn, that this conduct is tolerated by the general sense of mankind; and that according to that sense, whenever the state recovers the possession of such parts as were for a time subdued, the citizens return at once to all the rights, to which they were formerly entitled.

As to the second head of forfeiture by misconduct, there is no doubt, that all such as remaining within the British lines, did not merely yield an obedience, which they could not refuse, without ruin; but took a voluntary and interested part with the enemy, in carrying on the war, became subject to the penalties of treason. They could not however, by that conduct, make themselves aliens, because though they were bound to pay a temporary and qualified obedience to the conqueror, they could not transfer their eventual allegiance from the state to a foreign power. By becoming aliens too, they would have ceased to be traitors; and all the laws of the state passed during the revolution, by which they are considered and punished as subjects, would have been, by that construction, unintelligible and unjust. The idea indeed of citizens transforming themselves into aliens, by taking part against the state, to which they belong, is altogether of new-invention, unknown and inadmissible in law, and contrary to the nature of the social compact.

But were this not the case, an insurmountable difficulty would still remain, for how shall we ascertain who are aliens or traitors, let us call them which we will. It has been seen that the boundaries of the British lines cannot determine the question; for this would be to say, that the merely falling under the power of the British army, constituted every man a traitor or an alien. It would be to confound one third of the citizens of the state in promiscuous guilt and degradation, without evidence, or enquiry. It would be to make crimes, which are in their nature personal and individual, aggregate and territorial. Shall we go into an enquiry to ascertain the crime of each person? This would be a prosecution; and the treaty forbids all future prosecutions. Shall the Legislature take the map and make a geographical delineation of the rights and disqualifications of its citizens? This would be to measure innocence and guilt, by latitute and longitude. It would be to condemn and punish, not one man, but thousands for supposed offences, without giving them an opportunity of making their defence. God forbid that such an act of barefaced tyranny should ever disgrace our history! God forbid that the body of the people should be corrupt enough to wish it, or even to submit to it!

The Founders' Constitution
Volume 2, Article 1, Section 8, Clause 4 (Citizenship), Document 3
http://press-pubs.uchicago.edu/founders/documents/a1_8_4_citizenships3.html
The University of Chicago Press

The Papers of Alexander Hamilton. Edited by Harold C. Syrett et al. 26 vols. New York and London: Columbia University Press, 1961--79. See also: Federalist