Article 1, Section 2, Clause 2
James Madison, House of Representatives22 May 1789Papers 12:179--82
I think the merit of the question is now to be decided, whether the gentleman is eligible to a seat in this house or not, but it will depend on the decision of a previous question, whether he has been seven years a citizen of the United-States or not.
From an attention to the facts which have been adduced, and from a consideration of the principles established by the revolution, the conclusion I have drawn is, that Mr. Smith, was on the declaration of independence a citizen of the United-States, and unless it appears that he has forfeited his right, by some neglect or overt act, he had continued a citizen until the day of his election to a seat in this house. I take it to be a clear point, that we are to be guided in our decision, by the laws and constitution of South-Carolina, so far as they can guide us, and where the laws do not expressly guide us, we must be guided by principles of a general nature so far as they are applicable to the present case.
It were to be wished, that we had some law adduced more precisely defining the qualities of a citizen or an alien; particular laws of this kind, have obtained in some of the states; if such a law existed in South-Carolina, it might have prevented this question from ever coming before us; but since this has not been the case, let us settle some general principles before we proceed to the presumptive proof arising from public measures under the law, which tend to give support to the inference drawn from such principles.
It is an established maxim that birth is a criterion of allegiance. Birth however derives its force sometimes from place and sometimes from parentage, but in general place is the most certain criterion; it is what applies in the United States; it will therefore be unnecessary to investigate any other. Mr. Smith founds his claim upon his birthright; his ancestors were among the first settlers of that colony.
It is well known to many gentlemen on this floor, as well as to the public, that the petitioner is a man of talents, one who would not lightly hazard his reputation in support of visionary principles: yet I cannot but think he has erred in one of the principles upon which he grounds his charge. He supposes, when this country separated from Great Britain, the tie of allegiance subsisted between the inhabitants of America and the king of that nation, unless by some adventitious circumstance the allegiance was transferred to one of the United States. I think there is a distinction which will invalidate his doctrine in this particular, a distinction between that primary allegiance which we owe to that particular society of which we are members, and the secondary allegiance we owe to the sovereign established by that society. This distinction will be illustrated by the doctrine established by the laws of Great Britain, which were the laws of this country before the revolution. The sovereign cannot make a citizen by any act of his own; he can confer denizenship, but this does not make a man either a citizen or subject. In order to make a citizen or subject, it is established, that allegiance shall first be due to the whole nation; it is necessary that a national act should pass to admit an individual member. In order to become a member of the British empire, where birth has now endowed the person with that privilege, he must be naturalized by an act of parliament.
What was the situation of the people of America when the dissolution of their allegiance took place by the declaration of independence? I conceive that every person who owed this primary allegiance to the particular community in which he was born retained his right of birth, as the member of a new community; that he was consequently absolved from the secondary allegiance he had owed to the British sovereign: If he was not a minor, he became bound by his own act as a member of the society who separated with him from a submission to a foreign country. If he was a minor, his consent was involved in the decision of that society to which he belonged by the ties of nature. What was the allegiance as a citizen of South-Carolina, he owed to the King of Great Britain? He owed his allegiance to him as a King of that society to which, as a society he owed his primary allegiance. When that society separated from Great Britain, he was bound by that act and his allegiance transferred to that society, or the sovereign which that society [Volume 2, Page 76] should set up, because it was through his membership of the society of South-Carolina, that he owed allegiance to Great Britain.
This reasoning will hold good, unless it is supposed that the separation which took place between these states and Great Britain, not only dissolved the union between those countries, but dissolved the union among the citizens themselves: that the original compact, which made them altogether one society, being dissolved, they could not fall into pieces, each part making an independent society, but must individually revert into a state of nature; but I do not conceive that this was of necessity to be the case; I believe such a revolution did not absolutely take place. But in supposing that this was the case lies the error of the memorialist. I conceive the colonies remained as a political society, detached from their former connection with another society, without dissolving into a state of nature; but capable of substituting a new form of government in the place of the old one, which they had for special considerations abolished. Suppose the state of South Carolina should think proper to revise her constitution, abolish that which now exists, and establish another form of government: Surely this would not dissolve the social compact. It would not throw them back into a state of nature. It would not dissolve the union between the individual members of that society. It would leave them in perfect society, changing only the mode of action, which they are always at liberty to arrange. Mr. Smith being then, at the declaration of independence, a minor, but being a member of that particular society, he became, in my opinion, bound by the decision of the society with respect to the question of independence and change of government; and if afterward he had taken part with the enemies of his country, he would have been guilty of treason against that government to which he owed allegiance, and would have been liable to be prosecuted as a traitor.
If it is said, that very inconvenient circumstances would result from this principle, that it would constitute all those persons who are natives of America, but who took part against the revolution, citizens of the United States, I would beg leave to observe, that we are deciding a question of right, unmixed with the question of expediency, and must therefore pay a proper attention to this principle. But I think it can hardly be expected by gentlemen that the principle will operate dangerously. Those who left their country to take part with Britain were of two descriptions, minors, or persons of mature age. With respect to the latter nothing can be inferred with respect to them from the decision on the present case; because they had the power of making an option between the contending parties: whether this was a matter of right or not is a question which need not be agitated in order to settle the case before us. Then, with respect to those natives who were minors at the revolution, and whose case is analogous to Mr. Smith's, if we are bound by the precedent of such a decision as we are about to make, and it is declared, that they owe a primary allegiance to this country, I still think we are not likely to be inundated with such characters; so far as any of them took part against us they violated their allegiance and opposed our laws; so then there can be only a few characters, such as were minors at the revolution, and who have never violated their allegiance by a foreign connection, who can be affected by the decision of the present question. The number I admit is large who might be acknowledged citizens on my principles; but there will very few be found daring enough to face the laws of the country they have violated, and against which they have committed high treason.
So far as we can judge by the laws of Carolina, and the practice and decision of that state, the principles I have adduced are supported; and I must own that I feel myself at liberty to decide, that Mr. Smith was a citizen at the declaration of independence, a citizen at the time of his election, and consequently entitled to a seat in this legislature.
The Founders' Constitution
Volume 2, Article 1, Section 2, Clause 2, Document 6
The University of Chicago Press
The Papers of James Madison. Edited by William T. Hutchinson et al. Chicago and London: University of Chicago Press, 1962--77 (vols. 1--10); Charlottesville: University Press of Virginia, 1977--(vols. 11--).