“Considered broadly,” says Douglas Bradburn, “the problem of ‘citizenship’ remains one of the most compelling contexts to attempt to understand the process, limits, and meaning of the American Revolution.” This post is a brief exercise in the problem of American citizenship in the immediate post-revolutionary era (and a note towards an article-length project on international law in the new republic). It begins with the dilemma of dealing with the fallout of a civil war like the War of Independence, and it follows the reception of a slightly unexpected figure in the history of American political thought: Thomas Hobbes.
Before the British had even left Charleston, South Carolina’s assembly—held at Jacksonborough in spring, 1782—passed acts of confiscation and amercement against inhabitants who had taken the “protection” of the king during the war: effectively, anyone who had lived within the lines of British occupation. But most of these families could hardly be classified as loyalists, or even (now the war was over) ex-loyalists. The political question, then, was: who can decide who shall be counted as citizens of the republic and on what basis? By stripping them of the franchise, Governor Rutledge had begun to give an answer, and by confiscating their property (without, of course, their representative consent) the assembly had followed his lead. To some South Carolinians, these acts were precedents that threatened basic rights; they were also unjust according to international law.
“[T]he obligation of subjects to the State is understood to last so long, and no longer than the power lasts by which it is able to protect them,” Hobbes had written. Accordingly, South Carolina had no right to expect loyalty from those whom it could not protect from the British, and thus no right to punish them now. “On the restoration of the republic and law from British thraldom,” wrote Aedenus Burke, “the protection-men who had been our citizens before, were as fully entitled to all the rights and freedom of citizenship, as those who were detained prisoners of war, or took refuge to the northward.” They should be deprived of neither their votes nor their property, he argued. Moreover, restoring them to the full status of citizens accorded with both principle and policy. To exclude them would only create a faction permanently opposed to the government, and ripe for future manipulation by the British.
In his Phocion letters of early 1784, Alexander Hamilton took the same position against the New York radicals attacking the “Tories” left in the city after the British evacuation. To “disfranchise or punish whole classes of citizens by general descriptions, without trial,” he wrote, contradicted “a dictate of natural justice, and a fundamental principle of law and liberty.” To declare some people traitors because they had lived within British lines “would be to measure innocence and guilt by latitude and longitude.” The Treaty of Paris stipulated that no further punishment of loyalists should occur. “To say that this exemption from positive injury, does not imply a right to live among us as citizens, is a pitiful sophistry.” Although he didn’t quote Hobbes directly, I think Hamilton is making a Hobbesian point here. “The meaning of the word liberty has been contested,” he wrote.
Its true sense must be, the enjoyment of the common privileges of subjects under the same government. There is no middle line of just construction between this sense and a mere exemption from personal imprisonment! If the last were adopted, the stipulation would become nugatory; and, by depriving those who are the subjects of it, of the protection of government, it would amount to a virtual confiscation and banishment; for they could not have the benefit of the laws against those who should be aggressors.
While Hobbes himself had written that liberty “signifieth properly the absence of . . . external impediments of motion . . . [i.e.] walls and chains,” the real object of his theory was the “artificial man,” the commonwealth, and the “artificial chains,” the laws, which define the “liberty of subjects.” Such laws are made “by mutual covenants” for mutual protection, and “at the entrance into conditions of peace, no man [may] require to reserve to himself any right which he is not content should be reserved to every one of the rest.” As Hamilton put it, if the Tories were required to give up all rights except “exemption from personal imprisonment,” then they would have no rights at all, for they would have no protection against the others. To say “they may receive protection without being admitted to a full enjoyment of the privileges of citizens” simply raises the question, “where shall the line be drawn? Not a capricious and arbitrary line, but one warranted by rational and legal construction?”
In the highly unstable world of post-revolutionary legal discourse, Burke, Hamilton, and others sought “by rational and legal construction” to define the edges of citizenship. In doing so, they rejected the implicit sovereignty of post-revolutionary legislatures like the one at Jacksonborough. They asserted a more fundamental set of principles, one that could be known in part through the strictures of international law and the law of nature, and understood through the writings of authors like Hobbes. “The rights . . . of a republican government are to be modified and regulated by the principles of such a government,” Hamilton wrote. The battle to define those principles could not take place on the assembly floor alone; it took place in courtrooms and taverns, private parlours and the public press, and it was structured by a set of discourses much older than the new American republic. The nature of citizenship helped determine power relations within society and the state. But at the same time, the post-revolutionary struggle for power helped determine the nature of American citizenship.
1. Douglas Bradburn, “The Problem of Citizenship in the American Revolution,” History Compass 8, no. 9 (2010): 1103.
2. Qtd. in Aedanus Burke, “An Address to the Freemen of South Carolina” (Philadelphia: Bell, 1783), 7. Evans no. 17861.
3. Burke, “An Address to the Freemen,” 9.
4. Alexander Hamilton, “A Letter from Phocion to the Considerate Citizens of New York,” January 1-27, 1784, in The Papers of Alexander Hamilton, 26 vols., ed. Harold C. Syrett (New York: Columbia University Press, 1961-1979) 3:485.
5. Hamilton, “Second Letter from Phocion,” April, 1784, in Papers of Alexander Hamilton, 3:535.
6. Hamilton, “Letter from Phocion,” 3:487.
7. Thomas Hobbes, Leviathan (London, 1660 ), chapters XV and XXI.