-shows that allegiance and
domicile are the basis for all of the government's civil jurisdiction
over the person
Much has been said of the paramount duty to the state, a duty to be
recognized, it is urged, even though it conflicts with convictions of
duty to God. Undoubtedly that duty to the state exists within the domain
of power, for government may enforce obedience to laws regardless of
scruples. When one's belief collides with the power of the state, the
latter is supreme within its sphere and submission or punishment follows.
But, in the forum of conscience, duty to a moral power higher than the
state has always been maintained. The reservation of that supreme obligation,
as a matter of principle, would unquestionably be made by many of our
conscientious and law-abiding citizens. The essence of religion is belief
in a relation to God involving duties superior to those
[283 U.S. 605, 634] arising from any human
relation. As was stated by Mr. Justice Field, in Davis v. Beason,
133 U.S. 333, 342 , 10 S. Ct. 299, 300: 'The term 'religion' has
reference to one's views of his relations to his Creator, and to the
obligations they impose of reverence for his being and character, and
of obedience to his will.' One cannot speak of religious liberty, with
proper appreciation of its essential and historic significance, without
assuming the existence of a belief in supreme allegiance to the will
of God. Professor Macintosh, when pressed by the inquiries put to him,
stated what is axiomatic in religious doctrine. And, putting aside dogmas
with their particular conceptions of deity, freedom of conscience itself
implies respect for an innate conviction of paramount duty. The battle
for religious liberty has been fought and won with respect to religious
beliefs and practices, which are not in conflict with good order, upon
the very ground of the supremacy of conscience within its proper field.
What that field is, under our system of government, presents in part
a question of constitutional law, and also, in part, one of legislative
policy in avoiding unnecessary clashes with the dictates of conscience.
There is abundant room for enforcing the requisite authority of law
as it is enacted and requires obedience, and for maintaining the conception
of the supremacy of law as essential to orderly government, without
demanding that either citizens or applicants for citizenship shall assume
by oath an obligation to regard allegiance to God as subordinate to
allegiance to civil power. The attempt to exact such a promise, and
thus to bind one's conscience by the taking of oaths or the submission
to tests, has been the cause of many deplorable conflicts. The Congress
has sought to avoid such conflicts in this country by respecting our
happy tradition. In no sphere of legislation has the intention to prevent
such clashes been more conspicuous than in relation to the bearing of
arms. It would require strong evidence [283 U.S. 605,
635] that the Congress intended a reversal of its policy
in prescribing the general terms of the naturalization oath. I find
no such evidence.
v. Macintosh, 283 U.S. 605 (1931)]
City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157 (U.S.Tex.,1997)
“This Duty [owed Our Creator] is precedent both in order of time and
degree of obligation, to the claims of Civil Society.... [E]very man
who becomes a member of any Civil Society, [must] do it with a
saving of his allegiance
to the Universal Sovereign. We maintain therefore that in matters
of Religion, no man's right is abridged by the institution of Civil
Society, and that Religion
is wholly exempt from its cognizance.” Writings of
James Madison pg. 184 (Gaillard Hunt, ed. A. D. 1901).
Taking the word emigration then in its most extensive
sense, is the right of expatriation, as has been represented, the
mere whim of modern, fanciful, theoretical writers?- I say
it is as ancient as the society of man.
It is only by establishing the converse of the proposition, the
common law idea that the natural born subject of one prince cannot,
by swearing allegiance to another, or by any other act, discharge
himself from his allegiance to the former, that the principle of
emigration can be made a matter of doubt. 1 Tuck. Bl. Part 2d.
Appendix, p. 90. I deny that this common law principle is founded
in, or consonant to the divine law, the law of nature,
the law of nations, or the constitution of the state of New
Jersey. The bible is the most venerable
antiquity; there we find expatriation practiced, approved,
and never restrained. The family of Jacob became subjects
to the Egyptian monarch. Moses abandoned Egypt, his native
land, and David left Saul, his prince.
The law of nature, abstractedly considered, knows neither prince
nor subject. From this source, therefore, the common law principle
cannot be derived.
Particular nations have prohibited their people from migrating
to another country, but the prohibition did not arise from the practice
of nations towards each other. At Athens, after a man examined
the laws of
the republic, if he did not approve of them, he was at liberty to
quit the country with his effects. By the constitution of the
Roman commonwealth, no citizen could be forced to leave it,
or not to leave it, when made a member of another which he preferred.
Even under the emperors, as long as any remains of liberty continued,
it was a rule that each one might chose the state of which he wished
to be a subject or citizen. Where did the Romans get their laws?
From the Grecians. Where did the Grecians get their laws?
From the eastern nations- the abOrigines of the earth. tHE
right of expatriation, therefore, as far as we can trace it, has
been recognized in the most remote antiquity. Among modern nations
the practice is various; the Muscovites forbid it; in Switzerland
it is permitted: some princes consider their subjects as riches-as
flocks and herds, and their edicts correspond to these false notions.
Vattel b. 1, c. 19, § 225. Consult jurists, Grotius, Puffendorff,
Burlamaqui, Vattel, they are of opinion, that every man has
a natural right to migrate, unless restrained by laws, and that
these cannot restrain the right but under special circumstances,
and to a limited degree. The strong and masculine understanding
of Mr. Locke revolted at the illiberal ideas of English jurisprudence
in this particular; he examined the right claimed to prohibit emigration,
and declares that examples of emigration are frequent in history
profane and sacred, and that it has been the practice from the beginning
of the world to the time he wrote. Wyckefort has a section,
the title of which is, the prince may employ foreigners in his embassies,
even in their own country. Wyckefort, p. 116, 119. After
a narrative in which he shows, that this had been the practice of
Europe, he proceeds to consider its propriety, which he infers from
the right of expatriation. Mr. Rawle has read as cited, that
passage to which Mr. Tilghman did not refer, and omitted
to answer what Mr. Tilghman did read.
Lastly the constitution of New Jersey, is founded
on sentiments which repel the idea of perpetual allegiance, and
imply and include the right of expatriation.
Whatever diversity there may have been in the sentiments*326
of writers, and in the laws and practices of states on the subject
of emigration in general, there never has been a doubt in this country,
but that when a civil war takes place, each member of the society
has a right to choose his side.
The first view we have of New Jersey and Daniel Coxe,
is in a state of enmity, the state treating him as a refugee;
Daniel Coxe declaring himself a British subject, acting in
concert with an invading army.
Trace the circumstances distinctly, and we shall find the right
of election between the two governments restored to him, and that
he expatriates himself with the consent of, if not propelled thereto
by the state of New Jersey.
On the 11th of December 1778, the legislature of New Jersey passed
an act whereby they disfranchise all persons who were of the character
and had pursued the conduct of Daniel Coxe. At the treaty
of peace, his treason was cancelled, forgiven, buried in oblivion,
or at least remembered only to prevent restitution of his forfeited
estates. The disfranchising act continued in full operation, unrepealed,
and unaffected by the restoration of harmony between the two countries.
Under these circumstances he had his choice; he might have returned
to New Jersey, or to any other state. The principles of the constitution
justified him in becoming a British subject, within the rules of
expatriation, as stated by the opposite counsel. That he made his
choice is proved by unequivocal evidence, that leaves no room for
doubt or controversy as to the fact.
Mr. Rawle has himself enumerated eight heads, under which
the evidence of his expatriating himself, and becoming a
British subject may be classed. 1. Joining the British army in 1777.
2. Voluntary residence with them at Philadelphia and New York. 3.
Holding civil offices under the king. 4. Trading as a British
merchant. 5. Holding lands as a trustee. 6. Receiving pensions and
rewards as a British subject. 7. Describing himself as such. 8.
Having never taken an oath of allegiance to the state of New Jersey.
A case was cited (Wilson v. Marryat, 1 Bos. & Pul. 430) to
shew that the exercise of trade as a citizen of one country, is
compatible with a continuance of allegiance to another. It was the
case of John Collet, who was under the supposed tie not only
of permanent, but perpetual allegiance from birth.
But Daniel Coxe was not born in the allegiance of the state
of New Jersey, nor ever voluntarily took upon himself that
obligation. The principle of that decision is consonant to British
ideas, but in direct hostility with those which led to the American
revolution, gave birth to our constitutions, and without which
our brightest patriots were rebels.
It is impossible to doubt from what appears on the record, that
he is under repeated positive oaths of allegiance to the king of
Great Britain. According to the sound reasoning of Wyckefort,
these were sufficient to sever the strongest connection between
the United States and a citizen, much more such a relation as was
subsisting (if any) between the state of New Jersey and Daniel
Coxe; involuntary, disclaimed, and inconsistent with
the duties imposed upon him by his engagements to another country.
The naturalization law of congress is full proof that
in the estimation of the people of the United States, an oath of
allegiance to one country is an expatriation from a former;
and that whoever becomes a citizen here, ceases ipso facto,
to be a subject elsewhere. If this is not the meaning of our law,
we encourage the unhappy victims to sacrifice themselves at the
shrine of perjury. Characters, such as Mr. Coxe are considered
by the same law, as expatriated, as aliens,
and being no longer citizens; he having been attainted of treason
by the state of Pennsylvania in the year 1778.
By the naturalization act of April 14th, 1802, 6 vol. Laws
of United States, p. 74, 80, § 4, attainted loyalists, and such
as have been legally convicted of having joined the army of Great
Britain during the late war, cannot be naturalized without
the consent of the legislature of the state, in which such persons
were proscribed. All the courts of the United States, therefore,
could not naturalize Daniel Coxe, without the consent of
the states of New Jersey and Pennsylvania, in both of which he has
From all these considerations, it is inferred that Daniel
Coxe did expatriate himself; that he had a right so to do;-that
he has legally exercised that right, and has thereby become a British
subject, and is not an American citizen.
Did such expatriation induce the disability of alienage, and
is Daniel Coxe thereby incapacitated from taking lands in
the United States by descent?
We are charged with inconsistency, that while we endeavor to
exclude the liberal sentiments of the common law as applied to
antenati, we insist on the rigid rule of the same law, in
preventing aliens from holding lands in the United States.
This charge will be effectually repelled by a single passage,
from an authority cited by the opposite counsel for a different
purpose. 1 Tucker's Bl. part 2d. p. 371. If an alien could
acquire a permanent property in lands, he must owe an allegiance,
equally permanent with that property, to the king of England, inconsistent
perhaps with former allegiance, and productive of many other inconveniences.
By the civil law a contract for land by an alien is void. The forfeiture
to the prince is peculiar to England, or at least to countries where
the feudal system has prevailed. 1 Bl.Com. 371. Cod 1. 11, tit.
Was it from deference to the common law, that the objections urged
against the treaty of London were, that it paved the way for British
influence, by enabling aliens of that country to hold lands in the
If the natural and primitive allegiance may be put off without
the consent or concurrent act of the prince to whom it was first
due, expatriation must induce alienage.
Virginia has recognized the right, and considers the
person who has exercised it, as no longer a citizen. 1 Tuck.
Bl. part 2, p. 360, 361.
If expatriation be a right when legally exercised, it must induce
alienage, and the revolution is a case in point, to show
that a man is not obliged to continue the subject of that prince
under whose dominion he was born; otherwise, contrary to a position
contended for by Mr. Rawle, we must admit that America was
not independent until the king of Great Britain acknowledged her
independence; and that it was the consequence of, and not antecedent
to, the treaty of peace.
Expatriation is substantially a putting off or change of allegiance.
As to the removal from one country to another, it is a mere immaterial,
accidental circumstance. It will be agreed that if it can be done
in the country, it can by going out of the country.
Nations may shake off their allegiance, says Mr. Rawle,
but individuals may not. Grotius said just the contrary;
and surely, as Judge Tucker observes, if all might, any one
might, with the same reason.
Granting for a moment that the common law of England is as barbarous
as the case of M'Donald (Foster 59) would induce us to suppose,
how has it been translated to the United States, to be in active
operation, slandering the principles of our revolution. I consider
the case of Talbot v. Janson as establishing the proposition
that expatriation was a right, the fair exercise of which produced
alienage with its respective rights and disabilities.-
3 Dall. 133, 152, 164, 1 L.Ed. 540.
Of Hamilton and Eden I know nothing. Lord Fairfax's
case is not in print, but from what fell from his honor Judge
Washington, I presume it went upon similar grounds to that of
Calvin. I throw into the opposite scale, as at least an equal
weight, the decision in the case of the Charming Betsy, where
expatriation was expressly recognized, and as operating the extinguishment
of the previous character of citizen of the United States. It is
in point as to both particulars.
I conceive the general rule, at least so far as it is necessary
in the instance of Daniel Coxe, is fully established, and
that expatriation is a right, which, when fairly exercised, changes
the allegiance; and that it has been so exercised, by which he ceased
to be an American citizen, became an alien, and as such incapable
of holding lands by purchase, or taking by consent, unless there
be an exception out of the rule in his favor, as an antenatus.
The burden of the argument devolves upon our antagonists. Let them
show when, and by what means, the exception in favor of the antenatus,
derived from the principle of perpetual allegiance by birth, has
been adopted among us.
Because, say the counsel for the defendant in error, the constitution
of New Jersey adopted the common law, of which this is a part, therefore
the rule is imperative on this occasion. What! all the common
law of England? that which respects the royal prerogative, the hierarchy,
the idea that allegiance is personal to the king from the subject,
not duty on the part of the citizen to the state.
The common law of England, say Judge Tucker and Judge
Wilson, was only so far adopted in the states, as it was
proper and applicable to the situation and the circumstances of
the colonies; and was different in different colonies.
The adoption by New Jersey is guardedly expressed. “The common
and statute law of England, as have been heretofore practiced
in this colony, not repugnant to the rights contained in this charter,
shall be in force.”
Two questions arise for the consideration of the opposite counsel.
Was the principle for which they contend in previous practice in
New Jersey? Is it not repugnant to the privileges contained in that
A double task devolves on our opponents. They must shew that
what they ask, was in practice in the
colony of New Jersey before the formation of the constitution. This
is impossible; the case could not occur; it could not, in the nature
of things, be in contemplation of the convention. The expression
had reference to the mere detail of municipal law. Here then our
antagonists must fail.
Can they succeed better in the other part of the proposition?
Is not a claim, founded on the idea of perpetual allegiance by birth,
repugnant to the rights and privileges contained in that charter?
They say, on the contrary, that allegiance and protection are
reciprocal ties, and claim, as a right and privilege, to refuse
the former when the latter is withdrawn.
Three, out of seventeen states, says Mr. Rawle, have declared
emigration a right not to be restrained by the legislatures. I say
it is the principle of the revolution; it pervades each and every
constitution, without which the whole proceeding is crime, rebellion,
If the common law, introduced through the constitution, fails,
what is the next prop by which it is attempted to support a claim
in opposition to the language of our revolution?
We are told that the capacity of British subjects to hold lands
in the United States is recognized by the treaties of 1783 and 1794,
and that surely it was not meant to encourage them to purchase that
we might escheat. This part of the argument is introduced by a reference
to Judge Tucker for the distinction between aliens by birth
and aliens by election. 1 Tuck. Bl. part 2, page 102, s. 2.-
I acknowledge that Judge Tucker does state, that, by the treaty
of peace, the common-law principle that the antenati of both
countries were natural born to both, and as such, capable of holding,
or inheriting, seems to be revived.-As far as respects authority,
I oppose to Judge Tucker, the Virginia assembly, who expressly declare
that all persons not being citizens of the United States are aliens.
1 Tuck. Bl. part 2, page 55. Judge Tucker founds himself,
as to the common-law principle, upon Bracton and Calvins case, not
adverting to the difference in point of fact, that the British who
claim, as in this instance, never were in allegiance to our states.
Further, he does not observe that the whole reasoning is founded
upon the false hypothesis that allegiance by birth is perpetual.
He acknowledges that by the declaration of independence the colonies
became a separate nation from Great Britain; yet, according to the
laws of England which we still retained, the natives of both countries,
born before the separation, retained all the rights of birth. War
makes aliens enemies. They were enemies-then aliens.
With the New Jersey convention I understand the matter differently;
and that the law of England ceased until revived; and was revived
only as heretofore practiced.
On this mistaken ground it is, as I shall endeavor to shew, that
he infers that American natives were capable of inheriting lands
in England, and the natives of England of inheriting lands in America.
If this doctrine is founded upon the idea of perpetual allegiance
by birth, it must stand or fall with its principal.
Commentators, it is said, often find in Homer, what Homer never
thought. It appears to me that the same observation applies to the
commentaries we have heard upon the treaties of 1783 and 1794.
Let it be recollected that congress on the 27th of November,
1777, earnestly recommended it to the several states to confiscate
and make sale of all the real and personal estate of such of their
inhabitants, and other persons, as had forfeited the same.
The legislatures did confiscate the lands of antenati
as escheated, and it was never suggested to be a violation of the
common-law of the land. In order, however, to vest the property
inlands of an alien in the commonwealth, offices of entitling, and
of instruction, were necessary in some states.
In some states acts of assembly declared that the estates of
the persons proceeded against should be vested and adjudged to be
in the actual possession of the commonwealth without any other office
or inquisition. In others, real property belonging to British subjects,
loyalists, and others, had been only sequestered, not confiscated,*333
and the profits appropriated during the war; the estate to wait
the disposal of the legislative provision on the return of peace.
In some instances the lands of loyalists and others had not been
actually seized and taken into the possession of the states respectively
where situated, and therefore the forfeitures and confiscations
were not considered as completed. In these several ways real property
remained to loyalists and others which was considered as not yet
confiscated. This is the key to unlock the secrets of the provision
in the treaty.
I contend, therefore, that the 6th article of the treaty of 3d
September, 1783, as far as respects property, is confined in its
letter, spirit, and meaning, to the preservation of estates owned
antecedently to the war, which had not been actually confiscated
and seized; and to the consequences of an active part taken during
This construction is perfectly warranted by the case decided in
Connecticut, (Kirby's Reports) and by the principles as laid
down by that very eminent English lawyer, Woodeson.
The distinction of antenati and postnati, the security
of future acquisition, or the operation of general principles arising
from political situations not the penal consequences of an active
part taken in the war, were not then in contemplation.
Twelve millions of rich aliens allowed to purchase lands in a
country owned by two or three millions of people comparatively poor:
would it not have been thought madness! I conceive that this clause
is precisely co-extensive as to its objects in guarding against
injury to the person and to the property. It preserves
from injury to their property the same persons who were to be secured
in their personal liberty.
In the first place, this comprehended many who were considered
as citizens of the United States, but who had committed crimes against
Was the property to be restored to them at one moment, says Mr.
Rawle, for the purpose of being taken from them the next?-By no
means. The stipulations extend to preclude any criminal proceedings
for what had been done during the war. The effect of alienage was
left to considerations of policy. Our commissioners, I trust, would
not have suffered any interference by the British on that head.
This article was intended to prevent punishment, not to secure
reward. If the loyalist is put upon the same footing as the ally
in the war, he has no cause of complaint.
There must be no future loss; no damage by reason of the
part which any have taken during the war. It is not asked. If
Daniel Coxe had fought under general Washington and at
the peace expatriated himself, and become a British subject, the
rule for which we contend would have been equally applicable. Many
of the people came back, and were naturalized under acts of assembly,
and of course hold their lands; such as Mr. Gordon in Pennsylvania,
The construction of the treaty attempted by our opponents, can
only be maintained by reference to the common law doctrine, that
natives of Great Britain were constructively born in America.
The 5th article assists in the construction of the 6th, and is
recommendatory where the confiscation laws had been actually carried
into effect. The 9th article of the treaty of the 19th of November,
1794, is in perfect unison with the ideas I submitted to the consideration
of the court. Different ideas had been entertained in the different
states as to the policy of permitting aliens to hold lands. It was
always a matter of state regulation. In Pennsylvania they might
purchase;-now they may take by descent.
The treaty, therefore, so far from looking to future acquisitions
by purchase, is confined to those who now hold.
It is observable that Judge Tucker does not express himself
decidedly. He uses the qualified and guarded expression that the
treaty seems to have revived the common law principle that
the antenati of both countries were natural born to both.
He qualifies his argument still further, by saying, British subjects
born since the separation are aliens; but such of them as were born
before the definitive treaty of peace took place seem to
be entitled to the benefits thereof, so far as they had, or might
be presumed to have, any interest in lands in the United States.
All others appear to be aliens in the strictest sense of the word,
except as their cases may have been remedied by the late treaty
of the 19th Nov. 1794.
Daniel Coxe had no interest in lands in the United States,
and could not be presumed to have, on the 3d of September, 1783.
It is curious to observe the unreasonable consequences to which
this doctrine of antenatus leads.
If the loyalist died and left an unoffending infant, his lands
If he leaves an antenatus who had waged war against us,
he succeeds to the possession.
Say with Judge Tucker that under the equity of the treaty
of peace, giving it the most liberal construction, all rights of
British subjects, actually vested, not divested, were protected;
and that when such rights relate to lands, the persons having such
right, if not then citizens, had their whole life time to become
citizens; which, if they neglected to do, their lands at their deaths
would be equally subject to escheat as those of any alien naturalized,
and dying without heirs other than aliens. How is this reconcilable
with his doctrine of antenati being entitled to purchase,
take by descent, and every other mode of acquisition? Or, with his
argument that the common law principle from which this doctrine
of antenati flows, that of perpetual allegiance by birth,
has never been translated as a part of the common law into the United
States? How can he reconcile it to his censure*336
and strictures upon the determination of Judge Ellsworth
in Williams's case? He himself acknowledges that after the
28th of October, 1795, no British subject can purchase lands within
the United States, so as to be protected by that treaty.
If once this whimsical doctrine of antenatus be admitted
it will give rise to an infinity of perplexing questions.
An attainted loyalist, if he retains his citizenship may return
and be immediately eligible as a member of the house of representatives
or the senate. After 14 years residence, though he cannot be naturalized
without the consent of the state in which he was proscribed, yet
he may be president of the United States.
I inter from all these considerations that the expatriation of
Daniel Coxe induced the forfeiture of alienage, and that
he is thereby precluded from taking lands by descent in the United
States of America.FN*
FN* The case of M'Ilvaine v.
Coxe's Lessee, by mistake dated February, 1804, was the
first case decided in February Term, 1805.
[M'Ilvaine v. Coxe's Lessee, 2 Cranch 280, 1805 WL 1080 (U.S.,1805)]