The American Journal of Legal History, Vol 18
Americans inherited a complex set of ideas relating to membership, community, and allegiance along with their status as English subjects, and they would adjust, affirm, or repudiate elements of the intellectual whole at different times and in response to varying practical and theoretical concerns. From piecemeal changes and partial modifications, however, a clear line of development emerged as Americans first experienced, then sought to articulate the meaning of their transformation from subjects to citizens.
Responding to the controversies and confusion that surrounded the accession of James I to the English throne, Sir Edward Coke in 1608 in Calvin's Case propounded an explicit set of principles and formulations respecting the nature of membership and community that would dominate English law for the next several centuries. His central conclusion was that subjectship involved a personal relationship with the king, a relationship rooted in the laws of nature and hence perpetual and immutable. The conceptual analogue of the subject-king relationship was the natural bond between parent and child.
The intellectual premises from which Coke derived his conclusions were those of a man standing midway between the eras historians categorize as “medieval” and “modern,” and those premises were destined to fade before the century was out. New conceptions emerged that saw society and government as the product of individual consent and compact, and Coke's quasimedieval ideas that social and governmental organization grew out of natural principles of hierarchy and subordination became increasingly anachronistic.
Americans responded to the problem of conflicting loyalties by developing the doctrine of the right of election. The states by no means moved in unison, but all would eventually agree with one lawyer's conclusion that, “In revolutions, every man had a right to take his part. He is excusable, if not bound in duty to take that which in his conscience he approved.’”40 The personal choice of allegiance had to be made within a “reasonable” period of time, and once the decision was made it could be considered binding. But the initial concession was clear. Citizenship in the new republics was to begin with individual consent.
The status of “American citizen” was the creation of the Revolution. The imperial crisis of the pre-war years and the separation from the mother country formalized in 1776 stimulated the articulation of at least some of the major principles that were to shape and define the new status. Despite some initial confusion, Americans came to see that citizenship must begin with an act of individual choice. Every man had to have the right to decide whether to be a citizen or an alien. His power to make this choice was clearly acknowledged to be a matter of right, not of grace, for the American republics were to be legitimate governments firmly grounded on consent, not authoritarian states that ruled by force and fiat over involuntary and unwilling subjects.
Americans acknowledged the right of the state to dictate the timing of election, to establish the rules governing its exercise, and to determine its consequences. But the individual alone was responsible for making the choice between subjectship and citizenship.
The American Journal of Legal History, Vol 18 (1974)