Thomas Paine's Citizenship Record
by Thomas D Scoble, Jr.
Copyright, 1946, Thomas Paine National Historical Association
In recognition of the valuable services of Thomas Paine during the American Revolution, the State of New York presented him with a confiscated farm of approximately three hundred acres located in the town of New Rochelle. After an absence of seventeen years in Europe, Paine returned in the year 1802 to live for a time on this farm. During his residence there, he tried to vote in the village of New Rochelle and his ballot was refused on the ground that he was no longer a citizen of this country.
To assemble and analyze the facts concerning this incident the Thomas Paine National Historical Association has been fortunate in receiving from Mr. Thomas D. Scoble, Jr. an article which is presented herewith. Mr. Scoble is an attorney living in New Rochelle and is recognized as an authority on common law. His article is the product of a long period of intensive research and the Association is indebted to him for this service toa great American Patriot.
Henry M. Lester, President
Thomas Paine's Citizenship Record
When Elisha Ward, an Election Inspector of New Rochelle, New York, challenged Thomas Paine the right to vote in the election of 1806 on the ground that Paine was not a citizen of the United States at that time, he started a controversy which has created an erroneous opinion in many lay minds requiring extensive legal research to correctly resolve.
Questions of citizenship, naturalization, domicile and even residence do present perplexing problems in the field of law. But the soundness of Ward's challenge or its baseless character may be reasonably determined to-day by, marshaling the pertinent facts on the one hand and then applying the law as it then existed to the established facts.
English birth and residence.
Paine was born in 1737, in the Village of Thetford, County of Norfolk, England. He was at one time in the English public service, serving as an excise or customs inspector.
American residence and activity from 1774 to 1787.
In September, 1774 he sailed for the United States and landed at Philadelphia Nov. 30, 1774 where he took up residence and became editor of the Pennsylvania Magazine, through introductions secured from Benjamin Franklin.
In January, 1776 he wrote the pamphlet Common Sense which is credited with crystalizing American opinion for independence from England. The pamphlet was the first to use the phrase "Free and Independent states of America" and its circulation was so widespread that Paine became the most notable writer in the Colonies at that time. As a citizen of the State of Pennsylvania in 1776, he took the oath of abjuration to the British king and the oath of allegiance to America.
He entered the military service of the colonies in July 1776, as secretary to General Roberdau, of Philadelphia; later he was a ide-de-camp of General Nathaniel Greene, who introduced him to Washington. A few days before the attack on Trenton, he published the first of a series of morale building pamphlets known collectively as The Crisis. The second issue in this series used the phrase, "United States" for the first recorded time.
These patriotic writings were so widely read and stimulating to the patriotic cause that Paine won the highest esteem of Washington, Jefferson, Franklin, Hancock, Madison, Monroe and every leader of the Revolution. He is credited with inspiring a substantial part of the Declaration of Independence, and, subsequently, of the United States Constitution.
When Congress formed the Committee of Foreign Affairs, Paine was elected its secretary on nomination by John Adams. On this appointment he again took the oath of allegiance to the United States, administered to him by John Hancock, "President of Congress". This office was held by Paine until January 8, 1779. He became Clerk of the Pennsylvania Assembly Nov. 2, 1779.
From 1782 to 1787 he also served as public relations counselor for the United States at a salary of $8oo per year, an appointment made by a committee composed of Robert Morris, Supt. of Finance, Robert Livingston, Secretary of Foreign Affairs, and Washington.
As reward for his patriotic services, the State of New York, in 1784 granted to Paine a farm of some 277 aces in the Town of New Rochelle. The public record of this grant expressly states that it was made in recognition of Paine's great patriotic services. The farm had formerly belonged to a Tory whose treason caused the title to the land to revert to the State. Paine lived on the farm at various periods, held title to it to his death. While away from it he frequently expressed his intention to return to it. It constitutes an important element in fixing not only Paine's United States citizenship, but his citizenship in the State of New York after 1784.
In addition to the above specified public acknowledgements of Paine's patriotic work, the State of Pennsylvania in December, 1784 paid him a gratuity of. 5oo pounds and on Oct.7, 1783 a resolution was passed in Congress instructing the U. S. Treasurer to pay him $3,000 for his services the Revolution.
These facts are so clearly established as to require no reference or documentation: they are largely matters of public record and accepted without controversy by Paine's numerous biographers.
Residence in France and England, from l787 to 1802.
In 1785, Paine became actively interested in various inventions, in addition to his public services and writings on many topics. One was a new design of an iron bridge. His attempt to have this design adopted for bridging the Schuylkill, a structure some 400 feet long, without central piers, was championed by Franklin, but turned down by the Assembly as unproven in design and calling for far too much iron, a total of 520 tons.
To secure scientific approval of the bridge design, Paine, in a letter to Franklin dated March 31, 1787, requested introductions to French leaders in order to secure its examination by the French Academy of Sciences. In this letter he definitely stated in regard to the Pennsylvania Committee engaged in inquiry into the merits of the bridge: "The matter will remain suspended until my return next winter." This is evidence of his purpose to leave the country only temporarily and of his intention to return as soon as his business was accomplished.
He sailed for Paris on April 26, 1787, and with the aid of Thomas Jefferson, then American Ambassador to France, succeeded in having his bridge design submitted to the Academy of Sciences which approved it. Paine then left Paris and went to England to further secure the approval of the Royal Society in London of his bridge and to visit his aged mother. He returned to Paris in December, 1787, after applying for English patents on the bridge.
He spent much of the first six months of 1788 attempting unsuccessfully to sell his bridge to the French for spanning the Seine. In August, 1789, he returned to England, secured his bridge patent in September and tried to promote the construction of a bridge there. In a letter to Jefferson dated September 15, 1789, referring to Jefferson's impending return to America he stated, "I feel a craving desire to return and I can scarcely forbear weeping at the thought of your going and my staying behind."
In 1789, a display model of his bridge was actually set up in London but in December of that year, he returned to Paris where the French Revolution was then under way. In March, 1790, he returned to London.
Lafayette, an admirer of Paine of long standing, had acquired the key of the Bastille when the revolutionists stormed the fortress in July of 1789. Lafayette desired to send the key to Washington as an historic symbol and selected Paine as his emissary, on Paine's statements of his intention to return. The key was turned over to Paine in February, 1790, who took it to London.
On May 1, 1790, Paine wrote Washington regarding the key but sent it by an American vessel, regretting his inability to bring it personally, stating, "I shall not be able to see my much loved America till next Spring."
In July 1790, he returned to France but to again went back London in October to promote his bridge business. In April, 1791 Paine returned to Paris und, with Concordet, Brissot, Achelle Duchalet and Nicholas Bonneville, he formed the Societe Republicaine which had as its object the establishment of a French Republic. In mid-July, he went back to London but returned . to Paris again in 1792.
Honorary French Citizenship Conferred in 1792
On August 26, 1792, the French National Assembry conferred the honorary title of French citizen on Paine, voting the same honorary title to Washington, Madison, Hamilton and other Americans.
Within a week, four Departments of France had chosen him to represent them in the National Convention which was to devise a republican form of government for the French nation. He consented to represent the department of Pas-de-Calais. On Sept. 19, 1792 he began his work in Paris, taking his seat in the National Convention on September 21, 1792 and being appointed to a committee to draft a constitution for the republic on October 11. The constitution was drafted by this committee and ultimately adopted after many amendments on June 25, 1793.
April 20, 1793, Paine wrote Thomas Jefferson "I begin to contemplate returning home. I shall await the event of the proposed Constitution, and then take my final leave of Europe."
Late in December, 1793 Paine was expelled from the Convention and was put in prison around the first of January, 1794, where he remained for 10 months.
Gouveneur Morris, American Ambassador to France at the time of the Paine's imprisonment, apparently had a deep hatred and fear of Paine who allegedly knew too much about Morris' questionable status as a patriotic American. On January 21, 1794 Morris wrote Jefferson, then Secrerarv of State, regarding Paine's incarceration saying: I believe he thinks that I ought to claim him as an American citizen; but considering his birth, his naturalization in this country, and, the place he filled, I doubt much the right, and I am sure that the claim would be, for the present at least, inexpedient and ineffectual."
Inasmuch as this line of reasoning was later adopted by the election inspector of New Rochelle, as a basis for denying Paine the right to vote, and thus gave rise to widespread erroneous impressions that Paine had lost his United States citizenship, Morris' letter requires careful analysis.
Monroe secures Paine's release on grounds of his United States citizenship.
Morris was removed as Ambassador to France in 1794 and James Monroe took his place. To Monroe, on September, 10, 1794, Paine wrote:
"Those who propagate the report of my not being considered as a citizen of America by government, do it * * * without authority; for Congress, as a government, has neither decided upon it, nor yet taken the matter into consideration."
This accurately states the fact in relation to any Act of Congress, at any time, dealing with Paine's citizenship despite statements occasionally found to the contrary. The records of the Department of State, now in The National Archives, at Washington, D.C. contain no information regarding Paine's citizenship to the time of his death, according to a letter from the Chief of the Division of State Department Archives dated August 21, 1945.
In the same Sept. 10, 1794 letter to Monroe, Paine wrote:
"I have never abandoned America in thought, word or deed, and I feei it incumbent upon me to give this assurance to the friends I have in that country, and with whom I have always intended, and am determined, if the possibility exists, to close the scene of my life. It is there that I have made myself a home ***".
In concluding his letter to Monroe, Paine wrote:
"France does not claim me for a citizen; neither do I set up any claim of citizenship in France. The question is simply, whether I am or am not a citizen of America. I am imprisoned here on the decree for imprisoning Foreigners, because, say they, I was born in England. I say in answer, that, though born in England, I am not a subject of the British government any more than any other American is who was born, as they all were, under the same government, or that the citizens of France are subject of the French monarchy, under which they were born. I have twice taken the oath of abjuration to the British king and government, and of Allegiance to America. Once a citizen of the State of Pennsylvania in 1776; again before Congress, administered to me by the President, Mr. Hancock, when I was appointed Secretary in the office of foreign affairs in 1777."
Monroe replied to Paine on September 18th (The Writings of James Monroe, 1903, Vol. 7, p. 296) assuring Paine of his deepest interest and stating:
"It becomes my duty, however, to declare to you, that I consider
you an American citizen, and that you are considered universally, In that character, by the people of America."
On Nov.6, 1794, four days after Monroe filed his demand for release, Paine was set free and remained a guest of Monroe in Paris for some time, assisting Monroe in his work. Secretary of State Randolph, in his letter to Monroe of March 8, 1795 approves Monroe's action which secured Paine's release on the grounds of his American citizenship. When Monroe was recalled, Paine was expected to return to America with him. Due to hostile activities of British men of war off France, (Paine was under threat of criminal prosecution by England for writing and publishing his Rights of Man, in 1792) he abandoned this plan and lived in Paris until 1802 when he returned to this country. On March 18, 1801 President Jefferson wrote Paine offering him passage to America on the frigate Maryland but when Paine heard of criticism of Jefferson for offering him the aid of the American Navy, Paine declined the offer.
He ultimately landed at Baltimore on October 30, 1802; lived in Washington, on friendly terms with Jefferson, and stayed in the Executive Mansion for several weeks. In February, 1803, he departed for New York. Paine took over his farm in New Rochelle, N. Y. in 1804, where, alternately living in New York City and in New Rochelle, he remained in New York State until his death in 1809.
His right to vote challenged in 1806 on the grounds of lost citizenship.
In 1806, Paine went to the polls in New Rochelle to vote and was refused a ballot by an inspector of elections, Elisha Ward.
Paine's version of his disenfranchisement is contained in his letter to Vice-President Clinton dated May 4, 1807:
"Respected Friend, - Elisha Ward and three or four other Tories who lived within the British lines in the revolutionary war, got to be inspectors of the election this year at New Rochelle. Ward was supervisor. These men refused my vote at the election, saying to me: `You are not an American; our Minister at Paris, Gouverneur Morris, would not reclaim you when you were imprisoned in the Luxembourg prison at Paris, and General Washington refused to do it."
On the same day, he wrote his old friend Joel Barlow, who, as a private American citizen in Paris at the time of Paine's imprisonment had interceded for him:
"I have prosecuted the Board of Inspectors for disfranchising me. You and other Americans in Paris went in a body to the Convention to reclaim me, and I want a certificate from you, properly attested, of this fact."
In the notes of Madame Bonneville to whom he left most of his estate, she states:
"This case was pleaded, before the Supreme Court of New York by Mr. Riker, then Attorney General, and, though Paine lost his cause, I as his legatee did not lose the having to pay for it."
The papers in this prosecution were apparently not preserved. The trial or hearing should have taken place in White Plains, county seat of Westchester County in 1807. No record of the proceedings has been found at the County Clerk's office at White Plains, nor in New York City nor at Albany. In September, 1945, the Attorney-General's office in New York, searched its records and found that no Attorney General of the name of Riker ever held that office. It did find that one Richard Riker was District Attorney for the First District from 1801 to 1809. The First District then included New York and also Westchester County in which the Town of New Rochelle was located. It is a question whether Mr. Riker ever did more than give counsel to Paine in the preparation of affidavits and certificates secured for presentation to the New Rochelle Board of Elections. Even though a suit may have been brought in Supreme Court and decided adversely to Paine, the proceeditng in no way determined Paine's citizenship.
The reasons ascribed for denying Paine his U. S. citizenship.
In the many books, essays and monographs on the life of Paine, there appear as many different reasons assigned for Paine's alleged loss of citizenship as there are authors. Nevertheless, these various assignments all fit into 8 main classifications. These are as follows: (1) To his birth in England and his service as a British Civil Official. (2) To his return to England and sporadic residence there for brief periods of time after the Revolution. (3) To his residence in France from 1787 to 1802. (4) To the compliment conferred upon him by the Convention in 1793 which designated him as an honorary citizen of France. (5) To his service as a delegate from the Department of Calais in the French Convention in 1792 for the purpose of forming the constitution for post revolutionary France. (6) To an alleged act of Congress prompted by his bitter criticism of Washington for failing to secure his release from a French prison, which cancelled the U. S. citizenship previously conferred upon him. (7) To the act of the Election Inspector of the Town of New Rochelle, N. Y. in 1806 which denied him the right to vote. (8) To an alleged decision of the Supreme Court of the State of New York which adjudicated his status as not a citizen of the United States.
Taking the assorted claims in the order of enumeration, we find:
(1) Paine's birth and public service in England prior to 1774 in no respect affects his later acquired status as a citizen of the United States.
Concededly Paine was a resident of the United States from1774 until after the Revolution, in active service of the American government. He twice took the oath of abjuration to the British crown and swore personal allegiance to the United States. In such circumstances the law is "clear as a ray of light."
James Monroe (Diplomatic Dispatches, France, Vol. 4; Dispatch No. 5, Nov. 7, 1794 to the Secretary of State) accurately stated the legal principle involved as follows:
"The case was different with Mr. Paine; he was actually a citizen of the United States, and of the United States only: for the revolution which parted us from Britain broke the allegiance which was before due to the crown of all those who took our side: he was of course not a British subject: nor was he strictly a citizen of France, for he came by invitation for the temporary purpose of assisting in the formation of their government only, and meant to withdraw to America when that should be completed; and what confirms this, is the act of the convention itself arresting him by which he is declared to be a foreigner."
The United States Supreme Court in Inglis v. Sailor's Snug Harbour, 28 U.S. 99, in the year 1830, handed down an exhaustive opinion of nearly one hundred pages which follows the rule set forth by Monroe. Much of the opinion is devoted to a precise definition of the citizenship status of British subjects resident in America during the Revolution. At page 159 of the Inglis opinion, it is said by Justice Story:
"Under the peculiar circumstances of the revolution, the general, I do not say the universal, principle adopted, was, to consider all persons whether natives or inhabitants, upon the occurrence of the revolution, entitled to make their choice, either to remain subject of the British crown, or to become members of the United States."
And at page 160:
"Hence, the recognition on the part of Great Britain of our independence by the.treaty of 1783, has always been held by us as a complete renunciation on her part of any allegiance of the then members of the states, whether natives or British born. And the same doctrine has been in its fullest extent recognized in the British courts, in the case of Thomas v. Acklan, 2 Barn & cres. 779."
The separate opinion of Mr. Justice Thompson states at page 120:
" ***It is universally admitted, both in the English courts and in those of our own country, that all persons born within the colonies of North America, whilst subject to the crown of Great Britain, were natural-born subjects and it must necessary follow that their character was changed by the separation of the colonies from the parent state, and the acknowledgement of their independence.
The risk as to the point of time at which the American ante-nati ceased to be British subjects, differs in this country and in England, as established by the courts of justice in the respective countries. The English rule is, to take the date of the treaty of 1783; our rule is, to take the date of the declaration of independence.***"
In Shanks v. DuPont, 28 U.S. 241, at 247, Mr. Justice Story said:
"The treaty of peace of 1783 acted upon the state of things as it existed at that period. All those, whether natives or otherwise, who then adhered to the American states, were vestually absolved from all allegiance to the British crown; all those who then adhered to the British crown were deemed and held subjects of that crown."
In Boyd v. Thayer, 143 U.S. 135, it is said at page 163:
"All white persons or persons of European descent who were born in any of the colonies, or resided or who had been adopted there, before 1776, and had adhered to the cause of independence up to July 4, 1776, were by the declaration invested with the privileges of citizenship."
There has been no deviation from the rule by the United States Supreme Court and the doctrine thus established is recognized and in force in New York. In 1839 the Supreme Court of Judicature of the State of New York, in Young v. Peck, 21 Wendell's Reports 389, passed upon the citizenship of one James Knox, a manborn in Scotland who came to this country in 1774, leaving a daughter in Scotland. Knox remained in this country until his death. The court found that he was a citizen of the United States and so too was his daughter altho she did not come to America until 1830. At pages 390, 391, the opinion of Chief Justice Nelson says:
"The father of the plaintiff arrived here before the declaration of independence and adhered to this country; he was an original citizen, and is to be considered the same as native born." The authoritative text book, Kent's Commentaries, Vol. 2, Lecture XXV
entitled "On The Rights of Aliens and Natives", sums up the well established principle of law on the subject at page 88:
"Natives are all persons born within the jurisdiction of the United States, If they were resident citizens at the time of the declaration of independence, though born elsewhere, and deliberately yielded to it an express or implied sanction, they became parties to it, and are to be considered as natives; their social tie being coeval with the existence of the nation."
With both facts and law equally well established Paine's birth and public service in England before 1774 in no way affect his legal status as "an original citizen" of the United States by reason of his residence here at the time of the declaration of independence and the peace treaty of 1783, plus his several oaths of abjuration of the British crown and of allegiance to the United States which, in addition to his well known patriotic services are clear personal evidence of his election and intent to become a United States citizen.
(2) Paine's sporadic and brief visits to England in the years 1787 to 1792 changed neither his true American domicile nor his status as a citizen of the United States.
There is not the slightest intimation that any of Paine's visits to England between 1787 and 1792 resulted in his taking up a fixed or permanent domicile there with intent to sever his American citizenship and take back his old status an English subject. His writings are all to the contrary and expressly set forth his intent to return to the land he thought of as his home. (Letters of March 31, 1787 (Franklin); Sept.15, 1789 (Jefferson); May 5, 1790 (Washington); April 20, 1793 (Jefferson); Sept. 10, 1794 ( Monroe).
In Paine's appeal to the Convention for release from imprisonment, dated August7 , 1794, he made his position clear:
"Citizens, when I left the United States in the year 1787, I promised to all my friends that I would return to them the next year; but the hope of seeing a revolution happily established in France, that might serve as a model to the rest of Europe, and the earnest and disinterested desire of rendering every service in my power to promote it, induced me to defer my return to that country, and to the society of my friends, for more than seven years."
The object of Paine's visits to England were twofold; to see his aged mother and to promote his bridge business. Nothing whatsoever appears even indicating a change of domicile or residence, much less of citizenship.
Controlling law on this point is well set forth by the Court of Appeals of New York in the case of Duprey v. Wurtz, 53 N.Y. 556 at p. 561:
"To effect a change of domicile * * * there must be not only a change of residence, but an intention to abandon the former domicile. There must be both residence in the alleged adopted domicile and intention to adopt such place of residence as the sole domicile. Residence alone has no effect per se, though it may be most important, as a ground from which to infer intention. Length of residence will not alone effect the change. Intention alone will not do it, but the two taken together do constitute a change of domicile."
In People v. Platt, 50 Hun 454, the law is exhaustively set forth, in order to determine a claimed right to vote. At page 475 the rule both in this country and England is clearly stated:
"Domicile of choicer" said Lord Westbury, in the case of Udny v. Udny (L.R., 1 Scotch and Div. App. Cases,458), is a conclusion or inference which the law derives from the fact of a man fixing voluntarily his sole or chief residence in a particular place with an intention of continuing to reside there for an unlimited. time. This is a description of the circumstances which create or constitute a domicile, and not a definition of the term. There must be a residence freely chosen, and not prescribed or dictated by any external necessity, such as the duties of office, the demands of creditors, or the relief from illness; and it must be residence fixed not for a limited period or particular purpose, but general and indefinite in its future contemplation.,, The authorities above cited, as well as many others, are in accord with this description.
The idea is of a home residence, kept in fact and intent, with the view to permanency, though business, pleasure, health or constraint may lead to the occupation of a temporary and long continuing residence elsewhere."
By none of the accepted tests applied to the facts of Paine's sporadic visits to England, purely for temporary purposes without any intention of establishing continued residence there, do those visits affect his United States citizenship.
(3) Paine's residence in France from 1787 to 1803 to promote his bridge, to aid in forming the new constitution and to assist Ambassador Monroe, was without intent to change either his domicile or citizenship and did not do so.
For sixteen years following 1787, Paine spent most of his time in France. The purpose of his original visit was made evident by the letter of introduction he secured from Franklin to members of the French Academy of Science. He wished to secure the Academy's approval of his bridge design. He thought he could do this and "return next winter". [Letter to Franklin of March 31, 1787, Appeal to Convention, Aug. 7, 1794); his activities relating to the bridge and his frequent expressions of intent to return to America, mentioned before, negative any settled purpose to make F.rance his permanent place of abode, or to sever his allegiance to the United States.
His continued assistance to Ambassador Monroe in Paris after his release from jail, does not alter the situation any more the than residence abroad, today, of any U.S. citizen in the diplomatic or consular service of this country, would affect such a person's citizenship.
The Dupuy v. Wurtz opinion(53 N.Y. 556 at 561) expressly states that "Length of residence will not alone effect the change". In Paine's case, by both his acts and expressed intentions, he showed that he never meant to abandon his United States home or citizenship or, change his permanent place of abode to France.
Referring again to the accepted authority, Kent, the same volume and lecture before referred to, state's at page 97:
"So, an American citizen may obtain a foreign domicile, which will impress upon a natural character for commercial purposes, in like manner as if he were a subject of the government under which he resided; and yet without losing on that account his original character or ceasing to be bound by the allegiance due to the country of his birth." (U. S. v. Gillies, 1 Peters C.C. Rep. 1;59 Murray v. The Schooner Charming Betsey, 2 Cranch 64)
For the reasons above stated and the authorities cited under item (2), it is clear that Paine's mere residence in France after 1787 in no way affected his United States Citizenship, there being no special statutes such as are in existence today, affecting such long continued residence.
(4) The complimentary title of French citizen was a mere ceremonial gesture with no force or effect upon Paine's true citizenship.
Little time need be spent on this item. The identical compliment conferred on Paine was simultaneously conferred on many outstanding Americans including Washington, Madison and Hamilton. It has never occurred to anyone to question the citizenship of the last named by reason of the identical compliment.
In recent times our General Eisenhower was made a citizen of Belfast, Ireland, in honor of his exploits. We, in our turn, expected to confer honorary citizenship upon Zukkov on his visit here. Will anyone say, by such gestures, that Eisenhower became an Irishman and Zhukov an American?
It is of some interest to recall that the Marquis De Lafayette on his last visit to the United States in 1825, was honored with perpetual American citizenship for both himself and his descendants. This distinction is unique in our history and gives any of his male descendants the right of entry into our country as citizens of the United States and to vote in our elections.
It doesn't in one iota alter Lafayette's true status as a citizen of
France. Oddly enough, Paine, in his memorial to James Monroe on Sept. 10, 1794, in which he said he had never abandoned his citizenship of America for that of France, also revealed the inspirations also of the complimentary titles.
"The idea of conferring honorary citizenship upon foreigners * * * was first proposed by me to Lafayette, at the commencement of the French Revolution * * * ". The title, so conferred, is an empty one so far as its effect upon true
citizenship is concerned.
(5) His service as a delegate in the French Convention for the purpose of framing the new French Constitution worked no change in his U.S. citizenship.
In Paine's letter to Washington, dated July 30, 1796, he sets forth clearly both his personal intentions and material facts relating to his service as a delegate in the French Convention.
"I have always considered that a foreigner, such as I was in fact, with respect to France, might be a member of a convention for framing a constitution, with out affecting his right of citizenship in the country to which he belongs, but not a member of a government after a constitution is formed; and I have uniformly acted upon this distinction. * No oath of allegiance or of citizenship was required of the members who composed the convention; there was nothing existing in form to swear allegiance to. If any such condition had been required, I could not, as a citizen of America in fact, though a citizen of France by compliment, have accepted a seat in the Convention."
Paine's own arguments seem so sound as to require no further elaboration. The significance of his statement that no oath of allegiance of a citizen was required by members of the Convention is a determining point. In addition to all of the above, there is a point of law involved which controls this situation, for regardless of whether or not Paine desired to sever his U. S. citizenship he had no legal right to do so without the express consent of the U. S. Government under the controlling law of that period. From the records of the National Archives, it is established that no such consent was ever given by the U. S. Government.
In Inglis v. Sailor's Snug Harbor, 28 U.S. 99, Judge Story points out:
"The general principle of the common law also is, that the allegiance thus due by birth cannot be dissolved by any act of the subject. It remains perpetual, unless it is dissolved by consent of the sovereign, or by separation of law." * * * "The cases are plain enough upon the doctrines of law, as well as upon those which are recognized in the law of Nicene."
After stating the above principle, the court agrees that in the case of a natural-born British subject, who moved to the United States before the Revolution, the Peace Treaty of 1783 between England and America expressly provided that the allegiance due England was dissolved by the war and the Peace Treaty conferred upon a British subject the right to take his U. S. Citizenship.
Again referring to Kent's Commentaries, volume II lecture XXV, it is there stated at Pages 91 to 96:
"It is the doctrine of the English law, that natural-born subjects owe an allegiance, which is intensive and perpetual, and which cannot be diverted by any act of their own. (Story's case, Dyer's Rep. 298, b, 300b. 1 Blacks. Com. 370, 371. 1 Hale's P.C. 68. Foster's Crown Law 7, 5, 9, 183.). They held, that it was not in the power of any private subject to shake off his allegiance and transfer it to a foreign prince; nor was it in the power of any foreign prince, by naturalization or employing a subject of Great Britain, to dissolve the bond of allegiance between that subject and the crown. (Fosters Crown Law 59)"
"In the case of Talbot v. Janson (3 Dallas 133) the doctrine was brought before the Supreme Court of the United States. * 'Though a person may become naturalized abroad, yet if he has not been legally discharged of his allegiance at home, it will remain notwithstanding the party may have placed himself in difficulty, by double and conflicting claims of allegiance." "The majority of the Supreme Court gave no opinion upon the question; but the inference, from the discussion, would seem to be, that a citizen could not divest himself of his allegiance, except Under the sanction of a law of the United States; and that until some legislative regulations on the subject were presented, the rule of the common law must prevail."
" In 1797, the same question was brought before the circuit court of the United States for the district of Connecticut, in the case of Isaac Williams (cited in 2 Cranch.82, note) and Ch. J. Ellsworth rules, that the common raw of this country remained as it was before the revolution. The compact between the community and its members was, that the community should protect its members, and that the members should at all times be obedient to the laws of the community , and faithful to its defense. No member could dissolve the compact without the consent or default on the part of the United States.
"The question came before the U. S. Supreme Court next in 1822 in The Santissima Trinidad case, but again was left undetermined. "From this historical review of the principal discussions in the federal courts on this interesting subject in American jurisprudence, the better opinion would seem to be, that a citizen cannot renounce his allegiance to the United States without the permission of goyernment, to be declared by law; and. that, as there is no existing legislative regulation on the case, the rule of the English common law remains unaltered."
"This rule was admitted in Inglis v. The Trustees of the Sailor's Snug Harbour, 3 Peters 99 and expressly declared in Shanks v. Dupont, ibid.242
The true and controlling rule existing at the time in question is most clearly given by Judge Story in Shanks v. DuPont, 28 U.S. 241, 245 in the following language:
"The general doctrine is, that no person can, by any act of their own, without the consent of the Government, put off their allegiance and become aliens".
The trip to Europe in 1787 was not the first time Paine left America after he arrived had in 1774. White serving as clerk to the Pennsylvania Assembly, in February 1781, accompanied by Colonel Laurens to France a vital mission to the Colonies, for the purpose of securing desperately needed hard cash to carry on the war. By June of 1781, the mission succeeded and Paine and Lauren sailed for home on a French frigate loaded with 2,500,000 levres in silver, and a shipload of sorely needed clothing and munitions for the army. This trip has never occasioned any claim that it caused any change in his citizenship; yet despite the greatly increased duration of his stay in 1787-1802, the trips were of identical effect in the eyes of the law, so far as his citizenship is concerned. All the known facts of Paine's services in the French Revolution, which he declared were inspired by his desire to further promote the interests of the United States in securing a protective freedom, comparable to that secured by the colonists (and always bearing in mind that at no time did Paine indicate any desire to permanently settle in France, but on the contrary, constantly reiterated his intention of returning to his home in the United States), and his services in the Convention, did not and could not under the law then prevailing, in any way alter his United States citizenship.
(6) There is no act of Congress forfeiting Paine's citizenship.
The expression sometimes can be found that Paine was deprived of his rights of U. S. citizenship by act of Congress in retaliation for the bitter letter which Paine wrote Washington after his release from prison criticizing Washington for his failure to actively intercede in his behalf. Such an act would be a matter of public record for all of the acts of Congress have been carefully preserved. The National Archives have been searched specifically for any data regarding Paine's citizenship in so far as any act of Congress is concerned. There is none of record.
(7) The challenge by the Inspector of Elections in New Rochelle on the ground that Morris had failed to claim him as a citizen of the United States, was false in fact and without legal basis.
Paine states that his vote was denied on Ward's statement: "You are not an American; our Minister at Paris, Gouverneur Morris, would not reclaim you when you were imprisoned in the Luxembourg prison at Paris, and General Washington refused to do it."
The fact is that Morris, regardless of lack of sympathy toward Paine or the lukewarm representations government to the French he made, did in fact claim Paine as a citizen of the United States. In Diplomatic Dispatches, France, volume 3 (Dispatch No. 45, March 6, 1794, Gouverneur Morris to Secretary of State Jefferson) Morris expressly reported:
- "Mr. Paine wrote me a note desiring I would claim him as an American, which I accordingly did, tho contrary to my Judgment for the Reasons mentioned in my last. "
The above quoted document also appears in American State Papers, Foreign Relations, Vol. 1, page 404:
"The following is a copy of the translation of the letter from the Minister of Foreign Affairs of France to Gouvrneur Morris, Mentioned in the extract taken from dispatch no. 45. This copy is recorded in Diplomatic Despatches, France volume 3-B, Duplicates, pages 59-60; `Paris l. Ventose 2d year of the Republic one and indivisible 'The Minister for foreign affairs to the Minister plenipotentiary from the United States to the Republic of France. 'By your letter of the 26 of last month, you claim the liberty of Thomas Paine, as an American citizen. A native of England, this ex deputy has become successively an American and French citizen. By accepting this last title, and filling a place in the Legislative body, he submitted himself to the laws of the Republic, and he has thereby renounced the protection which the law of nations and treaties concluded with the United States might have given him. 'I am ignorant of the motives of his detention, but I should presume that they are well founded. I shall nevertheless submit your demand to the Committee of Public Safety and instantly make known to you its decision.
Paine himself in his letter to Vice-President Clinton of May 4, 1807 while preparing to prosecute Ward, says:
"As to Gouverneur Morris, the case is that he did reclaim me; but his reclamation did me no good, and the probability is, he did not intend it should * . I shall supoena Morris, and if I get attested copies from the Secretary of State's office it will prove the lie on the inspectors."
He further asked Clinton for an attested copy of Secretary of State Randolph's dispatch to Ambassador Monroe, approving Monroe's successful reclamation of Paine as a citizen of the United States, in which dispatch Randolph said: "The President approves what you have done in the case of Mr. Paine."
Monroe, writing to Paine on September I8, 1794 (The Writings of James Monroe, Vol. 7, p. 296-7):
"Of the sense which the President has always entertained of Your merits, and of his friendly dispositions towards you, you are too well assured, to require any declaration of it from me. That I forward his wishes in seeking your safety, is what I well know; and this will form an additional obligation on me, to perform what I should otherwise consider my duty."
Wrong on the facts and wrong in acting as he did in depriving Paine of his vote in any case, in the eyes of the law, this entire incident is wholly without merit so far as affecting Paine's citizenship is concerned.
(8) There is no court record in which Paine's citizenship was adjudicated.
Despite several letters written by Paine which state that he was prosecuting the Election Inspectors for denying him his vote, replies to those letters and the statement by Mrs. Bonneville that the suit was pleaded, lost, and she paid court costs, no public record of this action can be found, either in New York City or Westchester County, where it naturally would have been tried.
Mrs. Bonneville refers to Paine's attorney in this action as a Mr. Riker, Attorney General of the State. The Attorney General's office, however, definitely establishes that New York never had an Attorney General of that name. The same office does state that a Richard Riker is listed in the Civil List as having been District Attorney for the First District (which included New York and Westchester Counties from 1801 to 1809). The Westchester County Court of Oyer and Terminer records list Riker's name as District Attorney prosecuting in that court in 1806-7.
Paine's own letter to Clinton of May 4, 1807 speaks of Mr. Riker as District Attorney and this is undoubtedly the correct title. Conway, in his Life of Paine, Vol. 2, p. 383, mentions his interview with John H. Riker, a son of Paine's counsel, who searched his father's records for any data on the case and found none, perhaps because of a fire which destroyed many of those papers.
While the forum was stated to be the Supreme Court of the State of New York, no Supreme Court record of the case can be found, although such records were preserved for years before 1806-7. A court record of Paine's criminal prosecution of a New Rochellean, who shot at him, prior to 1806, is fully preserved at the county seat of Westchester County.
And while Paine's letters, devoted to his preparation for the trial, specify that the letters he seeks are for use before judge and jury, there is reasonable ground for believing that his proceeding was a motion only, which would be heard by a judge without a jury. No record of such a hearing would be preserved in the usual course of court reporting.
The requests of Paine to Clinton, Madison and Joel Barlow, to furnish him with letters for his use on the prosecution of Ward would indicate that the actual proceeding was a motion, based on documentary evidence, rather than a jury trial with witnesses and cross examinations.
Any quantity of reasons would have caused Paine to lose his motion, including technical defects in legal pleading, remote from the merits in issue. Even if a jury trial did occur, that, too, may well have been dismissed by the presiding judge, without submission to the jury, on technicalities unrelated to the merits.
The later fate was, indeed, forecast by Vice President Clinton when he wrote Paine on May 12, 1807 saying he had written the letter Paine wished for the trial and sent it directly to Attorney Riker. Clinton then expressed doubt as to the admissability of such letters in evidence on the trial. From every known rule of evidence prevailing then and now, such letters (which Paine indicated would constitute his case) would not be admitted in evidence. The reason is abundantly clear. The writers of those letters were alive at the time of trial. In order to give fair opportunity to the opposition to test the truth or accuracy of the statements in the letters, in simple fairness, the writers should have first been sworn to tell the truth, then testify to matters of which they actually had personal knowledge, and then submit to all the tests which the cross-examining lawyer has at his command to break down such testimony. Such has always been the strict rule in our courts and it properly prevails today.
Accordingly, if Paine's attorney tried to present his case merely on letters and affidavits, the presiding judge quite rightfully may have excluded them from evidence and dismissed Paine's complaint, without passing on its merits, for failure to present proper proof. This action would not be a judicial determination that Paine was wrong in his contentions, or Ward right. The merits of the issue simply would not receive judicial consideration, much less determination. The decision would constitute no precedent or court ruling on Paine's citizenship.
In the absence of any official court record the situation remains as tho no court proceeding ever were brought and the facts and legal principles given in the enumerated items above are fully determinative.
From all established facts and law applicable thereto, Paine became a citizen of the United States at the time of the Declaration of Independence and retained that citizenship to the date of his death.