Notwithstanding an occasional challenge from the states, Congress asserted authority over the allegiance of the inhabitants of the thirteen states in a variety of ways. It exacted loyalty oaths, defined and punished treason, required nationalization or naturalization, and admitted or excluded aliens. In all these areas the states exercised a coordinate authority.1 Although Congress sought to avoid a definitive resolution of the issue of national as opposed to individual state citizenship, it did not hesitate to issue passports in the name of the president of the Congress of the United States of America.2

The exchange of letters between Jay and Benjamin Franklin regarding a request made by John Vaughan on his arrival in Spain that Jay administer to him an oath of allegiance to the United States and give him a passport to travel to America raised two issues. One was the technical issue of whether Congress had authorized its ministers abroad to administer oaths of allegiance or issue passports.3 As a lawyer, Jay felt that for him to do so would be to act beyond his powers, a point that, in its narrow and technical sense, had not occurred to Franklin, who had in fact been taking oaths and issuing passports in the name of the United States as a matter of course.4 More broadly, Jay also raised the question of whether individuals could be citizens of the United States as a whole and take oaths of allegiance to it, as opposed to being citizens of specific states. “It appears to me that an Oath of Allegeance to the United States can with propriety be only administered to Servants of Congress—for tho a person may by Birth or admission become a Citizen of one of the States I cannot concieve how one can either be born or be made a Citizen of them all.” In his reply Franklin did not take up the issue of national citizenship, only the narrower issue of ministerial authority. He reported that the ministers had considered themselves as vested with consular powers and therefore capable of administering oaths, but that it would be better to have congressional instructions on that point. He then made a distinction between requiring an oath and bearing witness to one. Those requiring oaths should be vested with the authority to do so, “But when a man is pleas’d to take an Oath voluntarily, may not any other Person testify its being done in his Presence? This I apprehend is the Case of those which have been taken before us.”5 Although Jay facilitated Vaughan’s travel in Spain and to America, he declined to administer, or even witness, his oath of allegiance, which was postponed until after his arrival in America.6

While no evidence has been found that Congress ever formally objected to the administration of oaths of national allegiance and the issuing of national passports, the issue was settled by the definitive treaty of peace of 1783, in whose writing Jay and Franklin were to play central roles. The treaty recognized both “the Citizens of the United States,” in article 8, and the citizens of the separate states, in article 7.7 Neither the British nor the American peace commissioners appear to have contested this resolution of the issue, and there is no evidence of any challenge in Congress to the provisions of the treaty recognizing United States citizenship. In ratifying the treaty and directing ing the states to carry out its provisions, Congress asserted the authority of the Confederation to confer citizenship in the collectivity, as distinguished from the traditional rights of the separate colonies, assumed by the states, to grant state citizenship.8