Forging a New Allegiance

During the Revolutionary War, the British were not the only side that had to work through difficult questions surrounding the legal status of prisoners. The American states faced the very same questions during the war when detaining British soldiers and the disaffected “Loyalists” among their ranks. In constructing new legal frameworks to govern these matters, the states drew heavily on the English model that had governed before the war and under which so many of their legal elite had trained. This chapter discusses the concept of allegiance, dividing those falling “within protection” and those outside of it, and how it played a crucial role in triggering the application of domestic law. This chapter also chronicles the story of the long-standing struggle of the states to claim the English Habeas Corpus Act’s protections for themselves, while highlighting the pervasive influence of the Act—including especially its seventh section—on early American habeas jurisprudence.