Tuesday, November 25, 2014

Immigration History: Before the Constitution

Previous: Preface

As any good political historian, I must begin where our country began: the Declaration of Independence. Reviewing that document, we find that one of the charges lodged against the King was that he interfered with immigration to the colonies. Specifically, Jefferson wrote:
He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.
Before going into the background of this complaint I must emphasize very strongly that naturalization and immigration are not the same thing. I have lost count of how many times I hear the two confused. The rest of this post, not to mention the rest of this series, will make no sense unless we establish here at the onset that naturalization and immigration are distinct.

So what is the difference? Think of it as a two-step process. Immigration is the act of moving to a new country with the intent of remaining there permanently. It is a question of presence. Naturalization is the process of becoming a citizen of that new country, and sometimes citizenship was necessary to own property. It is a question of political participation. Normally, naturalization has a residency requirement, such as five years. Which means that to become a naturalized citizen, a person must have immigrated five years prior to submitting the application. However, not every immigrant because a naturalized citizen, and there is no requirement to do so. If they so choose, they could remain an un-naturalized alien indefinitely.

Alright, with that out of the way we can return to the Declaration. We see both principles at play in Jefferson's complaint: interference with naturalization and failure to encourage immigration (migration). While I could find no evidence of British restrictions on immigration from the colonial era, there was ongoing tension between Parliament and the colonies over the question of naturalization of foreigners. Remember, as British colonies, "foreigners" were immigrants from places other than Britain.

Initially naturalization rules were set by each colony. For example, here are overviews of the naturalization (traditionally a grant of citizenship by Parliament or legislature) and denization (a quazi-citizenship traditionally granted by the King or governor) laws for colonial Virginia and New York. These laws, however, only granted citizenship for the granting colony, not for Britain. In 1740 the British Parliament, tired of the irregularity in the colonies passed its own rules for naturalization which overrode any colonial rules to the contrary.  This act had a seven-year residency requirement, and applied uniformly across the colonies. Other tinkering with naturalization laws followed thereafter.

The colonies, however, could and did encourage or limit immigration. Massachusetts, for example, in 1700 adopted a rule that each new ship had to report all passengers, and shortly thereafter implemented prohibitions on the migration of "poor, infirm, or vicious people." (Carpenter, 296). In contrast, many of the southern colonies sought to attract immigrants by offering land-grants, and South Carolina went so far as to refuse to enforce any pre-migration debts of immigrants. (Id.) Virginia, South Carolina, North Carolina, and Georgia also instituted prohibitions on debt collection for a period after migration to give new immigrants a chance to establish themselves. (Risch, 2-3).

Overall it appears that the colonies believed that immigration was good and sought to encourage it--particularly the immigration of the right types of people. Sometimes they would even offer naturalization as an inducement to immigration (Risch, 9), which could explain the hostility toward Parliament's setting of a uniform naturalization policy. Yet as British subjects, the colonies were still under the British naturalization laws.

All this changed with independence. With independence, the new nation could no longer rely on the foundation of British naturalization law. However, the Articles of Confederation never mentions immigration, and citizenship appears only in Article IV:
The better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this Union, the free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States; and the people of each State shall free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions, and restrictions as the inhabitants thereof respectively, provided that such restrictions shall not extend so far as to prevent the removal of property imported into any State, to any other State, of which the owner is an inhabitant; provided also that no imposition, duties or restriction shall be laid by any State, on the property of the United States, or either of them.
Instead of a uniform rule, each state continued to the colonial way of setting its own naturalization requirements. In Federalist No. 42, James Madison stated that this state-based approach "has long been remarked as a fault in our system" due to the differences between states as to who is a citizen and confusion as to how citizenship can transfer between states. The lack of a uniform rule for naturalization became one of the motivations for drafting a new Constitution. However, there was no similar discussion regarding lack of a uniform rule of immigration, nor does it appear that the state-based immigration structure significantly changed after the Revolution.

Next: The Constitution


A. H. Carpenter, "Naturalization in England and the American Colonies," The American Historical Review, Vol. 9, No. 2 (Jan., 1904), pp. 288-303.

Erna Risch, "Encouragement of Immigration: As Revealed in Colonial Legislation," The Virginia Magazine of History and Biography, Vol. 45, No. 1 (Jan., 1937), pp. 1-10.
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