The legislative history of naturalization in the United States from the revolutionary war to 1861 ...

Preface

The subject of naturalization has assumed a larger importance in the history of the United States than in that of any other nation. In this study I have sought to exhibit the course of opinion thereon chiefly as it manifested itself in discussion, reports, and legislation at the central forum of American political life.

The sources of information are sufficiently indicated. In large measure I have let men speak for themselves. Some latitude of expression has been allowed -in indirect quotation, in the effort to preserve the flavor of the original utterance.

I am indebted to Professor Frederick J. Turner, of the University of Wisconsin, for much helpful suggestion and criticism upon the earlier part of the work. I desire to mention Professors Hermann Edouard von Hoist and Benjamin S. Terry, of the University of Chicago, because of inspiration that came from them. The work was begun with the encouraging approval of Dr. von Hoist, and in anticipation of his invaluable criticism of which his sickness and death deprived me. The exceptional facilities of the library of the Wisconsin State Historical Society have lightened my task. The abundant courtesy of its officials calls for appreciative acknowledgment.

F. G. F.

Table Of Contents

CHAPTER PAGE

I. The Revolutionary Period i

II. The Convention of 1787 19

Chapter I The Revolutionary Period

The Declaration of Independence declared the right of the people to establish a new government. Yet earlier the Continental Congress had exercised authority to declare certain Tories to be out of the protection of the United States, and had ordered that any person refusing its bills should be deemed an enemy of his country and be refused all intercourse with the inhabitants of the colonies. 1

The early continental congresses required no oath from even their members. Soldiers at enlistment merely declared that they had voluntarily enlisted and did bind themselves to conform to the rules for the government of the army. Late in 1776 they were sworn "to be true to the United States of America and to serve them honestly and faithfully." 2 Congress early resolved "that no oath by way of test be ... . required of any of the inhabitants of these colonies, by any military officers." 3 A law of January 3, 1776, required certain officers of the government, chiefly

1 Journals of Congress, II, 8, 21; January 11, 1776. 'Ibid., I, 118; II, 367. •Ibid., II, 88.

I those in charge of funds and supplies, to take an oath truly and faithfully to discharge their duties. 4 Congress later 5 established an oath for all officers in the continental service and for all holding civil office from Congress, as follows :

I do acknowledge the Thirteen United States of

America, namely, . . . . , to be free, independent and sovereign states, and declare that the people thereof owe no allegiance or obedience to George the Third, King of Great Britain; and I renounce, refuse, and abjure any allegiance or obedience to him : and I do swear that I will to the utmost of my power support, maintain and defend the said United States against the said King George, etc. 9

Even before the adoption of the Declaration of Independence the Continental Congress defined the citizenship of the colonies. It resolved, June 6, 1776, while considering a report of its Committee on Spies, "that all persons abiding within any of the United Colonies and deriving protection from the laws of the same owe allegiance to the said laws, and are members of such colony." Persons only temporarily in a colony were declared to owe allegiance to it during their temporary stay, and it was made treason for such to levy

8 Journals of Congress, II, 426. January 16, 1777, Congress ordered that the oath of fidelity be published {ibid., Ill, 20).

Hamilton accepted this position, and developed its application to those who had been within the British lines during the war, and to Tories generally, in his Letters from Phocion, written in 1784. In opposition to proposed New York legislation hostile to Tories, he pleaded both their legal status and their treaty rights. The treaty, he held, forbade attainting individuals for war crimes, and for the state to disfranchise or punish whole classes of its citizens by general descriptions and without a trial was tyranny. To say, on the other hand, that by espousing the cause of Great Britain the Tories became aliens, and that it would satisfy the treaty to> confine them to the privileges of aliens, was to admit that subjects might at pleasure renounce their allegiance to the state of which they were members and devote themselves to a foreign jurisdiction. That was a principle contrary to law, and subversive of government; also it would lead to forfeiture of property by a fraudulent subterfuge that was more odious than an open violation of the treaty. The state could not deprive a citizen of his right without an offense ascertained by a trial, and the treaty forbade prosecution and trial.

The idea of suffering the Tories to live among us under disqualifications is equally mischievous and absurd. It is necessitating a large body of citizens in the State to continue enemies to the government.

By the Declaration of Independence, acceded to by the New York convention, July 9, 1776,

the late colony of New York became an independent state. All the inhabitants who were subjects under the former government, and who did not withdraw themselves upon the change which took place, were to be considered as citizens owing allegiance to the new government. This, at least, is the legal presumption ; and this was the principle in fact, upon which all the measures of our public councils have been grounded. 8

Thus, according to Hamilton, residents of New York, formerly British citizens, had the opportunity of making choice of American or British citizenship immediately after July 9, 1776. By choosing the latter they chose to become alien enemies in the place of their residence, and were under the necessity of withdrawing from the state. Persons who remained were, and continued to be, American citizens, although the fortunes of war later left them within the enemy's lines, where they owed a temporary and qualified obedience, and although they took voluntary part with the enemy and became traitors thereby. He held that the idea of citizens transforming themselves into aliens by taking part against their state was altogether unknown and inadmissible.

8 Lodge, Works of Alexander Hamilton, III, 449-70.

Bancroft states the theory of citizenship resulting from the Declaration of Independence thus : He that had owed primary allegiance to Great Britain now owed primary allegiance to the United States, but it was no treason to adhere to- the king's government, Yet those who chose to remain on the soil, by residence accepted the protection of the new government, and have owed it allegiance. He adds that this was why for twelve years in American state papers "free inhabitants" and "citizens" were convertible terms, either or both being used. 9

During the Revolutionary War repeated efforts were made to detach the foreign element from the British army by offers of land and citizenship. First, in August, 1776, Congress adopted the report of a committee to devise plans for encouraging the Hessians and other foreigners to quit the British service. They declared it to have been the wise policy of these states to extend the protection of their laws to all those who should settle among them of whatever nation or religion they might be and to admit them to a participation of the benefits of civil and religious freedom.

They asserted that the "benevolence" and "salutary effects" of this practice advocated its continuance. They resolved that

9 Bancroft, History of the United States, V, 200.

these states will receive all such foreigners who shall leave the armies [of England] .... and shall chuse to become members of any of these states ; and they shall be ... . invested with the rights, privileges and immunities of natives as established by the laws of these states.

Each of them should be given fifty acres of land. A little later (August 27, 1776) they resolved to give lands, proportioned in amount to their rank, to foreign officers that should leave the British army "and chuse to become citizens of these states." Again, two years later (April 15, 1778), they said to such foreign officers and soldiers: "We are willing to receive you with open arms into the bosom of our country." 10

Jefferson, as governor of Virginia, issued a proclamation, February 2, 1781, in which he recited the offer of Congress of fifty acres of land to foreigners who should leave the British army "and should chuse to become members of any of these states." He had thought fit, by and with the advice of his council, to make more generally known that engagement of Congress, and to promise further "to all such Foreigners who shall leave the armies of his Britannic Majesty while in this state, and repair forthwith to me at this place," that he should recommend the further

10 Journals of Congress, II, 310, 330; Secret Journals of Congress, I, 70.

donation to each of two cows, and their exemption, during the existing war and their continuance in the state, from all taxes for the support of the war, and from military service. 11

Opinions vary as to the result of these overtures. Of 29,867 Germans sent to* America, 12,554 were not returned at the end of the war. It is estimated that five thousand of these had deserted, largely while prisoners of war. Some of them were enlisted in the American army against the wishes of Washington. German writers claim that the Germans deserted less freely than did the English soldiers. 12 The Gloucester (Eng.) Journal of November 10, 1783, in a dispatch of September 10, from Kingston, Jamaica, relates that four thousand British prisoners of war were received in New York from Philadelphia, among whom were about seven hundred Germans, all that could be found out of nine thousand of those people, who have been made prisoners by the Americans in the course of the war; the remainder have dispersed themselves in the different provinces, and have been naturalized by Congress, 13 in order to forward the manufactures, agriculture, and population of their extensive territories.

After making allowance for escaping prisoners, and for deaths from wounds and disease, per-

11 Ford, Writings of Jefferson, II, 445.

12 Lowell, The Hessians in the Revolution, 285, 290, 291, 300. 18 This, of course, is a mistake.

haps this estimate of the number of deserters does not vary greatly from the former one. Other acts of Congress include a provision

for passports to certain inhabitants of New

Providence certifying their fidelity "and design to remove .... to .

states .... with intent to become subject to the same;" 11 a recommendation to Maryland to assemble the inhabitants in certain counties on an appointed day and take the oath of allegiance required by the state, disarming all that refused it ; 18 a recommendation to New York to receive as citizens certain Canadian and other refugees (eighty men and women besides children) who had petitioned Congress from Kishkill, N. Y.; lt; a resolution to confirm their possessions to French settlers at Post St. Vincents (Vincennes, I ml.) who before [783 "had professed themselves citizens

of the United States or any of them." l7

A remarkable proposition is contained in a letter from John Adams at Paris to the president of Congress, as follows:

There is another point of very great importance, which

I am persuaded will be aimed at by the English ministers; 1 am sure it will be by the people of England, whenever

l * Stcrtt Journals of Congrtss, 1. 87; August 17, 1778, ^Journals of Congross, Hi, .;o; February t, 1777. " Ibid.. VIII, -_;c>; August 0. 1783, "JN. 5 \. \U1. 91.

terms of peace shall be talked. For facilitating the return of commerce they will wish to have it stipulated by the treaty, that the subjects of Great Britain shall have the rights of citizens in America, and the citizens of the United States the rights of subjects in the British dominions. Some of the consequences of such an agreement to them and to us are obvious and very important; but they are so numerous, and it is so difficult to determine whether the benefits or inconveniences prevail, that I should be sorry to have so great a question left to my determination. 18

The same result was sought in 1794 by Lord Loughborough (the former Wedderburn, now lord chancellor) in a proposal "that in either country, the subjects or citizens of the other shall be exempted from all the disabilities of alienage." John Quincy Adams wrote of this in his diary:

The article proposed by Lord Loughborough, the chancellor, is certainly extremely liberal ; although Mr. Jay thinks it best to leave it as a subject for future consideration Such an Article would certainly tend to promote the friendly intercourse between the Nations ; and I do not know that it could produce any material inconvenience to either. But it would be necessary to have an Act of Parliament to confirm the stipulation here, which, his Lordship says, may be obtained without difficulty. A more material obstacle arises from the constitution of the United States, with one clause of which such an article would certainly militate.

The provision referred to is doubtless that giving to Congress the power of establishing

18 John Adams, Works, VII, 136; March 24, 1780.

io NATURALIZATION IN UNITED STATES

a uniform rule of naturalization. That this is the case is shown by the comment of Adams upon the Louisiana Purchase. He regarded it as abolishing the Constitution by treaty, and one of his counts against it was : "It naturalizes foreign nations in a mass.'' 19 Adams saw in this proposition support for Loughborough's professions of very friendly disposition toward the United States, although he had been known as a conspicuous opponent of America during the Revolution. 20

There is a reference to a part of the same question in an interview in 1817 between Adams as minister to England and Hamilton, a British under-secretary of state, in regard to a claim for inheritance of land. Hamilton had said that he found great difficulty in admitting a whole nation, eight millions of foreigners, to all the privileges of British subjects without having any claim upon their allegiance. Adams replied that the mere privilege of holding lands would never, in the present condition of the world, have consequences important to either government, and there was something very harsh in stripping individuals of their estates on the mere ground of alienage. 21

This remarkable proposal has been revived in England in recent years. Professor Dicey,

18 J. Q. Adams, Memoirs, V, 400.

REVOLUTIONARY PERIOD ii

of the chair of English law at Oxford University, in a notable lecture at All Souls College, while the arbitration treaty between the United States and England was before the United States Senate, earnestly advocated a common citizenship for British and Americans. He designed nothing in the least resembling political unity; but would merely have every American citizen, on landing at Liverpool, occupy the same position as to civil and political rights as the inhabitant of Victoria who might land from the same boat ; and an Englishman, on landing in America, should enjoy the same civil and political rights as an American born and reared abroad who might first land there at the same time. The plan was wholly feasible. The practical effects would be comparatively small, but wholly good. The indirect and moral effects would be greatly beneficial. The alien already possessed in both countries nearly all the civil rights of citizens. The political status of the American when in England would become precisely that of his grandfather, who was a citizen of New York, or Massachusetts, and a subject of the crown. He might vote, sit in Parliament or in the cabinet, and even aspire to the House of Lords. The dubious advantages of American restrictions on naturalization were not worth weighing against the serious advantages of a common citizenship. 22

Franklin's sketch of Articles of Confederation of May 10, 1775, contains no reference to citizenship. 23 This is because independence was not yet planned for. The draft of August 12, 1776, shortly after the declaration, is in Dickinson's handwriting. Arts. VI and VIT provide that the inhabitants of each colony shall always enjoy the same rights, liberties, privileges, immunities, and advantages in the other colonies that they now have, except as those rights are [may be] limited by the further provision that the inhabitants of each colony shall enjoy [only] all rights of local and foreign trade in any other colony that the natives of such other colony enjoy. This reserved to each colony the privilege of enforcing upon the inhabitants of the other colonies such restrictions upon trade rights as it might propose for its own members. 24 With the matter thus before them, it is strange that the draft of the committee of the whole (August 20, 1776) contains no reference to the subject. 25 Ten weeks later Congress added the provision that

22 New York Nation, LXIV, 198, Correspondence from Oxford. 28 Secret Journals of Congress, I, 283. 24 Ibid., I, 292. 25 Ibid., I, 304.

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 respective states ; and the people of each state shall have free ingress and regress to and from any other state;

and enjoy the same trade privileges as the inhabitants. The final text contained this amendment with the word "respective" changed to "several;" and reads as follows:

Art. IV. The better to secure and perpetuate mutual friendship and intercourse among the people of the United 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 have 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.

Among a number of points in a representation of the Legislature of New Jersey to Congress on the Articles of Confederation is the objection that there is no oath or test to the general government required of the members of the Congress. Such an oath they thought to be necessary. The Confederation Congress, however, defeated a motion to amend the articles in accordance with this representation. Only three states were for it, six were against it, and one was divided. 26

Madison said in The Federalist:

The dissimilarity in the rules of naturalization has long been remarked as a fault in our system, and as laying a foundation for intricate and delicate questions.

After quoting from the fourth article of the Confederation, he continues :

There is a confusion of language here, which is remarkable. Why the terms free inhabitants are used in one part of the article, free citizen in another, and people in another ; or what was meant by superadding to " all privileges and immunities of free citizens," " all the privileges of trade and commerce," cannot easily be determined. It seems to be a construction scarcely avoidable, however, that those who come under the denomination of free inhabitants of a state, although not citizens of such a state, are entitled, in every other state, to all the privileges of free citizens of the latter; that is, to greater privileges than they may be entitled to in their own state: so that it may be in the power of a particular State, or rather every state is laid under a necessity, not only to confer the rights of citizenship in other States upon any whom it may admit to such rights within itself, but upon any whom it may allow to become inhabitants within its jurisdiction. But were an exposition of the term " inhabitants " to be admitted which would confine the stipulated privileges to citizens alone, the difficulty is diminished only, not removed. The very improper power would still be retained by each State, of

86 Elliott's Debates, I, 87.

naturalizing aliens in every other State. In one State, residence for a short term confirms all the rights of citizenship; in another, qualifications of greater importance are required. An alien, therefore, legally incapacitated for certain rights in the latter, may, by previous residence only in the former, elude his incapacity; and thus the law of one State be preposterously rendered paramount to the law of another, within the jurisdiction of the other. We owe it to mere casualty, that very serious embarrassments on this subject have been hitherto escaped. By the laws of several States, certain descriptions of aliens, who had rendered themselves obnoxious, were laid under interdicts inconsistent not only with the rights of citizenship but with the privilege of residence. What would have been the consequence, if such persons, by residence or otherwise, had acquired the character of citizens under the laws of another State, and then asserted their rights as such, both to residence and citizenship, within the State proscribing them? Whatever the legal consequences might have been, other consequences would probably have resulted, of too serious a nature not to be provided against. The new Constitution has accordingly, with great propriety, made provision against them, and all others proceeding from the defect of the Confederation on this head, by authorizing the general government to establish a uniform rule of naturalization throughout the United States. 27

Bancroft found in "intercitizenship and mutual equality of rights" of all members in the Confederation "a new character and an enduring unity," not found before in federations. Congress had at first defined only the membership of each colony. The Articles of

27 The Federalist, No. XLII. Compare with the view of Bancroft, p. 5.

Confederation brought in the rule that membership might be transferred from one state to another. 28 While there is here doubtless the original expression of this character by the lawmaking body common to the new union, and is perhaps a new quality in federations, yet there must be taken into account the earlier common English citizenship of the great majority of the members of the Confederation, and the common rights that it involved. Those, whether continued or not throughout the preliminary states of their combination, must have done much to render intercitizenship in the federation inevitable. In other words, if here is a new character in federations, it is because this is a federation born out of conditions to which the new character was fundamental. The intercitizenship of naturalized citizens was, on the other hand, not a matter of course. There is little to show that their status in this respect had been worked out generally in either the colonial or the revolutionary period. Colonial naturalization was usually limited in its benefits, by explicit provision, to the colony naturalizing. This restriction was not made with reference to rights in other colonies. It merely marked the limit of power under the

28 Bancroft, History of the Constitution of the United States, I, 118.

colony's charter, the act of 13 Geo. 2, or the veto power of governor and crown. England did not permit colonies to create English citizens, and often restrained them in the making of colonial citizens. A Virginian who was an Englishman, upon settling in Maryland, became a Marylander. There was no necessity for this result if he was a foreigner.

There is a case of naturalization, in the colonial period, first by Virginia and later by Maryland; and it seems probable from the record that the results of the Virginia naturalization were lost by the subsequent proceedings in Maryland. At any rate, the Virginia lands of one Dr. George Hacke, who was naturalized in Virginia in 1653, anc ^ again in Maryland in 1663, are said to have escheated at his death, and were regranted to his heirs, because he was a foreigner. 29 But, with the common tie one of their own formation, the rather anomalous condition that some of the citizens of one state should, and others should not, require naturalization upon removing to another state would naturally be done away with.

The transfer of citizenship from state to state provided for by the Articles of Confederation very soon led to complaints due to the

29 Virginia Historical Magazine, V, 256.

easy naturalization laws of some of the states. Edmund Randolph, writing to Madison, made suggestions with reference to the intrusion of obnoxious aliens through other states. Madison replied (August 2j, 1782) that his hints merited attention, and that the subject had been several times mentioned in Congress. He believed that no committee had ever reported a remedy for the abuse, but thought that a uniform rule of naturalization ought certainly to be recommended to the states. Their individual authority seemed, if properly executed, to be competent to the case of their own citizens. 30 Many years later in his introduction to the debates in the convention, he wrote :

Among the defects which had been severely felt was want of an uniformity in cases requiring it, as laws of naturalization and bankruptcy. 81

30 Madison Papers, I, 161. This seems to mean that states may be left to control state, as distinguished from federal, citizenship.

Chapter II The Convention Of 1787

In the proceedings of the Constitutional Convention of 1787 we look for any traces of a new citizenship. The first of these is in the resolutions offered by Randolph on May 29. His sixth resolution,

that the national legislature ought to be empowered .... to legislate in all cases to which the separate states are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation,

read in the light of the foregoing correspondence between Madison and Randolph, and the later proceedings of the convention, must be thought to comprehend consciously the subject in hand. His fourteenth resolution, that the legislative, executive and judiciary powers, within the several states, ought to be bound, by oath, to support the articles of union,

is a step toward recognition of a new citizenship that met with considerable opposition. 1 That they contain nothing more strengthens the probability that resolution 6 was seen to be sufficiently inclusive to provide for federal naturalization. 2 These provisions were un-

1 Elliott's Debates, I, 408; Madison Papers, V, 182! 3 Elliott's Debates, I, 143.

changed in the resolutions as amended and agreed to in committee of the whole house on June 19.

Meanwhile (June 15) Patterson's propositions were introduced and referred to a committee of the whole house, and they were debated the following day. The sixth of these was identical with Randolph's fourteenth resolution. The tenth was :

Resolved, That the rule for naturalization ought to be the same in every state. 8

Pinckney's plan, long discredited, but recently in large measure rehabilitated, contains nearly everything bearing on citizenship and naturalization that found place in the final draft. A later compromise plan communicated by Randolph to Madison July 10, but not introduced because the smaller states had succeeded in getting an equal vote in all cases in the Senate, proposed that each state should have one vote in that branch in thirteen specified cases, one of which was:

In regulating the rights to be enjoyed by citizens of one state in the other states.*

Randolph's sixth and fourteenth resolutions were respectively the sixth and the twentieth of the twenty-three resolutions ap-

* Madison Papers, II, iuo; III, Appendix, p. vii.

proved by the convention and referred to the Committee of Detail. Patterson's and Pinckney's resolutions were also laid before this committee.

The growth of the ideas that were embodied in the Constitution is to be studied further in the draft reported by this committee, in the revised draft made by the convention, in the final form as reported by the Committee on Style, and in the available reports of the proceedings and debates of the convention. I shall trace to its outcome each provision of the committee's draft that seems to require notice. The first of these leaves the qualifications for the federal suffrage to be determined by the several states, requiring only that they be the same as shall be established for electors to the lower branch of each state legislature. An effort to strike out the phrase by which "electors" was limited received the vote of Delaware only, probably because the change would tend to restrict a state to only one class of electors. The section passed unanimously as reported, and was not changed later.

Art. IV, sec. 2, read:

Every member of the House of Representatives .... shall have been a citizen in the United States for at least three years before his election.

"Citizen in" was changed to "citizen of." Various motions were made as to the number of years of citizenship to be required to qualify a representative. "Seven years" was inserted in place of "three years," with only Connecticut opposing. "Three years" was lost by a vote of 2 to 9. A motion for one year was lost, and the clause passed unanimously. 5 Some days later (August 13), extended discussion upon the term of citizenship to be required for senator having intervened, reconsideration was had. Wilson and Randolph moved to strike out "seven years" and insert "four years" as the requisite term of citizenship to qualify for the House of Representatives. Wilson thought it very proper for the electors to require seven years, but unnecessary and improper that the Constitution should chain them down to it. Gerry wished that in future eligibility might be confined to natives. Foreign powers would intermeddle and spend vast sums in secret service and in influencing the government. Williamson moved to require nine years of citizenship.