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 Immigration to the U.S. A. from 1607  to  1830

 

 

https://www.cato.org/policy-analysis/brief-history-us-immigration-policy-colonial-period-present-day#post-ratification-period

 

 

The Colonial Period: 1607–1776

Between the 16th and the late 18th century, European governments implemented mercantilist economic policies to increase their trade surpluses via import tariffs and the subsidization of export industries. Mercantilists treated their citizenry like resources and restricted or compelled their movement based on factors such as class or social status.2 Britain, for example, fiercely protected citizenship by limiting naturalization and forcibly populating its colonies with criminals and other social pariahs that the British government deemed undesirable. Naturalization was economically important because only British citizens, known as “subjects,” could own real estate and bequeath it to their heirs under English common law.3 Thus, limitations on naturalization constrained the economic options for new immigrants from other nations. Britain’s unwillingness to naturalize immigrants relegated most of its alien residents to a legal position called “denizen,” similar to the Athenian metic (a foreign resident of Athens), which gave them limited economic rights, reduced their political rights, and placed restrictions on bequeathing their estates under English common law.4

Whereas European countries discouraged interior migration of their citizens, they typically encouraged the immigration of skilled workers without encouraging naturalization.5 European governments also encouraged immigration to their colonies and colonial governments offered quick naturalization, land grants, and debt relief.6 In North America, the British Crown’s desire to settle its colonies caused it to ignore the lax naturalization processes in the colonies, which granted immigrants the rights of Englishmen within the colonies in which they resided. Eventually, however, in 1700 Parliament limited the colonies’ ability to grant naturalization and other group rights because it believed that the colonial naturalization policies weakened English citizens’ trading positions.

Thereafter, many colonies relied on local naturalization and grants of denizenship until Parliament passed the Plantation Act of 1740 to ease the colonial naturalization process and spur settlement.7 The Pact created a uniform naturalization system that granted new, non-Catholic colonial settlers English naturalization after seven years of residency contingent upon a religious test, a pledge of allegiance, and a statement of Christian belief to which some people, such as Jews, were exempt.8 Despite the Plantation Act, the colonies preferred to rely on more rapid local naturalization processes to further incentivize immigration.

Voluntary and Forced Migration

Individuals arrived in the British colonies via two very different paths. Some were forced to immigrate, either through transportation or slavery, while others came voluntarily. “Transportation,” a criminal term for forced emigration, allowed Britain to expel its social undesirables, criminals, and others to populate its North American colonies. In practice, criminals sentenced to death could either choose transportation or hanging, and so forced emigration was a common choice since death was the only punishment for a felony conviction under English common law. In North America, transported persons began landing in British colonies as early as 1615.9

By 1717, the Transportation Act granted English courts the ability to sentence convicts to transportation, thus streamlining the process. The courts could effectively banish convicts for up to 14 years and turn them into indentured servants. Before the American Revolution, Britain transported about 50,000 convicts to the American colonies.10 While colonists opposed transportation, the colonies were unable to prevent the migration of British subjects who were exempted from many colonial immigration restrictions.

The largest population of forced migrants to North America were not criminals from Britain but 388,000 African slaves.11 Slavery was different from the other forced migrations as, unlike in the case of convicts, there was no possibility of earning freedom, although some slaves were manumitted in the centuries before the American Civil War. African slaves and their descendants have comprised a substantial part of the population in the British colonies and the United States since the 1600s, but thinking of slaves as immigrants stretches the meaning of that word to its breaking point. Enslavement was an experience so radically different from what was experienced by other migrants that the story of slavery does not fit into this paper’s narrative.

Those who migrated to the colonies on their own volition were drawn by the allure of cheap land, high wages, and the freedom of conscience in British North America.12 Many of these individuals financed their passage by entering into indentured servitude contracts. This arrangement meant that migrants exchanged future years of their labor for passage to North America. At the end of their contracts, the indentured servants would be discharged with a small amount of cash, skills, and sometimes land on the new continent. During the 1700s, a significant share of Europeans coming to British North America were indentured servants.

While the colonies were eager to attract immigrants, colonial cities and towns still regulated immigration by barring entry of the poor, applying head taxes, and using banishment. However, these small and heterogeneous colonial communities were less meticulous than European governments in enforcing their immigration laws and generally granted equal rights to accepted foreigners. For example, Massachusetts applied its laws against pauperism equally to all members, regardless of citizenship status. Other states extended voting rights to aliens and, sometimes, to “servants, Negroes, Aliens, Jews, and Common sailors.”13

By 1755, the colonial population surpassed one million residents, which worried some in England. In 1763, Britain prohibited colonists from settling the land acquired from France during the Seven Years War and subsequently curtailed colonial naturalization authority in 1773.14 Parliament’s actions infuriated colonialists to such an extent that they complained about them in the Declaration of Independence, charging King George III with preventing “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.”15 The colonial population had increased to roughly 2.2 million residents by the beginning of the American Revolution, much of that growth fueled by the 346,000 European immigrants and their descendants.16
 

The Forging of a Nation: 1776–1830

More than 86 million immigrants have entered the United States from 1783 to the end of 2019 (Figure 1).17 That large flow was shaped by many legal issues that were first addressed during the early days of the American Republic. Citizenship was one of the earliest issues that American politicians grappled with. Three fundamental concepts underlie U.S. citizenship law, and their relative importance shifts depending on the needs and the norms of the era.18 The first is jus soli, the right of the soil, which means that those born on U.S. soil are automatically granted citizenship. The second is jus sanguinis, the right of blood, which means that those born to U.S. citizens in other countries automatically earn U.S. citizenship under most conditions. The third is pledged allegiance, whereby those who civically commit to the United States become U.S. citizens. Pledged allegiance is related to the concept of naturalization, the process by which an immigrant voluntarily moves to the United States and swears allegiance to the government to fully enter American political life through citizenship.

 

Pre-Ratification Period

Immediately after issuing the Declaration of Independence, the Founders thought that pledged allegiance would confer citizenship through consent. This approach diminished the new country’s reliance on jus soli and jus sanguinis. It is unsurprising that during the American Revolution, when the American Founders feared that the British would punish their disloyalty with death, that loyalty trumped one’s birth country or bloodline as a matter of importance. Thus, a pledge of allegiance was the ticket to receive the full panoply of political rights in a new and struggling nation.

This situation effectively divided the population into three categories: former British citizens who supported the revolution and became American citizens, British citizens who still supported the British government and became enemy aliens, and a murky middle ground of fair-weather residents.19 After the war, the presence of former loyalists and those in the murky middle prompted the U.S. government to view citizenship as “both a matter of place of birth and one of consent.”20

Post-Ratification Period

The Constitution gave Congress the power to establish a uniform rule of naturalization in Article I, Section 8, and made immigrants eligible for all federal offices except the presidency and, later, the vice presidency.21 St. George Tucker, a prominent lawyer from Virginia and a delegate to the Annapolis Convention of 1786, wrote that excluding immigrants from the office of the president would limit foreign influence on the government.22 But Tucker also argued that foreign-born people should not be kept out of the councils of power entirely, nor deprived of federal employment for the same reasons, because such efforts would be ultimately unsuccessful, breed resentment, and be undesirable in a country as open to foreign ideas and peoples as the United States.23 In the first Congress in 1789, almost 10 percent of all members of the House of Representatives and the Senate were foreign-born, compared to just 3 percent in 2021.24 Ultimately, the Constitution did not create an enumerated power to control free people’s immigration into the United States.25 The Constitution enumerates other powers that are considered inherent to a sovereign, but the Founders did not include immigration as one of them.

The Constitutional Convention’s decision to only grant the federal government authority over naturalization meant that states regulated immigration as part of their policing powers—banishing criminals and noncitizens, denying entry to the poor, and even attempting to ban whole races.26 Although many of the Founders were concerned about Catholicism, alien voting rights, non-English languages, and cultural assimilation, Thomas Jefferson summarized their overall position when he stated, before listing his concerns, that “the present desire of America is to produce rapid population, by as great importations of foreigners as possible.”27 Beyond ideological motivations, several other factors likely influenced the Founders, including the desire to populate the United States, the need to pay the country’s debts, and the demand for new laborers.

The 1790 U.S. Census, which excluded Native Americans, revealed that the United States’ population had grown significantly since the 1770s, reaching roughly 3.9 million residents. The Census also showed that about 80.7 percent of the United States’ population was white, while the remainder (19.3 percent) were almost all African slaves.28 In terms of ethnicity, only 69.3 percent of the U.S. population could trace their origins to either England, Scotland, or Wales.29 Compared to other European countries, the U.S. population was ethnically and racially heterogeneous in 1790.30

In the same year, Congress passed the Naturalization Act of 1790, extending citizenship to free white persons of good character who had resided in the United States for two years and took an oath of allegiance.31 The law excluded indentured servants, non-whites, and slaves from naturalization. Despite these exclusions, the Naturalization Act of 1790 was arguably the most liberal naturalization law to date, as it created a short and uniform path to citizenship that lacked gender requirements, religious tests, skills tests, or country of origin requirements.

However, some Congressmen were unsatisfied with the Naturalization Act of 1790 because they feared that a large foreign-born population with voting rights could undermine national security, especially when the United States faced the prospect of war. As a result, Congress passed the Naturalization Act of 1795. The new act increased the residency requirement for naturalization to five years and added a clause requiring prospective citizens to declare their intention to naturalize three years before doing so.32 Notably, the Naturalization Act of 1795 held a religious and moral subtext that changed “good character” to “good moral character.”33

After a close election and a looming war with France, Congress passed a series of bills in 1798 collectively known as the Alien and Sedition Acts that expanded the federal government’s involvement in immigration policy. Together these acts subjected aliens to the threat of national surveillance and arbitrary arrest and granted a new power to the president to deport noncitizens via decree.34 Notably, these acts increased the residency period for naturalization to 14 years and required that prospective citizens declare their intent to naturalize five years before doing so.35

During congressional debate, a partisan schism arose over whether noncitizens had rights under the Constitution. Democratic-Republicans argued that noncitizens possessed all rights under the Constitution because it often used the words “people” or “persons” rather than “citizens.” James Madison denounced the idea that noncitizens didn’t have rights under the Constitution and argued that even if they didn’t, the government would still not have absolute authority over them. Congressmen also decried that deportation by presidential decree violated the Fifth and Sixth Amendments.36 Although these acts empowered the federal government, much of the Alien and Sedition Acts expired by 1801. In 1802, Congress passed the Naturalization Law of 1802 that reverted the residency requirements for naturalization to five years. However, the 14-year waiting period remains the longest legally mandated residency time required for prospective citizens before becoming eligible for naturalization in American history. (Today’s immigrants who entered on student visas, adjusted to H‑1B visas, and then earned green cards may wait longer for citizenship, but those are not mandated wait times as they arise from a combination of different legal requirements.)

After the 1800 election, both parties courted the support of the approximately 250,000 European immigrants who arrived between 1783 and 1815.37 By 1819, economic depression and the worry that Britain might ship their poor to the United States tempered Congress’ pro-immigration position. While Congress lacked an enumerated power under the Constitution to control immigration, in 1819 it indirectly regulated immigration under the guise of safety by limiting the number of passengers that a ship could carry based on its tonnage.38 This legislation lowered the carrying capacity of passenger ships and increased the price of travel, consequently reducing the number of poor immigrants who could afford passage. The bill also required ship captains to provide a passenger manifest to customs officials that allowed the federal government to track immigration flows for the first time.