Early American Immigration Law & Policy, 1790-1802

How Did Early Americans Treat Immigration?

If America is not a nation of immigrants, then what is it? Some have convincingly argued that America is better understood as a nation of settlers. By looking at early American immigration and nationality law, we can better understand what America as a nation was originally supposed to be. And it will ground us in a collective understanding of our historic identity as we struggle to contain the immigration crisis today.

There were four major requirements of early immigration law: a residency requirement, or how long an immigrant must live in the United States until they were allowed to apply for citizenship; proof of outstanding moral character that immigrants had to provide in courts of law; the severing of all previous political loyalties and an oath of fealty to the U.S. Constitution; and an ethnic requirement that favored immigrants from England and Northwestern Europe.

First, however, a word on sovereignty and national character.

Sovereignty & National Character

The most important fact to grasp regarding immigration, is that America, as a sovereign nation, has the absolute right to determine its own immigration policy for its own good. This could take the extremes of a generous immigration policy or an indefinite moratorium on all immigration. There is no political, moral, or religious precept, natural or divine, that requires nations to accept immigrants. 

America came into existence as a sovereign nation with the ratification of the U.S. Constitution in 1790. This was the final act of a long and difficult drama that had begun with the imperial crisis with Great Britain in 1763, after the French and Indian War. No colonist at that point knew that America as a new nation, united as independent colonies, would emerge within the next generation. There are two critical points about American nationalism and sovereignty from this era that impinge on immigration.

First, the bloody revolutionary and civil war effectively cleaved friend from enemy. Those who opposed American independence from Britain were denounced, harassed, and forced to flee the colonies. Of course, many loyalists and those on the fence kept their mouths shut and remained in America, but those who stayed were eventually won to the cause—or at least they acquiesced. Through the rewriting of their own state constitutions, the trial of the Articles of Confederation, and the drafting and ratification of the Constitution, they were caught up and formed into new political loyalties. From henceforth they were citizens of their states and citizens of the United States, no longer subjects of the Crown and Parliament.

Second, the Americans believed that political sovereignty resided in the people. Technically, the colonists distinguished between government as an institution that was established by God and thus immediately from him, and government as a work of human effort mediated by the people. In its formal and final nature, government’s prerogative came by God’s own will. Yet in its material and efficient nature, government was by the will of the people. Thus, the people, under God, were collectively sovereign, capable of establishing their own government and deliberating over the best laws for the good of all. This was, in the words of Alexander Hamilton, government by “reflection and choice,” not “accident and force.” No longer would a hereditary Hanoverian or Stuart or even a Sun King rule by claim of natural superiority or divine prerogative. (The colonists were especially wary of titles of nobility or hereditary political rule, although they eventually sought to incorporate the best elements of aristocracy and monarchy in the mixed constitution of the U.S. Constitution). Since the people were sovereign, their political representatives, officials, presidents, and justices were appointed through delegations of political power, and were trustees of the people to govern for the good of this particular political community. Political officials were not responsible for the plight or suffering of non-Americans; to prioritize foreigners over the well-being of American citizens would be an obvious betrayal of the people’s trust and an act of treason under the U.S. Constitution.

As such, America developed as a national people with a distinctive character and way of life that distinguished them from foreigners. This became the dominant host culture that immigrants were invited to join, but under the condition that they would leave behind their own national cultures and integrate into the American way of life. To ensure that the beloved American identity and folkways would be preserved against the potentially corrosive effects of unfettered immigration, immigration and naturalization law in the Early Republic took a deliberate and consistent form.

Residency

The first immigration law of the First Congress, the Naturalization Act of 1790, was a more generous and liberal law that reflected the optimism of the time. It set the residency requirement for new immigrants at only two years. However, five years later, the residency requirement was expanded to five years in the Naturalization Act of 1795. This was expanded once more to fourteen years in the Naturalization Act of 1798 (one of four laws in 1798 known as the “Alien and Sedition Acts”). Such a long residency period was considered too severe, and thus the Naturalization Law of 1802 returned the residency time period back to five years, where it has remained to this day.

The reason Congress expanded the residency requirement in 1795 was because both parties (Federalists and Republicans) were concerned that quick and easy access to citizenship could harm the stability and viability of the body politic. Each party, however, had different motives. The Federalists from the northeast were wary of European revolutionaries and the “scum of Europe” invading America with their destabilizing ideologies and violent uprisings. For their part, the Republicans (i.e., Democratic-Republican) were suspicious of a surge in European aristocratic asylum seekers looking to plant new aristocratic roots in America. The five-year residency requirement was an agreeable compromise between the two sides and was thought adequate to properly vet newly arrived foreigners and to begin the process of integrating them into American society.

In addition, the 1795 law introduced a “declaration of intent” or the necessity for immigrants desirous of becoming citizens to declare their intention to apply for citizenship at least three years before they could be formally naturalized. This was an “oath or affirmation” made before an approved district or circuit court, that declared the immigrant’s intent to become a citizen and so forever sever ties of fidelity to any foreign state. (The 1798 naturalization law increased the declaration of intent from three to five years, but the 1802 once again set it back to three years.) This rule created a two-step naturalization process that simultaneously discouraged immigrants who weren’t serious about becoming citizens, while also providing a probationary period in which foreigners who had publicly declared their intent could be appropriately scrutinized.

Finally, the 1795 act included a provision that required any immigrant who retained hereditary titles or orders of nobility in Europe, at the time of their admittance to citizenship, to “make an express renunciation of his title or order of nobility” in the court setting. The court was charged with explicitly recording such renunciations. This requirement satisfied the Democratic-Republicans who were intent upon preventing old European aristocracy and nobility from taking root in the new American nation.

Character

America in the late eighteenth-century was obsessed about two things: the character of the people and citizens, and the character of the nation or the body politic writ large. These, of course, were interconnected and mutually reinforcing, since the people’s virtue would shape the national character, while laws and social habits would necessarily form the character and virtue of the people. An anonymous author in 1789 wrote the following: “a change of principles precedes a change of manners, and so when a nation is beginning its political existence it should be careful to frame not only good laws but good habits … which, create a sense of duty, and in regard to character.”

The earliest naturalization laws in the 1790s formed part of these “good laws” that sought to reinforce the importance of good character for the success of the new American Republic. The 1795 law required that would-be citizens prove that they were “a person of good character” in any common law court of record, while the 1795 law required that the court be satisfied that during the residency period (five years), the foreigner “has behaved as a man of good moral character” who is “attached to the principles of the constitution of the United States,” and who is “well-disposed to the good order and happiness of the same.” The 1798 act required that the courts attest to “the peace and good behaviour” of the alien during his time of residency.

While the naturalization laws did not specify what all was involved in “good moral character,” it is not hard to figure out. The state constitutions of this time are an indispensable aid in this task. For example, the 1784 New Hampshire Constitution declared that “a frequent recurrence to the fundamental principles of the Constitution, and a constant adherence to justice, moderation, temperance, industry, frugality, and all the social virtues, are indispensably necessary to preserve the blessings of liberty and good government.” Virginia’s 1776 Constitution declared that “it is the mutual duty of all to practice Christian forbearance, love, and charity towards each other.”

Thus, “good character” in early America consisted of a combination of classical and Christian virtues. New immigrants seeking citizenship were expected to conform to this understanding of citizen virtue and national character. Those who refused or who failed to meet basic moral standards could be denied citizenship. These characterological requirements helped sway the Federalists who were concerned about immoral indigents and lazy, spendthrift immigrants from Europe who might create a poor and dependent underclass. 

Loyalty

Perhaps the most important element of the early immigration and naturalization laws were their insistence that aliens completely sever all ties of loyalty to foreign states and princes. This was an absolute necessity if America was going to preserve her integrity as a nation with equal and separate station as all other countries. The grave danger was foreign infiltration and influence—the reduction of America to a clientele of Europe—a worry that constantly dogged the early American political class.

While the 1795 law merely required immigrants to, under oath, “support the constitution of the United States,” the 1795 and 1802 laws significantly expanded on this theme. Henceforth, any alien seeking citizenship must declare on oath or affirmation before a supreme, superior, district or circuit court, that he “doth absolutely and entirely renounce and abjure all allegiance and fidelity to every foreign prince, potentate, state or sovereignty whatever, and particularly by name, the prince, potentate, state or sovereignty whereof he was before a citizen or subject” (1802). This renouncement was paired with a declaration of total support and allegiance to the constitution of the United States, as well as “attached to the principles” of the Constitution.

Early naturalization law also prohibited any immigrant residing in America who was a citizen of a country that the United States was at war with from becoming a citizen: “no alien who shall be a native citizen, denizen or subject of any country, state or sovereign, with whom the United States shall be at war, at the time of his application, shall be then admitted to be a citizen of the United States” (1798, 1802). It was unthinkable that a subject of a hostile country seeking the destruction and demise of the United States would be welcomed or incorporated into the American body politic. Therefore, we see that even peacetime statutory law continually sought to maintain distinctions between friends and enemies.

Ethnicity

The final qualification for citizenship in the Early Republic is the most contentious for us today. The only element that all four early immigration and naturalization laws had in common (1790, 1795, 1798, 1802) was that only “free white persons” could be admitted to citizenship. Modern scholars read this as evidence that America was a bigoted, discriminatory, and racist nation, inexorably living out her “original sin.” The truth is far more interesting.

By the 1790s, black African-Americans (slave and free) made up around eighteen percent of the total American population (757,000 blacks out of 3.9 million). The presence of blacks in America, first as indentured servants next to poor whites, and then as slaves, marked an uneasy relationship between the races. The English colonists who first settled in America had not brought their own slaves; nor were they slave catchers or sellers; nor were they particularly looking to acquire a slave labor force. Instead, the first black indentured servants were brought to the colonies by the Dutch and English, and of the 20 blacks originally sold, fifteen were bought by a single man (Governor Sir George Yardley) to work his tobacco plantation. While these black servants could theoretically earn their freedom (and there is evidence that some blacks in Virginia did), most were pressed into permeant, chattel enslavement.

The history of white-black relations in America from 1619 to 1790 is that of two different people groups, separate and unequal. By the time of the Constitutional Convention in Philadelphia in 1787, the debate over race and slavery between the North and South threatened to ruin the effort to form a new, national government that would unite the states in all their various cultures. Compromises and prudential judgments allowed both sides to ratify a constitution that, while imperfect, was good enough. The Constitution did not abolish slavery, but it did sunset the slave trade (Art. 1, Sec. 9, Cl. 1).

Given the constitutional balance on the racial issue, early naturalization law sought not to inflame or complicate the matter by allow immigrants from black-majority countries. Nor could immigrants who were already slaves of some kind be allowed to become citizens. Instead, only those who were already free and who were white (i.e., from England or Northwest Europe) were allowed to seek permanent residency and citizenship in the United States. Since the Revolutionary War was fought to gain American freedom—freedom to order and govern themselves—allowing enslaved aliens (either materially or spiritually) to become citizens would have been counterproductive to the free, republican citizens the early nation was attempting to cultivate. Since the American heritage and racial stock was predominantly English and Western European, and since cultural homogeneity (language, religion, law, customs, etc.) was believed to be indispensable for the success of the new nation, only immigrants from that part of the world were originally invited. In this sense, then, “white” was not so much a racial category, but a metonymy for a nexus of interlocking cultural and civilizational characteristics.

The reality was that even though there were free blacks in American by the 1790s, and even though the Revolutionary Era produced the first black emancipation (there were over 185,000 free blacks in the North and South by 1810), and even though some of these free blacks gained some basic civil rights, the reality was that blacks as a group were not citizens and were not offered the opportunity to become citizens. In his book, The Citizenship Revolution, Douglas Bradburn recounts the evolution of the status of blacks in America: they occupied an uneasy middle ground as “denizens”—neither merely residents nor full citizens—for almost a century, until the Civil War Amendments and Naturalization Act of 1870 extended citizenship to blacks de jure.

The status of hundreds of thousands of “black denizens” was satisfactory to no one in the late eighteenth-century. Early immigration and naturalization law was neither responsible for nor capable of solving this dilemma. Thus, naturally, it sidestepped the matter by limiting immigration to free whites only. This was a sensible and consensual solution that helped diffuse racial tensions by reinforcing America’s majority cultural, linguistic, religious, and legal heritage as coming from England and Europe. Inviting immigrants from regions of the world unlike themselves would have only contributed to America’s ethnic and racial unrest and fragmentation.

Conclusion

From 1790 to 1802 the American Congress passed four immigration and naturalization acts (along with the alien friend, alien enemy, and sedition acts) in an attempt to reach a stable immigration policy. This it did successfully: after 1802, immigration qualifications went virtually unchanged for over a century. Those qualifications shaped what America was and who she was meant to be. It was a reflection of her heritage and historic way of life, as well as a declaration of what the new American nation, as a republic of citizens, would henceforth be. America would be an English-speaking, Christian people; an empire of liberty—true spiritual and political freedom—and virtue; a people dedicated to their constitution and its principles; and a people hospitable to immigrants who were willing to leave behind their old life in order to become Americans.

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