Nationality Law in the American Colonies

Nationality law in the American Colonies
From Wikipedia, the free encyclopedia
Jump to navigationJump to search
Nationality law in the American colonies preceding the Articles of Confeder=
ation was a decentralized early attempt to develop the concept of citizensh=
ip among colonial settlers with respect to the major colonial powers of the=
 period. Precedent was largely based on English common law, with jurisdicti=
onal discretion afforded to each of the colonies in accordance with the pri=
nciples of self-governance.


Contents
1	Jurisdictional tension between England and the colonies
2	Parliamentary naturalization laws
3	Colonial naturalization laws
4	Post-colonial, pre-constitutional period
5	References
Jurisdictional tension between England and the colonies

The Royal Charter of Connecticut, 1662.
English common law, under principles of jus sanguinis, viewed English perso=
ns and their children in the colonies as full subjects of the king.[1] Engl=
ish common law was less clear on the status of alien residents in the colon=
ies, who generally faced a difficult naturalization process to obtain the s=
ame legal rights inhered to natural-born English and their descendants.[2] =
Issues in early naturalization policy stemmed from the legal relationships =
between England and its colonies.[3] The strongest legal bonds between Engl=
and and the American colonies lay in the colonial charters, many of which p=
rofessed alien residents in the colonies would eventually become =E2=80=9CO=
ur Loving subjects and live under Our Allegiance.=E2=80=9D[4] Ambiguity in =
the colonial charters created uncertainty as to whether the authority to na=
turalize alien residents resided within the colonies themselves or emanated=
 directly from Parliament in London.[5] Legislative bodies from both locati=
ons ultimately issued separate and sometimes conflicting naturalization law=
s, the interaction of which influenced early patterns of non-English immigr=
ation to the American colonies.

Parliamentary naturalization laws
Private naturalization before Parliament afforded the highest legal status =
an alien resident could obtain in the colonies. However, it was an expensiv=
e process, costing applicants upwards of 50 pounds during the 1670s. Furthe=
r, it was exclusive, in that embedded sacramental tests were designed to ba=
r Catholics from subjectship, yet restricted other non-Christians from the =
benefits of parliamentary naturalization as well.[6] Alternatively, aliens =
could seek royal denization, which was a more accessible path to permanent =
residency yet conferred a lesser form of citizenship than private naturaliz=
ation.[7]

Religious prejudice, xenophobia and fears of foreign political views, as we=
ll as maintenance of an Englishman's superior commercial privileges, all co=
ntributed to a conservative approach to early naturalization law. Moreover,=
 Parliament granted these privileges based on individual merit rather than =
on broader statutory decrees to maintain full control over admissions to th=
e colonies.[8] However, with the passage of the Linen Cloth Act 1663 (15 Ch=
a. 2, c. 15), the difficulties of naturalization started to be modified tow=
ard favoring categories of aliens who might prove of particular benefit to =
the state.[9]

The first general naturalization law, providing a simple administrative pro=
cess for obtaining naturalization appeared when Parliament passed Foreign P=
rotestants Naturalization Act 1708[10] The act required declarations of all=
egiance and supremacy from aliens and, similar to the private naturalizatio=
n process, imposed sacramental tests to restrict non-Protestant applicants.=
 One key innovation of the statute was to drastically reduce the applicatio=
n fee to just one schilling.[11] Tory opposition to liberal immigration pol=
icies led to the act=E2=80=99s eventual repeal in 1712, though the repeal d=
id not invalidate naturalizations that had already been granted.[12]

In light of the Tory position, Parliament faced growing pressure from the c=
olonies to open immigration to fulfill its major need, agrarian labor.[13][=
14] During the colonial period, many were interested in promoting immigrati=
on, including the Crown, proprietors, colonial governments, landowners, and=
 agents, all saw in it a profitable enterprise, since immigration would pro=
mote settlement, increase the value of landed holdings, and create a protec=
tive barrier for the colonies against Spanish, French, and Indians. Each in=
terested party promoted immigration in their own way. Colonial assemblies s=
oon became active in this work, and remained so throughout the colonial per=
iod.[15] In 1740 Parliament responded with a more liberal and enlightened p=
olicy[16] that greatly eased and broadened the ability of aliens in the Ame=
rican colonies to become naturalized subjects of Britain.


William Penn, who as early as 1700 argued in favor of a general naturalizat=
ion act for the American colonies
The Plantation Act 1740 supplanted the private naturalization process in wh=
ich aliens in the colonies had to travel to London to appeal for subjectshi=
p on a costly, case-by-case basis.[17] After 1740, aliens could locally app=
ly for naturalization within the colonies so long as they had resided there=
 for seven years or more, without being absent more than two consecutive mo=
nths.[18] Further, the Act encompassed all of British America, as opposed t=
o the previous policy of only conferring subjectship within the colony from=
 which it was requested.[19] The Act also capped the application cost at tw=
o shillings, yet required applicants to take an oath of allegiance to the C=
rown and profess their Protestant belief in open court.[18]

The religious elements of the 1740 Act still favored Protestant applicants =
at the expense of Catholic applicants, yet new exemptions for Quakers, Jews=
 and, later, Moravians left room for certain non-Protestants to become natu=
ralized subjects of England.[20] Though localized opposition to Jewish appl=
icants occurred following the 1740 law, competition for new settlers among =
the colonies prevented their total exclusion from the naturalization proces=
s, as alien residents could travel to more permissive colonies to apply for=
 subjectship.[21] For example, Rhode Island, New York and Georgia each made=
 it a deliberate and established part of their public policy to grant such =
rights to Jewish applicants, and became the colonies where Jews settled in =
the largest numbers.[22]

Though the Plantation Act imposed stiff fines for non-compliance, the colon=
ies administered the 1740 Act with varying degrees of faithfulness;[23] des=
pite the fines, only six Secretaries of the thirteen American Colonies (and=
 one in the West Indies) submitted the mandated lists.[24] Further, many co=
lonies issued their own naturalization policies to rival those of Parliamen=
t, until that practice was prohibited in 1773;[25] that year, Parliament is=
sued instructions to all governors in the colonies not to consent to any na=
turalization bill passed by a colonial legislative body.[26] As of 1773, at=
 least 6,911 aliens had been naturalized under the 1740 Act, the vast major=
ity of them having done so through Pennsylvania.[27]

Colonial naturalization laws
All colonies, except New Hampshire, developed their own naturalization poli=
cies outside of English law. These powers were presumed, as the royal colon=
ial charters did not explicitly grant them, and in many instances was an ex=
pression of the public will through provincial legislation.[28] For example=
, naturalizations of specifically named groups of persons through private a=
cts were a common colonial practice until 1700, after which time Parliament=
 started to restrict local powers over the denization and naturalization of=
 aliens.[29] Under the 1701 Act of Settlement, Britain barred naturalized s=
ubjects from entering high political office. Nonetheless, some colonies con=
tinued to permit this practice based on existing precedent, and as it was u=
nclear whether the Parliamentary ban extended to the American colonies.[30]=
 Even under the threat of Parliamentary challenge, the colonies persisted i=
n drafting local laws to fulfill their growing demand for new immigrants un=
til those powers were completely proscribed in 1773.[31] Most colonies empl=
oyed similar methods of naturalization that England employed.[32] However, =
colonial legislation was more limited than that of Parliament, in that a co=
lony could not create rights that extended beyond its own borders.[33]

Colonial naturalization policies varied by region. In New England, conserva=
tive naturalization policies kept that part of the country more English tha=
n other parts of the colonies would later become.[26] For example, in the e=
arly 1700s, Massachusetts required any ship entering its ports to provide a=
 passenger list, and later prohibited the importation of poor, infirm or vi=
cious people. Connecticut took to demanding an oath of allegiance from all =
strangers spending time within its borders.[34] New Hampshire was the only =
colony that refrained from legislating on the naturalization issue altogeth=
er, though there is record that some aliens did settle there and may have b=
een locally accepted as fellow subjects.[35]

Conversely, the mid-Atlantic and southern colonies quickly adopted more per=
missive naturalization policies. In Virginia, early naturalization laws inc=
luded a preamble that extolled the advantage of inviting other persons to r=
eside in the colony.[36] South Carolina attracted alien applicants through =
naturalization laws that granted them the rights of natural-born Englishmen=
 while prohibiting the collection of monies for debts contracted prior to t=
he applicant coming to the colony.[37] Though the creditor class derided th=
e policy, it made South Carolina a refuge for persons who had suffered unde=
r austere English debtor laws.[34] New York in 1730 adopted a more accommod=
ating naturalization process as the number of foreign Protestants within it=
s borders reached a point of political importance and the colony sought to =
fulfill its ambitions of westward expansion.[38] Pennsylvania in 1742 provi=
ded its own general law for naturalization that gave full rights to aliens =
who had resided in the colony for less than the seven years required in the=
 1740 Parliamentary Act.[39] Parliament later invalidated Pennsylvania's ge=
neral naturalization law, after which the state, motivated by similar expan=
sionary aims as New York, turned to extensive use of private acts to accomp=
lish its naturalizations.[40] Further, New York and Pennsylvania both exemp=
ted persons with conscientious scruples against oaths, which included Quake=
rs, from the requirement to swear allegiance during naturalization, a colon=
ial innovation that would later influence Parliament's general naturalizati=
on law.[41]

Though colonial naturalization laws differed in the political rights each b=
estowed to alien residents, they did generally confer the right to obtain l=
and, which afforded each man the power to obtain the necessary voting quali=
fications for himself or, at the very least, for his heirs born in the Amer=
ican colonies.[42]