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Lunatics, Idiots, Paupers, and Negro Seamen—Immigration Federalism and the Early American State

  • Anna O. Law (a1)

Abstract

Why did it take the U.S. national government until 1882 to gain control over migration policies from the states, and what does this situation say about the strength of the early American State? This phenomenon is especially curious, since the control of entry into and across a nation is so fundamental to the very definition of a State. I argue that the delay of the national government takeover was not due to a lack of administrative capacity. Instead, there were regionally specific reasons that the states preferred to retain control of migration policy. The national government did not take over migration policy because of the strong nineteenth-century political-cultural understanding that many migration policies were properly within the province of local control. This article explains the timing and sequencing of state and federal controls over nineteenth-century migration policy and what this timing meant for the freedom of movement of many politically vulnerable classes of people.

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1. State of New York, Annual Report of the Commissioners of Emigration for the Year Ending December 31, 1870 (Albany, 1870), 177.

2. 567 U.S. (2012).

3. The scope of this article begins with the ratification of the U.S. Constitution in 1787 and extends to 1882. Because this is a study of federalism, it does not make sense to include the colonial period, when there was not yet a U.S. central government.

4. For an example of a publication that distinguishes “immigration” from “immigrant” policies, see Michael E. Fix and Karen Tumlin, “Welfare Reform and the Devolution of Immigrant Policy,” Urban Institute Series on New Federalism, No. A-15, October 1997. Available at http://www.urban.org/publications/307045.html.

5. Neuman, Gerald, “The Lost Century of U.S. Immigration Law (1776–1875),” Columbia Law Review 93, no. 8 (Dec. 1993): 1837, 1841. I am aware that in 1870, California passed a law banning the importation of Asian prostitutes, but have omitted that case from this article because of the complex and regionally specific mix of racism, sexism, and labor competition that led to the passage of that law and eventually the Chinese Exclusion Act. I only note here that the rationale California offered for the banning of Asian prostitutes was often uttered in the same breath as their right to ban the diseased, paupers, and criminals, which the state regarded as an exercise of their right of self-defense.

6. It should be noted that U.S. naturalization policy did eventually include a basic literacy test as well as a “white person” requirement to become a U.S. citizen. But these two restrictions were never required to gain initial entry into the country. As well, the United States did use ethnicity to exclude in the Chinese Exclusion Act of 1882 and other national origins–based exclusions beginning in 1882 and into the early twentieth century.

7. Riker, William, The Development of American Federalism (Boston: Kluwer Academic Publishers, 1987), 14.

8. E-mail correspondence with Professor Hidetaka Hirota, May 17, 2014 (on file with author).

9. Hirota, Hidetaka, “The Moment of Transition: State Officials, the Federal Government, and the Formation of American Immigration Policy,” Journal of American History 99, no. 4 (March 2013): 1097.

10. Neuman, “The Lost Century,” 1837.

11. Zolberg, Aristide, A Nation by Design: Immigration Policy in the Fashioning of America (New York: Russell Sage and Harvard University Press, 2008), 20.

12. Until the last five years or so, much of the work on immigration policy has focused on the federal level, with the notable exception of Plascencia, Luis F. B., Freeman, Gary P., and Setzler, Mark, “The Decline of Barriers to Immigrant Economic and Political Rights in the American States: 1977–2001,” International Migration Review 37, no. 1 (2003): 523. Two studies mention subnational units to the extent that they are used as models of different manners in which states approached receiving immigrants, but these studies do not focus on the relationship between the states and the national government. See Fuchs, Larry, The American Kaleidoscope (Hanover, NH: Wesleyan Press, 1990) and Martin, Susan, A Nation of Immigrants (New York: Cambridge University Press, 2011).

13. Neuman, “The Lost Century,” 1833–34.

14. Mann, Michael, “The Autonomous Power of the State: Its Origins, Mechanisms, and Results,” in States in History, ed. Hall, John A. (New York: Oxford University Press, 1986), 112 (some original emphasis omitted), 113.

15. See for example Nettl, JP, “The State as a Conceptual Variable,” World Politics 20 (July 1968): 559592, 561 and Lieberman, Robert C., “Weak State Strong Policy: Paradoxes of Race Policy in the United States, Great Brittain, and France,” Studies in American Political Development 16 (June 2002): 138161, that compares the U.S. as a putatively “weak” state against Great Brittain and France, two “strong” states. However, Randolph Bourne in The State (unpublished and paginated manuscript, 1918) takes care to distinguish between the State, government, and the nation. Available at http://fair-use.org/randolph-bourne/the-state/.

16. Two notable exceptions are Novak, William, The People's Welfare: Law and Regulation in Nineteenth Century America (Chapel Hill: University of North Carolina Press, 1996), and Balogh, Brian, A Government Out of Sight: The Mystery of National Authority in the Nineteenth Century (New York: Cambridge University Press, 2009).

17. Novak, The People's Welfare, 42.

18. Balogh, A Government Out of Sight, 19–20.

19. Ibid., 19–20, 154.

20. Ibid., 154, 175.

21. Cited in Keohane, Robert, “Associative American Development 1776–1860: Economic Growth and Political Disintegration,” in The Antimonies of Interdependence: National Welfare and the International Division of Labor, ed. Ruggie, John Gerald (New York: Columbia University Press, 1983), 84 (original emphasis).

22. Mashaw, Jerry L., “Recovering American Administrative Law: Federalist Foundations, 1787–1801,” Yale Law Journal 115:1256, 1258–60, 1277.

23. John, Richard R., “Governmental Institutions as Agents of Change,” Studies in American Political Development (Fall 1997): 347–80, 371.

24. Rao, Gautham, “Sailors' Health and National Wealth: Marine Hospitals in the Early Republic,” Common-Place 9, no. 1 (October 2008). Available at http://www.common-place.org/vol-09/no-01/rao/.

25. Rao, Gautham, “Administering Entitlement: Governance, Public Health Care, and the Early American State,” Law & Social Inquiry 37, no. 3 (Summer 2012): 628, 635–38.

26. Mashaw, Jerry L., “Reluctant Nationalists: Federal Administration and Administrative Law in the Republican Era, 1801–1829,” Yale Law Journal 116:1636, 1648. The British and the French had consistently been harassing American ships by seizing them and commandeering American seamen.

27. Mashaw, “Reluctant Nationalists,” 1655, 1648, 1650, 1663.

28. Mashaw, “Reluctant Nationalists,” 1646, 1639, 1643. Mashaw speculates that the reason that Jefferson abandoned his own ideology of limited national government was that the Federalists were no longer a threat and the realities of an expanding nation required compromised with Republican ideological commitments.

29. Balogh, A Government Out of Sight, 175.

30. Ibid.

31. Skocpol, Theda, Protecting Soldiers and Mothers: The Political Origins of Social Policy in the United States (Cambridge: Harvard University Press, 1995); and Dauber, Michelle Landis, The Sympathetic State: Disaster Relief and the Origins of the American Welfare State, (Chicago: University of Chicago Press, 2013), 5.

32. See, generally, Novak, The People's Welfare.

33. Bernard, William S., “Immigration: History of U.S. Policy,” in Harvard Encyclopedia of American Ethnic Groups, ed. Thernstrom, Stephen, Orlov, Ann, and Handlin, Oscar (Cambridge, MA: Harvard University Press, 1980), 487–88.

34. Bernard, “Immigration: History of U.S. Policy,” 487–88.

35. Neuman, Gerald L., Strangers to the Constitution: Immigrants, Borders and Fundamental Law (Princeton, NJ: Princeton University Press, 1996). See also Neuman, “The Lost Century of American Immigration Law,” 1836–38.

36. See Neuman, “The Lost Century of American Immigration Law,” 1836–38.

37. Kettner, James, The Development of American Citizenship, 1608–1870, (Chapel Hill: University of North Carolina Press, 1978), 220–21. Many states also amended their original laws, but for the sake of parsimony, these are not listed in the table.

38. Ernst, Robert, Immigrant Life in New York City, 1825–1863 (Syracuse, NY: Syracuse University Press, 1994), 2829.

39. Bernard, “Immigration: History of U.S. Policy,” 488.

40. Hirota, Hidetaka, “‘The Great Entrepot for Mendicants’: Foreign Poverty and Immigration Control in New York State to 1882,” Journal of American Ethnic History 33, no. 2 (Winter 2014): 8, 19, 9. Hirota also notes that while New York generally adopted this strategy to exclude paupers, Massachusetts, influenced by “the state's exceptionally strong anti-Catholic Anglo cultural tradition,” chose to deport paupers.

41. Neuman, “The Lost Century of American Immigration Law,” 1846.

42. Bernard, “Immigration: History of U.S. Policy,” 488; and Ernst, Immigrant Life in New York City, 25.

43. Klebaner, Benjamin J., “State and Local Immigration Regulation in the United States before 1882,” International Review of Social History 3 (1958): 271.

44. Novak, The People's Welfare, 9, 11, and 24.

45. Balogh, A Government Out of Sight, 7.

46. Novak, The People's Welfare, 3, 9, 153.

47. Ibid., 50.

48. Tichenor, Daniel J., Dividing Lines: The Politics of Immigration Control in America (Princeton, NJ: Princeton University Press, 2002), 56.

49. Jones, Maldwyn, American Immigration (Chicago: University of Chicago Press, 1960), 93, 117. Other cities with a population that was one-half foreign born were: Chicago, Cincinnati, Milwaukee, Detroit, and San Francisco.

50. Hutchinson, Edward Prince, Legislative History of American Immigration Policy (Philadelphia: University of Pennsylvania Press, 1981), 11, 400. Hutchinson mentions these laws but notes that they have not been reprinted in the 1911 Dillingham Immigration Commission Report, which is regarded to be an authoritative source, and copies of these early laws have not been found elsewhere. Nevertheless, Hutchinson finds echoes of such resolutions in a 1794 Massachusetts law that fines a shipmaster who transports convicts. Neuman's “Lost Century of American Immigration Policy” article does enumerate these convict exclusion laws passed by states before and after the ratification of the Constitution, 1841–43.

51. Klebaner, Benjamin J., “The Myth of Foreign Pauper Dumping in the United States,” Social Service Review 35, no. 3 (Sept. 1961): 302.

52. Cited in Hirota, “‘The Great Entrepot for Mendicants’,” 17.

53. Kapp, Frederich, Immigration and the Commissioners of Emigration (New York: D. Taylor, 1870), 89.

54. Klebaner, “The Myth of Foreign Pauper Dumping,” 303, 306, 307. Klebaner notes that it was very easy for new immigrants to find themselves on public assistance, since many had used all their funds to pay for the voyage, others fell ill during the journey, and others could not find jobs upon arrival.

55. Jones, American Immigration, 133.

56. Zolberg, A Nation by Design, 115.

57. Klebaner, “The Myth of Foreign Pauper Dumping,” 307–8.

58. State of New York, Annual Report of the Commissioners of Emigration for the Year Ending December 31, 1876, Senate Document no. 21 (Albany, 1877), 71.

59. Zolberg, A Nation by Design, 117.

60. Ibid., 43.

61. Ibid., 43, 75.

62. Hutchinson, Legislative History of American Immigration Policy, 397.

63. Ibid., 398.

64. Ernst, Immigrant Life in New York City, 25–26.

65. Cited in Hutchinson, Legislative History of American Immigration Policy, 397.

66. Hutchinson, Legislative History of American Immigration Policy, 399–400 (citing the Massachusetts act of 1837).

67. Jones, American Immigration, 128, 153; and Klebaner, “State and Local Regulation of Immigration,” 270–71.

68. Hutchinson, Legislative History of American Immigration Policy, 400.

69. Commonwealth of Massachusetts, Thirteenth Annual Report of the Board of Charities of Massachusetts, Public document no. 17 (Boston, 1877), cix, 12–13; and Hirota, “‘Great Entrepot for Mendicants’,” 5.

70. Duffy, John, A History of Public Health in New York City 1625–1866 (New York: Russell Sage Foundation, 1968), 490–92. In 1831, a separate hospital for Negro seamen was established.

71. State of New York, Annual Report of the Commissioners of Emigration for the Year Ending December 31, 1870 (Albany, 1870), 125.

72. Smith v. Turner; Norris v. Boston (aka The Passenger Cases) 48 U.S. 283 (1849). Duffy, A History of Public Health, 492–93, 496, 518; Ernst, Immigrant Life in New York City, 26–27; and Klebaner, “State and Local Regulation of Immigration,” 272.

73. State of New York, Annual Report of the Commissioners 1870, 125.

74. Duffy, A History of Public Health, 518.

75. See cases from Neuman, “Lost Century of American Immigration Law,” 1865, n. 209.

76. Neuman, Strangers to the Constitution, 31.

77. Neuman, “Lost Century of American Immigration Law,” 1865, 1884.

78. State of New York, Annual Report of the Commissioners 1870, 63.

79. Novak, The People's Welfare, 210.

80. State of New York, Annual Report of the Commissioners 1870, “Bonding and Commuting—Private Hospitals for Immigrants,” 40–41. Available at http://nrs.harvard.edu/urn-3:FHCL:902280?n=2.

81. Klebaner, “State and Local Regulation of Immigration,” 276.

82. State of New York, Annual Report of the Commissioners 1870, 86.

83. Ernst, Immigrant Life in New York City, 28–29; Kapp, Immigration and the Commissioners of Emigration, 100.

84. Klebaner, “State and Local Regulation of Immigration,” 275.

85. Neuman, “The Lost Century of American Immigration,” 1855; and Klebaner, “State and Local Regulation of Immigration,” 275.

86. State of New York, Annual Report of the Commissioners 1870, 106–7.

87. Bernard, “Immigration: History of U.S. Policy,” 489.

88. Klebaner, “State and Local Regulation of Immigration,” 276.

89. Bernard, “Immigration: History of U.S. Policy,” 489.

90. State of New York, Annual Report of the Commissioners 1870, 109–10.

91. Ibid., 111–12.

92. Ibid., 112.

93. Ibid., 112–17.

94. Ibid., 124.

95. Frank Leslie's Popular Monthly, “New York Assumes Control of Affairs at Leading Port” XXV (January to June 1888). Available at http://www.gjenvick.com/Immigration/CastleGarden/1888-AHistoryOfCastleGardenImmigrationStation.html.

96. Bernard, “Immigration: History of U.S. Policy,” 489.

97. Klebaner, “State and Local Regulation of Immigrants,” 275.

98. State of New York, Annual Report of the Commissioners 1870, 126.

99. Bernard, “Immigration: History of U.S. Policy,” 488.

100. Novak, The People's Welfare, 10.

101. Hirota, “The Moment of Transition,” 1106.

102. Balogh, Government Out of Sight, 339.

103. Ibid., 144.

104. Novak, The People's Welfare, 53.

105. Balogh, A Government Out of Sight, 138, 144.

106. Dauber, The Sympathetic State, 25.

107. Riker, William H., Federalism: Origin, Operation, Significance (Boston: Little, Brown & Company, 1964), 4041, 140.

108. Freehling, William W., Prelude to Civil War: The Nullification Controversy in South Carolina 1816–1836 (New York: Oxford University Press), 11.

109. Novak, The People's Welfare, 170, 162, 161, 215.

110. Ibid., 33.

111. Freehling, Prelude to Civil War, 54, 60, 63.

112. Ibid., 53.

113. Ibid., 111–12.

114. Cited in Brest, Paul, Levinson, Sanford, Balkin, Jack, Amar, Akhil, and Siegel, Reva, Processes of Constitutional Decisionmaking: Cases and Materials, 5th ed. (New York: Aspen Publishers, 2006), 201.

115. Freehling, Prelude to Civil War, 111–12.

116. Hamer, Philip M., “Great Britain, the U.S. and the Negro Seamen Acts, 1822–1842,” Journal of Southern History (1935): 12.

117. Hamer, “Great Britain, the U.S. and the Negro Seamen Acts, 1822–1842,” 19, 22. See also Putney, Martha, Black Sailors: Afro-American Merchant Seamen and Whalemen (New York: Greenwood Press, 1987), 13; and Neuman, Strangers to the Constitution, 38–39.

118. 8 F. Cas. 493 (D.S.C. 1823).

119. Warren, Charles, The Supreme Court in United States History, 1821–1855, vol. 2 (Boston: Little, Brown, 1922), 84.

120. Kull, Andrew, The Color-Blind Constitution (Cambridge, MA: Harvard University Press, 1992), 12.

121. Freehling, Prelude to Civil War, 114–15; and Neuman, Strangers to the Constitution, 38–39.

122. Hamer, “Great Britain, the U.S. and Negro Seamen Acts,” 28.

123. Freehling, Prelude to Civil War, 113, 111.

124. Cited in Kull, The Color-Blind Constitution, 228–29, n. 14.

125. Kull, The Colorblind Constitution, 12.

126. John, “Governmental Institutions as Agents of Change,” 373.

127. Eaton, Clement, “Censorship of the Southern Mails,” American Historical Review, 48, no. 2 (Jan. 1943): 278, 280. See also, generally, John, Richard R., Spreading the News: The American Postal System from Franklin to Morse (Cambridge, MA: Harvard University Press, 1998). John is aware that abolition mail was censored and says President Jackson and his postal general Kendall were sympathetic to the southern position and willfully turned a blind eye to it based on their own belief in states' rights and the view that sovereign states had a right to defend themselves against threats (269–71).

128. Cited in Kull, The Colorblind Constitution, 229, n. 14; and Eaton, “Censorship of the Southern Mails,” 280.

129. Zolberg, A Nation by Design, 76.

130. Alexandra Filindra, E Pluribus Unum, (Ph.D. dissertation, Rutgers University, 2009), 250.

131. Hirota, “The Moment of Transition,” 1106.

132. Filindra, E Pluribus Unum, 95–96; and Jones, American Immigration, 250.

133. State of New York, Annual Report of the Commissioners, 1870, 153–54.

134. Jones, American Immigration, 250.

135. Klebaner, “State and Local Immigration Regulation,” 286–87; 7 How. (48 U.S.) 283 (1849), 92 U.S. 259 (1876), and 92 U.S. 275 (1876), respectively.

136. State of New York, Annual Report of the Commissioners of Emigration for the Year Ending December 31, 1876, Senate Document no. 21 (Albany, 1877), 72.

137. Commonwealth of Massachusetts, Thirteenth Annual Report of the Board of Charities of Massachusetts, Public document no. 17 (Boston, 1877), 4.

138. Hirota, “The Moment of Transition,” 1097.

139. Commonwealth of Massachusetts, Thirteenth Annual Report, 4, xliii; and Hirota, “‘The Great Entrepot for Mendicants’,” 7.

140. Hirota, “The Moment of Transition,” 1097.

141. Hirota, “The Moment of Transition,” 1097; Commonwealth of Massachusetts, Thirteenth Annual Report, xxxvii-xlvii. A full draft of one such bill can also be found in the Annual Report of the Commissioners of Emigration of New York State for the Year Ending December 31, 1876, 74–78.

142. Commonwealth of Massachusetts, Thirteenth Annual Report, xlviii. (Emphasis added.)

143. Hirota, “The Moment of Transition,” 1098; “‘The Great Entrepot for Mendicants’,” 22–23.

144. Novak, The People's Welfare, 241.

145. Neuman, Strangers to the Constitution, 51.

146. Kettner, The Development of American Citizenship, 334.

147. Novak, The People's Welfare, 232.

148. Riker, Federalism: Origin, Operations, and Significance, 140.

I wish to thank Brian Balogh, Sean Farhang, Janice Fine, Rebecca Hamlin, the University of Texas School of Law constitutional law symposium, the editors, and the anonymous reviewers of this journal for commenting on previous drafts of this article. Thanks also to Hidetaka Hirota, Sidney Milkis Gautham Rao, Dan Tichenor, and Cara Wong for advice on sources. Finally, my two capable undergrad research assistants, Daniel Margolis and Joseph Valerio, provided excellent backup and copyediting.

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Lunatics, Idiots, Paupers, and Negro Seamen—Immigration Federalism and the Early American State

  • Anna O. Law (a1)

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