1. Smith, Rogers M., Civic Ideals: Conflicting Visions of Citizenship in U.S. History (New Haven: Yale University Press, 1997), 30–31.Google Scholar See also Shklar, Judith N., American Citizenship: The Quest for Inclusion (Cambridge, Mass.: Harvard University Press, 1991)Google Scholar; Kettner, James H., The Development of American Citizenship, 1608–1870 (Chapel Hill: University of North Carolina Press, 1978).Google Scholar

2. Shklar, American Citizenship, 4–5 (emphasis added).

3. Schuck, Peter H. and Smith, Rogers M., Citizenship without Consent: Illegal Aliens in the American Polity (New Haven: Yale University Press, 1985), 3.Google Scholar Here I should add that most liberal theorists would probably draw a distinction between excluding individuals from a territorial community on the grounds of citizenship and removing individuals from a territorial community on the ground of citizenship, which itself underscores their fetishization of territory. This article shows that both exclusion and removal have their roots in the same politics of refusal.

4. My attempt to trace the emergence of American citizenship as a barrier to territorial rights and as a marker of the legitimacy of claims builds upon Gerald Neuman's extremely important work on immigration restriction in the early Republic. See Neuman, Gerald L., Strangers to the Constitution: Immigrants, Borders and Fundamental Law (Princeton: Princeton University Press, 1996), chap. 4Google Scholar, and “The Lost Century of American Immigration Law (1776–1875),” Columbia Law Review 93 (1993): 1833. In contrast to the project undertaken here, Neuman is primarily interested in documenting all existing kinds of territorial restriction, whether or not based upon citizenship, including those aimed at excluding the criminal, the poor, the sick, and free persons of color.

5. See, e.g., Kelso, Robert W., The History of Public Poor Relief in Massachusetts, 1620–1920 (1922; reprint, Montclair, N.J.: Patterson Smith, 1969), esp. chap. 6.Google Scholar

6. By “social citizenship,” I refer to T. H. Marshall's description of the “social element” of citizenship as “the whole range from the right to a modicum of economic welfare and security to the right to share to the full in the social heritage and to live the life of a civilized being according to the standards prevailing in the society.” Marshall, T. H., Citizenship and Social Class, and Other Essays (Cambridge: Cambridge University Press, 1950), 11.Google Scholar

7. For a brilliant, concise treatment of the history of the poor laws in eighteenth-century Massachusetts, see Jones, Douglas L., “The Transformation of the Law of Poverty in Eighteenth-Century Massachusetts,” in Law in Colonial Massachusetts, 1630–1800, ed. Coquillette, Daniel R. (Charlottesville: University Press of Virginia, 1984), 153.Google Scholar

8. It is important to emphasize here that settlement did not guarantee any particular level of relief; it simply designated the town that bore the legal responsibility for relief.

9. Walter Trattner's employment of the term “sovereignty” to describe colonial towns' legal power to restrict outsiders' territorial rights is only a slight exaggeration. Trattner, Walter I., From Poor Law to Welfare State: A History of Social Welfare in America, 4th ed. (New York: Free Press, 1989), 18 n. 3.Google Scholar Of course, I am not suggesting that the towns' “sovereignty” over the question of determining outsiders' territorial rights was the only way in which territory was legally constructed. For purposes of war, trade, religion, and so on, there were undoubtedly other legal constructions of territory.

10. The length of the requisite period of uncontested residence was statutorily increased under pressure from the larger towns. Thus, in the late seventeenth century, it was set at three months. An Act for Regulating of Townships, Choice of Town Officers and Setting Forth their Power, chap. 28, 1692–93, The Acts and Resolves, Public and Private, of the Province of the Massachusetts Bay, to Which are Prefixed the Charters of the Province, 21 vols. (Boston: Wright and Potter, 1869–1922), 1:64 (hereafter cited as Province Laws). In 1700–1701, it was extended to one year. See An Act directing the Admission of Town Inhabitants, chap. 23, 1700–1701, ibid., 1:451. This statutory structure continued until the late 1760s.

11. An Act in Addition to the Act directing the Admission of Town Inhabitants, Made and Pass[e]d in the Thirteenth Year of the Reign of King William the Third, chap. 5, sec. 3, 1722–23, Province Laws, 2:244.

12. See, generally, Benton, Josiah Henry, Warning Out in New England, 1650–1817 (1911; reprint, Freeport, N.Y.: Book for Libraries Press, 1970).Google Scholar In this regard, towns did not usually take the trouble to remove outsiders physically; they were content to provide them with formal notices to leave the town. These had the legal effect of ensuring that such individuals could not acquire a settlement on the basis of uncontested residence within the territory of the town. Once the threat that outsiders might acquire a settlement had been eliminated, towns were perfectly content to let them remain within their territory, work there, and pay taxes into the town treasury; they could be removed from town territory, if necessary, at the precise moment when they needed relief.

13. See, e.g., An Act directing the Admission of Town Inhabitants, chap. 23, 1700–1701, Province Laws, 1:451; An Act in addition to the Act directing the Admission of Town Inhabitants, made and passed in the Thirteenth Year of King William the Third, chap. 5, 1722–23, ibid., 2:244–45; An Act for the better regulating the Admission of Town Inhabitants within the Province of Massachusetts Bay, chap. 8, 1724–25, ibid., 2:336; An Act to prevent Charges arising by Sick, Lame or otherwise infirm Persons, not belonging to this Province being landed and left within the same, chap. 4, 1756–57, ibid., 3:982. These acts typically required that the masters of ships post bonds with local poor relief officials.

14. See Kettner, Development of American Citizenship, 86, 100; Proper, Emberson Edward, Colonial Immigration Laws: A Study of the Regulation of Immigration by the English Colonies in America (1900; reprint, New York: AMS Press, 1967), chap. 4.Google Scholar

15. By common consensus, the origin of the provincial government's assumption of responsibility for individuals without settlement is traced to the outbreak of King Philip's War in 1675, which produced a wave of refugees who fled their homes for more secure communities. In order to deter towns from driving these refugees away, the General Court ordered towns to administer to their needs, assuring them that the refugees would be supplied “out of the publiek Treasury.” See Whitmore, William H., ed., The Colonial Laws of Massachusetts (1672; reprint, Boston: Rockwell and Churchill, 1887), 283.Google Scholar

16. See Trattner, From Poor Law to Welfare State, 36–38.

17. Brubaker, Rogers, Citizenship and Nationhood in France and Germany (Cambridge, Mass.: Harvard University Press, 1992), 70.Google Scholar See also Torpey, John, The Invention of the Passport: Surveillance, Citizenship and the State (Cambridge: Cambridge University Press, 2000).Google Scholar

18. Cummings, John, The Poor-Laws of Massachusetts and New York: With Appendices Containing the United States Immigration and Contract-Labor Laws (New York: Macmillan, 1895), 5.Google Scholar For a discussion of New York's experience with poor immigrants, see Neuman, Strangers to the Constitution, and “Lost Century,” and the references contained therein.

19. U.S. Constitution, art. 1, sec. 8.

20. For an illuminating discussion of the history of legal representations of the transportation of persons as “commerce,” and of the relevant constitutional law on the subject, see Bilder, Mary S., “The Struggle over Immigration: Indentured Servants, Slaves, and Articles of Commerce,” Missouri Law Review 61 (1996): 743.Google Scholar

21. Mayor of New York v. Miln, 36 U.S. (11 Pet.) 102 (1837).

22. The Passenger Cases, 48 U.S. (7 How.) 283 (1849).

23. Commonwealth of Massachusetts, Report of the Select Committee to Whom was Referred the Subject of the Practicability of Preventing the Induction of Foreign Paupers into the State, House Document No. 60 (Boston, 1835), 2.

24. See., e.g., Cummings, Poor-Laws of Massachusetts and New York, 34–36.

25. An Act in Addition to the Several Laws already made relating to the Removal of Poor Persons out of the Towns whereof they are not Inhabitants, chap. 17, 1766–67, Province Laws, 4:911.

26. I have been unable to identify when this principle disappeared; there is no doubt, however, that it was not adhered to in the late eighteenth century.

27. An Act in Addition to the Several Laws already made relating to the Removal of Poor Persons out of the Towns whereof they are not Inhabitants, chap. 17, 1766–67, Province Laws, 4:911. Of course, at all times, there were the so-called “common law” modes of obtaining a settlement—marriage, parentage, birth, and so on—that reflected the natural reproduction of the town community. However, these were for the most part unavailable to complete outsiders and will not be discussed here. For a summary of the “common law” modes of acquiring a settlement, see, generally, Leavitt, Jonathan, A Summary of the Laws of Massachusetts Relating to the Settlement, Support, Employment and Removal of Paupers (Greenfield [Mass.]: John Denio, 1810).Google Scholar

28. See An Act ascertaining what shall constitute a legal Settlement of any Person in any Town or District within this Commonwealth, so as to entitle him to support therein in case he becomes Poor and stands in need of relief; and for repealing all Laws heretofore made respecting such Settlement (1793), chap. 34, Acts and Laws of the Commonwealth of Massachusetts (Boston: Wright and Potter, 1895), 439 (hereafter cited as Acts 1792–93) A copy of this act is reproduced in the appendix at the end of this article. Strictly speaking, citizenship was introduced in the 1789 settlement law, where it was formulated as Massachusetts citizenship. See An Act determining what Transactions shall be necessary to constitute the settlement of a Citizen in any particular Town or District (1789), chap. 14, Acts and Laws of the Commonwealth of Massachusetts (Boston: Wright and Potter, 1894), 408 (hereafter cited as Acts 1788–89).

29. See the appendix (the first, second, third, sixth, seventh, eighth, and eleventh modes of obtaining settlement).

30. See the appendix (the fourth, fifth and twelfth modes of obtaining settlement).

31. See, e.g., Miscellaneous Remarks on the Police of Boston; As Respects Paupers; Alms and Work House; Classes of Poor and Beggars; Laws Respecting Them; Charitable Societies; Foreign and Domestic Missionary Societies; Evils of the Justiciary; Imprisonment for Debt; Remedies (Boston: Cummings and Hilliard, 1814), 5–10.

32. Kulikoff, Allan, “The Progress of Inequality in Revolutionary Boston,” William and Mary Quarterly 28 (1971): 375, 401, table x.CrossRefGoogle Scholar

33. Massachusetts was somewhat retrograde in its preservation of alien disabilities with respect to the ownership of real property. During the 1790s, several states, including Connecticut, New York, New Jersey, Pennsylvania, and Virginia lifted restrictions on alien ownership of property. See Kettner, Development of American Citizenship, 238 n. 67.

34. Massachusetts Archives, Senate Unpassed Legislation, SCI, Series 231, 1785, 344.

35. Massachusetts Society for the Aid of Immigrants, Information for Immigrants to the New-England States (Boston, 1795).Google Scholar

36. Massachusetts Archives, House Unpassed Legislation, SCI, Series 230, 1800, 4937.

37. See the appendix (the fourth and fifth modes of acquiring a settlement). Strictly speaking, property was made a basis of settlement in the 1789 settlement law. See An Act determining what Transactions shall be necessary to constitute the settlement of a Citizen in any particular Town or District, chap. 14, Acts 1788–89, 408.

38. In 1821, the General Court removed the requirement that the property be of a specific value. See An Act in addition to an Act ascertaining what shall constitute a Legal Settlement in any Town or District within this Commonwealth (1821), chap. 94, in Laws of the Commonwealth of Massachusetts Passed by the General Court, at their Session, which commenced on Wednesday, the Ninth Day of January, and ended on Saturday, the Twenty Third Day of February, A.D. Eighteen Hundred and Twenty Two (Boston: 1822), 709.

39. An Act determining what Transaction shall be necessary to constitute the settlement of a Citizen in any particular Town or District, chap. 14, Acts 1788–89, 408–9. The citizenship in question was Massachusetts citizenship.

40. See, e.g., Petition of Selectmen of Boston, Massachusetts Archives, House Unpassed Legislation, SCI, Series 230, 1790, 3239.

41. An Act in addition to an Act Passed in the Year of Our Lord One Thousand Seven Hundred and Eighty Nine lntitled “An Act Determining What Transactions Shall be Necessary to Constitute the Settlement of a Citizen in any Particular Town or District” (1790), chap. 39, Acts and Laws of the Commonwealth of Massachusetts, 1790–91 (Boston: Wright and Potter, 1895), 70.

42. An Act in addition to an Act passed in the Year of Our Lord One Thousand seven Hundred & Eighty nine, intitled “An Act determining what Transactions shall be necessary to constitute the settlement of a Citizen in any particular Town or District” (1791), chap. 44, ibid., 327.

43. An Act in addition to an Act, passed in the Year of our Lord One Thousand seven Hundred & Eighty nine, intitled, “An Act determining what Transactions shall be necessary to constitute the settlement of a Citizen in any particular Town or District” (1792), chap. 69, Acts 1792–93, 107.

44. See the appendix (twelfth mode of acquiring settlement). If this requirement seems unduly harsh, it was far milder than some of the alternatives considered. A late draft of the 1794 settlement law, dated January 20, 1794, suggests that the General Court contemplated requiring an individual to have resided in a town for twenty years, and to have paid all assessed taxes during that entire period, in order to acquire a settlement therein. Massachusetts Archives, Passed Acts, SCI, Series 229, St. 1793 Chapter 34.

45. Wrentham v. Attleborough, 5 Mass. 335, 337, 4 Tyng 430, 432 (1809).

46. An Act Providing for the Relief and Support, Employment and Removal of the Poor, and for Repealing All Former Laws Made for Those Purposes (1793), chap. 59, Acts 1792–93, 491–92. At this juncture, it is important to emphasize that, as part of the 1794 reform of the poor laws, the Commonwealth also diminished the autonomy of the towns, established a certain uniformity of the territorial rights of individuals, and thus created a greater sense of territory as state territory. Accordingly, the towns gave up their discretionary power to “warn out” undesirable individuals who did not pose an actual charge to the town. Of course, this did not mean that settlement lost its historic connection to territorial rights. Where individuals lacked legal claims upon town treasuries in the form of poor relief, when they became paupers, they continued to lack legal rights to remain within the territory of the town. Accordingly, towns were authorized to transport actual paupers to the towns to which they “belonged.” Ibid.

47. Ibid, (emphasis added).

48. See, e.g., Massachusetts Archives, House Unpassed Legislation, SCI, Series 230, 1790, 3316 (accounts of Boston that include charges for paying the passage of paupers to New Hampshire, New York, Nova Scotia, and Rhode Island).

49. Largely because the focus here is upon the immigrant poor, who were automatically barred from obtaining settlements under the 1794 settlement law, I do not discuss the titanic legal battles waged between towns over questions of responsibility for the support of the domestic poor. See, e.g., Boston Overseers of the Poor, A Manual for the Use of the Overseers of the Poor in the City of Boston (Boston: J. E. Farwell, 1866), 71–99.Google Scholar

50. Massachusetts Archives, Senate Unpassed Legislation, SCI, Series 231, 1790, 1198.

51. Ibid., 1796, 2072.

52. Resolve establishing the evidence to accompany accounts exhibited for the support of State's Poor (1795), chap. 122, Acts and Laws of the Commonwealth of Massachusetts, 1794–95 (Boston: Wright and Potter, 1896), 582.

53. An Act specifying the evidence to accompany accounts Exhibited for the support of the Poor of the Commonwealth (1798), chap. 64, Acts and Laws of the Commonwealth of Massachusetts, 1798–99 (Boston: Wright and Potter, 1897), 89–90.

54. This is not to suggest that Massachusetts officials were at all uninterested in keeping out indigent migrants. On January 31, 1793, stating that “it would be a good policy to encourage the migration of Foreigners by every reasonable measure,” Governor Hancock suggested to the General Court that “some of the Laws formerly, and now in force, for the regulation of admitting strangers may need a revision.” Resolves of the General Court of the Commonwealth of Massachusetts: Together with the Speeches &c. of his Excellency the Governor to the Said Court Begun and Held at Boston, in the County of Suffolk, on Wednesday, the Thirteenth Day of May, Anno Domini, 1792; and from Thence Continued by Adjournment to Wednesday, the Thirtieth Day of January, Following (Boston: Thomas Adams, 1793), 41.

Marilyn Baseler argues that there was a high level of immigration into the United States between 1780 and 1800. See Baseler, Marilyn C., “Asylum for Mankind”: America, 1607–1800 (Ithaca, N.Y.: Cornell University Press, 1998), 155 n. 7.Google Scholar Notwithstanding this high level of immigration, only the British government's attempts to ship convicts to America met with vigorous official condemnation in Massachusetts. Ibid., 161–65. Of course, there was popular consciousness in the newly independent states of the desirability of attracting propertied, as opposed to propertyless, immigrants. During the 1780s, the press both applauded the arrival of “valuable” foreigners and condemned the influx of Old World “refuse.” Ibid., 198.

55. Town of Boston, Committee on Vagrants, The Following Report is Printed by Order of the Town: For the Information of the Inhabitants, to be Considered at the Adjournment, on Thursday, 21^st Instant (Boston, 1802).Google Scholar

56. Even after accounting for serious imperfections in the data, statistics in respect of the numbers of arrivals from foreign countries in Boston provide some indication of the increase in the influx of immigrants between 1820 and 1850. For the years ending September 30, 1820, September 30, 1830, December 31, 1840, and September 30, 1850, the number of arrivals from foreign countries into Boston was 861, 1,520, 5,361, and 26,612, respectively. Bromwell, William J., History of Immigration to the United States Exhibiting the Number, Sex, Age, Occupation, and Country of Birth of Passengers Arriving from Foreign Countries by Sea 1819–1855 (1856; reprint, New York: Augustus M. Kelley, 1969), 21, 61, 105, 145.Google Scholar Of course, even after accounting for those arrivals that left the state, these numbers understate the actual number of immigrants entering Massachusetts because they do not account for those entering by land from the British Provinces, Maine, New York, and so on.

57. See, e.g., Keyssar, Alexander, Out of Work: The First Century of Unemployment in Massachusetts (New York: Cambridge University Press, 1986)Google Scholar, especially chap. 2. The various social problems associated with the influx of primarily Irish immigrants have been well documented. The authoritative work on the subject remains Handlin, Oscar, Boston's Immigrants, 1790–1880, rev. ed. (Cambridge, Mass.: Harvard University Press, 1991).Google Scholar

58. For example, for the period between May 1, 1824, and November 30, 1824, 72 percent of the 415 state paupers supported in the Boston almshouse were listed as “born or belonging” outside the United States (with 36 percent listed as “born or belonging” in Ireland). See Massachusetts Historical Society, Boston, Overseers of the Poor, Records: 1733–1925, Box 14, Folder 6. As time went on, the percentage of immigrants in the state pauper category grew, while native pauperism declined. For example, between 1828 and 1838, the percentage of “foreigners” and their children among the paupers admitted to the Boston House of Industry grew from 61 percent to 74 percent; during the same period, the number of “natives of Boston of American origin” declined by 25 percent. City of Boston, Annual Report of the Directors of the Houses of Industry and Reformation, April 1, 1849, Boston City Documents No. 25 (Boston, 1849), 20. The term “foreigners” might refer to individuals without settlements in Boston.

59. See Knobel, Dale T., “America for the Americans”: The Nativist Movement in the United States (New York: Twayne Publishers, 1996).Google Scholar

60. Commonwealth of Massachusetts, House Document No. 51 (Boston, 1830), 3 (emphasis added).

61. Commonwealth of Massachusetts, Report of the Commissioners Appointed by an Order of the House of Representatives, Feb. 29, 1832, on the Subject of the Pauper System of the Commonwealth of Massachusetts, House Document No. 6 (Boston, 1833), 16–17 (hereafter cited as Tuckerman Report).

62. Commonwealth of Massachusetts, House Document No. 32 (Boston, 1835), 1, 2.

63. Commonwealth of Massachusetts, Address by his Excellency John Davis, Delivered Before the Two Branches of the Legislature, January 13, 1835, House Document No. 3 (Boston, 1835), 38. Modern historians have argued that the antebellum hysteria about foreign “pauper dumping” was out of all proportion to the actual number of paupers “dumped” into the United States. See, generally, Klebaner, Benjamin J., “The Myth of Foreign Pauper Dumping in the United States,” Social Service Review 35 (1961): 302.CrossRefGoogle Scholar Recently, historians have argued that the “myth of foreign pauper dumping” may need to be revisited, although they recognize that foreign “pauper dumping” accounted for only a small portion of antebellum poverty. Anbinder, Tyler, Nativism and Slavery: The Northern Know Nothings and the Politics of the 1850s (New York: Oxford University Press, 1992), 108–9.Google Scholar

64. During the 1830s, Massachusetts legislators did make some efforts to seek legislation at the Congressional level designed to bring the imagined practice of “foreign pauper dumping” to a halt. See, e.g., Kelso, History of Public Poor Relief, 129; Bilder, “Struggle over Immigration,” 800–1.

65. An Act to Prevent the Introduction of Paupers, from foreign ports or places (1820), chap. 290, in Laws of the Commonwealth of Massachusetts Passed by the General Court, at their Session, which commenced on Wednesday, the Twelfth Day of January, and ended on the Twenty Fifth Day of February, Eighteen Hundred and Twenty (Boston: Russell and Gardner, 1820), 428 (hereafter cited as Acts 1820).

66. Massachusetts Archives, House Unpassed Legislation, SCI, Series 230, 1827, 10281.

67. An Act in addition to an Act entitled “An Act to prevent the introduction of Paupers from foreign Ports or Places” (1831), chap. 150, sees. 1, 2, in Laws of the Commonwealth of Massachusetts Passed by the General Court, at their Session, which commenced Wednesday, the Fifth of January, and ended on Saturday, the Nineteenth of March, One Thousand, Eighteen Hundred and Thirty One (Boston: Dutton and Wentworth, 1831), 719 (hereafter Acts 1831). Local poor relief officials had the discretion to dispense with the bond.

It should be emphasized that the shift in the 1830s from restricting rights to enter territory on the basis of settlement to restricting rights to enter territory on the basis of citizenship had very little to do with Massachusetts legislators' affirmative recognition of the territorial rights of citizens. The Commonwealth chose to restrict aliens' rights to enter its territory in the way it did because it very likely could not have similarly impinged upon citizens' rights without violating the U.S. Constitution. According to established contemporary interpretations, the Privileges and Immunities Clause of Article IV guaranteed to every citizen the right to travel freely throughout the country without interference by the various state governments. See Maltz, Earl M., “Fourteenth Amendment Concepts in the Antebellum Era,” American Journal of Legal History 32 (1988): 305, 335.CrossRefGoogle Scholar

68. See, e.g., B. Pollard, Esq., City Marshall, to James Boyd, March 10, 1835, House Document No. 60 (Boston, 1835), 23–24.

69. Ibid., 24 (emphasis added).

70. An Act relating to Alien Passengers (1837), chap. 238, in Laws of the Commonwealth of Massachusetts Passed by the General Court, at their Session, which commenced on Wednesday, the Fourth of January, and ended on Thursday, the Twelfth of April, One Thousand Eight Hundred and Thirty Seven (Boston: Dutton and Wentworth, 1837), 270 (hereafter Acts 1837).

71. B. Pollard, Esq., City Marshall, to James Boyd, March 10, 1835, House Document No. 60 (Boston, 1835), 25–26.

72. Report of the Select Committee, ibid., 15.

73. At a meeting of the board of Aldermen of the City of Boston, held at City Hall, on Monday the fourth day of September, Anno Domini 1837, Records of the City of Boston (Boston, 1837), 15:289.

74. At a meeting of the board of Aldermen of the City of Boston, held at City Hall, on Monday the eleventh day of September, Anno Domini 1837, ibid., 294, 295.

75. At a meeting of the board of Aldermen of the City of Boston, held at City Hall, on Tuesday the Twenty sixth day of December, A.D. 1843, ibid., 21:397.

76. At a meeting of the board of Aldermen of the City of Boston, held at City Hall, on Thursday, the Thirty first day of December, A.D. 1844, ibid., 22:513.

77. At a meeting of the board of Aldermen of the City of Boston, held at City Hall, on Monday the Eleventh day of August, A.D. 1845, ibid., 23:252.

78. See, e.g., City of Boston, Common Council No. 16 (Boston, 1837).

79. For example, in 1835, Joseph Tuckerman, possibly the most influential thinker on questions of poor relief administration in antebellum Massachusetts, argued “that the best resources for improving the condition of the poor are within themselves, that they often need enlightenment respecting these resources more than alms, and that alms may even be a means of perpetuating poverty.” The First Annual Report of the Association of Delegates from the Benevolent Societies of Boston. Read and Accepted October 13, 1835. To Which is Added the Constitution of the Association (Boston: I. R. Butts, 1835), 7–8 (emphasis added).

80. Tuckerman Report, 40.

81. See generally Katz, Michael B., In the Shadow of the Poorhouse: A Social History of Welfare in America (New York: Basic Books, 1986), 3–112Google Scholar; Rothman, David J., The Discovery of the Asylum: Social Order and Disorder in the New Republic, rev. ed. (Boston: Little, Brown, 1990).Google Scholar

82. See Russell, Charles T., The Disfranchisement of Paupers: Examination of the Law of Massachusetts (Boston: Little, Brown, 1878), 7.Google Scholar

83. Wilson v. Brooks, 31 Mass. (14 Pick.) 341, 343 (1833), in Steinfield, Robert J., “Property and Suffrage in the Early American Republic,” Stanford Law Review 41 (1988): 335, 361.CrossRefGoogle Scholar See generally, Montgomery, David, Citizen Worker: The Experience of Workers in the United States with Democracy and the Free Market During the Nineteenth Century (New York: Cambridge University Press, 1993).Google Scholar

84. In 1820, the General Court abandoned its policy of reimbursing towns for their actual expenses in respect of state paupers. In 1820, it set the maximum rate of reimbursement at one dollar per week for adults and fifty-five cents per week for children. An Act for providing for the Support of State Paupers (1820), chap. 289, Acts 1820, 428. Because it was well known that Boston, the town with the largest population of state paupers, spent as much as 140 cents per person per week, the decision to set the maximum rate of reimbursement at one dollar per week for adults was not inadvertent. Commonwealth of Massachusetts, Report of the Committee to Whom Was Referred the Consideration of the Pauper Laws of this Commonwealth (Boston, 1821), 13.Google Scholar By the mid-1830s, the General Court had reduced the maximum rate of reimbursement even further to seven cents per day for individuals over twelve years of age and four cents per day for individuals under twelve years of age. An Act concerning Paupers (1835), chap. 127, in Laws of the Commonwealth of Massachusetts Passed by the General Court, at their Session, which commenced on Wednesday, the Seventh of January, and ended on Wednesday, the Eighth of April, One Thousand Eight Hundred and Thirty Five (Boston: Dutton and Wentworth, 1835), 480.

85. For example, in 1823, the General Court declared that no male between the ages of sixteen and sixty “while of competent health to labor” would be considered a state pauper for purposes of reimbursement. An Act relating to State Paupers (1823), chap. 81, in Laws of the Commonwealth of Massachusetts, Passed by the General Court, at their Session, which commenced on Wednesday, the First of January, and ended on Tuesday, the Eleventh of February, One Thousand Eight Hundred and Twenty Three (Boston: Russell and Gardner, 1823), 126. Six months later, it declared that no such male between the ages of twelve and sixty would be considered a state pauper for purposes of reimbursement. An Act relating to State Paupers (1823), chap. 21, in Laws of the Commonwealth of Massachusetts, Passed by the General Court, at their Session, which commenced on Wednesday, the Twenty-Eighth of May, and ended on Saturday, the Fourteenth of June, One Thousand Eight Hundred and Twenty-Three (Boston: True and Green, 1823), 229. Local poor relief officials making out claims for reimbursement would henceforth be required to certify that no claim was being made on behalf of males “of competent health to labor.”

86. Throughout the 1820s, towns accused the committee on accounts of being unduly severe in its treatment of their claims. For a complaint by Boston about the committee's excessively stringent practices, see Massachusetts Archives, House Unpassed Legislation, SCI, Series 230, 1820, 8890. Towns whose claims were dealt with in this manner had absolutely no means of appealing, contesting, or challenging the committee's decisions.

87. Massachusetts Archives, Senate Unpassed Legislation, SCI, Series 231, 1840, 10716/1.

88. The Overseers of the Poor of the City of Boston, to their Constituents (Boston, 1823), 21.

89. Tuckerman Report, 52, 59, 73, 80, 92.

90. Massachusetts Archives, House Unpassed Legislation, SCI, Series 230, 1828, 10570. In 1831, the General Court attempted to cure this problem by requiring that accounts submitted for reimbursement be accompanied by a certification that “the whole amount charged in the annexed account has been expended for the support of the person or persons borne on said list, for the time therein specified.” An Act relating to the support of State Paupers (1831), chap. 120, Acts 1831, 671–72.

91. Commonwealth of Massachusetts, Report of the State Pauper Accounts of the Towns of Middleton, Dorchester, Belchertown, Cambridge, and Danvers, House Document No. 72 (Boston, 1835), 7–8, 11–12, 13.

92. Ibid., 15–20.

93. Commonwealth of Massachusetts, Attorney General's Report, in the Cases of the Towns of Middleton, Dorchester, Belchertown, Cambridge, and Danvers, Referred to Him by Order of the Hon. House of Representatives in April, 1835, House Document (Second Session)– No. 1 (Boston, 1835), 17–18.

94. Commonwealth of Massachusetts, House Document No. 41 (Boston, 1836), 5.

95. Commonwealth v. Cambridge, 37 Mass. (20 Pick.) 267, 270 (1838).

96. Ibid.

97. Commonwealth of Massachusetts, House Document No. 86 (Boston, 1846), 1–2. In order to appreciate the magnitude of this deduction, it should be pointed out that aggregate state pauper expenses in 1845 were approximately $67,000. Commonwealth of Massachusetts, House Document No. 92 (Boston, 1846), 2.

98. Resolve concerning the State Pauper Accounts of the Year One Thousand Eight Hundred and Forty-five (1846), chap. 147, in Acts and Resolves Passed by the General Court of Massachusetts, in the Year 1846, together with the Rolls and Messages (Boston: Dutton and Wentworth, 1846), 252.

99. Commonwealth of Massachusetts, Report of the Commissioners Appointed under the Resolve of April 16, 1846, to Examine the Claims Presented to the Legislature of that Year for the Support of State Paupers, House Document No. 21 (Boston, 1847), 5–6. The General Court adopted the findings of the commissioners. See Commonwealth of Massachusetts, Senate Document No. 68 (Boston, 1847); Resolve for the Payment of Sundry Pauper Accounts (1847), chap. 100, in Acts and Laws Passed by the General Court of Massachusetts in the Year 1847: Together with the Rolls and Messages (Boston: Dutton and Wentworth, 1847), 540.

100. Report of the Commissioners, House Document No. 21 (Boston, 1847), 52–53 (emphasis added).

101. An Act relating to the support of State Paupers (1831), chap. 120, Acts 1831, 672–73.

102. An Act providing for a return by Overseers of the Poor (1837), chap. 194, Acts 1837, 208–9.

103. Commonwealth of Massachusetts, Report Relating to State Paupers, House Document No. 30 (Boston, 1836), 12 (emphasis added).

104. An Act relating to Alien Passengers (1837), chap. 238, sec. 1, Acts 1837.

105. At a meeting of the board of Aldermen of the City of Boston, held at City Hall, on Monday the first day of May, Anno Domini 1837, Records of the City of Boston, 15: 181–82.

106. Bromwell, History of Immigration, 125, 133, 137, 141, 145, 153, 157, 161, 165.

107. Bennett, David H., The Party of Fear: From Nativist Movements to the New Right in American History, 2d ed. (New York: Vintage Books, 1995), 73.Google Scholar For the reaction of Boston poor relief officials, see City of Boston, Annual Report of the Directors of the Houses of Industry and Reformation, April 1, 1849, City Document No. 25 (Boston, 1849), 6.

108. Commonwealth of Massachusetts, Senate Document No. 109 (Boston, 1847), 8–9 (emphasis in original). In May 1847, Boston city officials also received petitions calling for the dismissal of the city's superintendent of alien passengers. See At a meeting of the board of Aldermen of the City of Boston, held at City Hall, on Monday, the Thirty first day of May, A.D. 1847, Records of the City of Boston, 25: 247.

109. An Act concerning Alien Passengers (1848), chap. 313, sec. 1, in Acts and Resolves Passed by the General Court of Massachusetts in the Year 1848: Together with the Rolls and Messages (Boston: Dutton and Wentworth, 1848), 796–97. Local poor relief officials were authorized to administer the law only where no superintendent of alien passengers had been appointed (or where he was unable to perform his duties). Ibid., sec. 8.

110. The Passenger Cases, 48 U.S. (7 How.) 283 (1849).

111. Commonwealth of Massachusetts, Senate Document No. 14 (Boston, 1850), 3–4.

112. Commonwealth of Massachusetts, Address of His Excellency George N. Briggs to the Two Branches of the Legislature of Massachusetts, January 8, 1850, Senate Document No. 2 (Boston, 1850), 5.

113. An Act relating to Alien Passengers (1850), chap. 105, sec. 1, in Acts and Resolves Passed by the General Court of Massachusetts, in the Year 1850: Together with the Rolls and Messages (Boston: Dutton and Wentworth, 1850), 338–39.

114. Ibid., sec. 4.

115. Commonwealth of Massachusetts, House Document No. 152 (Boston, 1851), 3.

116. An Act to appoint a Board of Commissioners in relation to Alien Passengers and State Paupers (1851), chap. 342, in Acts and Resolves Passed by the General Court of Massachusetts in the Year 1851: Together with the Messages (Boston: Dutton and Wentworth, 1851), 847 (hereafter Acts 1851).

117. Commonwealth of Massachusetts, Report of the Commissioners of Alien Passengers and Foreign Paupers. January, 1852, Senate Document No. 14 (Boston, 1852), 4. Much of this “misapplication” consisted of the towns' classifying as state paupers individuals whom the agents deemed capable of performing labor. See Commonwealth of Massachusetts, Appendix to the Report of the Commissioners of Alien Passengers and Foreign Paupers– Senate Doc. No. 14, Senate Document No. 25 (Boston, 1852).

118. Report of the Commissioners, Senate Document No. 14 (1852), 5–6.

119. An Act in relation to Paupers having no settlement in this Commonwealth (1852), chap. 275, sees. 1, 2, in Acts and Resolves Passed by the General Court of Massachusetts in the Year 1852: Together with the Messages (Boston: White and Potter, 1852), 190 (hereafter Acts 1852).

120. Ibid., sec. 3.

121. Ibid., sec. 4.

122. In the early 1850s, the superintendent drew the attention of the General Court to the problem of growing numbers of aliens entering the state by rail. While the number of aliens entering Massachusetts by sea fell in the early 1850s, the number of aliens entering Massachusetts actually rose, which suggested that Massachusetts was slowly losing the commutation money that offset state pauper expenses without any reduction in the number of state paupers. The commutation fee receipts for 1851 were $6,000 lower than those for 1850. At the same time, the number of aliens entering the Commonwealth in 1851 was 5,112 greater than in 1850. Commonwealth of Massachusetts, Report of the Superintendent of Alien Passengers for the Port of Boston, House Document No. 47 (Boston, 1852), 3–4. In 1851, the Alien Commissioners were assigned the task of dealing with the problem of foreigners entering Massachusetts by rail. They were required to appoint agents to keep track of the numbers of foreigners entering by rail and “to procure all such further information in relation to the age, &c, of said foreigners as is practicable.” An Act to appoint a Board of Commissioners in relation to Alien Passengers and State Paupers (1851), chap. 342, sec. 3, Acts 1851, 847. Furthermore, railroad corporations would be held liable for the support of all aliens who became a public charge within one year after entering the Commonwealth. Ibid., sec. 5.

123. In the early 1850s, the superintendent drew attention to the laxity of New York's alien passenger laws compared to those of Massachusetts. Between 1848 and 1850, New York had bonded only 300 of 600,000 arriving alien passengers, with each bond to last for ten years only, while Massachusetts had bonded 4,334 of less than 90,000 arriving alien passengers, with each bond to last for the passenger's lifetime. As a result, shipping firms directed their immigrant trade, and the attendant commercial trade to New York. Commonwealth of Massachusetts, Senate Document No. 10 (Boston, 1851), 5. In 1852, the Commonwealth attempted to remedy the diversion of the immigrant trade to New York by alleviating the harshest aspects of the bonding provisions. Replicating New York's laws in several important respects, the Commonwealth provided that (i) bonds in the amount of $1,000 with a life of ten years were to be provided for alien passengers found to be “lunatic, idiotic, deaf and dumb, blind, or maimed,” (ii) bonds in the amount of $300 with a life of five years were to be provided for all other passengers, and (iii) that the latter bonds could be commuted at a sum not less than $2 determined by the superintendent “sufficient to cover the risk incurred by the Commonwealth in permitting such passengers to be landed.” An Act concerning Alien Passengers (1852), chap. 279, sec. I, Acts 1852, 195–96. A year later, Massachusetts's harsh bonding practices were a thing of the past. Of the 28,040 passengers who arrived in Boston in 1853, only 12 persons were bonded, 263 persons had bonds commuted at sums greater than $2, and 21,905 had bonds commuted at $2. Commonwealth of Massachusetts, Senate Document No. 10 (Boston, 1854), 2. The low rate of bonding continued in 1854. Of the 31,006 passengers who arrived in Boston in 1854, only 24 persons were bonded, 114 had bonds commuted at sums greater than $2 and 23,718 had bonds commuted at $2. Commonwealth of Massachusetts, Senate Document No. 29 (Boston, 1855), 3.

124. The superintendent drew the General Court's attention to the fact that many arriving immigrants were being cheated or otherwise robbed of their funds in Boston's emigrant boarding houses, “which indirectly throws upon the Commonwealth many who would otherwise be able to provide for themselves.” Senate Document No. 10 (Boston, 1851), 6. Adopting a policy followed successfully in New York, the superintendent's office itself attempted to resolve this problem by writing letters to the friends and relatives of arriving aliens, requesting them to forward funds to assist the aliens to leave Boston. In 1854, over one thousand dollars were received in this manner. Senate Document No. 29 (Boston, 1855), 5.

125. For example, after its first half-year of operation, the inspectors of the Bridgewater State Almshouse reported bluntly that “little benefit has been derived from the labor of inmates.” Commonwealth of Massachusetts, First Report of the Inspectors of the State Alms-house at Bridgewater, Senate Document No. 15 (Boston, 1855), 7.

126. An Act in Relation to the State Almshouses (1858), chap. 168, sec. 1, in Acts and Resolves Passed by the General Court of Massachusetts, in the Year 1858: Together with the Messages, Changes of Names of Persons, etc., etc, etc. (Boston: William White, 1858), 142.

127. Commonwealth of Massachusetts, Report of the Commissioners of Alien Passengers and Foreign Paupers, Public Document No. 14 (Boston, 1859), 14.

128. Commonwealth of Massachusetts, Address of his Excellency Henry J. Gardner, to the Two Branches of the Legislature of Massachusetts, January 9, 1855, Senate Document No. 3 (Boston, 1855), 18–19.

129. For example, in 1854, the superintendent of alien passengers of Boston reported that “very many destitute, friendless, aged and infirm persons, have applied for and received assistance to return to Ireland, at their request….” Senate Document No. 10 (Boston, 1854), 3.

130. Commonwealth of Massachusetts, Report of the Commissioners of Alien Passengers and Foreign Paupers, House Document No. 123 (Boston, 1855), 46 (emphasis in original).

131. Ibid., 47 (emphasis in original).

132. Commonwealth of Massachusetts, House Document No. 255 (Boston, 1855), 18.Google Scholar Chandler's charges were supported by a subsequent board of alien commissioners, however, which declared that it was not unlikely, “if in their zeal to promote the interests of the State, officials should be found to have… assumed some power not strictly conferred upon them.” Commonwealth of Massachusetts, Report of the Commissioners of Alien Passengers and Foreign Paupers, Public Document No. 14 (Boston, 1858), 5.

133. House Document No. 255 (Boston, 1855), 18 (emphasis added).

134. Commonwealth of Massachusetts, Report of the Commissioners of Alien Passengers and Foreign Paupers, House Document No. 41 (Boston, 1856), 12.

135. Commonwealth of Massachusetts, Report of the Commissioners of Alien Passengers and Foreign Paupers, House Document No. 30 (Boston, 1857), 19.

136. Report of the Commissioners, Public Document No. 14 (Boston, 1858), 24.

137. See, e.g., Report of the Superintendent, House Document No. 47 (Boston, 1852), 6.

138. Report of the Commissioners, Public Document No. 14 (Boston, 1858), 38.

139. An Act Making an Appropriation for the Transportation of State Paupers (1859), chap. 55, sec. 1, in Acts and Resolves Passed by the General Court of Massachusetts in the Year 1859: Together with the Constitution, the Messages of the Governor, List of the Civil Government, Changes of Names of Persons, etc. (Boston: William White, 1859), 247.

140. Commonwealth of Massachusetts, Address of his Excellency Nathaniel R Banks, to the Two Branches of the Legislature of Massachusetts, January 7, 1859, Senate Document No. 1 (Boston, 1859), 9.

141. Report of the Commissioners, House Document No. 41 (Boston, 1856), 6.

142. Ibid., 7.

143. Ibid.

144. Commonwealth of Massachusetts, Report of the Commissioners of Alien Passengers and Foreign Paupers, Senate Document No. 158 (Boston, 1854), 5. The result was a dramatic decline in state pauper expenses. Ibid., 2-A.

145. Report of the Commissioners, House Document No. 30 (Boston, 1857), 5.

146. Report of the Commissioners, House Document No. 123 (Boston, 1855), 8–9. Locke made similar efforts to fix responsibility for the inmates of the state lunatic hospitals with a view to reducing the Commonwealth's expenses even further. Ibid., 10–11.

147. Report of the Commissioners, House Document No. 41 (Boston, 1856), 5. Forty-five of these paupers were lunatics “who have been supported by this Commonwealth for a period, in the aggregate, of one hundred and ninety-three years, at an expense of at least $19,300.” Ibid., 5–6.

148. Report of the Commissioners, House Document No. 30 (Boston, 1857), 5–6. Of this number, some had been inmates of state institutions for up to thirty years. Ibid., 6.

149. Report of the Commissioners, Public Document No. 14 (1858), 8.

150. Report of the Commissioners, Public Document No. 14 (1859), 5.

151. An Act concerning State Paupers (1856), chap. 171, sec. 1, in Acts and Resolves Passed by the General Court of Massachusetts in the Year 1856: Together with the Messages, etc. (Boston: William White, 1856), 97 (hereafter Acts 1856).

152. An Act relative to State Paupers (1855), chap. 445, sec. 4 (dealing with inmates of state almshouses), in Acts and Resolves of the General Court of Massachusetts in the Year 1855: Together with the Messages (Boston: William White, 1855), 860. An Act relating to Lunatics and Idiots (1856), chap. 108, sec. 4 (dealing with inmates of state lunatic hospitals), Acts 1856. For an example of the Commonwealth suing a town whose inhabitants were found in a state almshouse, see Commonwealth v. Inhabitants of Dracut, 74 Mass. (8 Grey) 455 (1857).

153. Report of the Commissioners, Public Document No. 14 (1858), 21–22.

154. The superintendent attributed this decline “both to the European war, and to the efforts of the English government to induce the embarkation of their people for Australia, and also to the high rate of wages in their own country.” Commonwealth of Massachusetts, House Document No. 17 (Boston, 1856), 4.

155. In 1858, the superintendent of alien passengers of Boston reported that “[t]he effect of the great financial crisis is strikingly apparent in the falling off in immigration [during] the past year”; in contrast to previous years, when annual alien passenger tax revenues had run as high as $40,000, the total cash receipts from the commutation of bonds for 1858 amounted to a mere $10,455. Commonwealth of Massachusetts, Annual Report of the Superintendent of Alien Passengers for the Port of Boston, Public Document No. 15 (Boston, 1858), 5–6. In 1859, they went up marginally to $14,638. Commonwealth of Massachusetts, Annual Report of the Superintendent of Alien Passengers for the Port of Boston, 1859, Public Document No. 15 (Boston, 1859), 5.

156. Sanborn, F. B., “The Poor Laws of New England,” North American Review 106 (1868): 483, 495Google Scholar (emphasis in original).

157. An Act to remove all Disability to take and hold Real Estate by reason of Alienage (1852), chap. 29, 17; An Act to Protect Titles to Real Estate derived from Aliens (1852), chap. 86, Acts 1852, 45.

158. Commonwealth of Massachusetts, Senate Document No. 11 (Boston, 1852), 3.

159. An 1859 legislative committee described this growth as follows: “The rapid growth of our system of charities is seen in the fact that of [the] nine institutions [supported by the state] only one existed twenty years ago, and only two of them ten years ago. Indeed, seven out of the nine (and these including the most expensive,) have been opened within the last five years. Thus the cost of State charities, which was $82,399 twenty years since, and $118,034 ten years since, has now swollen into an annual expenditure of more than $300,000.” See Commonwealth of Massachusetts, Report of the Special Joint Committee Appointed to Investigate the Whole System of the Public Charitable Institutions of the Commonwealth of Massachusetts, during the Recess of the Legislature in 1858, Senate Document No. 2 (Boston, 1859), 4.

160. An Act in Relation to the Settlement of Paupers (1868), chap. 328, sec. 1, in Acts and Resolves Passed by the General Court of Massachusetts, in the Year 1868, together with the Constitution, the Messages of the Governor, List of the Civil Government, Changes of Names of Persons, etc., etc., 247 (Boston: Wright and Potter, 1868).

161. See, e.g., Commonwealth of Massachusetts, Second Annual Report of the Board of State Charities, Public Document No. 19 (Boston, 1865), 248 (emphasis added).

162. Commonwealth of Massachusetts, Fourth Annual Report of the Board of State Charities, Public Document No. 17 (Boston, 1867), lxxxix (emphasis added).

163. See Calavita, Kitty, U.S. Immigration Law and the Control of Labor: 1820–1924 (Orlando: Academic Press, 1984)Google Scholar; Salyer, Lucy E., Laws Harsh as Tigers: Chinese Immigrants and the Shaping of Modern Immigration Law (Chapel Hill: University of North Carolina Press, 1995).Google Scholar

164. Portland v. Bangor, 42 Me. 403, 411 (1856) (Rice, J., dissenting) in Fox, James W. Jr, “Citizenship, Poverty, and Federalism: 1787–1882,” University of Pittsburgh Law Review 60 (1999): 421, 478.Google Scholar For a discussion of legal constructions of the poor in the postbellum period, see Stanley, Amy Dru, From Bondage to Contract: Wage Labor, Marriage, and the Market in the Age of Slave Emancipation (New York: Cambridge University Press, 1998)CrossRefGoogle Scholar, esp. chap. 3.