Previewing September 2021 Issue: Immigration in the Civil War Era

While recent immigration scholars have turned most of their attention to the twentieth century, many historians are also reexamining immigration policy in the mid-nineteenth century. Alison Clark Efford, in a recent review essay in this journal, reflects on how nineteenth-century immigration historiography is marked by an “imperial framework in which the government of the United States endeavored to control new groups of people and bring them into the polity on a variety of terms.” This trend, she continues, emphasizes the “disputed and changing boundaries of federal power” and the “diverse statuses held by US residents, showing that inconsistency and hierarchy were persistent features of governance” rather than “exceptions to the rule.” This special issue, although it is not based on the theme of empire, takes up several of these questions, especially the relationship between slavery and immigration; the balance between state and federal policy; the connections among race, birthplace, and citizenship; and the international dimensions of US immigration policy during and after the Civil War.¹

The articles in this issue are part of an emerging body of scholarship on slavery, immigration policy, and citizenship in the nineteenth century.² Historians examining nineteenth-century immigrants increasingly draw from this historiography, rather than the classic social history texts.³ Since Gerald Neuman’s seminal 1993 call to examine the “lost century of American immigration law,” scholars such as Anna O. Law, Hidetaka Hirota, and Kunal Parker have published exceptional legal histories of nineteenth-century immigration policy.⁴ Of course, this is just one trend in the recent historiography of immigration in the Civil War era. Historians continue to produce important studies of migration and settlement, the rise and decline of political nativism, immigrant participation in the Civil War, and other well established themes. The four articles presented here complement rather than challenge this larger body of work.⁵

Before the Civil War, Congress played almost no role in regulating the admission of immigrants. Local and state governments developed their own policies for regulating the mobility of foreign paupers, free black people, and visiting seamen, exercising their police power to regulate public safety, health, and morality.⁶ Constitutional debates over immigration policy pitted the police power of the states against the commerce power of the federal government. Under the Commerce Clause of the US Constitution, Congress had the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”⁷ But how far did this power extend? If it covered movement between the states as well as into the country, Congress could potentially regulate the movement of free black people—which was under tight local control, both in the South and in the North—as well as the immigration of foreigners. It could even potentially regulate the interstate slave trade. The political implausibility of using the commerce power in this way did not prevent abolitionists from supporting the idea. Questions concerning the regulation of foreign immigrants, in short, were inherently tied to questions about the domestic system of slavery and racial hierarchy. Invalidating the power of Massachusetts or New York to control the arrival of immigrant paupers through taxes and bonds, for example, jeopardized state laws based on the same police power that regulated the movement of free black people.⁸

Until the 1870s, towns and states regulated the admission of foreigners. In Gibbons v. Ogden (1824), the Supreme Court determined that navigation was a form of commerce, opening the possibility for federal control over immigration as well as interstate travel. If the federal government could regulate shipboard conditions, however, this power ended and local police power began when the immigrants arrived in port. Precisely when that transition occurred—at the moment a vessel arrived in a harbor, or after the passengers came ashore—remained a matter of judicial dispute. The Supreme Court ruled in New York v. Miln (1837) that states, under their police power to protect the general welfare, had the right to require reports from ship masters detailing alien passenger arrivals. The majority decision upheld New York’s police power over immigrants, a move that reassured the Southern states that the federal government would not impinge on their policies regulating the movement of free black people, which were based on the same kind of power. In upholding the state law, the court ruled only on the requirement that ship captains file reports, not on the constitutionality of the passenger taxes and bonds that were also part of the law.

Shippers challenged those taxes in the contentious Passenger Cases, decided by the court in 1849. Five of the justices invalidated passenger laws in New York and Massachusetts on Commerce Clause grounds. The other four, led by Chief Justice Roger Taney, upheld the laws and warned of the consequences for the slave South if state laws regulating immigration were invalidated. Taney and his colleagues predicted that if the court ruled that states could not regulate immigration, states would no longer be able to prevent the arrival or return of free black people. This proposition was never tested in the courts, and Northern states amended their immigration statutes to bypass the Passenger Cases ruling, converting taxes into mandatory commutation fees in the same amount. But in the 1870s, with slavery removed from the picture, the Supreme Court finally ruled unanimously that the admission of immigrants fell under the federal government’s power to regulate commerce, invalidating state laws that intruded on that power.⁹

Against this backdrop of the entanglement of immigration with slavery, Michael Schoeppner’s article interprets regulation of black people’s mobility in the antebellum era as a form of immigration law. In contrast to European migrants, free black migrants could not move unhindered across state lines. Laws prohibiting the migration of free black people were “so widespread,” Schoeppner argues, that they were akin to the level of a “national immigration regime” that was “created by the states and supported in part by federal legislation.” He locates the roots of later restrictive federal immigration policy in these state and federal regulations on black movement before the Civil War. Schoeppner concludes by reflecting on black migrants’ resistance to the laws they endured—through negotiations with white power brokers, filing petitions, meeting bonding requirements, relocating when under suspicion, and asserting citizenship through birthright. A deeper immersion in local court and jail records, he suggests, will reveal not only the distinctions between “law on the books” and “law in action,” but also the relationship between anti-black animus, resistance, and the development of immigration law.

In the absence of federal laws regulating the entry of foreigners before the Civil War, shipping merchants played a vital role in crafting and implementing policy at the municipal and state levels. Katherine Carper’s article examines this overlooked dimension of US immigration history. As immigration rates rose in the late 1840s and early 1850s, shipping merchants advocated for a state-level immigrant processing organization that would control the passenger fund provided by the fees collected from ship captains for each passenger they landed on New York soil. By lobbying state government officials, they put passenger trade merchants on the board of this state-level immigrant processing organization, the New York Commissioners of Emigration. In this way, Carper explains, shipping merchants gained control over policy in the state that processed the largest number of immigrants in the 1850s. The Civil War disrupted shipping merchants’ control over immigration policy. The merchants’ political influence was commensurate with their economic influence, and a crisis in the transatlantic passenger trade business—caused by low immigration rates and the war’s disruption of the shipping industry—weakened their position. In the decade after the Civil War, however, merchants enlisted the help of the federal government and reasserted their influence over immigration. These efforts culminated in the case of Henderson v. New York (1876), which transferred regulatory power over immigration from the states to the federal government.¹⁰

Federal immigration policy, as Kevin Kenny’s article demonstrates, was decisively shaped by the ideology of antislavery. Kenny compares two pieces of legislation passed during the Civil War, An Act to Prohibit the “Coolie Trade” by American Citizens in American Vessels (1862) and An Act to Encourage Immigration (1864), which together laid the groundwork for the national immigration system that emerged in the postbellum era. The 1862 law prohibited American vessels from transporting Chinese contract workers on American ships to foreign destinations—though not to the United States, where Chinese workers were still classified as free immigrants rather than “coolies.” Two years later, by contrast, the Act to Encourage Immigration sanctioned the importation of European contract workers. Over the next twenty years, anti-Chinese activists claimed that all Chinese laborers in the United States were “coolies” who should be excluded on antislavery grounds. Opposition to the importation of European contract workers, meanwhile, led to the prohibition of that practice under the Foran Act of 1885—also on antislavery grounds. In this way, Kenny concludes, the unfree Chinese laborer emerged as the counterpart of the voluntary European immigrant, whose freedom was defined by government regulation, a transition he traces to the Civil War.

While Schoeppner, Carper, and Kenny focus on the antebellum and war years, Lucy Salyer shows how mobility and belonging remained contested during Reconstruction. The Expatriation Act of 1868, a high point in the American tradition of allowing immigrants to renounce their allegiance, implied a clear path to naturalization. But no sooner had this measure been passed than Republican reformers attempted to make the path more complicated. Why, Salyer asks, did the triumph of the American doctrine of expatriation and voluntary allegiance coincide with a drive for greater control over naturalization? Expatriation, she demonstrates, raised concerns about the allegiance of all immigrants, and reformers believed that placing the naturalization process under federal rather than state control would remove it from local politics.

Previous work on the Naturalization Act of 1870 has focused on national party political strategy and on the status of Chinese immigrants. Salyer explores both of these avenues, while offering a new, global perspective that situates naturalization policy in the context of domestic and international disputes sparked by mass migration. Radical Republican efforts to remove the word white from naturalization law and extend the process to Chinese immigrants encountered fierce opposition, so that in the end, the right to naturalize was extended only to “aliens of African nativity and to persons of African descent.” Although the 1870 act did not fully centralize naturalization, it did enhance federal oversight over elections in cities where immigrants congregated. And by confirming that immigrants from Europe, but not those from China, were natural candidates for citizenship, the law paved the way for Chinese exclusion. The national immigration regime that emerged in the 1870s and 1880s, as presaged by developments during the Civil War, rested once again on a clear distinction between desirable immigrants from Europe and excludable immigrants from Asia.

In bringing these articles together as a special issue, we provide new perspectives on how immigration and naturalization laws defined, regulated, and limited the movement of people in the Civil War era. Together, the articles offer important insights into the transition from state to federal control over US borders, a major development in the history of American immigration.

NOTES

1. Alison Clark Efford, “Civil War–Era Immigration and the Imperial United States,” Journal of the Civil War Era10 (June 2020): 234.
2. This special issue originated in a panel organized by Katherine Carper at the Annual Meeting of the Organization of American Historians in Philadelphia in 2019 (Organization of American Historians 2019 Annual Meeting, #AM2846, “Freedom of Movement in the Slavery Era: Defining, Regulating, and Limiting the Movement of Migrants and Sailors in the Nineteenth Century,” April 5, 2019).
3. Early examples include Oscar Handlin, Boston’s Immigrants: A Study in Acculturation(Cambridge, MA: Harvard University Press, 1941); Robert Ernst, Immigrant Life in New York City, 1825–1863 (New York: Columbia University Press, 1949).
4. Gerald Neuman, “The Lost Century of American Immigration Law (1776–1875),” Columbia Law Review93 (December 1993): 1833–901; Anna O. Law, “Lunatics, Idiots, Paupers, and Negro Seamen—Immigration Federalism and the Early American State,” Studies in American Political Development 28 (October 2014): 107–28; Hidetaka Hirota, Expelling the Poor: Atlantic Seaboard States and the Nineteenth-Century Origins of American Immigration Policy (New York: Oxford University Press, 2017); Kunal M. Parker, Making Foreigners: Immigration and Citizenship Law in America, 1600–2000(New York: Cambridge University Press, 2015).
5. For a sample of older and recent works, see Tyler Anbinder, Nativism and Slavery: The Northern Know Nothings and the Politics of the 1850s(New York: Oxford University Press, 1994); Jason H. Silverman, Lincoln and the Immigrant(Carbondale: Southern Illinois University Press, 2015); Susannah Ural Bruce, The Harp and the Eagle: Irish-American Volunteers and the Union Army, 1861–1865 (New York: New York University Press, 2006); David Gleeson, The Green and the Gray: The Irish in the Confederate States of America (Chapel Hill: University of North Carolina Press, 2015); Ryan W. Keating, Shades of Green: Irish Regiments, American Soldiers, and Local Communities in the Civil War Era (New York: Fordham University Press, 2015); Alison Clark Efford, German Immigrants, Race, and Citizenship in the Civil War Era (New York: Cambridge University Press, 2013); Don H. Doyle, The Cause of All Nations: An International History of the American Civil War (New York: Basic Books, 2017), especially 158–76, 170–73, 176–81.
6. Hirota, Expelling the Poor, 41–91; Parker, Making Foreigners, 81–115; Michael A. Schoeppner, Moral Contagion: Black Atlantic Sailors, Citizenship, and Diplomacy in Antebellum America(New York: Cambridge University Press, 2019); Santiago Legarre, “The Historical Background to the Police Power,” Journal of Constitutional Law 9 (2007): 745–96; Harry N. Scheiber, “State Police Power,” in Encyclopedia of the American Constitution, 6 vols., ed. Leonard W. Levy et al. (1986; repr., New York: Macmillan Reference, 2000), 4:2505–12; William J. Novak, The People’s Welfare: Law and Regulation in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 1996).
7. U.S. Const., Article 1, § 8, clause 3.
8. David L. Lightner, Slavery and the Commerce Power: How the Struggle against the Interstate Slave Trade Led to the Civil War(New Haven: Yale University Press, 2006). The closest the US Supreme Court came to confronting the implications of federal commerce power for the interstate slave trade, before shying away from the matter and resolving the case on a technicality, was Groves v. Slaughter, 40 U.S. (15 Pet.) 449 (1841). On the links between immigration law, state police powers, and African Americans’ status in the free states, see Kate Masur, “State Sovereignty and Migration before Reconstruction,” Journal of the Civil War Era 9 (December 2019): 588–611.
9. Gibbons v. Ogden, 22 U.S. (9 Wheat.), 1 (1824); City of New York v. Miln, 36 U.S. (11 Pet), 102 (1837); Passenger Cases, 48 U.S. (7 How.) 283 (1849); Aristide R. Zolberg, A Nation by Design: Immigration Policy in the Fashioning of America(New York: Russell Sage, 2006), 142–45; Henderson v. Mayor of New York, 92 U.S. 259 (1876).
10. Henderson v. Mayor of New York, 92 U.S. 259 (1876).