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ArtI.S8.C4.1.2.1 British and American Colonial Naturalization

Article I, Section 8, Clause 4:

[The Congress shall have Power . . . ] To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States; . . .

The American conception of citizenship is informed by the English common law doctrine of jus soli ( “right of soil” ), in which a person’s nationality at birth is determined by the territory where that person is born.1 Under English common law, any person born in England or any territory within “the realm of England,” including its American colonies, was considered a subject of the Crown and entitled to certain benefits of “subjecthood” unavailable to others.2 A foreign national born outside England and its dominions could only become a subject through private legislation conferring that status.3 Typically, this was an expensive process for the intended beneficiary of the bill, and in practice, private bills, which were subject to fees, were only available to those with substantial wealth.4 Otherwise, English law afforded no mechanism by which a foreign national could naturalize and become a subject.5 Even so, some of the American colonies developed their own naturalization policies that enabled foreign nationals to enjoy some of the rights and protections traditionally afforded to English subjects.6

During the eighteenth century and prior to American independence, the British Parliament passed laws that allowed certain foreign nationals to naturalize and become subjects if they met specific requirements under those laws.7 For instance, a 1709 law allowed the naturalization of foreign Protestants who took an oath of allegiance and paid a small fee.8 More significantly for the American colonies, in 1740, the British Parliament passed a law that uniformly provided for the naturalization of any foreign national residing in a British colony for at least seven years, effectively superseding the naturalization policies of the individual colonies.9 In 1773, a law was passed that allowed foreign-born Protestants who had served two years “in any of the royal American regiments” to be naturalized subject to limitations on office-holding in England.10 During that same year, England, in an effort to maintain control over naturalization policy, directed governors in the American colonies not to authorize naturalization bills passed by the legislatures in those colonies.11 Thus, by the time of the American Revolution, England had established a uniform naturalization policy that foreshadowed the naturalization laws of the United States in the years to come.

See Rogers v. Bellei, 401 U.S. 815, 828 (1971) ( “We thus have an acknowledgment that our law in this area follows English concepts with an acceptance of the jus soli, that is, that the place of birth governs citizenship status except as modified by statute.” ); Schneider v. Rusk, 377 U.S. 163, 170 (1964) (Clark, J., dissenting) ( “Our concept of citizenship was inherited from England and, accordingly, was based on the principle that rights conferred by naturalization were subject to the conditions reserved in the grant.” ); United States v. Wong Kim Ark, 169 U.S. 649, 654 (1898) ( “The Constitution nowhere defines the meaning of. . .[the word “citizen” ], either by way of inclusion or of exclusion, except in so far as this is done by the affirmative declaration that ‘all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.’ In this, as in other respects, it must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution.” ); Fitisemanu v. United States, 1 F.4th 862, 867 (10th Cir. 2021) ( “Early American attitudes toward what we now call citizenship developed in the context of English law regarding the relationship between monarch and subject.” ). back
See Calvin’s Case (1608) 77 Eng. Rep. 377, 407, 7 Co. Rep. 1 b; Wong Kim Ark, 169 U.S. at 655 ( “The fundamental principle of the common law with regard to English nationality was birth within the allegiance—also called ‘ligealty,’ ‘obedience,’ ‘faith,’ or ‘power'—of the king. The principle embraced all persons born within the king’s allegiance, and subject to his protection. Such allegiance and protection were mutual,—as expressed in the maxim, ‘Protectio trahit subjectionem, et subjectio protectionem,'—and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance; but were predicable of aliens in amity, so long as they were within the kingdom. Children, born in England, of such aliens, were therefore natural-born subjects.” ); Taunya Lovell Banks, Dangerous Woman: Elizabeth Key’s Freedom Suit—Subjecthood and Racialized Identity in Seventeenth Century Colonial Virginia, 41 Akron L. Rev. 799, 806 (2008) ( “The rule in Calvin’s Case, anyone born within the territory of the sovereign is a subject of the English monarch, became the common law rule” ). back
See James E. Pfander & Theresa R. Wardon, Reclaiming the Immigration Constitution of the Early Republic: Prospectivity, Uniformity, and Transparency, 96 Va. L. Rev. 359, 379–80 (2010) (observing that, “[f]or much of [the] seventeenth century, private acts of Parliament offered the principal means by which aliens sought naturalization.” ). However, children born of English parents outside the country were considered English subjects. See Banks, supra note 2, at 806. back
See Pfander & Wardon, supra note 3, at 379 ( “The private bill process had a number of serious problems, especially for those of modest means who were hoping to acquire land in the new world.” ). back
But in some cases, an alien could become a “denizen,” a status conferred solely by the Crown which provided certain rights akin to those enjoyed by British subjects, including the right to purchase and own lands (but not necessarily the right to transfer ownership of the land). See Pfander & Wardon, supra note 3, at 378–79; Polly J. Price, Natural Law and Birthright Citizenship in Calvin’s Case (1608), 9 Yale J.L. & Human. 73, 86–87 (1997). Denizen status, which was conferred entirely at the monarch’s discretion, could be withdrawn at any time. See A.H. Carpenter, Naturalization in England and the American Colonies, 9 Am. Hist. Rev. 288, 290 (1904) (describing a “denizen” as a class between natural-born subjects and foreign nationals). back
See Carpenter, supra note 5, at 296–97 (describing colonial naturalization laws that afforded certain rights, such as the right to acquire lands and vote in elections, which did not extend beyond a particular province’s borders). For example, South Carolina’s naturalization law provided that all aliens residing in South Carolina had the same rights and privileges as any person born to English parents. Carpenter, supra note 5, at 298. Other provinces, like Pennsylvania, Delaware, and New Jersey, provided for naturalization by private acts of the legislatures. Carpenter, supra note 5, at 300–01. In addition, New York allowed foreign nationals residing there who were Christians to naturalize upon taking an oath of allegiance, and the colony also provided for naturalization through private bills. Carpenter, supra note 5, at 301–02. back
See Pfander & Wardon, supra note 3, at 380–82. back
See Carpenter, supra note 5, at 292–93. back
Carpenter, supra note 5, at 293. While this law conferred subjecthood on foreign nationals, “[l]imitations were placed upon office-holding in England, and no person under this act could be admitted to the Privy Council or either house of Parliament, nor could such a one hold any office, civil or military, within the kingdom of Great Britain or Ireland. Otherwise, English rights and privileges were freely and fully given.” Carpenter, supra note 5, at 293–94. back
Carpenter, supra note 5, at 294. back
Carpenter, supra note 5, at 294. back