Americans by Choice

by John Palmer Gavit

EFFORTS TOWARD UNIFORMITY

The obvious and constant embarrassment arising from different requirements under diverse jurisdictions was recognized and discussed before the making of the Federal Constitution. James Madison, for example, in 1782, urged the necessity of a uniform practice. So general was the recognition of this need that the Constitutional Convention took it for granted, and almost without discussion adopted the provision which still stands, and under which all subsequent legislation has gained its authority:[44]

Congress shall have power ... to establish an uniform rule of naturalization....

And almost immediately (1790), President Washington having urged it in his message in January of that year, Congress enacted a general Naturalization Act.[45]

The considerable debate in Congress concerning this measure not only throws an interesting light upon the policies prevailing at that time, but shows that while the new government realized the importance of desirable immigration, there was full realization of the difficulty of so adjusting the process of naturalization as to facilitate this while at the same time protecting the essentials of the American spirit and institutions from the insidious influences feared from certain types of newcomers. The conflicting attitudes of the highly liberal Quakers in Pennsylvania and the austere Puritans of New England—visible in many ways in all the legislation of the early years in the contrasting jurisdictions of the northern Atlantic colonies, appears clearly in the debates, from which emerged the Act of 1790, whose essentials were as follows:

I. Naturalization to be conferred by any court of record.

II. A requirement of two years’ residence in the United States, and one year within the State.

III. Proof required of good moral character, and oath to support the Constitution of the United States.

This Act was repealed in 1795 by another[46] introducing the declaration of intention to become a citizen, and extending the period of required residence from two years to five. This Act has been the basis of our naturalization system ever since. Its main provisions were these:

I. A preliminary declaration of intention to become a citizen of the United States, to be made at least three years [the present law specifies two years] before final application for citizenship.

II. Naturalization jurisdiction was vested in any “supreme, superior, district or circuit court” of the states or of the territories northwest or south of the River Ohio, or a circuit or district court of the United States.

III. Five years’ residence in the United States, and one year’s residence in the state in which the application was made.

IV. An oath of allegiance.

Aliens then residing in the United States might be naturalized after two years’ residence.

This Act was fathered by James Madison, then a member of Congress.

President Jefferson, in his first message to Congress, advocated a revision of the Naturalization Law, to the end that “the general character and capabilities of a citizen be safely communicated to everyone manifesting a bona fide purpose of embarking his life and fortunes permanently with us.”

Accordingly the Jeffersonian Congress of 1802 repealed the Act of 1795, and enacted one[47] which remained substantially in force for more than a century. Its provisions, in the main, were as follows:

I. Naturalization jurisdiction was vested in the supreme, superior, district and circuit courts (a district court meaning any court of record having common-law jurisdiction) in the states and territorial districts and in the circuit and district courts of the United States.

II. The Declaration of Intention was still required, with the three years’ interval before final application.

III. Five years’ residence in the United States and one in the State was still required.

IV. Oath of allegiance to the United States, with specific renunciation of former allegiance.

V. Proof of good moral character and attachment to the principles of the United States.

Under this Act the children of persons duly naturalized were, if resident in the United States, to be considered citizens, and those born elsewhere were to enjoy the same status, provided that the citizenship should not descend to children whose fathers never resided in the United States.

An Act passed in 1804 slightly modified the regulation in favor of aliens residing in the United States between 1798 and 1802, and provided also that in case a “declarant” should die before his naturalization had been consummated, his widow and minor children should be deemed citizens upon taking the prescribed oath.[48]

During the second war with England, in 1813, an Act was passed requiring the five years’ residence to be absolutely unbroken by any absence whatever from the United States, and prescribing penalties for forgery or sale of naturalization certificates.[49] Later in the same year another law was passed to permit the naturalization of alien enemies (then Englishmen) who had declared intention prior to June 18, 1812.[50] Another important amendment was made in 1816.[51]

In 1824, following a period of agitation for earlier naturalization, Congress passed an Act, the most important provision of which[52] reduced from three to two years the minimum interval between the declaration of intention and final naturalization. It is interesting to note that this agitation for more liberal conditions came, as might be expected, at the time of the initial influx of aliens to the Eastern cities, and the beginnings of the political exploitation of the “foreign vote.”

Further slight changes were made in 1828,[53] and after twenty years more, in 1848, Congress abolished the restriction of 1813 which forbade any absence whatever from the country during the five years’ period of “continuous residence.”[54] But during all of the period between 1820 and the Civil War there was an increasing “Native American” agitation for narrower, rather than more liberal, restrictions, even to the point of abolishing naturalization altogether. Innumerable bills were introduced reflecting this agitation; but, owing both to the increasing importance of the foreign-born element in politics, and to the underlying realization that the nation must have a constant accretion of population, no such legislation reached the statute books. The three minor amendments enacted during and immediately after the Civil War were designed to meet conditions arising out of the state of war.[55]

In 1876 the Act of 1802 was amended so that the declaration of intention could be made, as it is now, before the clerk of any of the courts having naturalization jurisdiction.[56] And in 1872 and 1894 provision was made for the easier naturalization of the United States soldiers, sailors, marines, and merchant seamen, about whose permanency of residence there was embarrassment.[57]