The Hidden Dimension of Nineteenth-Century Immigration Law

Article excerpt

This Article challenges the conventional wisdom that the law had little to say about immigration before 1875. Instead, it offers a reframing of immigration law history as including what scholars have previously thought of as "settlement history": the immigration of whites to the western territories. The Article focuses on a particular group of immigrants-the so-called Mercer Girls-to explore both how the failure to invoke exclusionary immigration law and the presence of other kinds of laws (including homestead acts and anti-miscegenation statutes) functioned to shape the population of the nascent western territories. A close look at this type of immigration and this group of immigrants in particular facilitates a reconceptualization not only of narratives of American westward immigration, but also of the way immigration law actually works, both on its own and in tandem with other doctrinal schemes. The story of the Mercer immigrants can help us put exclusionary immigration law in context as part of a broad set of legal strategies used to produce, shape, and maintain populations. More importantly, it shows us that the study of restriction only tells part of the story of our country. To understand whether immigration policy is meeting its goals, we must look to see how the law fosters immigration as well as how the law restricts it.

I. INTRODUCTION

Most histories of immigration law are histories of restriction.1 This emphasis is hardly surprising: beginning in 1875, Congress passed increasingly draconian acts, mostly targeting Chinese immigrants, which ultimately led to the outright exclusion of nearly all Asian immigrants. Then, in the 1920s, Congress enacted quotas aimed at keeping the U.S. population primarily white, with an emphasis on immigrants from northern and western European stock. And throughout history in general, immigration law has focused not only on excluding but also on deporting those immigrants deemed undesirable.

In addition to focusing on exclusion, immigration law history has also been preoccupied with federal law after 1875. This emphasis is explained in large part because immigration law is exclusively federal today, and the first restrictive federal immigration law, which banned Chinese prostitutes and criminals, was passed in 1875. Before 1875, restrictive federal immigration law was virtually nonexistent.2

But immigration was widespread and actively encouraged at all levels of government in the mid-nineteenth century. Immigrants from Europe flooded the East Coast of the United States, partly as a result of the revolutions of 1848 and the Irish Famine of 1845- 1849. 3 By 1870, forty percent of the residents of several major cities, including New York and Chicago, were foreign-born.4 Immigration was even more important to the development of the West Coast. Approximately 250,000 Chinese immigrated to the United States between 1850, when the Gold Rush began, and 1882, when Congress passed the Chinese Exclusion Act.5 And many others - including Europeans, Mexicans, and Americans - immigrated to California, which became a state in 1850. In addition, immigrants from the East Coast and around the world traveled to the newly conquered western territories.6

Despite this extensive immigration, the laws regulating it largely have been passed over by legal scholars. As Gerald Neuman has shown, this omission can be explained partly as category confusion: because immigration law is now federal, we no longer have a state-to-state conception of immigration, which makes intra-state and state-to-territory migration difficult to think of as immigration.7 Prior to 1875, restrictive immigration law did exist, but it was promulgated by states, not the federal government. Moreover, it looked very different from federal immigration statutes today, and has therefore not always been identified by scholars as "immigration law."8

Unlike the federal immigration law of today, state-based immigration law regulated immigration to individual states and applied equally to someone coming from a neighboring state or halfway around the world. …