Property Law as Immigration Law: The Creation of Non-Citizen Property Rights

Abstract

At the nation’s founding, the common law of property defined ownership as an incident of citizenship. Noncitizens were unable lawfully to hold, devise or inherit property. This doctrine eroded during the course of the eighteenth and nineteenth centuries, but few scholars have examined its demise or the concommittant rise of property rights for foreigners. This article is the first sustained treatment of the creation of property rights for noncitizens in American law. It uncovers two key sources for the rights that emerged during the nineteenth century: federal territorial law, which allowed for alien property ownership and alien suffrage; and state constitutions, a significant number of which included property rights for noncitizens. Iowa, Wisconsin, California, and Michigan led the way, including these rights in their state constitutions prior to the Civil War. Through close examination of Congressional debates, records of state constitutional conventions, and other historical texts, this article places this significant legal reform in a broader historical context. Lawmakers succeded in untethering notions of citizenship from notions of ownership, creating a more expansive vision of membership in the American polity. Property law was itself a form of immigration law, used not to expel migrants but rather to attract them and, lawmakers hoped, eventually to assimilate them as new Americans. The property reforms discussed here did not, however, result in property rights for all noncitizens; in fact, a majority of states today have some form of property restriction based on alienage. This article suggests that an answer for the persistance of noncitizen property restrictions in American law lies in the nineteenth-century. Reform efforts in this era held the seeds of restrictive policies that would develop later in the twentieth and twenty-first centuries, such as anti-Asian land laws and anti-illegal immigrant housing ordinances. Sources from the ninteenth-century reveal that becoming “American” through property ownership was not a fully inclusive process; from the outset it was limited by assumptions about national origin, race and territorial location.