Book review: Stephanie DeGooyer’s Before Borders: A legal and literary history of naturalization

If you want to learn about the history if nationality and immigration law, there are few options available to you. Even if you have access to a really good library, Ann Dummett and Andy Nichol’s classic Subjects, Citizens, Aliens and Others dates to 1990. The books on nationality law by Mervyn Jones and Clive Parry date to the 1940s and 1950s. Early chapters of Fransman’s British Nationality Law are very useful, but it is intended as a reference book not as an accessible read. And it is out of print. And costed £350 when it was in print.

So, Stephanie DeGooyer’s new book, Before Borders: A legal and literary history of naturalization (John Hopkins University Press, 2022), is both very welcome and very useful. It is also very good, and I highly recommend it to those interested in the subject. As its title suggests, it goes beyond legal history into the realm of literary analysis. By juxtaposing the two, DeGooyer contextualises them both and offers a fascinating insight into the struggles of post-feudal society to adapt to human mobility.

Aliens and subjects

DeGooyer begins with one of the earliest reference points for what would come to be called British nationality, Calvin’s Case of 1608. The case concerned the inheritance rights in England of those who were born in Scotland after the ascension of the Scottish king, James VI, to the English throne as James I in 1603. This union of the crowns predated the union of the states by over a century. Between 1603 and 1707, two separate countries with separate parliaments and laws happened to be ruled by the same king.

Calvin’s Case can perhaps be seen as an early example of strategic litigation; it was manufactured by the guardians of a young child and by leading jurists in order to test and decide whether the union of the crowns had given rise to one form of subject or whether there remained a distinction between Scottish and English subjects. Ultimately, Sir Edward Coke’s report of the case records the conclusion that anyone born in the dominions of the Scottish or English crowns after the ascension of James VI and I was simply a subject of the monarch. The Scottish child at the heart of the case could indeed inherit land in England.

The case is more interesting to us now for the clear distinction Coke drew between a subject and an alien. “Every man is either alienigena, an alien born or subditus, a subject born”, he wrote. The difference is that an alien “is born out of the ligeance of the King, and under the ligeance of another”. Allegiance was determined by birth. While allegiance ceased to form the basis of British nationality in 1948, birth continued to be the basis of British nationality law until the British Nationality Act 1981 came into effect on 1 January 1983.

Ligeance to nationality

The idea of “nationality” was in the seventeenth and even the eighteenth centuries, as DeGooyer observes, an anachronism. Before the nation state emerged, people in Europe were sorted into place by webs of allegiance, or ligeance, rather than by laws and borders. The first recorded uses of the word “nationality” in Hansard in the sense of a personal legal status only seem to appear in the late nineteenth century.

Allegiance was a feudal concept, rooted in the ownership and control of land and people. Those who were not lieges of the English crown could not in turn hold or inherit land. This was a major disability in a society and economy in which land was wealth. And this was what Calvin’s Case was intended to resolve: who could own what.

It may seem surprising that one of the foundations of nationality law was not about where someone was allowed to live. There were no restrictions on the movement or residence of aliens at that time. There was no “right of abode”, just a general liberty, enjoyed by subjects and aliens alike, to come and go freely from the country. Aliens may have been freer from restriction in this respect than subjects, in fact, as the work of Bridget Anderson on medieval control of workers and the poor suggests.

Naturalization

A subject was ‘natural-born’. But what about people born aliens who wanted to become British subjects, so that they could hold and inherit property in Britain? As more people moved out of their ligeance of birth and into a new ligeance, what would be their rights? Calvin’s Case had nothing to say on this, and indeed its logic seemed to exclude the possibility of acquisition of rights after birth.

There were generally two options until the nineteenth century: either obtain an Act of Parliament ‘naturalising’ you as a British subject or obtain letters patent under the royal prerogative as a denizen, which was a sort of halfway house status.

But the idea of ‘naturalization’ ran contrary to the whole doctrine of ligeance. As DeGooyer says, it was a legal fiction. And it was controversial. No one seems to have doubted that an Act of Parliament did indeed render an alien into a subject for the purposes of holding and inheriting property. But not everyone was happy about it.

What I found so interesting about Before Borders is how DeGooyer shows that it was not just lawyers and jurists who were grappling with these issues. Politicians, philosophers and early novelists were also trying to work out who belonged where, and why.

John Locke had argued in favour of naturalization as “the safest and easiest way of increasing your people”. Although not explicitly addressing naturalization as such, Locke’s theory of social contract was founded on the right of individuals to choose their political community of belonging.

Parliament briefly experimented with group naturalization in the form of the short-lived Foreign Protestants Naturalization Act 1709. The 1709 legislation had been intended for the French Huguenots and offered a simple and cheap route to administrative naturalization. When thirteen thousand German refugees, known as the “Poor Palatines” arrived shortly afterwards, a new Tory government repealed the legislation in 1711 and shipped the refugees abroad, to Ireland and then the American colonies.

I cannot help but observe that there are parallels to be drawn with current British government policy towards different groups of refugees.

Daniel Defoe argued strongly and publicly in favour of general naturalization before and at the time of the 1709 legislation. His Robinson Crusoe, published some years later in 1719, subtly addresses the topic. DeGooyer points out that Crusoe’s father was specified by Defoe to be an alien who appears from the context to have naturalised in England. Crusoe himself naturalises in Brazil. In both instances, this was done for commercial gain, essentially.

In contrast, an anonymous poem published in 1709, Canary-Birds Naturalized in Utopia, catalogued the objections of native birds “ruffled by a second set of birds”, as DeGooyer puts it. One of the birds was said to be “Daniel Foe, that Grand Canary,” who the native birds consider to be jeopardise their “liberties and livelihoods”, in so doing ”making Magna Charta / A useless Jest of Magna Fart-a”. Jonathan Swift similarly argued that general naturalization would lead to impoverished foreigners draining public resources and reduce the “birthright of an Englishman . . . [to] the value of twelve-pence”.

The debate certainly did not end in the early eighteenth century. DeGooyer analyses a short series of early novels — often the final, most reflective novels of the respective writers, interestingly — and shows how literature attempted to get to grips with these issues of place and belonging. Intriguingly, DeGooyer points out that in Mary Shelley‘s 1831 version of Frankenstein; or, The Modern Prometheus, Victor Frankenstein was said to have naturalised in Switzerland, and his creation openly discusses his own absence of nationality (albeit not quite in those terms) during the novel.

Denaturalization

On a positive note, DeGooyer observes in conclusion that early naturalization “made it possible to break old bonds of belonging and invent new ones”. Not all of the implications are entirely positive, however, as DeGooyer recognises.

DeGooyer points to the thriving modern market for the selling of citizenship by poor countries in need of revenue and for the buying of citizenship by individuals seeking to offshore their assets. And social contracts can potentially be broken by either party; the British state now frequently exercises a power to sever a connection to its own citizens by denaturalising them.

DeGooyer ends by suggesting it is time that we might “think anew the conditions from which subjects are born and made”. A good place to start would be by reading this excellent book.