In this elegantly written book, Lucy Salyer uses the 1867 Fenian Revolt and the international crisis it provoked to explore a little-known episode in the history of expatriation. With great skill and nuance, Salyer traces the diplomatic and legal crisis that ensued. As the “forgotten child of Reconstruction citizenship policies,” expatriation raised fundamental questions about the nature of citizenship; namely, was it volitional or an inherited status? Could a person relinquish one national identity and choose to take on another? Deeply researched, the book draws from diplomatic papers, legal documents, and media sources on both sides of the Atlantic. Part III covers especially fascinating ground, exploring how Americans such as historian George Bancroft and law specialist Francis Lieber shaped U.S. negotiations with European powers through formal and informal diplomacy. Bridging legal, immigration, and diplomatic history, Salyer illuminates U.S. citizenship and Reconstruction politics in a global context, Irish diaspora and the politics of anticolonial movements, the formation of international law, and US-European diplomacy during the nineteenth century.
JH: It’s a privilege to do this interview with you. I’ve been using your work for years! In fact, I just cited your first book in a lecture on Chinese Exclusion. How did you choose academia, and how would you describe your research trajectory?
LS: Thank you, Jane! I’m glad to hear Laws Harsh as Tigers still has legs!
I never sought to be an academic, and I’m not entirely sure how it happened. I changed my major 5 times as an undergraduate, applied to law schools and ended up in the Jurisprudence & Social Policy Program at UC Berkeley, whose multi-disciplinary approach seemed ideal for someone who could never settle on one way of seeing things. My initial goal was the MA and once I cleared that hurdle, I kept at it for the PhD. Having a job where I could keep learning new things in community with others seemed pretty ideal!
My research trajectory also took a meandering path, guided more by the sources I found than by big concepts. I set out to study how lower federal courts handled challenges to the power of new administrative agencies in the Progressive Era. Then I stumbled across the habeas corpus cases filed by Chinese immigrants appealing their exclusion from the U.S. and was puzzled by the high number of cases filed and their success rate. So I entered into the legal history of immigration policies, especially regarding Asian immigrants. Since then, I have focused my research on the legal and social history of immigration and citizenship policies.
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My research trajectory also took a meandering path, guided more by the sources I found than by big concepts.
JH: You earned your doctorate from UC-Berkeley’s Jurisprudence and Social Policy Program. How has your training shaped your approach to questions of interest to IEHS members?
LS: “JSP”, as we called it, provided a big tent for students and faculty interested in approaching law from a variety of disciplinary angles, but linked together by its foundation in the “law and society” school that emphasized the importance of studying the “law in action.” I was trained by the premier legal and economic historian, Harry N. Scheiber, from whom I learned a great deal, including the importance of meticulous research and citing one’s sources! More substantively, Harry emphasized in his own research a careful consideration of the complex workings of policies, seeing, for example, the challenges that overlapping jurisdictions posed for regulations (both domestically and internationally) and highlighting the impact of policies: how did policies allocate resources and distribute costs and benefits? Who won and who lost?
JSP mentors also emphasized looking at law at the local level, to pay as close attention to “street-level” players – whether they be police officers on the beat, trial court judges, or (as in my case) immigration inspectors in San Francisco — and the discretion they wield, as to high visibility national leaders. As one of our professors, Martin Shapiro, advised, study “any court but the Supreme Court, any law but constitutional law.” Administrative law, and the exercise of administrative discretion, was a key theme at JSP. Still, we were also trained to ask big questions of our local studies, drawing on our courses in legal theory and jurisprudence. I first read William Blackstone (who figures in Under the Starry Flag) in David Lieberman’s course!
JSP mentors also emphasized looking at law at the local level, to pay as close attention to “street-level” players––whether they be police officers on the beat, trial court judges, or (as in my case) immigration inspectors in San Francisco––and the discretion they wield, as to high visibility national leaders.
Interested in local actors and the influence they exert, I decided to study the federal trial courts in San Franciso where I discovered early battles over the Chinese exclusion policy which had tremendous national significance. In Under the Starry Flag, I also seek to link the local to the national and the global. My training helped me to look for these intersections. And I think you see its influence in the work of others who studied at JSP, such as Deborah Kang’s terrific book, The INS on the Line: Making Immigration Law on the US-Mexico Border, 1917-1954.
JH: How did you choose this topic?
LS: After Laws Harsh as Tigers, I embarked on an ambitious project to write a history of citizenship policies in the U.S. since the Civil War, tentatively entitled “Pledging Allegiance: The Troubled History of American Citizenship.” Under the Starry Flag initially was going to be chapter 1, focusing on citizenship policies adopted during Reconstruction. Once again, I took a detour after I hit a snag, trying to understand the Expatriation Act of 1868. Very little had been written about it and as I started to research its origins, I came across the Irish American Fenians who invaded Canada and sailed to Ireland to foment revolution.
I knew practically nothing about their story and was hooked immediately. It allowed me to try my hand at narrative history – perhaps even my family would read the book! – but it also allowed me to place American immigration and citizenship policies in an international context, showing how interactive such policies are. I thought it would be easier and shorter to write than my initial grand project. Very foolish! I found writing narrative history very rewarding but very difficult. Plus I had to immerse myself in whole new bodies of scholarship – international law, diplomatic history, Irish and Irish American history, European history. I learned a great deal, but it took much longer than I expected.
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It allowed me to try my hand at narrative history––perhaps even my family would read the book!
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JH: Your first book was about Chinese, whose complete lack of electoral power compelled them to seek legal and other non-electoral remedies. In the case of the Irish, it’s clear that their voting power critically informed how U.S. lawmakers and officials engaged with the Fenian crisis. How would you compare the experience of writing about the two groups and what each most powerfully illuminates about U.S. citizenship in the 19th century?
LS: In some ways, Irish and Chinese immigrants encountered strikingly similar challenges from nativists who thought they were unfit for American citizenship. Nativists portrayed both groups as dangerous threats to the American republic. In nativists’ eyes, Irish were too beholden to the Pope and their Catholic faith, and too beaten down by British rule, and the Chinese too accustomed to “despotic” rule by the Chinese emperor and exploitative employers, to be able to participate as independent, self-governing republicans. The popular press often connected the two groups as being on the same level (as this cartoon, “The Coming Man—John Chinaman” from Harpers Weekly, Aug. 28, 1869 reveals).
But, as you suggest, race played a critical role in how each group ultimately fared in the U.S. Irish-Americans could become naturalized citizens – and they did in high numbers – making them a powerful political force by the 1860s. They were able to leverage their political power to secure passage of the Expatriation Act of 1860 and to fend off efforts in 1870 to make naturalization more difficult to obtain. The Burlingame Treaty of 1868 between China and the U.S., passed almost simultaneously with the Expatriation Act, declared that Chinese had a natural right to migrate and expatriate, but US law continued to limit naturalization to “free white persons.” Efforts to remove the race requirement in the Naturalization Act of 1870 failed miserably. So Chinese immigrants were left only with litigation as a means to assert their rights, which they used to great effect. Ultimately, however, the racial restrictions on citizenship would be used to justify Asian exclusion.
JH: Do you have a favorite story or character from the book? Why?
LS: I loved piecing together the lives of my characters and trying to understand what motivated them – but it wasn’t always easy and I often had mixed feelings about them, as they were complicated figures. Because Charles Francis Adams, son of John Quincy Adams and the U.S. Minister to London, kept a detailed diary and copies of his correspondence, I felt like I got to know him pretty well. I had a certain sympathy for him, as he complained bitterly about being stuck in a job he did not want to do because of his notions of “duty”. He was also haunted a bit by becoming “elderly” when he turned 60, and I certainly could identify with that! For all of his reputation as being a cold fish, his diaries revealed a man that struggled with public duty and private desires.
I loved piecing together the lives of my characters and trying to understand what motivated them – but it wasn’t always easy and I often had mixed feelings about them, as they were complicated figures.
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John Warren is the “hero” of the story in many ways and I certainly admired his bravado and rhetorical skill. Finding all of the copies of his short-lived Boston Fenian Spirit newspaper buried in the Irish National Archives, still pristine and probably unread since the British consul in New York sent it to the Irish government, gave me access to his powerful voice. I traveled to his hometown of Clonakilty, visited Kilmainham Gaol in Dublin where he was imprisoned, and found his grave alongside those of his sisters and mother in Arlington, Massachusetts. But I puzzled over the private parts of his life, surprised to find that he actually had a wife and five children, and that he remarried briefly when he returned from prison. Somehow, I can’t imagine it was easy being married to Warren, devoted as he was to the Irish nationalist cause.
There are minor characters that I wished I knew more about or who could have taken a more central place in the narrative. I longed to know more about Warren’s wife, Joanna Madigan, who died from injuries sustained by a fire while John was imprisoned in England. She became a U.S. citizen by virtue of John’s naturalization, but seems to have enjoyed few of its benefits, remaining a shadowy character who surfaced now and then in the sources primarily as a pitiful character. I also was fascinated by Zhang Deyi, the young Chinese interpreter who accompanied the Chinese Burlingame Mission to the U.S. in 1868 and recorded his experiences in his diary (Diary of a Chinese Diplomat). He had very astute observations about America, most of which I had to cut in the end.
JH: In the epilogue you note that efforts to nationalize naturalization failed and that local and state governments continued to oversee the process. How did this episode inform the relationship between local/state governments and U.S. foreign affairs during the 19th century? How do you think expatriation figures into the 19th-century shift that William Novak has described from citizenship as a local, bottom-up identity to a federal, top- down project?
LS: The recognition of the right of expatriation in 1868 was a significant step in the nationalizing of citizenship, made possible only by emancipation and the end of the Civil War, but it did not solve the problems of conflicting international jurisdiction over immigrants. In 1870, diplomats and Republican Party officials tried to remove all power over naturalization from the states and place it in the hands of the federal government to create better surveillance over citizenship, but foreign-born Americans and their allies beat back that effort, seeing it (correctly) as an attempt to make naturalization more difficulty.
The State Department would continue to complain that lax naturalization procedures in cities and states made its job of protecting Americans abroad incredibly difficult. International disputes continually popped up until the State Department finally succeeded in getting Congress to take charge of naturalization in 1906 – and in redefining expatriation in 1907 in restrictive ways. It’s no surprise that national control over the making and breaking of citizens happens in the Progressive Era, which witnessed another key era of redefining national citizenship.
JH: What are some take-aways you would want your readers to remember long after reading your book?
When I gave a talk on this project years ago, a law professor once asked me “Just how important is the right of expatriation? It doesn’t seem very important to me.” It’s the kind of comment that cuts you to the quick, especially if you’ve spent so much time writing about a subject.
So I hope readers, after they finish the book, will not only know what the right of expatriation is but appreciate why it was (and is) important, even if it has become a forgotten right. I think it’s also important to raise up the role that the US government played in the mid-19th century in championing and securing the freedom to migrate and to change one’s nationality. It’s an aspect of our national history that is lost with our current focus on building walls to keep people out.
Other take-aways that I hope come through: 1) To see how race and gender have infused U.S. citizenship policies. The right of migration was, in essence, a white man’s right, despite the universal, natural rights language that was used to defend it. 2) To appreciate how U.S. immigration and citizenship policies were entangled with other countries’ policies. As Aristide Zolberg once noted, migration policies are highly interactive and to fully understand American policies, we must put them in a global context; 3) To have an appreciation of the many actors – immigrants, diplomats, international law scholars, legislators — who shape migration and citizenship policies. That is a point that I think you make beautifully in your book as well!
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It’s an aspect of our national history that is lost with our current focus on building walls to keep people out.
JH: What are some threads from the book you hope other historians will explore? Is there something you addressed more briefly in the book that you hope other scholars will take up?
LS: There is so much more to be done, in unpacking the international law of citizenship! I was particularly intrigued by the role of “publicists” or international law scholars in persuading their governments to change their policies. I know conflicts over expatriation and competing state claims to the same people continued to erupt, but these are stories which still remain to be uncovered. Fortunately, we have many talented scholars working on these topics, including David Gutman’s book, The Politics of Armenian Migration to North America, and the fascinating project of Zeynep Devrim Gürsel on Armenian emigrants to the U.S. Finally, the history of Americans who expatriate has begun to be written by scholars such as Nancy Green. I’m eagerly awaiting Eric Schlereth’s forthcoming book on Americans who “quit” their country.
JH: How do you think this history speaks to our current moment?
LS: With the current clanging of gates, shutting immigrants out, I think it’s more important than ever to reclaim the history of a fundamental right to migrate which took center stage in the mid-19th century. The right of expatriation – that is the right to leave one’s country and change one’s nationality – seems easy to endorse. Not all governments concede this right, even today.
What do we owe strangers?
But even among states that embrace a right of expatriation, the right to leave, without the right to enter, has little value. As the number of displaced persons and migrants increases, fleeing all sorts of untenable conditions, receiving states have a special obligation to consider the question: what do we owe strangers? If individuals have a right to migrate and change their nationality, as reaffirmed by the United Nations Universal Declaration of Human Rights, what is the corresponding duty of states to acknowledge those rights, in a meaningful way?
Purchase the Book Here: https://www.hup.harvard.edu/catalog.php?isbn=9780674057630
The Roundtable on the Book: https://shafr.org/sites/default/files/passport-04-2020-salyer.pdf
See Lucy Salyer Interview Jane Hong: https://www.iehs.org/authors-on-authors-lucy-salyer-interviews-jane-hong/