Borders are relatively new to the history of the world – as are the contemporary nation-state form and the international system of nation-states. Until the late nineteenth century, there were relatively few restrictions on international migration. At least within the Anglo world, early immigration laws, integral to both colonial expansion and the slave trade, were intended to facilitate migration, both free and forced. European imperialism inaugurated an unprecedented scale of migration, moving tens of millions of Europeans to settle in the Americas, Australia and South Africa, tens of thousands to govern colonies in Asia and Africa, forcing millions of enslaved Africans and contracted ‘coolies’ to labor in plantations across the globe, eliminating millions of indigenous peoples and displacing many more. In the United States, where I am situated, it was the free, rather than forced, migration of Asian immigrants that give rise to the first restrictions on mass migration as well as distinctly novel formulations of the nation-state, including for the first time, among the state’s powers, the unilateral and unrestricted right to exclude foreigners from its territories. After the United States closed its borders to Asians, it closed its borders to the rest of the world. It was not until the mid-twentieth century, in the aftermath of world war, the closing of world frontiers and the collapse of European empire-states, that the international border regime came to restrict human movement as it does today.
Borders are relatively new to the history of the world, and yet, they have been made to appear timeless and inevitable, naturalising the relation between peoples and place as well as the state’s authority to protect that relation. After the election of Donald Trump in 2016, American liberals expressed outrage at the Trump administration’s promised border wall, but few seem to question the border itself, the racial landscapes and economic inequalities defined by the border. Why does the government of this white settler nation have the right to barricade itself against the pedestrian movement of peoples indigenous to this continent – as most border-crossers are? Even those who strenuously disavow the expressive white nationalism of Donald Trump, Viktor Orbán, or Marine Le Pen take for granted the contemporary division of the world, into white enclaves of affluence and security, walled off against peoples seeking to escape zones of instability, impoverishment and extraction.
In her recent book, Stephanie DeGooyer attempts to recover the novelty of borders. In Before Borders: A Legal and Literary History of Naturalization, she returns us to a world in which the nation is relatively open to newcomers, returning us to a time before the contemporary gridwork of nation-state borders came to encircle the world, constricting the political imagination in turn. Her focus is not on the history of enclosure I described above, but the emergence of naturalisation, a powerful ‘legal fiction’ innovated by English judges and lawyers in the seventeenth century to create new social and political subjects, namely by conferring upon foreigners the status of native-born co-nationals (p. 4, p. 28). In this early moment, DeGooyer argues, naturalisation was a ‘far more radical procedure’ than is often recognised in that it represented a major disruption to the existing social order, within which conceptions of national belonging had been determined by overwhelming ‘logics of blood and soil’ (p. 2, p. 3). Lawmakers and jurists experimented with tropes of naturalisation to bring at least a few foreigners into the national fold. If these legal experiments were ultimately limited, they nonetheless stimulated a more expansive inquiry among English writers in the seventeenth and eighteenth centuries. Naturalisation debates attracted political thinkers – John Locke most famous among them – as well as literary figures. The novel, a still new and unruly literary form, would allow writers like Daniel Defoe, Laurence Sterne and Mary Shelley to imagine and intrude into the national frame and social imaginary – to ‘naturalise’ – figures who, until then, had never entered into the realm of literary representation.
Naturalisation emerged as a legal and political question in England after the death of Queen Elizabeth I in 1603. Because she left behind neither a husband nor an heir, her cousin, King James VI of Scotland assumed the English crown, bringing England and Scotland together under the protection of a single monarch. Though called the Union, as in ‘the Union of the Crowns,’ the ascension of the Scottish King to the English Crown did not result in any immediate unification of what until then had been two independent and quarrelsome kingdoms. Each would remain independent, governed by its own parliament, judiciary and law.
With the arrival of King James VI and his Scottish followers, English lawmakers began to wonder about the status of Scots in England. If the new king were to grant his Scottish followers land in England, would these Scots have the same rights to land and property as other English subjects? Were these Scots to be treated as aliens or as subjects of England? Could aliens become subjects? As DeGooyer observes, before the Union, ‘the distinction between subjects and aliens had been better understood than legally expressed’ (p. 37). In the seventeenth century, subjecthood did not confer the set of rights now associated with citizenship; instead, the primary benefit of subjecthood was protection in the ownership of land. At the time, wealthy foreigners were generally free to come and go, but the King reserved the right to restrict anyone’s movement; and it was generally understood that only English subjects, given their presumed allegiance to the Crown, were entitled to the protections of property.
James VI hoped that, after the Union, Scots would be recognised as subjects of England. In 1606, legislators in Scotland and England held joint sessions to realise his ambition. The Scottish parliament adopted a pair of measures conferring English subjecthood upon Scots: those born before the Union would be effectively ‘naturalised’, by statute, as a matter of positive law; those born after the Union would be considered English subjects as a matter of natural law (p. 38). But English legislators rejected the measures, concerned, among other things, about establishing a rule that would effectively naturalise the growing number of people living under English rule within an expanding empire (p. 39).
After the parliamentary process failed, the naturalisation question was brought before the English courts. In Calvin’s Case (1608), the Exchequer Chamber was asked to consider whether the child of Scottish parents born after the Union was a subject of England, entitled to inherit English land. Answering yes, Sir Edward Coke delivered a powerful articulation of the principle of jus soli, or birthright citizenship based on birth in the territory. As he wrote, ‘Everyone born within the dominions of the King of England, whether here or in his colonies or dependencies, being under the protection of—therefore, according to our common law, owes allegiance to—the King … and is subject to all the duties and entitled to enjoy all the rights and liberties of an Englishman’ (cited at p. 41).
Coke’s opinion offers one of the earliest articulations of the relation between a sovereign and its subjects and was enormously influential in establishing the rule of ius soli, however incompletely, in the United States. Announcing that matters of allegiance and subjecthood were matters of ‘eternal’ natural law rather than positive law, Coke’s opinion was an attempt to wrest from the King the power to create new subjects. Across the settler world, where ius soli rather than ius sanguinis is the norm, we might recognise part of the legacy of Coke’s opinion to consist in the naturalisation of the settler nation: by assigning legal status and political meaning – citizenship and national belonging – to the coincidence of birth in the territory, birthright citizenship cloaks an effect of law in the natural process of reproduction, naturalising the conditions for the settler expansion.
Calvin’s Case clarified the status of Scots born after the Union, but questions lingered about the status of Scots born before the Union. Calvin’s Case established that Scots born after the Union would be considered natural-born subjects. But Scots born before the Union, if they were to enjoy certain property rights in England, would have to be granted a status equivalent to the natural-born. Leaving aside substantive questions about the desirability of naturalisation, how could anything or anyone that is not already understood to be natural be made natural? This is the sort of formal question lawyers and judges addressed themselves. To answer it, DeGooyer argues, jurists engaged in a play of creative experimentation. If the term ‘naturalisation’ is now used to call out a sleight of hand or attempt to pass off an act of law for an effect of nature, seventeenth-century jurists played openly with the artifice of the concept, freely rehearsing varieties of what DeGooyer calls ‘legal fiction’, proposing, for instance, that foreigners who were not natural-born subjects might be entitled to a ‘second’ ‘civil birth’. Or they might be ‘restored’ (as if in a Victorian novel) to some ‘original’ rightful status; biographical defects might be ‘cured’ or ‘cloathe[d]’ by an act of law (p. 48). This sort of play, in turn, gave rise to a set of anxieties about the power of law to escape its imagined origins in nature, begging the question, perhaps, of why blood or soil – rather than any other sort of attachment – should define political membership.
Before Calvin’s Case, DeGooyer argues, distinctions of rank and religion were far more important to determining the status of individuals than place of birth, national origin, or what we might now recognise as nationality. Indeed, DeGooyer’s story about the invention of naturalisation as a legal concept is also a story about the invention of nationality as a legal concept, one that would come to define, even naturalise, the relation between sovereign and subject in terms of one’s place of birth – birth in the territory. In contemporary debates about immigration, nationality receives less critical attention than categories like race or ethnicity. Consider, for instance, the legal evolution of the Trump administration’s notorious Muslim ban. Facing public backlash and legal challenge, the administration recast the Muslim ban in terms of nationality. As President Trump himself explained, ‘People were so upset when I used the word Muslim. Oh, you can’t use the word Muslim. And I’m okay with that, because I’m talking territory instead of Muslim’ (cited in Munshi, Reference Munshi and Fassin2020). What is telling about the statement is not that it reveals the administration’s attempt disguise a form of racial, ethnic, or religious discrimination – as many lawyers argued – but that is forces us to acknowledge that ‘territory’, place of origin and nationality have become entirely legitimate bases for discriminating among immigrants. As scholars of immigration know, without our contemporary border regime, no biographic fact is more determinative of an individual’s ability to legally migrate than one’s country of origin – not race, gender, or class (Pritchett, Reference Pritchett2006). The naturalisation of nationality, perhaps as much as the materialisation of borders, has served to tether the overwhelming majority of the world’s population to their place of birth.
Within legal debates on immigration, nationality has received less scrutiny than categories like race and religion; within literary studies, nationality has been overlooked in favor of studies of national identity, which emphasise interiority and structures of feeling over political and legal transformation that condition the production of new subjects. DeGooyer’s account of naturalisation, as a form of ‘subject production’, powerfully shifts our focus from questions of subjectivity to status. For early modern jurists and writers, she argues, naturalisation raised a number of unsettling questions – about blood and allegiance, the source of law, for instance – but it simply did not give rise to the more familiar set of anxieties, as contemporary readers might expect, about national identity, or the essential Englishness of new subjects. Naturalisation was regarded more simply as a useful expediency, a crude mechanism devised to solve a legal problem. All that it purported to confer was, as DeGooyer explains, ‘a public and perfunctory status’, one that could be ‘exchanged and contracted through civil procedure’ (p. 9). What I understand to be the lesson that DeGooyer wants us to draw from this history is that contemporary debates about immigration and naturalisation might benefit from a dispassionate disentangling of questions about nationality from anxieties about national identity.
One of the achievements of DeGooyer’s book is that it manages to suspend a particular image of the nation-state that has so overwhelmed academic discourse and the contemporary political imaginary – one that only began to take shape in the late-nineteenth century. Particularly useful to scholars of immigration and international law, Before Borders situates us in a moment before sovereign states defined their territorial borders, before states claimed a legal monopoly over human movement across borders and before the international system of nation-states came to replace a more heterogeneous world order. Through her incredibly disciplined reading of early legal, political and literary texts, DeGooyer allows the eighteenth century to remain the eighteenth century, rather than a prelude to the nineteenth century. For this reader, then, it is interesting to discover that, quite unlike immigration debates today, naturalisation debates in eighteenth-century Europe were relatively unconcerned with questions about national identity or ethnic homogeneity. Almost impossible to imagine now, in 1664, the British parliament entertained proposals for the ‘universal naturalization’ of ‘all Persons of All Nations, of All Religious, Protestants, Papists, Jews, Mohametans, Turks, Moors, [and] Pagans’ (p. 55).
The rationale for welcoming foreigners – and the limits of that rationale – are familiar. Proponents of universal naturalisation hoped that such a generous policy would promote economic development, by welcoming property owners and skilled workers. But, as DeGooyer points out, a general sympathy towards universal naturalisation was tested with the arrival of poor and racialised migrants. In 1709, German refugees fleeing famine and persecution, known as the ‘poor Palatines’, were largely denied sanctuary in England – notwithstanding the public advocacy of Daniel Defoe – and resettled in Ireland and the United States (pp. 91–94). In 1753, parliament enacted the Jewish Naturalization Act, but it was almost immediately repealed in the wake of violent backlash. Two decades later, the arrival of Black migrants, fleeing the United States after its revolutionary war, were met with resistance and an increasingly racialised understanding of naturalisation. The ‘Black Poor’ as they were known, were eventually resettled in Sierra Leone, a British colony (p. 138).
As the original promise of naturalisation was betrayed by this series of events, a livelier experimentation found its way into literature. The relation between law and literature that organises DeGooyer’s study of naturalisation, derived from David Hume’s conception of ‘causal relation’, is less one of direct influence than ‘association’ and ‘continuity’ (pp. 24–25). In the second half of her book, DeGooyer shifts our focus from legal and political debates about naturalisation to the literary realm, where the ‘radical potential’ of naturalisation, conceived more broadly as the practice of bringing strangers into the sphere of representation, was rehearsed in the form of the modern novel. DeGooyer observes that early innovators of the form, writers like Daniel Defoe, Mary Shelley, Samuel Richardson, Laurence Sterne and Frances Burney ‘populated their novels with foreigners, merchants, servant girls and other subjects who had not featured significantly in western art before’, breaking with convention to create a ‘boundless … imaginative space’ within which foreigners might be made familiar (p. 12). DeGooyer offers a brilliant remapping of what have long been read as quintessentially English novels. Defoe’s Robinson Crusoe, the story of a German-born merchant who eventually becomes a naturalised landowner in Brazil, DeGooyer resituates against the backdrop of naturalisation debates about property inheritance and the fate of the poor Palatines. The monstrous, ‘unnatural-born’ creature at the heart of Mary Shelley’s Frankenstein, though assembled from bodies across Europe, belongs to no nation, condemned to a lonely homelessness in the world. But the ‘narrative naturalization’ of the Creature that Shelley achieves in her tragic epistolary novel, DeGooyer reads as a political critique of the exclusionary nationalism spreading in Europe at the time (p. 162).
DeGooyer’s superbly interdisciplinary book arrives at a moment of heightened panic about the relevance and future of literary studies – and the humanities in general. For centuries, literary education was an essential prerequisite for participation in public and political life. ‘Once the shared profession of the ruling elite’, Merve Emre observes, literary study ‘is now the specialized province of a downwardly mobile subset of the professional-managerial class’ (Emre, Reference Emre2023). John Guillory, in his recent Professing Criticism: Essays on the Organization of Literary Study, paradoxically, the politicisation of literary study in the past half century has rendered the discipline unfamiliar and incoherent – at least in the eyes of administrators, students and benefactors. The decline of literary studies Guillory attributes to literary scholars themselves: as they freed themselves from the ordinary business of reading literature to assume the task of reading the world itself – spawning entirely new fields of study like postcolonial critique and queer theory – they also signaled a loss of faith in the value of literature itself. The rhetorical excesses of critique, characterised by a staggering sophistication and joy-killing self-righteousness (infuriating to those who find it impenetrable), Guillory recognises as symptomatic of the perceived impotence of the literary enterprise. Because scholars of literature are relatively powerless to redress the historic wrongs of colonialism and slavery or challenge contemporary forms of empire and capital, they rehearse their frustrations against ‘figures who are no longer much read … who have been roused from their dormancy to serve as representatives of western culture’ (Guillory, Reference Guillory2022). In his account, a great deal of literary scholarship reads as a compensatory exercise performed by scholars realising the futility of their enterprise.
Oddly enough, the study of eighteenth-century England has perhaps never been more relevant to legal study in the United States, now that a majority of the U.S. Supreme Court consists of originalists and textualists, for whom the words in the Constitution should be interpreted to mean what they meant at the time of ratification, 1791. In the 2022 term, through a series of cases overturning long-established regulation of guns, religious expression and abortion, a majority of the Supreme Court began to elaborate a new interpretive canon, according to which, it would look to the text, to ‘history and tradition’, to determine the scope of any constitutional right. In N.Y. State Rifle & Pistol Association, Inc. v. Bruen (2022), for instance, the Court explained that the meaning of the Second Amendment, which guarantees a right ‘to keep and bear arms’, was ‘fixed according to the understanding of those who ratified it’ (Bruen). In that case, the Court struck down a century-old New York gun licensing law finding no ‘historical analog’ in 1791.
In the wake of Bruen, the Fifth Circuit was asked to re-evaluate the constitutionality of a Texas gun law restricting gun possession among individuals subject to domestic violence restraining owners. Constrained by the Supreme Court’s reasoning in Bruen, the Fifth Circuit did not evaluate the wisdom of keeping guns out of the hands of violent partners; instead, it focused its reasoning on early modern gun regulation, surveying the English Militia Act of 1662, the 1689 English Bill of Rights, laws of the Massachusetts Bay Colony, the State of Virginia and the Colonies of New Hampshire and North Carolina. Unsurprisingly, the court could not find in this early period a regulation sufficiently analogous to its own regulation intended to protect women and children from domestic violence. At the time, of course, women were property and violence within a marriage was not a crime or the subject of regulation. The Fifth Circuit did acknowledge a history and tradition of disarming people considered dangerous, including ‘slaves’ and ‘Native Americans’, but the danger presented by these groups was not sufficiently analogous to the danger presented by individuals accused of domestic violence. Moreover, the Court explained, those who ratified the Constitution never intended for enslaved or indigenous people to be protected by the Second Amendment; they were ‘written out of “the people” altogether’ (Rahimi).
Scholars of eighteenth-century literature need not pander to this sort of originalism, which has always been selective, disingenuous and stingy in its recognition of authority: as Justice Clarence Thomas explained in Bruen, ‘when it comes to interpreting the Constitution, not all history is created equal’ (Bruen). As DeGooyer’s work suggests, we might study the law and literature of the past not only to disrupt originalist practice, its pretensions to assign to the words of the Constitution some fixed and knowable meaning, but also to recover lost horizons. Amy Kapczynski has offered as an alternative to originalism a ‘redemptive historicism’, one that reads ‘history against the grain’, revising the past not to consign us to it but to render it a meaningful resource in the present, displacing the prevailing frames that blind us to possibility (Kapczynski, Reference Kapczynski2005).
As I have suggested, it is both instructive and generative to place the contemporary nation form, nationalism and national identity, at some critical distance, as DeGooyer does. But the notion that a more generous conception of national incorporation rehearsed in early modern Europe might reawaken us to the possibility of a generous conception of national incorporation today seems implausible without a sustained engagement with intervening histories of race and empire that shaped our contemporary border regime – at least for this reader, situated in the bordered empire of the United States. Within the United States, as DeGooyer acknowledges, citizenship was racialised from the beginning, limited to ‘free white people’ until the Civil War, then exclusive of Asians for the next hundred years. Racialisation, Lisa Lowe has argued, has served to mediate the conflicting demands of the settler nation, founded with a supposed commitment to formal equality, but one that has been guaranteed only to an ethnic community, and conditioned on the expropriation, exploitation and exclusion of racialised others (Lowe, Reference Lowe1998). Racialisation is also a form of subject creation, one in which both law and literature have always been implicated. Race is a fiction made hideously real by law. Writers like Patricia Williams, Colin Dayan and M. NourbeSe Philip, writing at the intersections of law and literature, have explored the terrifying alchemy of law, the sorceries with which it turns human into inhuman, life into death. Literature has long been complicit in the creation of racialised subjects, for instance by sentimentalising slavery, vanishing Indians, rendering Asians a faceless menace, while innocenting white Americans of their country’s crimes, committed on their behalf.
For a few days this past summer, in June 2023, the world’s attention and resources were focused on the rescue of five billionaires stuck in a submersible at the bottom of the sea, hoping to glimpse the ruins of the Titanic. The submersible likely imploded well before the United States, Canada and France spent an estimated $100 million on their collective search and rescue efforts. A week earlier, an estimated 700 migrants, mostly from Syria, Pakistan and Egypt, trapped on a fishing boat, were left to drown off the coast of Greece, as coast guards and commercial fishermen watched and failed to intervene, despite their ability to do so. There was no internationally co-ordinated effort to rescue the migrants; there was collective abandonment. In the following weeks, western news outlets acknowledged their failure to report the mass drowning with the same sympathy or concern with which they reported the disappearance of the submersible. There was talk of ticking clocks, disaster fatigue, antipathy towards ‘illegals’, racism (Sharp, Reference Sharp2023). But even these commentators, engaged in earnest self-reflection, struggled to offer a narrative that would explain why a few billionaires are free to probe any corner of the earth – the seas and skies – while millions of others are criminalised for attempting to leave home, to escape the tether of national origin. Certainly, it takes time and effort to understand how our exclusionary nation-state system created the contemporary migrant crisis, or why anyone in the United States or Europe should feel a sense of obligation towards ‘illegals’ desperate to cross borders. What is badly needed in this moment is a radical capacity to imagine alternative ways to survive, to coexist and to sustain our shared planetary inheritance. There is a role for legal thinkers as well as cultural producers – as well as scholars writing across disciplines, in and out of the academy – to participate in expanding our political imaginary. But doing so will require a committed reckoning with the role that race, empire and capital have played in closing borders.
