The African American Origins of Modern Asylum

Members of Black Lives Matter protest outside Federal Building to denounce the segregationist immigration policies of the Biden administration, Tuesday, Step. 21, 2021 in Los Angeles. (Shutterstock)

Harriet Tubman, living in Ontario, Canada for most of 1851 to 1861, told an abolitionist interviewing fugitive slaves north of the United States border that “we would rather stay in our native land, if we could be as free there as we are here.” She acknowledged that many of the African Americans she led out of the American South to Canada through the Underground Railroad desired to return to one day, “but I never saw one who was willing to go back and be a slave.” The abolitionist, Benjamin Drew, printed her testimony along with those of other runaways living in Canada in an 1856 book entitled A North-Side View of Slavery: The Refugee. As he and Tubman both understood, the struggle for African American freedom was by necessity a migrant, border-crossing movement for asylum.

From the American Revolution to the Civil War, enslaved African Americans fled the United States for freedom abroad in British Canada, Mexico, and the Caribbean. Over time, African Americans’ transnational search for freedom led to treaties, military proclamations, and court decisions that gave shape to the refugee in international law. At the same time, as historian Harvey Amani Whitfield has shown, acts of escaping to foreign free soil made migration and transnationality integral to early African American conceptions of freedom and community. These transnational refugee politics were as American as the ideals of the Revolution itself precisely because they first took shape during the U.S. War for Independence.

Today’s asylum-seekers from Haiti, Guatemala and elsewhere at the U.S.-Mexico border have a political history that connects them to the Underground Railroad out of this nation before the Civil War. The “caravans” of asylum-seekers traveling to the U.S.-Mexico border in our era have a political history connected to the Underground Railroad out of this nation before the Civil War. Like fugitive bondpeople traveling up through the free northern states to Canada in the 19th century, today’s migrants often form traveling communities and networks for both protection and solidarity. And they frame their migration as a form of politics: using their mobility to access rights of liberty and safety.

From the outset of the American Revolution, enslaved people sought freedom or at least protection behind British lines as Black loyalists. Though Britain agreed in the Treaty of Paris at the end of the war to evacuate the United States without “carrying away any Negroes,” runaways pleaded for resettlement outside the United States. They testified to officers that they feared violent reprisals from their enslavers for having aided the Crown. Their stories trickled up to the British commander-in-chief Sir Guy Carleton who agreed to relocate over 3,000 runaways to Canada because “delivering up the Negroes to their former Masters would be delivering them up some possibly to Execution and others to severe Punishment.” African Americans freed themselves by making the violence of slavery legible as a form of persecution.

After the British Empire abolished slavery in 1833, followed by Mexico in 1837, the trickle of cross-border runaways turned into a stream of thousands of African Americans seeking protection within foreign forts, vessels, and free communities of color.

By the American Civil War, over 30,000 people would flee to Canada and perhaps as many as 5,000 took refuge in Mexico.

Enslaved people’s mobility made America’s “domestic” institution a diplomatic problem for neighboring countries. Neither Britain nor Mexico sought to antagonize the United States over slavery, but enslaved people themselves forced the issue. While Britain and the United States negotiated the Webster-Ashburton Treaty of 1842, primarily about setting borders in the Northeast and Midwest, 139 enslaved Virginians on board the ship Creole and bound for the New Orleans slave market revolted. They sailed the vessel into the British Bahamas and requested asylum. The Creole revolt turned what had been a secondary part of the negotiations – slave extradition – into a major diplomatic issue. Britain ultimately refused to put slave extradition into the treaty on the grounds that a person who had reached free soil could not be re-enslaved.

Before the late-eighteenth century, asylum had largely been an extension of the religious policy of states. Protestant kings offered protection to their co-religionists persecuted by Catholic kings, and vice versa. But by tying their emancipation to asylum, African Americans set an early precedent in diplomacy and migration policy for the principle of non-refoulement: a government’s obligation to not repatriate asylum-seekers to countries where they faced physical violence or persecution. This was a major development in the history of refugees.

Enslaved people’s freedom-seeking slowly secularized the refugee and embedded asylum in emerging concepts like human rights and “crimes against humanity.” Their efforts bore fruit for other oppressed migrants in legislation such as Britain’s 1870 Extradition Act, which explicitly recognized the right of non-refoulement for political dissidents, and Mexico’s liberal reforms to the naturalization process for foreigners (in the midst of their own civil and revolutionary wars). Policies and principles such as these provided the legal raw material from which nations, including the United States, developed international asylum protocols during the upheavals of the 20th century.

The politics of immigration restriction and deportation exist in opposition to the political traditions of the African American freedom struggle we now acknowledge as central to the story of American liberty.

When the Biden administration forcibly dispersed and deported the camp of some 15,000 Haitian asylum-seekers in Del Rio, Texas last summer, they oppressed people engaging in a politics as American as the Fourth of July. When Biden upholds the Trump administration’s “Remain in Mexico” policy for potential asylum-seekers, they act from the most atrophied sense of what American freedom and prosperity is. The refugee resistance of enslaved African Americans shows that the most liberating American political traditions have always been based in global solidarity

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Sean Gallagher

Dr. Sean Gallagher is a historian and postdoctoral fellow at the American Philosophical Society. You can follow him at @WhatAboutClass.