School kids in the US all learn about the underground railroad. The other day, I came across a reference to people fleeing to Canada on the underground railroad and wondered what I really knew about it.
Plenty of the things I learned about history (and science!) were so simplified as to be misleading. They gave me the sense that I understood things I knew nothing about. When I first discovered this, I felt like I’d been manipulated by the US school system. However, when I moved to Portugal and tried learning about Portuguese history, I struggled to make sense of it. There was too much for me to take in all at once. I found it easier to read children’s books on Portuguese history, which gave me a broad overview. By reading history books for progressively older groups of children, I could take things in and work my way up to an adult understanding. The oversimplification of the history I’d learned at school makes sense to me now. As an introduction to a topic it serves us well. If we stop there, we end up thinking we understand something we don’t know much about at all.
I knew some stories about the underground railroad, but little about how it actually worked beyond that it was a network of safe houses using coded terminology. I’d been taught about the bravery of people fleeing enslavement in the US and the sacrifices of people who helped them. I’d heard about the struggles of Black communities in Hamilton and Halifax once they were settled in Canada. I even knew about Black and abolitionist newspapers in Canada, thanks to the MacKenzie House in Toronto.
Now I wonder what I might have misunderstood. What was the status of people arriving in Canada on the underground railroad? How did this fit into the overall picture of immigration during this era? What sort of support was available to refugees entering Canada? Were they refugees? Did they really not need any documents at all? How does it compare to the current asylum system in Canada? Is Canada’s past an example of open borders? Here’s what I found:
Escaping to Canada on the underground railroad
The “underground railroad” developed as a decentralized network of people helping enslaved people reach states that had abolished slavery. Vermont was the first US state to abolish slavery in 1777. Enslaved people could flee to Vermont and live as free people, although not without fear that they might be captured and sent back. The Fugitive Slave Act passed in 1850, declaring that escaped slaves would be returned to their owners, even if they were in states where slavery was illegal. The underground railroad expanded to bring formerly enslaved people and free Blacks further north to the safety of Canada. Around 30,000 people entered Canada on the underground railroad.
During the era of the underground railroad, the Canada people were escaping to was British North America, composed of several British colonies. During the War for Independence, Britain promised freedom to enslaved people who served in the military, leading to 20,000 Blacks being settled in Canada after the war. Upper Canada, roughly today’s Ontario, was the first British colony to begin the process of abolition with the Act Against Slavery in 1793. The importation of slaves was banned and the children of enslaved people were to be freed at the age of 25, although it didn’t free people who were currently enslaved. It also established that any enslaved person to reach Upper Canada became free upon arrival. The War of 1812 spread awareness that there were free Blacks living in Canada. Britain abolished slavery throughout its empire in 1834, when the Slavery Abolition Act came into force.
Britain may have abolished slavery, but they weren’t exactly committed to human rights for people of color. Besides the whole history of British colonization, Britain was officially neutral during the US Civil War, but their reliance on Southern cotton means they quietly supported the Confederacy. It was Canada who supported the Union.
So, people who were enslaved in the US were not treated as fugitives under colonial or British law. Instead, they were free. That’s important, of course. Not being enslaved is a good thing, but it doesn’t mean you have the right to stay in Canada or live a good life. Most asylum claimants today are not fleeing slavery and they still face many barriers. Particularly if they snuck into the country. People crossing into a country irregularly, as in not undergoing inspection at a border entry, are treated differently than those who undergo inspection. Remember all those stories about Ellis Island?
Border control in the US and Canada during the era of the underground railroad
It turns out that Ellis Island isn’t relevant, because it was a federal immigration institution established after the end of slavery. In the US, the federal government took control of immigration in 1891. Prior to that, immigration was regulated by the states. In New York, people arriving into the state were processed at the Castle Garden Immigration Depot from 1855 until it was taken over by the federal government. Prior to the opening of Castle Garden, people arriving in New York were processed by customs agents. They met boats at the docks and simply matched the passengers to the list of names on the passenger manifest.
Immigrants did not need a passport, visa, or any other document to enter the country for over fifty years after slavery was abolished. People were simply matched to the passenger manifest based on who they said they were. New York customs and immigration agents did their best to identify and exclude: people who had communicable diseases; criminals, lunatics, and sex workers; and anyone likely to become dependent on public assistance. Because of these criteria, first class passengers were generally allowed to disembark ships without inspection, while steerage passengers were scrutinized. Today there are all of these different visa types and visa waiver programs. At the time, there was no distinction between tourists and immigrants. All were held to the same minimal requirements.
Canada was even less restrictive of immigrants than the US states. While the US attempted to screen out undesirables, Canada’s restrictions focused on public health. This meant things like establishing quarantine stations like Grosse Île for Irish famine immigrants in the 1840s. Ships arriving in Canada would be inspected by quarantine officers for things like cholera, typhus, smallpox, and yellow fever. As long as no signs of an infectious disease outbreak were found, passengers were simply allowed to disembark. There was no person by person inspection to determine health or desirability. Those restrictions came later, with the 1910 Immigration Act.
Since there was essentially no inspection of people entering the country at designated ports of entry, there was no penalty for irregular border crossings. It was only the flow of goods that was heavily regulated and required to go through customs stations. Smuggling goods was punished; underground railroad conductors engaging in human trafficking was legal.
So, people sneaking into Canada on the underground railroad were entering at irregular crossings not to evade inspection by border control, but in order to avoid recapture while still on US soil. Once they were on Canadian soil they were free. But plenty of people who are not enslaved today are still considered illegal aliens and face detention or deportation. What was their immigration status once they reached British North America?
Legal status of Canadian residents during the era of the underground railroad
There was no such thing as a Canadian citizen until 1947. Before then, people living in Upper Canada, Lower Canada, Nova Scotia, New Brunswick, Prince Edward Island, Newfoundland, etc. were either British subjects or foreigners. If you were born in Britain or a British colony, you were a British subject. If you were a foreigner living in British North America, you could petition the colonial authorities to become a naturalized British subject. Canadians remained British subjects until 1976.
Even before the end of slavery in the British Empire, free Blacks were considered British subjects. Enslaved people became British subjects the moment they gained their freedom. Being a subject of the Crown isn’t the same being a citizen. It provided certain protections, with different rules in each colony determining what rights subjects could exercise. Free Blacks living in the British Empire faced various restrictions on voting, holding office, serving on juries, and bearing arms.
People escaping enslavement in the US by fleeing to Canada would have been considered foreigners, not British subjects. They would also not be considered US citizens, since the US Constitution did not grant enslaved people citizenship or any rights. In slaveholding states, they were legally property. This was upheld in 1857 with the Dred Scott decision, clarifying that free Blacks were also not citizens of the US or any US state, even if they were born free. This changed in 1868 with the 14th Amendment. Until then, all Black people in the US were stateless. Nationality was not yet the formal concept it is today, though, so there wasn’t the same concept of statelessness.
Under British imperial law, anyone stepping foot in a British colony came under the protection of the Crown. The Crown protected Black people from the US from being captured and returned to the US. If they were accused of a crime that would result in their extradition to the US for trial, they faced being reenslaved. There are stories of judges deciding against extradition because of the risk of enslavement, as well as because of community protest. Today, Canada does not extradite or deport people if the danger they face in their home country outweighs the risk they pose to Canadians.
Since there were no immigration restrictions, anyone could live and work in British North America indefinitely without needing authorization. There was no need to apply for a work permit, study permit, or permanent resident status. There was no requirement to obtain and renew identity documents to prove ones status.
Foreigners, referred to as aliens, living in British North America did not have the same rights as British subjects. They did not have the right to own land, pass property to heirs, sue in court, or participate in civic life. While aliens did not have the right to own land, some colonies, including Canada West (formerly Upper Canada and presently Ontario) permitted land ownership. Full civic participation was limited even for British subjects, as voting rights differed from place to place and depended on property ownership.
Prior to Confederation in 1867, each of the colonies of British North America had its own rules for nationality. Generally, people wishing to become British subjects needed to be able to demonstrate that they’ve lived in a colony for a certain number of years. In Upper Canada this was seven years, reduced to five in 1845. They then submitted a petition to the colonial government. If accepted, they swore an oath of allegiance to the British Crown. They were then granted a certificate of citizenship by the colony or a private Act was made in the colonial legislature.
Because the benefits of being a British subject were most relevant to people of means and the process was slow and potentially expensive, few people who came to Canada on the underground railroad pursued naturalization. Even if Black people immigrating to Canada remained aliens for their entire lives, all children born in British colonies were automatically British subjects.
Public reaction to the underground railroad
The number of Black people fleeing to Canada began to increase around 1840 and again after the 1850 passage of the Fugitive Slave Act. Of the 30,000 to 40,000 people who entered Canada on the underground railroad, it’s believed that 15,000 to 20,000 arrived between 1850 and 1860.
This influx of Black immigrants from the US resulted in a backlash. Residents of Canada West petitioned to close the border to all new Black immigrants during the US Civil War. White people living in British North America were concerned that formerly enslaved people would be unable to work and would rely on government assistance, despite the fact that there was no formal government assistance available.
These numbers seem high until you consider it in the context of immigration at the time.
Around 100,000 free, (presumably white) people left the 13 American colonies to go to what’s now Canada during the American Revolution. Prior to 1815, the vast majority of English speaking people in British North America originated from the 13 American colonies, or descended from them. Of course, these immigrants or their ancestors had been mostly English, Scots-Irish, Scottish, and Welsh.
At the start of Canada’s Great Migration in 1815, there were around 500,000 people living in British North America. Between 1815 and 1850, over 800,000 immigrants came to Canada from Britain and Ireland. In the single year of 1847, 100,000 people left Ireland for Québec. They were so frail and the conditions of the ocean crossing were so vile that a quarter of them died on the way.
The Irish were not as culturally similar to the people settled in British North America as we’d imagine. While most Irish immigrants were Catholic, the majority of Black immigrants coming from the US were Protestant, like the majority of residents settled in English speaking Canada. The majority of Irish immigrants spoke Gaelic and were illiterate. The fact that ships bringing Irish immigrants also brought typhoid, cholera, and other diseases that would create epidemics in Canada didn’t help their popularity.
Both groups arrived in British North America destitute. In fact, it seems like most immigrants took the incredible risk posed by a dangerous ocean crossing and starting over in a colony because they had nothing to lose.
Many Irish children arrived in Canada during the famine as orphans and were indentured to farm families. British institutions began sending children to Canada in the 1830s. Orphans, vagrants, and troubled children were sent to the colonies and indentured to provide help in the household and on family farms.
By 1860, the total population of Upper Canada was 1,400,000. In 1861, the total population of British North America was 3,174,442. By 1871, a quarter of the Canadian population was of Irish origin and in all major settlements the Irish outnumbered those of English and Scottish origin. This did not quell Canada’s labor shortage. In the coming decade Canada accepted another 100,000 orphans through the Home Children program and maintained open immigration policies.
Even if we use the high end of the estimate and assume that 40,000 Blacks immigrated from the US to British North America, that number is insignificant.
The census first counted Toronto’s Black population in 1840, showing 525 Black people in a city of 14,249. By 1850 there were 1,000 in a city of 30,776. Once the US abolished slavery many Black people who had originally come from the US returned. By 1911 the Black population had dropped to 468 while the city had grown to 381,383. Today, fewer than 2% of people living in Canada are Black, compared to 13% in the US.
There were 3,204,313 enslaved people counted in the US 1850 census. High estimates say 40,000 managed to escape to Canada. An additional 5,000 people fled south to Mexico.
Canada and the US always had different immigration patterns and concerns from the time they were first colonized. While Britain sent many convicts and institutionalized people to what would become the US, they did not send them to Canada. This might account for why the US was determined to prevent more people who were socially troubled from entering the country, while Canada was not concerned about people’s moral standing or mental health. Canadians discriminated against various groups living in Canada, but did not take steps to restrict or control immigration.
Support for the formerly enslaved and stateless
Support for people arriving in Canada on the underground railroad was largely through charities and private initiatives. Religious organizations led support efforts, providing temporary assistance to new arrivals and establishing settlement projects and schools to provide long-term support. The Quakers, Methodists, Baptists were heavily involved in both the underground railroad and support of people who successfully made it north.
All-black settlements existed in Canada as early as 1820. There was much debate as to whether self segregation was required for safety or if it perpetuated inequalities. Some settlements were established by white religious organizations, others were established by formerly enslaved people. Given the limited rights of aliens living in a British colony and the lack of resources available to someone who had previously been considered property, there were major hurdles to Black people establishing settlements or providing support to new arrivals without outside support.
Support was rarely monetary. It included free or affordable training to improve employment prospects. Schools were established to teach reading and writing. Programs sold land at affordable rates to formerly enslaved people. Ultimately, though, people arriving in Canada had no guarantee of any support.
Land grants
People living in the 13 American colonies who fled north because they stayed loyal to Britain during the American Revolution, known as loyalists, were given free land grants as a reward for their loyalty. They were given land in Upper Canada and the Maritimes, along with tools, seed, and rations to get them started. The amount of the grant was determined by status and rank, with those having served in the military being larger grants than civilians. Approximately 5,500 Black loyalists came to Canada. Most, but not all, Black loyalists were given land, as promised. However, they were given smaller plots of less fertile soil. Loyalists were able to regain their status as British subjects without waiting times or fees. It’s unclear if Black loyalists were made British subjects in the same way as white loyalists.
From the War of 1812 on, soldiers who served Britain were sometimes given land bounties. Once again, the size of the grant was based on rank. Once again, Black soldiers were given inferior land bounties. Approximately 2,000 Black people immigrated from the US to British North America through this program.
The purpose of these land grants was to encourage settlement by loyal subjects along vulnerable regions, particularly borders and contested areas. It was hoped that they would stifle rebellions and mobilize in case of attack.
Colonial governments offered Crown land at low prices in order to attract settlers to undeveloped areas. By having settlers on land they’d claimed from the Indigenous inhabitants, they could more easily defend their territorial acquisitions. There were also assisted emigration programs which provided inexpensive ocean passage and affordable land, primarily aimed at the Irish during the famine. Black people arriving in Canada from the US generally did not qualify for these programs. There was no racial prohibition, but in practice they were ineligible.
Most immigrants to Canada – Loyalists, the Irish, the Welsh – were already British subjects. Black people coming from the US were foreigners and thus generally faced restrictions preventing them from buying land at all, nevermind through land grant and settlement programs.
Some programs did allow aliens to obtain land. However, because most land sales were advertised in Britain and her European colonies, Black immigrants were unlikely to know about opportunities. Because land was granted and sold through agents, access was limited by discrimination. Black settlers were generally given less desirable parcels of land when they did manage to participate.
No paperwork required for immigration?
It’s hard to imagine being allowed to cross a border – nevermind immigrate! – without any sort of identity document. Yet, it was only in 1978 that the law changed so passports were required to leave the US during peacetime. You might not know this is a law, since it’s almost never enforced. Things are especially relaxed along the US-Canada border. Border agents generally accept any proof of US or Canadian citizenship, such as a birth certificate, rather than requiring a passport.
Until 1856, US passports were issued by the US Department of State, states, cities, and by notaries public. Prior to the Civil War, internal passports were issued to free Blacks in order to allow them to travel within the US, despite their not being citizens. While countries usually issue passports only to their citizens (or subjects), there are exceptions.
Canadian passports were first issued in 1862 when the US demanded identification documents from Canadians crossing the border during the Civil War.
Until WW1, people entering Canada simply stated their name, place of birth, and occupation at the border. When they needed to establish their identity for some reason or another, they might bring a witness to vouch for them. It was relatively common to have letters from government agents, religious leaders, or employers verifying identity. Birth certificates, paperwork confirming ocean passage, marriage certificates, and documents proving naturalization were also kept.
Theoretically, British subjects and aliens had different rights. However, people were not required to have documents to prove this. Often, people simply told their status or place of birth and were taken at their word. Without documents, officials considered their accent, mannerisms, and appearance to decide who was a British subject and who was an alien. This could be tricky for naturalized subjects or children born abroad to British fathers (who were British subjects automatically).
Births were recorded by municipalities and religious orders, but this was not systematic and not every jurisdiction issued birth certificates. Britain was the first nation to centralize and formalize its birth record keeping in 1853. This didn’t extend to the colonies, though. While some US states had systematic records of births prior to the end of slavery, there was no requirement to record the birth of enslaved people, who were legally property.
Until recently, people could live their entire life without requiring documents to prove their identity or nationality. Those who did have documents did not need them to be consistent. My grandmother’s documents list various birth dates. My mother is experiencing minor trouble because the spelling of her name doesn’t match on all documents. Before things were managed in national computer databases, these were not problems. Today they can become major hurdles.
Statelessness then and now
Today, it’s difficult to imagine being able to move to a new country without a birth certificate and travel document. In fact, people who cannot obtain birth certificates can’t do much at all. They are denied access to medical care, education, and social support programs. They cannot work legally, get a drivers license, or get married. US states and provinces have programs to record births after the fact, so instances where people are denied proof of citizenship (or existence!) are mercifully rare.
These modern programs would obviously not be accessible to people whose births were not recorded because they were property, who were not citizens of the country where they were born, and who were considered fugitives in their home country. Today, people are typically unable to obtain documents because their home government is unstable or documents have been destroyed by war or natural disaster.
The US now recognizes all people born in the US as citizens. Birthright citizenship is relatively rare. The UK, Germany, France, Japan, China, Russia, India, Italy, South Korea, and Taiwan only grant citizenship based on the nationality of the parent. In some countries, citizenship continues to have ethnic and racial discrimination like the US once had. This list includes Myanmar (Rohingya), Dominican Republic (people of Haitian descent), Kuwait (Bidoon), Bhutan (Lhotshampa), Israel, and the Gulf States (long-term minorities, children of migrants). Similar problems of statelessness plague the Roma people and Palestinians displaced in 1948 and 1967 and their descendants born in countries without birthright citizenship.
Today, stateless persons can be issued a Canadian certificate of identity in order to establish their identity and allow them to travel. Countries will sometimes offer stateless people a one-time exit permit as a temporary travel document.
Asylum then and now
When I read Transit, by Anna Seghers, I was surprised to realize that the real challenge of fleeing the Nazis wasn’t sneaking across the German border, it was about getting your paperwork sorted out so you could leave the continent. The characters needed an entry visa from the Americas in order to get an exit visa from any European country in order to buy a ticket for the ocean voyage. Only the documents were impossible to get without engaging in fraud, they all expired after a short period, and it was practically impossible to get everything you needed to be valid simultaneously. And even if you did, the ship might not sail or it might be sold out or they might end up denying you entry anyway.
Despite my not being on the run from the Nazis, much of the book felt very familiar. I’ve spent much of the past decade filling out forms, paying fees, obtaining various documents, paying to have things translated and evaluated, getting medical exams, having my biometrics taken, getting police clearance certificates, taking language exams, traveling to government appointments so someone can examine my documents in person, mailing documents that are difficult to replace if they’re lost, and waiting in legal limbo. Indeed, trying to ensure that all of the documents are valid simultaneously and getting an appointment to submit them seems like an impossible feat, yet people manage it.
Fleeing the Nazis sounds oddly like our modern immigration system for all categories of immigrants. Yet the experiences of stateless people fleeing hereditary enslavement with the underground railroad could hardly be more different from people fleeing the Nazis. The underground railroad experience also bears no relation to asylum seekers today, set up in response to the atrocities of WW2.
During the era of the underground railroad, there was no such thing as a refugee, asylum seekers, or a stateless person. Black people moving to British North America during the era of the underground railroad were refugees. Sure, what they did fits the spirit of these concepts. However, those concepts did not yet exist and there was no legal category for them. They crossed the border into Canada and became residents like everyone else. There was no special program for them. As far as the legal system is concerned, they were not refugees.
Today, there are many programs for entry into Canada and everyone must fit into one of them. Canada’s immigration system is built on the assumption that applicants have a recognized nationality. There is no immigration pathway specifically for stateless people. The system does make allowances for people who are stateless and without documents, although this makes the process much more difficult and slow.
If a stateless person is living in a refugee camp, the UN Refugee Agency may resettle them in Canada. In this case, they would be issued Convention Travel Documents and other temporary papers as needed for resettlement. Fewer than 1% of refugees are ever resettled and the waiting time is currently around 20 years.
They could also apply for permanent resident status in Canada on humanitarian and compassionate grounds. This generally requires someone to have family already living in Canada and proof that they face extreme hardship. Canada grants about 10,000 of these each year, although the number fluctuates significantly.
If a stateless person were to travel to Canada in order to make an asylum claim, they must clearly state that they want to claim asylum and are asking for refugee protection as soon as they come into contact with border control or the police. This might take place at the border with Canada Border Services Agency. If they crossed irregularly at an unmarked crossing without undergoing inspection, they need to go to the authorities and make this claim.
Border services or the IRCC would then gather information on their identity, including their biometrics (fingerprints and photos). They use this information to check databases to see if they have criminal charges or prior asylum claims. They will have the claimant fill out lots of paperwork at the border. Then, most asylum seekers are simply released into the community, perhaps with some referrals for support programs. This lack of formal support is the one thing the modern asylum system has in common with the experience of people who came to Canada on the underground railroad. People applying for refugee status within Canada do not qualify for the organized settlement services available to refugees who are resettled in Canada by the UN.
Border services may detain someone while their identity is being established, if there’s a concern that they won’t show up to their refugee hearing, or if they’re considered a danger to the public. They would be held in immigration holding centres, not prisons. The distinction is largely a formality, though, as conditions in both institutions are similar.
Once it’s decided someone is eligible to apply for refugee status, which generally takes a few weeks, they can apply for a work permit, enroll in public healthcare (through the Interim Federal Health Program), and enroll their children in school. In some provinces they’re eligible for social assistance. Claimants need to undergo a medical exam to prove that they’re not medically inadmissible to Canada.
If they are determined to be eligible to make an asylum claim, they’re asked to complete a basis of claim (BOC) form, which they fill out to detail their history and evidence of persecution. The BOC is very important. The information on the form needs to perfectly match any documents. Minor discrepancies can create major hurdles. Asylum seekers are advised to get legal assistance completing the BOC, but they only have 15 days to fill it out. Legal help is provided by several provinces, as well as through NGOs and pro bono services by lawyers. The forms can only be submitted in person at an IRB office, by courier, or by fax (if they’re under 20 pages).
If the form is submitted late, the claimant will have to go to an abandonment hearing, generally a week after the BOC deadline. They will have to successfully argue for why the deadline was missed and the claim should still be accepted. If the claimant doesn’t attend the hearing or if the petition is denied, the claim will be declared abandoned and the claimant will be ordered to leave the country.
After the BOC is accepted, claimants are given a date for their refugee hearing. Generally hearings are scheduled 60 days out.
Some countries hold asylum seekers in refugee camps, such as the Netherlands, Greece, Italy, Malta, Spain, and Australia. Canada does not have refugee camps, which means claimants are responsible for their own housing, food, and supplies. Many refugee claimants live in homeless shelters. Others find spots in refugee centers set up by NGOs, religious organizations, or community groups. They may also be paired up with host families to provide housing and help them get settled.
The time it takes for an application to be processed and a hearing to be decided takes somewhere from a few months to three years. If it’s denied, it can drag on for an additional decade.
Many asylum claims are denied. In 2017, over 50,000 people applied for asylum. The percentage of claims that are approved fluctuates significantly, but generally more claims are denied than approved. However, failed claimants may still become permanent residents of Canada through family sponsorship, humanitarian grounds, economic programs, and other pathways.
After a claim is denied, claimants may be detained if it’s believed that they may not cooperate with deportation. If it’s determined that they do not qualify to remain in Canada, they will undergo a pre-removal risk assessment. If it’s determined that the claimant faces a serious risk of persecution, torture, or cruel treatment, they will not be returned to their home country.
Given a scenario where people are fleeing the US because of a system of hereditary enslavement and statelessness, Canada would doubtlessly approve refugee claims. However, those people would face significant hurdles – and uncertainty – upon arrival in Canada that people taking the underground railroad did not face.
Open borders then and now
Some of my friends support open borders. They don’t just mean open borders within the Schengen Zone or restoring easy crossing between Canada and the US. They disapprove of the enforcement of immigration law because they believe there should be no restrictions on immigration anywhere in the world. People living in different nations have dramatically different opportunities despite our being equally deserving and thus it’s immoral to restrict movement. They want to see the right to move freely across borders to live, work, and study without visas or passports. Open borders would render refugee status irrelevant.
Looking at the era of the underground railroad, it seems like the US and Canada had open borders. They had virtually no restrictions on movement of people across the border. I can’t help but notice that both of these were settler colonial states where many people were also transported across the border involuntarily. The United States and British North America were in desperate need of exploitable labor. They also needed people to settle the land in order to defend their claims on disputed territory. The reason borders were unrestricted was not in order to allow for freedom of movement based on a belief in essential human rights.
Because travel to North America was limited based on people’s ability to purchase passage from, there was no need to restrict movement by law. When ships traveling between China and the US didn’t provide large numbers of spots for passengers, there was very limited immigration from China. Restrictions were introduced when people from “undesirable” nations began to arrive in larger numbers. Perhaps British North America would have introduced restrictions against Black people had the US not ended slavery or had more of them chosen to remain there permanently. Many Black settlers to Canada ultimately chose to return to the US or immigrate to another country.
The era before WW1 wasn’t an era of open borders so much as it was a time before the bureaucratic nation-state model of passports and visas had been developed. Of course Canada and the US did not have federal immigration restrictions in an era before immigration was controlled by the federal governments (and Canada was a collection of British colonies).
There were immigration restrictions, just not federal ones. In the US, towns and counties had settlement laws which allowed them to exclude, or ‘warn out,’ people they saw as a potential pauper. While ostensibly laws determining who was responsible to provide for the elderly, disabled, and poor, these laws were used to restrict mobility. These laws were not about international immigration, they regulated mobility within the US as well.
British North America had similar settlement laws. In Lower Canada, the seigneurial system meant potential settlers needed to be accepted by the seigneur. In British North America, land grants came with settlement duties. This might include clearing land, building a dwelling, and living in the area for a certain amount of time before they had the right to stay. People who did not meet these conditions could lose their land and be warned out from the area. Upper and Lower Canada could repatriate new arrivals who failed to support themselves, returning them to Britain or Ireland, although it seems unlikely they’d go to the trouble very often. They were more often confined to poorhouses, where they labored without pay, or shipped to the frontier, where they could live or die without bothering anyone.
This system of using poor laws to restrict mobility came from Europe, where you needed the right of residence to settle in an area. Moving might require approval both to leave your current residence and to settle in a new one. People who left without permission from their sovereign might be accused of disloyalty, barring them from ever returning. People who left their home district might find themselves becoming a seasonal laborer without the right to settle. When they became unable to work, their best hope would be to find a monastery or leper colony to take them in for their final years.
In England land ownership was controlled by the aristocracy. Peasants accessed land through communal systems, leases, and customary rights. These would not be easily accessible to newcomers. There were sometimes restrictions which explicitly prevented foreigners from buying land, although these were focused on balancing control within the European aristocracy, rather than being concerned about the aspirations of regular people. The practice of skilled trades was controlled by guilds, so people could not work until they’d been accepted into the guild. The ability to work in certain trades might require buying local burgher rights or marrying into a local family. Most intra-Europe migration appears to have been seasonal laborers traveling with their region.
Because internal migration was heavily restricted by local law, there was no need to create separate rules for international migration.
Note that an overwhelming of Irish people fleeing the famine settled in British colonies and the US, not to continental Europe. The Irish who resettled in continental Europe did so using existing ties to Catholic countries. After 1801, the Irish had the right to live in England, Scotland, or Wales. In reality, they faced serious discrimination. England was eagerly shipping their own people to the colonies, since even with the rise of industry they had a surplus of laborers. Passage to the colonies, on the other hand, was subsidized so it was often less expensive than moving within Europe. They were promised free land and endless opportunities for success. It’s difficult to imagine what the offer of free land would have meant to someone for whom land ownership had previously been unimaginable.
Because European governments and the US needed settlers in order to defend their territorial claims and to build the infrastructure for colonial expansion and extraction, governments and corporations recruited Europeans to come to the colonies and the former colonies of the US. Towns with major labor shortages were less likely to strictly enforce settlement laws, since newcomers could easily find work. Those who did not obtain permission to settle could easily be sent off to the frontier or onto the next town.
Western, Northern, and Eastern Europe saw rapid population growth during this era. People from Western and Northern Europe immigrated to Europe’s colonial empire in great numbers. Others were forcibly resettled in the colonies (or to internal colonies where their movement was heavily restricted). In Eastern Europe people were restricted from leaving by serfdom and land tenure systems.
Let’s also consider the people whose lands were being resettled. Indigenous people were neither aliens nor British subjects. They were domestic dependent nations. This status resulted in them being treated as wards under colonial protection, much like foster children and adults who have been deemed incompetent by the court. Reservation land was held in trust for them by the Crown and they were barred from owning land independently. Soon after this time period, Canada created internal passports and other permits used to restrict the mobility of Indigenous people outside of their assigned reservation. In order to gain legal rights, they needed to undergo enfranchisement. This meant giving up their legal Indian status and assimilating according to the requirements of the 1857 Gradual Civilization Act and 1869 Gradual Enfranchisement Act.
Indigenous people faced similar conditions in the US, where they were also domestic dependent nations. They were theoretically self-governing within their territories. Outside of Indian territories they were treated as foreigners and faced restrictions on movement, residency, and land ownership. They could naturalize to become US citizens and were sometimes forcibly naturalized collectively. They became US citizens in 1924.
Even though this era did have borders that were theoretically open because of the lack of federal restrictions and documentation requirements, in practice, mobility was heavily racialized and used for settler colonial aims. Immigration was controlled on the local level, with restrictions on mobility applying to citizens, subjects, and aliens alike. The ability to own land was used as a way to manipulate people under the control of colonial empires. Rights were extended to some disenfranchised groups (the Irish, institutionalized people, the formerly enslaved) in order to suppress the rights of Indigenous people. So, the era of virtually unrestricted immigration into Canada and the US is not a useful example of the modern concept of open borders.
“Underground Railroad Memorial” by 123 Chroma Pixels, CC BY-SA 2.0
