Mobility Controls and Alien Laws: Common Patterns and Particular Genealogies

The surge of alien laws across the British empire, and beyond, around 1800 prompts us to reconsider the genealogy and functioning of the legal regulation of migration and aliens. Tracing the emergence of today’s international border control system, historians have homed in on the decades before the First World War when states across Europe and the Anglophone world cracked down on the movement of unwanted aliens, Asians, and Eastern European Jews in particular.Footnote ¹² Revolutionary-era alien laws point to a crucial moment a good century earlier when “aliens” already became the center of legal regulation. And, they point to the crucial role colonial spaces played in alien regulations during this period.Footnote ¹³ With the continued crafting and application of alien laws, the colonial Caribbean was arguably a more extensive experimental ground of migration control during this period than the British metropole.

On their surface, the British Aliens Act of 1793 and the colonial alien laws that were passed around the same time in colonies like Jamaica, Saint Vincent, and Dominica shared some major features. Most importantly, they put a strikingly broad category at the center of regulation—the “alien”—modeled on the clear-cut distinction between natural-born British subjects, on the one hand, and foreign-born aliens, on the other. This distinction put primacy on the place of birth. Following a legal tradition that reached back to a landmark decision in the early seventeenth century (Calvin’s Case of 1608), a natural-born British subject was a person born within the dominion of the British crown and into life-long personal relationship of allegiance and protection with the monarch, while an alien was born outside of it.Footnote ¹⁴ Place of birth thus constituted a “natural” denominator of belonging, but British subjecthood law also included, from its beginnings, paths to subjecthood beyond the “natural” acquisition of allegiance. Hand in hand with an expanding global empire, British notions of subject and alien teemed with an increasing variety of temporary, partial, conditional, and ambiguous statuses in between. Revolutionary-era alien laws pushed the legal framework away from the elastic boundaries between subject and alien and further toward a more rigid distinction between the two. At the same time, legislation centering on the broad category of “alien” intervened in a fuzzy and dynamic legal and bureaucratic vocabulary of mobile people and border-crossers, where the lines between who would count as a “prisoner of war,” a “refugee,” a “slave,” or a “convict” (to name but a few) were not clearly drawn.Footnote ¹⁵ The clash between a sharper legal division between subject and alien and a murky legal and social practice put new emphasis on particular “regimes of proof” in determining individual subject and alien status.Footnote ¹⁶

The British metropole and its colonial territories also adopted similar policies when it came to reshaping the status of aliens, in particular their registration upon arrival and a stricter regulation of their movements within the territory. At times, they also introduced restrictions on the acquisition of subjecthood. But most importantly, they always included provisions for the removal of unwanted foreigners. Metropolitan governments and colonial legislatures emphasized that these regulations were emergency measures in response to the immediate threat of revolutionary upheaval. The regulations strengthened executive power and extra-judicial procedures. This is one of the major differences with the legal frameworks of convict transportation that were at the time also widely used as a means of colonial governance; while transportation passed through the courts, alien laws were all about avoiding the judiciary. They were a testament to what we may call the joint efforts of “de-judicialization” by local legislatures and governors.

Finally, while they usually applied to all foreigners, alien laws also singled out particular groups. Broadly speaking, North Atlantic regulations focused on movements relating to the French Revolution, while Mid- to South Atlantic ones concentrated on the Haitian Revolution. Alien regulations in the British Caribbean thus generally placed their main target on migrants from Saint-Domingue, in particular people of African descent, both free and enslaved. The Jamaican alien acts, for instance, set particularly low barriers for deporting “people of colour or negroes” who “may be sent from St. Domingo… for the purpose of exciting sedition, or raising rebellions.”Footnote ¹⁷ Often, the main target on free and unfree border-crossers of African descent or origin was further specified along local criteria. Thus, Saint Vincent’s alien act put special onus on “all free People of Colour whosoever” having arrived after the outbreak of the major insurrection by the Indigenous Caribs in 1795.Footnote ¹⁸ As they appeared to homogenize outsiders, alien laws made sure that statuses among aliens varied tremendously.

The revolutionary-era moment of migration control also shows that laws targeting aliens and inter-state border-crossers had legal blueprints in various regulations of undesired mobilities, domestic and foreign alike.Footnote ¹⁹ Though they took shape during a relatively short period of time, revolutionary-era alien laws reveal local genealogies that stretch much deeper in time. The regulation of migration, the suppression of undesired forms of mobility, and the surveillance of particular types of mobile people as state and societal practices were anything but new in the 1790s. Since at least the Late Middle Ages, states across Europe and beyond had required travelers to carry identity papers and badges, and local authorities exercised the right to remove nonresident paupers and mobile poor (“vagrant”), diseased, criminal, (wartime) enemy, or potentially disorderly individuals.Footnote ²⁰ Labor relations, both free and unfree, were also shot through with regulations that immobilized the workforce. In many cases, revolutionary-era alien laws were built on patchworks of local regulations as a model, which in turn gave these laws a clearly recognizable imprint and made them prone to particular uses.

The alien acts in the revolutionary-era Caribbean were a case in point. While they were (re)regulating alien status during the 1790s and early 1800s, most British Caribbean legislatures drew on preexisting models that allowed for mobility control and the expulsion of categories of undesired individuals. These legal tools were shaped by the needs and views of the islands’ slave-holding elites. Long before the slave insurrection in Saint-Domingue, local authorities had sought to monitor and regulate the whereabouts on land of foreign ship crews, and especially of seamen of color.Footnote ²¹ But the most important sources of mobility control and deportation were the laws targeting the enslaved population. Marronage had long been a major concern behind the mobility controls built into British Caribbean slave acts.Footnote ²² These acts sought to discourage and monitor the movement of enslaved individuals through passport or ticket systems. They also established punitive transportation of enslaved people to non-British colonies, and this form of punishment was commonly imposed by local slave courts. Rooted in these earlier efforts, legislation in the 1790s and early 1800s transferred these racialized policies of mobility control and deportation to free individuals categorized as “aliens.” Quite often, their authors barely hid their legal model by including provisions that may have been taken verbatim from slave codes, such as the control of firearms on plantations in the 1823 Antigua aliens act or the requirement for free people of color to document their free status at all times in the Saint Vincent act.Footnote ²³

Under the umbrella of “alien acts,” a set of laws emerged in the British empire in the late 1790s and 1800s that was both coherent and diverse. As the first statutory effort to regulate aliens as such, these laws worked at hardening what had been a rather porous boundary separating natural-born British subjects and foreign-born aliens. Building on different local models of mobility control, the alien laws, however, also varied in their content and local application, and could also, at times, conflict with each other in a shared imperial space. In the Caribbean of the 1820s, this local imprint also assured the laws’ continued importance even as the revolutionary era drew to a close and the fear of revolutionary unrest receded. Alien laws became a preferred legal tool when various groups pushed to recalibrate their status within the British empire in the 1820s. As a result, these often-obscure laws also became embroiled in larger constitutional conflicts that beset the empire on a global scale, further complicating issues they were supposed to solve.

Free People of Color

The late 1810s, and especially the 1820s, saw increased campaigns by free men of color across the British West Indies for equal rights as British subjects. Along with the abolition of the slave trade, antislavery mobilization, and “amelioration” policies, colonial governments and local legislative assemblies perceived this push for political emancipation by free people of color as a major threat to the existing racial social and political order. Some of these campaigns had been decades in the making, yet they came to the fore more forcefully, when a royal commission of inquiry into the legal and political colonial systems toured the British West Indies in the mid-1820s.Footnote ²⁴ Representatives of free communities of color saw their chance to bypass mostly hostile assemblies and administrations and turned to the royal commissioners to present their grievances and demands for improvement as loyal subjects to the Crown.Footnote ²⁵

In their complaints to the Crown, existing alien acts cropped up repeatedly. In their 1825 petition to the commissioners of inquiry, for instance, Saint Vincent’s free people of color put the 1797 island’s alien law first among “several acts of the island, which are made to operate exclusively and with much severity against colored persons.”Footnote ²⁶ They conceded that this law “so far as relates to Foreigners (by which term your memorialists conceive that no person born in a British Colony can ever be designated)…, though severe, was expedient at that time.” A quarter-century later, however, “the meaning of the act [is] perverted”: “all persons of color [are] considered as aliens,… they are the only persons against whom it is enforced.” Driving what Saint Vincent’s free people of color considered the “perversion” of a remnant of a bygone emergency was the reinvention of alien acts against the backdrop of a much more recent setting: the renegotiation of Britain’s Caribbean mixed-race subjects’ status.

For colonial officials, racialized alien laws held two major advantages in their quest to reign in the free-colored communities’ claims to equal subjecthood. First, as they provided the executive government with sweeping powers of extrajudicial removal against persons of African descent—no matter if free or unfree, as long as they were categorized as “aliens”—alien laws played a crucial role in the attempts to suppress free-colored political movements. Along with this practical advantage came a symbolic dimension: By broadly applying alien acts to free people of color, officials were denied the allegiance and status of this part of the population as loyal subjects that were the foundation of the campaigns for racial equality. Facing criticism against the partial use of the alien law, Saint Vincent’s acting governor William John Struth was quite blunt about this connection when he defended it as “a most salutary Statute as regards the introduction of bad or doubtful characters particularly at a time when measures are in progress to relieve the persons more immediately affected by the act from all their past disabilities.”Footnote ²⁷

The possibility of using alien laws as a mean to reaffirm racial boundaries of subjecthood also clearly prompted some colonial legislatures to reinstate or create new alien laws. This was the case with Barbados that passed its own Alien Act as late as 1819. This act explicitly put white non-subjects (aliens) and “every Free Negro and other Free Person of Colour, not a Native of this Island” on the same legal footing; by restricting the category of natural-born subject among Barbados’ free people of color to those locally born, all resident free men and women of color born in another British colony became aliens; they were thus subject to particular fees and potential extra-judicial incarceration or deportation, even if they were legally natural-born British subjects.Footnote ²⁸ The power of deportation, under this alien act even applied to “any Free Negro or Free Person of Colour, whether the same be natives of this Island”—thus natural-born local subjects in the narrowest possible sense of the term.

In its wording, Barbados’ alien law was explicitly not concerned with aliens alone; it was a tool to deport any person of color, no matter whether alien or subject. But what may have passed unnoticed during the antirevolutionary scare some 25 years before was immediately met with protest.Footnote ²⁹ The alien act ironically gave Barbados’ free people of color a mobilizing boost. At a public meeting in June 1819, some 500 free men of color elected a committee that would not only express their protest against the law but also serve as the uncontested spokespersons of Barbados’ leading free people of color for some years. In response to the protest, the Assembly readied itself to adjust the wording, but as the revised text was not submitted to the other branch of legislation (the Council) before the 1819 elections, the repeal was incomplete and the original act remained in full force. However, it was not put into execution as the governor did not appoint an alien inspector before he left his position shortly afterward—leaving an ambiguous legal situation of which his successor allegedly only learned years later “not from any official information, yet from such sources as admit of little doubt of their correctness.”Footnote ³⁰

Whether the wording of the laws went as far as Barbados’ Alien Act or not, what mattered most was how they were being used. There is extensive evidence that especially low- and mid-ranking officials across the British Caribbean used the provisions of the alien acts indiscriminately to suppress all sorts of behavior by free men of color that they deemed a threat to the public order. When Joseph Mason, a free man of color supposedly born in Martinique, exposed himself in a public space in Bridgetown, Barbados, in April 1824, Richard Pile, a local Justice of Peace, sprang to action.Footnote ³¹ He arrested him and locked him in the common jail, with the expectation that Mason would not be tried in court for misdemeanor but deported under the island’s alien act that Pile considered to be in force. Governor Henry Warde, however, who would have been in charge of initiating the deportation did not consider the act in vigor as he still had not yet appointed an alien officer. Both men passed on to other business—only that their detainee remained in legal limbo, and detained without food. Mason died of hunger about two weeks into his detention.

In general, such arrests and deportations under the alien laws were part of a well-honed machine that only left traces in the archives, when conflicts arose, or people affected by it—or their allies or supporters—protested. Such conflicts however also showcase the general state of mind in which these laws were used against free men of color. As there were no legal checks in place, and in line with its symbolic power, the provisions to arrest and deport “dangerous aliens” were applied quite broadly, often on rather flimsy grounds and against persons whose alien status was not quite clear. Since its extra-judicial provisions hinged on the notion of a clearly defined distinction between subject and alien, the extensive use of alien laws could also backfire, when officials ventured too far into the gray zones of subjecthood. This was the case with Armstrong, a free man of color, resident in Saint Vincent and working in a bakery.Footnote ³² When he was accused of stealing bread in 1826, a bench of Magistrates arrested Armstrong under the provisions of the alien act, which provided for flogging and deportation. As Armstrong was, however, born in Antigua, he was, by law, a natural-born British subject, something not even the colonial administration disputed. After Armstrong petitioned to London “with an elaborate Law opinion”Footnote ³³ (in the words of the grudging governor) about the violation of his subject rights, the metropolitan government intervened against the local efforts to limit the status of British subject to those free men of color born within the colony. As Saint Vincent officials were trying to treat natural-born subjects as aliens, officials in Saint Lucia faced an almost inverted problem: While the target of their deportation efforts, a free man of color named Louis Léonce, was undoubtedly a Martinique-born alien, they were operating with laws they had taken over from their French predecessors. Even though local and metropolitan legal experts agreed that there should be a way to remove an undesired alien, they remained at a loss as to whether it was possible to remove a French subject as an alien under French law.Footnote ³⁴

In contrast to those who were at least engaging in some verbal and legal acrobatics to justify the use of alien acts in cases of doubt, the Assembly of Barbados was quite blunt in its attempt to stretch the application of its controversial 1819 Alien Act to its maximum. In late 1823, a group of free men of color broke away from their self-appointed leaders, who had just presented an address of loyalty to the Assembly and distanced themselves from abolitionism. In a public counter-address to the governor, they called for more rights and declared their “neutrality” in a political question that did not concern their own situation, that is, the question of slavery.Footnote ³⁵ The Assembly sought to revive the long-dormant alien act—in its initial form—to crack down on the group. After a brief investigation in February 1824, they singled out two men connected with the petition and requested the governor to “transport” them under the alien law.Footnote ³⁶ Neither of them had been among the leaders of the initiative but appeared to have French-sounding names. One of them, John Thomas Calliard, a Barbados resident for over a decade, had been born in Saint Vincent, hence was also legally a natural-born British subject. While Calliard would fall under the law’s expanded notion of natural-born alien only applicable to people of color, the Assembly pushed the boundaries even further when they requested that the governor would “be pleased to extend the operation” of the law to Frederick Dottin, “a dangerous subject,” for whom they did not cite a place of birth outside of Barbados. Asked to weigh in on the request, the colony’s law officers stated that the law as such was in fact inactive as long as no alien inspector had been appointed and thus avoided elaborating on the thorny question of applying the alien legislation to two categories of natural-born British subjects of color.Footnote ³⁷

This initial setback was in a way a blessing in disguise for the Barbados government as it prevented the administration from becoming embroiled in a constitutional crisis similar to one another British Caribbean colony would face. The move of the Assembly of Barbados in February 1824 to use alien laws against politically active free men of color seems to have been taken from the playbook of Jamaica’s Assembly. In November 1823, at the instigation of members of the Assembly, the Jamaica governor deported Louis Celeste Lecesne, John Escoffery, and Jean Gonville, three men of color, children of mixed-race refugee families from Saint-Domingue, as “dangerous aliens.”Footnote ³⁸ Two among them, Lecesne and Escoffery, were doing business with leading members of the Jamaican free men of colors’ political campaign and were loosely connected with it. They were among the signatories of a petition for political emancipation, which was rejected by the Assembly in November 1823.Footnote ³⁹ Citing vague allegations of conspiracy with Haiti, the three men were arrested and deported under the Jamaican alien act, as a calculated move to discredit the declarations of loyalty by the free-colored political movement.

Lecesne’s and Escoffery’s places of birth, and thus political belonging, however, were in doubt. Both claimed to have been born in Kingston shortly after their parents’ arrival in 1795 and 1798, respectively. While they were lacking definite proof of their birth in the British monarch’s domain, their case showed how little this formal criterion mattered for social practices of belonging; for roughly a quarter-century, they had lived lives in Kingston as if they were natural-born British subjects. As Lecesne and Escoffery were able to enlist the support of leading abolitionists in Great Britain, their deportation case grew into a major legal and political battle that would last well into the 1830s. This legal battle soon turned into a much more fundamental debate that played out in parliamentary chambers, courtrooms, and in the press; it also came to occupy and tarnish the royal commission of inquiry in the West Indies.Footnote ⁴⁰ The case ignited fierce struggles over colonial alien legislation more broadly and over the executive powers granted by them.

The most pressing question for the British government in the affair came down to a rather simple alternative: Had the governor illegally deported British subjects, or had he used the legal powers vested in him by the alien legislation to protect British subjects (and to deport dangerous aliens)? Even after five years of evidence-gathering and testimonies, Lecesne’s and Escoffery’s places of birth could not be determined beyond doubt. In this situation, the metropolitan government decided to consider Lecesne and Escoffery—regardless of where they had been born—natural-born British subjects. The government thus tapped into arguments that had emerged during the deadlocked controversy. In this context, the case of the third deportee, John Gonville, proved decisive. His case had proceeded in obscurity during most of the debate, as his birth in Saint-Domingue in 1797 seemed to establish beyond doubt his alien status. In mid-1827, Gonville provided a local legal opinion, which implied that he may be legally considered a natural-born British subject as he was born at a place that was then occupied by British troops.Footnote ⁴¹ Shortly afterward, a newly appointed legal advisor in the Lecesne-Escoffery case supported that line of argument. He concluded that the question of the place of birth was in fact irrelevant; that Lecesne and Escoffery were to be considered natural-born British subjects even if they had been born in Haiti since their birth had happened during the British military occupation of parts of Saint-Domingue between 1793–98.Footnote ⁴² This legal opinion intervened in ongoing debates about the legal nature of government under temporary military occupation, as it interpreted the military occupation of Saint-Domingue as a conquest with automatic transfer of British sovereignty.Footnote ⁴³ The British government quickly embraced this idea and laid the legal foundation for a way out of the affair. For the government, this solution offered the advantage of settling an increasingly damaging case in favor of the deported men without charging the governor with illegal conduct, and without creating a legal precedent. For the three men concerned, it was a victory on all accounts. They were officially recognized natural-born British subjects—starting with Jean Gonville, who had initially not claimed to be one. They were allowed to return to Jamaica and were granted compensation for the losses they had endured.

The legal position that emerged during the Lecesne-Escoffery case did not only provide a way out of the affair. Despite being couched in terms of established subjecthood law, it set forth a re-consideration of British subjecthood as such, for it moved the boundaries of who was to be considered a natural-born subject. There was no precedent in British case law to support the idea that the temporary military occupation of a territory would confer the status of natural-born subjects to newly born residents of that territory. Instead of reinforcing racial boundaries of subjecthood against free people of color, the use of alien laws in the Lecesne-Escoffery affair generated a debate that opened up new pathways into British subject status.

Enslaved Fugitives

At the very time of the Lecesne and Escoffery affair, colonial Caribbean alien laws received renewed attention—and use—in yet another major arena of the age of emancipation: the 1807 abolition of the slave trade, and in particular its use against a group of mobile people who have only received scant attention in scholarship on state-sponsored abolition in the British empire: intercolonial maroons, foreign enslaved fugitives, or “refugee slaves,” thus enslaved men and women who escaped slavery in non-British territories.Footnote ⁴⁴ To be sure, by the early 1820s, neither the slave trade ban nor flight from slavery were anything but new. Attempts at self-liberation by crossing imperial borders had long been known in the plantation worlds of the Americas, including escapes into British colonies, even if they did not constitute a prime destination. Apart from the well-known policies of Catholic sanctuary in Spanish America, the treatment of fugitives during peacetime was usually governed by an intercolonial practice of mutual return, or “restitution,” of enslaved fugitives claimed by their foreign enslavers; those that went unclaimed were re-enslaved either within the territory or by exportation.Footnote ⁴⁵ This practice remained largely uncontested in the early 1800s, until, in the early 1820s, a series of events and legal struggles connected intercolonial marronage and slave trade abolition in a way that created an explosive legal issue at the imperial level.Footnote ⁴⁶ The crucial question that pitted a few local officials against the plantation establishment was whether the 1807 slave trade ban provided for a different treatment of foreign enslaved fugitives.

In West African Sierra Leone, in particular, anti-slave trade legislation had been the foundation for a policy of expanding British jurisdiction and of generating material benefits from the “forfeiture” of captured slaves and their reassignment as military recruits and bonded laborers (“apprentices”).Footnote ⁴⁷ When seized on board a slave ship and condemned by a vice-admiralty court, an enslaved person would be “forfeited” to the Crown, nullifying any previous property title. The person, now turned into a “liberated African,” became available for further employment. The task of receiving and providing for captured Africans, bringing them to court, and “disposing” of them as military recruits, apprentices, or free settlers, fell to the customs officer. Especially under Governor Charles Maxwell (1811–15), Sierra Leone’s antislavery system was geared toward wartime prize law that incentivized privateers for each (allegedly) enslaved African they seized and brought to court. The system ran into trouble after 1814 when vice-admiralty courts returned to their peacetime existence of “court(s) of no profit, and of very little if any business,” as planter-historian and longtime vice-admiralty judge Edward Long had put it.Footnote ⁴⁸ The post-1814 peacetime agreements usually passed captured Africans to bi-national “mixed commissions.” Such peacetime treaties did, however, not cover the status of enslaved foreign fugitives, making them a new potential target for a system that had created vested material interests. Under the guidance of Maxwell, since 1816 governor of several Caribbean colonies, customs officers began to expand their jurisdiction to include foreign enslaved fugitives.Footnote ⁴⁹ They seized them and brought them to court, escalating fierce conflicts over the scope and the limits of their antislavery mandate.

When this question reached the highest-ranking law officers in London, the Crown Lawyers, they issued an opinion with far-reaching consequences. They declared in 1822 that “fugitive slaves from foreign colonies do not, in any case, come under the provisions of the [Slave Trade Act] and cannot be proceeded against under that Statute.”Footnote ⁵⁰ Yet, the Crown Lawyers did not condone a return to restitution either: “fugitive Slaves from foreign colonies cannot be removed from the colony or settlement to which they have come.” This opinion stemmed from the fact that enslaved fugitives were not listed among those exempted from the slave trade ban. As a result, the prohibition of being removed “as slaves or to be dealt with as slaves” applied to them automatically. The omission had another key consequence: enslaved fugitives were considered free persons, unlike “liberated Africans,” whose freedom was heavily restricted, or what Maxwell and his allies may have assumed. Imperial authorities in both the Caribbean and London eventually realized that enslaved fugitives moved in a legal gray zone, effectively creating a de facto free-soil policy within Britain’s plantation system.

Government officials sought to solve the issue by consistent legal means. Their attempts, however, stumbled into a variety of contentious legal issues for which they lacked easy answers:

• Was there a distinction to be made between Africa-born and America-born (i.e., “Creole”) individuals among the fugitives, with the provisions of the Slave Trade Act only extending to those brought from Africa since the enactment of abolition? If it was confined to those, “recently” imported, how would “recently” be defined and what would be the factual foundation for determining it? In the absence of written evidence, who could claim the knowledge and expertise to accurately delineate between the groups?Footnote ⁵¹

• Would “illegal importation” also include what a local judge mocked as “self-importation” of fugitives or any other form of “accidental” importation against the will of the owners?Footnote ⁵²

• Was there some preexisting principle of free soil in British law with regard to the British Isles? Did the Slave Trade Act de facto constitute a principle of free soil across the British empire, making enslaved individuals free upon entering any British colony?Footnote ⁵³

• Did inter-state “Law of Nations” provide for the extradition of enslaved fugitives—even in the absence of bilateral extradition treaties—or for their protection?Footnote ⁵⁴

• Was it possible, or even necessary, to distinguish the written letter of the Slave Trade Act from the Legislator’s actual intention, and if so, who would be entitled to decipher the Legislators’ true intentions?Footnote ⁵⁵

As these legal intricacies complicated a quick response from metropolitan officials, action on the ground created new facts. Individuals—both enslaved and colonial officials—set out to define “protection” and freedom granted by the Abolition Act. In Nevis, Governor Maxwell decided to set a foreign fugitive named Thomas, free, “in a state of unqualified liberty.”Footnote ⁵⁶ Other local authorities, by contrast, decided to ignore, as long as possible, the legal wranglings over the abolition law and continued the practice of restitution. This state of unfazed business-as-usual ended when, in 1825, the Colonial Office circulated a new directive among all the governors: foreign fugitives should no longer be treated as slaves nor returned to be treated as such.Footnote ⁵⁷

The response from both fugitives and the colonies was immediate. Increasing numbers of enslaved fugitives in the French, Danish, Swedish, Dutch, and Spanish Caribbean sought to seize the opportunity offered by Great Britain’s unintended free-soil policy. Inter-island networks and informal communication among enslaved and free Black communities across the Caribbean spread information about these new pathways for intercolonial maroons. Rumors in the mid-1820s Dutch Sint Maarten, for example, claimed that “[Anguilla Customs Officer] Mr Hay was protecting the Slaves that came over.”Footnote ⁵⁸ The British Virgin Island of Tortola, for example, once a point of departure for flights to Sankt Thomas (Saint Thomas), turned into a favorite destination of fugitives from the Danish West Indies.Footnote ⁵⁹ In close interaction with fugitives, Tortola’s customs officers transformed non-restitution into active “protection,” gradually increasing its expanse.Footnote ⁶⁰ Fugitives and low-ranking officials across the British Caribbean explored the legal loophole of intercolonial maroons, blurring and resetting the boundaries of who could claim freedom, and under what conditions.Footnote ⁶¹ Numerous reports of growing free communities of fugitives, some completely at large, others mixed up with “liberated Africans” or incarcerated at great expense, reached London in the late 1820s and early 1830s. Within a few years, a group of “foreign fugitive slaves… in the woods of Dominica” had reportedly risen to 300 people.Footnote ⁶²

Local officials like Maxwell had intended to open the door to “freedom” for fugitives a crack. As it swung wide open, they began to wrestle with the consequences of the government’s legal position. Removing fugitives from the legal procedure of abolition threw a wrench in antislavery’s profitable political economy. The Colonial Office’s 1825 circular was met with an uproar among local assemblies and planter communities. Assemblies across the British Caribbean refused to accept an interpretation of the law that upended what they regarded as longstanding intercolonial practice. They and their agents assailed the metropolitan government with petitions against a legal practice that was, they claimed, turning the British Caribbean into “a sanctuary to crime.”Footnote ⁶³ Like the struggle over the deportation of Lecesne and Escoffery, the conflict over enslaved fugitives quickly became enmeshed in broader institutional power struggles over imperial governance and the uses—and limits—of executive power.

In addition to internal resistance, the governments of France, Denmark, Sweden, and the Netherlands put massive pressure on the British government. Until the mid-1820s, the practice of returning fugitives continued unabatedly, even to and from British colonies. Between 1817 and the early 1820s, French authorities returned at least 22 enslaved escapees to British enslavers in Dominica, Montserrat, Saint-Lucie, Grenada, and Antigua.Footnote ⁶⁴ That colonies with a vested interest in slavery would embark on an inflexible non-restitution policy was unheard of, and foreign officials struggled to make sense what appeared to them as a “very odd” policy.Footnote ⁶⁵ Swedish, Danish, Dutch, and French authorities tried to crack down on marronage from their plantations and to forcibly return fugitives from British colonies.Footnote ⁶⁶ In the mid-1820s, they also began to retaliate and refused to comply with demands for restitution from British planters.Footnote ⁶⁷ By the late 1820s, pro-slavery observers on all sides feared that the policy of unilateral non-restitution had unleashed a dynamic of mutual destruction of the entire Caribbean system of slavery.Footnote ⁶⁸

Throughout the 1820s and early 1830s, British officials scrambled to close the legal loophole used by a growing number of enslaved people. They aimed at a solution that would first and foremost counter the destabilizing effects of growing communities of de facto free fugitives, while not being in conflict with abolitionist legislation. Several attempts to strike a compromise with Parliament and explicitly allow treaties with other colonial powers for the mutual return of enslaved fugitives were met with resistance by abolitionist members of Parliament.Footnote ⁶⁹ And it is in this legal panic, that colonial alien acts—or rather their local uses—came in.Footnote ⁷⁰ Already in 1809, the tension between colonial alien legislation and slave trade ban—and the potential of the former to subvert the latter—had become apparent in the Bahamas. In September 1809, the Spanish schooner San Rafael from Campeche (Mexico) tried to introduce a group of men categorized as “slaves” into Nassau.Footnote ⁷¹ The men on board testified to a wide variety of trajectories and statuses, ranging from Jean Baptiste, born in Africa, captured and forcibly shipped to Saint-Domingue as a child; to Mather alias William, born free in Dutch Saint Eustatius, captured by a French privateer and enslaved in Saint-Domingue, then escaping to Spanish Santo Domingo, where he was re-enslaved; to Pierre Louis, born and enslaved in Saint-Domingue, escaping to Santo Domingo, where he was liberated and turned into a soldier when the French took control, surrendering to Spanish authorities and then being removed as part of the Spanish reconquest of the colony.Footnote ⁷² All of them had in common that they had at some point been in the French and/or Spanish part of Hispaniola, before being forcibly brought to Campeche, from whence they were removed. Facing the challenge of making a profit from a human cargo considered “dangerous,” the captain of San Rafael first went to Cuba, where local authorities turned them off, upon which he sought to sell them in Nassau. Instead of seizing the ship and bringing the enslaved men before the Vice-Admiralty Court, as prescribed by the slave trade ban, Bahama’s colonial government used its revolutionary-era alien law to prohibit the enslaved men from disembarking. The ship, however, remained in Nassau’s harbor for about two weeks, during which two enslaved men swam ashore, and another dozen men were purchased and brought offshore by Nassau residents.

Entering in violation of two laws at once—the alien law and the slave trade ban—Jean Baptiste, Mather, Pierre Louis, and the other men from the San Rafael became subject of a major clash—and power struggle—between different colonial officials and their legal empowerment. Some of the men were seized as “dangerous aliens” by the provost-marshal under the Bahamas alien law in view of their deportation from the island; they were then, however, seized out of his custody by the customs officer who argued they had to be adjudicated under the slave-trade ban for being illegally imported slaves. Under the guidance of Procurator-General William Wylly, an honorary member of the abolitionist African Institution, the customs officer prevailed, and the men and women were not only exempted from deportation but also “emancipated” according to the regulations set forth by the antislavery laws.Footnote ⁷³

As an early instance of local customs officers’ testing and stretching their new powers, the San Rafael affair reverberated for years. Planters’ representatives fumed over what they considered an abuse of power by abolitionist-minded officials and a violation of existing alien legislation, and the Assembly ordered a thorough examination of the affair.Footnote ⁷⁴ Seven years later, the Assembly still cited the San Rafael case as a scandalous example of “the enfranchisement, by operation of law, of every scoundrel slave who runs away from a foreign colony and surreptitiously smuggles himself into these Islands.”Footnote ⁷⁵ But the abolitionists were alarmed, too. The initial decision to deal with the San Rafael passengers under the alien law enraged former Sierra Leone governor and secretary of the African Institution Zachary Macaulay who accused the Bahamas administration—including Wylly—of turning alien laws, “in scam of our Legislative Acts,” into a tool to subvert the Slave Trade Act.Footnote ⁷⁶ This instance, as a case in which metropolitan anti-slave-trade legislation tended to override local alien legislation, reverberated in the fierce debates about abolitionist policies and regulatory pressure in the slave colonies in the following years.Footnote ⁷⁷ In the early 1820s, customs officers raised similar charges against colonial bureaucracies that they accused of using “Colonial Acts authorizing the taking up and sending off improper and suspicious persons, probably designated as Foreigners in order to afford a pretense for such proceedings.”Footnote ⁷⁸

Such uses led the way for the Colonial Office’s legal reasoning—in some way the opposite of what happened in the Lecesne and Escoffery affair. At the very time the Colonial Office was trying to distance itself from the racialized practice of deporting aliens in the context of this affair, they began to consider colonial alien acts as the best legal fix of the loophole for enslaved fugitives. Given their ambiguous status as neither included nor exempted from the Slave Trade Act, enslaved fugitives could not be treated as slaves—they were thus to be considered de facto free. Yet, they also remained outside of British subject status: “The abolition act does not convert Fugitive Slaves of Foreign birth into British subjects; nor does it invest them with any right of residing within His Majesty’s dominions.”Footnote ⁷⁹ They thus constituted free aliens, “and may be dealt with and disposed of in the same manner as any other aliens of free condition.” As they revisited colonial alien legislation, the Colonial Office began to appreciate the large executive power these laws provided to treat people of African descent—no matter whether free or enslaved. In their broad and ambiguous scope, colonial alien laws promised to radically decomplexify the legal setting by rendering all the legal intricacies that stemmed from the ambiguous slave trade legislation irrelevant. Extra-judicial deportation constituted an easy way to remove fugitives and discourage others to follow their example—and to shut out both Parliament and the courts. As they acknowledged the legal conundrum of enslaved fugitives, the 1825 Colonial Office instructions made the use of colonial alien laws against the official policy.Footnote ⁸⁰ Without any recognizable connection, this policy mirrored the way in which Spanish American polities recast enslaved fugitives as “aliens” (extranjeros foresteros), and thus as a problem of migration control, once Spain abandoned its sanctuary policy in the early 1800s.Footnote ⁸¹

The 1825 circular emboldened local officials who sought to use alien laws, both preexisting and newly created, as an abolition-era alternative to the restitution of enslaved fugitives. In Tortola in 1827, for example, magistrates used the executive authority from the alien act to wrestle John William and William, two fugitives, from the custody of the customs officer. They incarcerated and “banished” them as foreign “vagrants”—directly back to their enslaver in Saint Thomas.Footnote ⁸² Even if this use of the law went beyond what was officially allowed, government officials sought to sell alien laws to the French and other foreign governments as the best—and only—solution to the legal loophole for fugitives. While they could not engage in restitution, deportation under alien law would serve as a deterrent, “a preventive measure,” against future fugitives and show “the extent to which, without exceeding the bounds of duty and discretion, the British Government can meet the object of France.”Footnote ⁸³

Hailed as a neat legal solution to the gray zone of enslaved fugitives, the alien acts however produced new uncertainties. While they had the strategic advantage of indiscriminately applying to all aliens, what happened to people who claimed British subject status of some kind, and on what grounds of evidence would a decision be sound? The same problem had already derailed Jamaican efforts against Lecesne and Escoffery, and it arose time and again when officials were facing individuals who claimed to have been born or held in slavery on British territory previously. Were authorities “not be bound in Justice to protect [them] as British Subject[s], altho’ claimed as fugitive Slave[s]”?, one customs officer wondered.Footnote ⁸⁴ Margaret Moodley, an African woman who had been enslaved in Dutch Sint Eustatius and escaped to Saint Christopher (Saint Kitts), claimed that she was told in the government’s office that she was “protected […] by the English Law” as long as she remained in a British colony.Footnote ⁸⁵ Another customs officer presented a reading of the legal situation that put “British Born Slaves” among fugitives under the protection of the Slave Trade Act, making some sort of British-birth subjecthood the basis for the application of that act.Footnote ⁸⁶

Even in cases where alien status was not in doubt, legal problems arose. It remained unclear where to send individuals. Usually, aliens would be deported to the place they allegedly came from, yet in this case that would mean—as in the case of John William and William in Tortola in 1827—restitution into slavery.Footnote ⁸⁷ Even if they ruled out a return to the original place of enslavement, it was virtually impossible to find a nearby place—except Haiti or some Spanish American republics—where they would not be re-enslaved. The official instructions regarding enslaved fugitives remained deliberately cloudy, granting the deporting governor leeway, with the crucial limitation that they would be directed “to such of His Majesty’s Colonial possessions as His Majesty may be pleased to direct.”Footnote ⁸⁸ In the end, Trinidad and Sierra Leone became the only viable options, further blurring the lines with “liberated Africans.”Footnote ⁸⁹ This solution closed the legal issue by opening up a political problem, as it gave ammunition to the complaint that Great Britain was driven by “selfish motives” and sought to “recruit the defective population of our colonies, at the expense of our neighbours.”Footnote ⁹⁰

This situation lingered on when, in 1833, the British Parliament abolished slavery throughout the British empire. While the British state claimed that this act would not apply to other nations and their systems of slavery, British and foreign authorities registered a renewed influx of enslaved fugitives into British Caribbean colonies.Footnote ⁹¹ Despite their failure to deter fugitives, the Colonial Office insisted that alien laws were the only viable solution, insisting that “the great change of law” had no impact on “the distinction which had previously subsisted as well, in the British Colonies as in the mother Country, between the King’s natural born Subjects and Aliens. Foreign fugitive Slaves continue to belong, as they formerly belonged, to the latter of those Classes. As an alien, he has no right to fix his abode in the King’s dominions.”Footnote ⁹² They urged colonial administrations to reinforce them by construing the intrusion of foreign fugitives as “a misdemeanor by imprisonment with hard labour.” The continued arrival of fugitives was thus one of the reasons why the policing of “vagrants” and aliens became a tool through which colonial administrations sought to govern the era of emancipation and restrict freedom granted to formerly enslaved population groups.Footnote ⁹³ For abolitionist Richard Robert Madden, who oversaw the implementation of the abolition of slavery in Jamaica in 1834, this use of alien laws appeared obvious. To his eyes, “the extraordinary powers exercised over men of colour, as aliens” served “the purpose of arming men, already vested with a little brief authority, which they certainly make the most of, with still more power over the coloured community.”Footnote ⁹⁴ And, in view of the Colonial Office’s directions, he wondered: “Was the case of Lecesne and Lescoffery so soon forgotten?”

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At a time when the infamous British Aliens Act was removed, as a remnant of an emergency no longer existent, alien laws were widely used in Britain’s Caribbean colonies. The history of these alien laws does not boil down to a mere prehistory of the international border surveillance and deportation regimes that took shape since the late nineteenth century.Footnote ⁹⁵ Rather, they reveal complex genealogies and extensive functionalities that urge us to rethink the history and scope of legal mobility controls. The longevity of colonial Caribbean alien acts past the emergency of the revolutionary era was largely due to new uses of these laws. Over the years, these erstwhile emergency measures had become part of the standard repertoire and versatile legal tools of local colonial governance.

Alien laws served colonial bureaucracies to respond to what they considered major challenges and legal complexities of the era of emancipation. In a period where an increasing number of formerly subaltern actors successfully claimed subject rights and entitlement to protections, colonial administrations increasingly turned to the racialized provisions of sweeping executive power built into alien laws to shut out courts, Parliament, and public opinion. Across the Caribbean, colonial bureaucracies weaponized alien laws as a tool to suppress domestic opposition from free people of color and to reaffirm racial boundaries of British subjecthood. At the same time, local governments and their metropolitan colleagues began to regard extra-judicial provisions of the alien laws as the best, and supposedly only, legal mechanism to suppress the inflow of enslaved fugitives who claimed protection from restitution under the slave trade abolition law.

As they reinvented the law, local authorities found it hard to control the consequences of their action. Alien laws came with particular assumptions about the legal grounds and evidence of subject and alien status, and their indiscriminate use would clash with intricate realities of belonging that proved much more complex and multi-faceted than suggested by legal theory. During a period in which the terms of subjecthood and the status of those claiming some sort of subject status were in flux, the application of these alien laws could have sweeping consequences well beyond their initial jurisdiction. They triggered far-reaching controversies about the limits and contents of subjecthood, and became entangled with other crucial issues of imperial governance and its transformation—from the uses of executive power and the status of the judiciary to the principles of inter-state law and sovereignty.

Finally, legal ambiguity proved a double-edged sword, opening vernacular uses in different directions. As alien laws were used to crack down opposition and undesired mobilities, the conflicts surrounding the deportation of Lecesne and Escoffery as well as the push of enslaved fugitives into British territories, colonial law could also be used to open new pathways to emancipation in some form of British subjecthood, quasi-subjecthood or a somewhat differently framed protection by the British state. The ways in which actors across the Atlantic sought to regain control over fugitive mobility and racial equality reflected a trend across the British empire to treat imperial problems as legal problems—although in this case, the law would often tend to complicate rather than clarify matters.