If you have open borders, does that mean that a right to asylum is superfluous? It would seem that way because for the most part the right to asylum now signifies that someone has the right to stay in a country, and under open borders practically everyone has such a right anyway. Perhaps someone would receive more support as an asylee than otherwise. But that seems secondary and would probably follow from general humanitarian considerations alone, not from some right to asylum.
Most countries in the 19th century had open borders or something that at least came close. And many countries also had some right to asylum. But the meaning of the latter was much narrower and quite different from how the term is understood today: An asylee could not be extradited. First, some other country had to demand extradition. And only then did it become important whether someone had to be considered an asylee or not.
Extradition was possible for common criminals according to a system of bilateral treaties that regulated when someone had to be delivered up. Usually, there were some restrictions, e.g. a country would not extradite someone if the „crime“ was not a crime according to its own legal system or the expected penalty appeared excessive. But in general, there was the perception that it was in the common interest of all countries to cooperate when it came to fighting crime. Basically, this has not changed since then.
However, the exception were crimes that were „political“. Again, the word had a much more definite meaning than today. In current parlance, the adjective „political“ goes with „politics,“ a rather vague concept. But in the older usage, something was called „political“ if it referred to the „polity,“ or in other words that part of society organized on coercive terms: the state. Hence In the 19th century (and in a strict sense also today), „political crimes“ denoted acts that were directed against the state and the political order. Examples would be treason, high treason, an attempt to usurp the throne, participating in a coup d’etat, revolution, or an insurrection, and also acts of terrorism, such as assassinating or attempting to assassinate a head of state.
Here are a few examples for what was considered a political crime and made someone eligible for asylum. I take them from Franz von Holtzendorff’s book, published in 1881 (I have republished an annotated edition): „Die Auslieferung der Verbrecher und das Asylrecht“ (The Extradition of Criminals and the Right to Asylum):
- Louis-Napoléon Bonaparte (1808-1873), later the French Emperor Napoleon III, grew up in Switzerland where he served in the army and became a citizen of the Canton of Thurgau. In 1836, he attempted a coup d‘etat in France which failed. He was imprisoned, but released on the condition that he went into exile in the US. He did that and moved to New York. But the following year, Louis-Napoléon returned to Switzerland when his mother was on her deathbed. France demanded his extradition, but the Swiss refused to comply. To put pressure on Switzerland, the French army mobilized, and a war was only averted when Louis-Napoléon went into exile in London.
- The Hungarian Revolution was surpressed by Austrian, Croatian, and Russian troops in mid-1849. The last insurrectionists under Józef Zachariasz Bem (1794-1850) fled to Turkey, where Bem, his officers and generals, as well as 6,000 Hungarian and Polish soldiers converted to Islam. Austria demanded their extradition. But the Sultan refused, backed by British Prime Minister Lord Palmerston. As Franz von Holtzendorff notes: „Also today it should not be forgotten that it was a Muslim government that protected persecuted Christians from the wrath of a Christian government.“ Giving in to further pressure, the Sultan transferred Bem, now a commander in the Ottoman army, to far-away Aleppo where he suppressed a pogrom against the Christian population in 1850.
- In 1854, Jules Jacquin, a French manufacturer and one of his workers, Célestin Jacquin, who both lived in Belgium, tried to blow up the train of Emperor Napoleon III with an „infernal machine,“ a load of dynamite triggered when the train moved over it. France demanded the extradition of the two assassins, but Belgium eventually declined. However, France pressured Belgium into changing its legislation in 1856, so that assassination of a foreign head of state was reclassified as a common crime and hence the perpetrator could be extradited. But this change was not applied retroactively to the Jacquins.
- In 1879, Leo Hartmann (1850-1913), associated with the „Narodnaya Volya“ (People’s Will), tried to blow up the train of Tsar Alexander II near Moscow. He fled to France which refused to extradite him to Russia. Hartmann was later expelled from France and went to the US, but eventually returned to France where he died in 1913 (Russian Wikipedia claims he died in New York in 1908).
- The backdrop to Franz von Holtzendorff’s book was the tense situation in 1881. After two assassination attempts on the German Emperor Wilhelm I in 1878, Bismarck had pushed his Socialist Law through which outlawed the Social Democratic Party and its organizations although the Social Democrats were not responsible for the attacks. The party moved their headquarters and press to Switzerland. When in early 1881 members of the „Narodnaya Volya“ finally succeeded in assassinating Tsar Alexander II, his son and successor Alexander III called on other countries to join Russia in its fight against terrorism. Interested in improving relations with an ally, Bismarck supported this move, and started to threaten Switzerland wíth an invasion if the Swiss did not extradite the German Social Democrats. But the Swiss did not cave in. On a rally in Zurich in support of the right to asylum, one militia captain named Bürgi even suggested that Switzerland become the 40th state of the United States of America. Only after a decade of further pressure, Switzerland eventually made concessions, but still did not extradite the German Social Democrats who just had to move on to Great Britain. The above caricature is from 1881 and appeared in the German satirical weekly „Berliner Wespen“ (Berlin Wasps): „Rothkäppchen“ (Little Red Riding Hood, „Schweiz“ (Switzerland) written on her skirt) carries a basket „Asylrecht“ (Right to Asylum). She taunts the wolves with: „Bangemachen gilt nicht!“ (Scaremongering doesn’t count!).
Why were political crimes considered as in a different class so that extradition was ruled out? The main explanation that Franz von Holtzendorff gives goes something like this: Common crimes are crimes against common standards. Murder is always wrong. Different countries may have different definitions and different sentences for common crimes, but there is a major overlap. And so in most cases, a murderer in one country is also a murderer in another country. That’s why countries can work together and should do so.
Political crimes, though, are different because they refer to a specific political order. And political orders can and do change. E.g. whether someone has committed a political crime during a revolution depends on which side wins. As the saying goes: „One person’s freedom fighter is another person’s terrorist.“ And since there is no common standard, there is also no common ground for different states to work together as in the case of common crimes. There is rather a common interest in not cooperating. You could be on the losing side the next time, and then it would be good if other countries granted you asylum. And that’s why political crimes should be treated differently, and extradition should not be an option.
There were vast differences between countries in the 19th century. The various states of the German Confederation (1815-1866)—with some exceptions like Hamburg or Frankfurt—often extradited those wanted in another state for political crimes because they had a common interest in suppressing the liberal opposition. As far as I can tell, also later Germany, Austria-Hungary, and Russia did not practice a right to asylum.
In most countries, there was no explicit right to asylum. The decision was discretionary and made by the administration without recourse to the courts. The one exception was Belgium which codified a right to asylum already in 1833, and where the courts made the decision and not the administration. In other countries, as far as I understand it e.g. in France, granting asylum was for some time not so much a matter of principle, but more or less opportunistic depending on general considerations. In other countries, like Switzerland, the UK, and the US, asylum was a strong customary institution.
As the above examples show, the right to asylum in the 19th century had some rather astonishing consequences:
- Asylum cases were few, but very high-profile. Sometimes they could have extensive repercussions, especially for smaller countries like Switzerland or Belgium, and even create a situation where a war became likely.
- The right to asylum was only important if some other country demanded an extradition for political crimes, which probably is just as rare an event today as it was in the 19th century.
- Most reasons for granting asylum nowadays did not fall under a right to asylum at all. Religious or ethnic persecution, e.g. a series of pogroms in Southern Russia (now mostly in Ukraine) after the assassination of Tsar Alexander II in 1881, meant that many Jews tried to emigrate. They could immigrate freely to countries like the UK or the US, and this had nothing to do with a right to asylum.
- Terrorists had a right to asylum, at least as long as their deeds could be interpreted as trying to affect a change of the political system. Killing a head of state would qualify, killing people on the street would not. Terrorism in the 19th century was mostly of the first type although there were some exceptions. E.g. Irish terrorists, mostly operating out of Brooklyn, at one point tried to sabotage the transatlantic traffic between the UK and the US with „infernal machines“ (bombs with a timer). And during the Fenian Dynamite Campaign, subway and train stations in London were bombed in 1883 and 1884. The „Narodnaya Volya“ (1879-1884) had a narrow focus on high ranking officials and the Tsar, but later terrorists in Russia (Socialists-Revolutionaries, Anarchists, and Social Democrats, both Bolsheviks and Mensheviks) were less discriminating.
- Former heads of states, even if they might have been responsible for common crimes could not be extradited with a right to asylum. If an extradition was for a common crime, but there was a suspicion that this was a pretext to get hold of someone for a political crime, as a general rule, there could be no extradition. The most famous example was perhaps the German Emperor Wilhelm II who fled to the Netherlands at the end of WWI. The Allies demanded his extradition, but the Netherlands refused to comply.
- The right to asylum was not about being allowed into the country or being allowed to stay. That followed from other principles that were unrelated. Actually, it was possible that someone could obtain asylum and also be told to leave if he posed a risk (e.g. because the country wanted to avoid a war with a strong neighbor). An asylee was only safe from extradition to a country that wanted him for political crimes (or common crimes as a pretext).
- The right to asylum did not entail any support from the receiving country other than perhaps what anybody would have gotten. Since most of the asylees were well-heeled or had some organization behind them, there was probably no support at all for them. So what is now viewed as a central part of asylum was absent, namely humanitarian assistence. This would have been an entirely different issue in the 19th century, not part of a right to asylum.