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A CASE has occurred under “the slave she was. The case presents Ashburton Treaty,” between this incidentally a remarkable instance country and the United States, of the evils that attend and spring which raises many questions of the from the institution of slavery. greatest interest, and which, but In 1853 Burton sold Anderson for the internal troubles which to one M‘Donald, whose estate arose within the States, might was 32 miles distant

from have caused a war, in which the Burtou's, and consequently the Monarchy would have appeared as husband and wife were now severed the assertor of human freedom by a space of from 30 to 34 miles, and the Republic the champion of instead of two. In September, slavery. The questions of inter- 1853, Anderson had been seen by national law, of law as between a several persons in the neighbourcolony and a foreign country, and hood of Brown's (where it will be as between the parent State and remembered his wife lived), and the colony, were singular and therefore, and because it was on a complicated.

different side of the river, it was It will be remembered (and it suspected and rumoured that is one of the many noteworthy Anderson had run away from his circumstances of the case), that owner. The fact was, that the States which compose the M.Donald was about to sell his American Republic are divisible black chattel ; and the poor fellow, into two classes—those in which perhaps fearing that he might be slavery is recognised as an essential sent to some distant place, desired part of their polity, and those in to effect a change of owners which which slavery is not permitted, would keep him in his old neighalthough recognised as a legal bourhood : possibly he had an idea status in the other portions of the in his mind that he would rather Union. The State of Missouri is run away than be sold away. At a "Slave State." In Howard any rate he did not return to county, Missouri, a negro, born in M‘Donald. He had been lurking the States, named John Anderson, about for three weeks, and had

Jack," was the slave of one been several times pursued, when Moses Burton. Anderson had a one day he accosted å planter wife, a negress, who lived not with named Seneca T. P. Diggs, and her husband or his owner, but asked him to tell him where one with one Samuel Brown, whose Charles Givens lived; and on estate was about two miles distant being asked why, he answered from that of Burton, and whose that he wished to get Givens to


buy him. He belonged, he said, circle, which, gradually narrowing, to a man named M Donald, and at length brought Anderson near that he did not want to live on the Diggs. On seeing this Diggs other side of the river, because his crossed a hedge, and approached the wife was living at Brown's, about fugitive. As he got nigh, Anderson six miles from Givens'.

threatened him with the knife; This tale, which to an English. Diggs struck at him with a stick, man appears the true working of which caught in a bush and broke; human nature, and would excuse aud then Anderson stabbed him in many faults, bore an entirely diffe- the breast. Diggs turned to run rent aspect to the American slave. from him, his foot caught in a bine, owner. Diggs charged Anderson and he fell. Anderson went up to with being a runaway, and refused him, stabbed him in the back, and to let him

go. The law of Missouri then fled. The negroes made a declares that any slave found more short chase after Anderson, who, than 20 miles from his home shall however, escaped. There exists in be deemed a runaway; that any the Northern States of the Union person may apprehend any negro a party vehemently zealous for the being or suspected of being a abolition of slavery. They have a runaway, and provides a reward for secret organization for promoting so doing. Diggs does not seem to their views, and in especial for have acted with peculiar harshness, aiding the escape of fugitive slaves. for he told Anderson to come with This organization is so complete him and get his dinner, and then that the runaway is passed from he would go with him to Givens, hand to hand

to hand through many and see about the matter. Ander- hundreds, perhaps thousands of son at first walked quietly with miles of territory, and only rehim ; but whether he thought that appears in Canada, where he is this treatment was deceptive, and popularly said to have arrived " by that he was to be secured and the under-ground railway." Perdelivered up to his owner, orhaps by the aid of this Society, whether he feared his owner's Anderson succeeded in reaching cruelty, or had from the beginning Canada. Diggs lingered for some resolved to make his escape; what time, but finally died of his wounds. ever the cause, he suddenly took Merely as a fugitive slave Anderto his heels. Diggs called to four son would have been safe under negroes who were with him to give the protection of Great Britain. chase, telling them that if they But in 1842 a treaty, known as caught him they should have the “ the Ashburton Treaty," was reward. It is, therefore, probable concluded between this country that Anderson had more faith in and the United States, which con. Diggs' cupidity than his good tained, among others, provisions for nature. Diggs himself, having a the mutual extradition of persons child with him, did not long keep charged with certain classes of up the pursuit; but the negroes offences - amongst them that of chased their fellow-man and slave. “ murder : and the colonial Anderson drew out a knife and statute which gave effect to this declared that if they came near treaty as between the States and him he would kill them. The the Province, provided that, on a negroes, therefore, kept off, but specified application, the justice of hunted the poor fellow within a the


should issue his warrant

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that the person charged might be Treaty. “The officer administerin brought before him, to the end that the Government " of Canada (the the evidence of criminality might Governor-General, Sir Edmund be beard and considered; and if, on Head, was at this time in England, hearing such evidence, it appeared applied to the Secretary of State to the justice to be sufficient to for the Colonies for instructions. sustain the charge according to the The Colonial Secretary conferred laws of the Province, he was to with the Foreign Secretary, and certify the same to the Governor, then instructed the Governor “to who thereon might issue his take such measures as are authorwarrant for the surrender of such ized by the laws of Canada," 10 person, according to the Treaty. deliver up the fugitive. In the

Anderson lived in Canada un- meanwhile the friends of Anderson molested until the spring of 1860, had not been idle. They made when he was recognised. Thereon application to the Court of Queen's the officers of the State of Missouri Bench, in Canada, for a writ of took proceedings in Canada. An- habeas corpus, and the legality of derson was brought before a justice Anderson's detention was ably of the peace of the town of argued before that Court. The Brantford on a warrant issued on essential question was, of course, the depositions of certain persons; whether the act with which Anderthe justice held the evidence sufli- son was charged by the officers of cient to sustain the charge, and the United States was or was not certified to that effect to the the crime known to legal science Governor; and committed the as “Murder ;” and whether it was prisoner in the meanwhile for safe so or not depended upon whether custody to the gaol at Brantford. the incidents were to be weighed General Cass, the American by the laws of the United States, Secretary of State, thereon made or by those of Great Britain. a requisition to the Governor of The Justices of the Queen's Canada for the extradition of the Bench differed in opinion, and

delivered their judgments at great The distinctive circumstance of length. It had been raised as a this case was that the accused per- preliminary objection that the son had killed a man who had, not warrant of commitment was in. in execution of any legal warrant, formal, inasmuch as that it charged attempted to deprive him of his Anderson that he did wilfully, liberty. The principles of English maliciously, and feloviously kill law, acted upon to all its conse- and stab 'one Seneca T. P. Diggs” quences in circumstances of great - whereas it was argued to be atrocity, hold homicide committed essential, to bring the case under under such circumstances to be the treaty and statute, that the justifiable; but that doctrine is charge should be expressed in the directly opposed both

both to the term of art“ murder.” This fundamental principles of the argument, however, Chief Justice American law, and to the municipal Robinson set aside. It was, he statutes of that country. Here, said, essential in an indictment then, the laws of England and of that the technical word “murder' the United States were at direct should be used ; but a defect of variance, and the case was entirely that nature in a warrant was not unprovided for by the Ashburton fatal; that upon a return to a

accused person.

habeas corpus it was the foundation the crime or offence had been there of the warrant to which the Court committed,” and in another place would look; and here the warrant “and if on such hearing the evi of commitment did describe the dence be deemed by him sufficient charge in such terms as to show to sustain the charge according to clearly that what the law holds to the laws of this Province.” It had be murder was the offence with been argued for the prisoner that which the prisoner was charged these words had reference to the before the justices. Other varia. law of the Province as regards the tions from the terms of the statute particular offence, and not hereby the Chief Justice pointed out, but as regards the nature of the proof considered them as insufficient to to be received and its conclusive justify a discharge of the prisoner tendency. But Chief Justice on the ground of informality. It Robinson entertained no doubt was, he said, on the question that the intention was that the whether the commitment of the justice should judge whether the prisoner, with a view to his being evidence was sufficient, if credited surrevdered under the Ashburton by a jury, and not rebutted in a Treaty was warranted by the evi- material point, to sustain the dence that the case had been particular charge — they referred argued. He had some doubts merely to the means of proof. whether it was competent for the Were it otherwise, the construction Court to interfere where in the would exact that there should be a case of a person charged under similarity between the law of the the Ashburton Treaty the justices State from which the person had had made the necessary certificate. fled, and that of our country, in all No doubt the Court of Queen's the features and attributes of the Bench in Canada could exercise particular crime. But neither the the same control over the inferior treaty nor the statute could be jurisdictions as was exercised by taken to have been founded upon the Court of Queen's Bench in the presumption that the criminal England. But this was an offence or the civil law prevailing in the committed in a foreign State, over territories of the two contracting which the Court had no jurisdic- Powers would be the same. That tion ; and the detention of the which was murder by the law of accused, with a view to his being England was murder by the law of surrendered to the Government of Missouri. But the municipal laws that State, was a proceeding apart of Missouri extended to murder from its ordinary jurisdiction, and incidents and attributes which rested wholly upon the provisions were not recognised by English of a treaty between Great Britain law. The law of England made and a foreign Government, and of it murder if a man killed another a statute passed in conformity with who was attempting to arrest him that treaty.

The words of the under a legal warrant; and the statute were that the accused was law of Missouri authorized any to be “charged upon such evidence person to apprehend any negro of criminality as according to the being or suspected of being å law of the place where the fugitive runaway slave. Diggs, therefore, or person so charged shall be was acting under legal authority as found, would justify his apprehen- much as if he had been armed with sion and commitment for trial, if process. If this prisoner were


surrendered, and put upon his the keeper of the jail at Brantford trial for murder, it would be for is commanded to receive the said the jury to dispose of the case John Anderson into his custody in under the direction of the Judge. the said common jail, and there It might be that there would then safely keep him until he shall be appear sufficient reasons to warrant delivered by due course of law.” the jury in taking a favourable Now what was the due course of view of the case, and to find cir- law? There was no course of law cumstances of justification ; but it in that Province that could take was not for the justices at Brant- cognizance of such a case, none ford to assume the functions of a by which he can be delivered from jury, and intercept a trial for the jail, except that which had been grave offence. It had been urged adopted. There was nothing bethat slavery was not recognised by fore the Court to show that the the law of England, and that the justices of the peace had come to prisoner, if surrendered, would, the conclusion that the evidence even if he were acquitted, return was sufficient to sustain the charge into a state of slavery. That, he according to the law of this Prothought, was rather à question for vince; " nor if the offence had the framers of the treaty. The case been committed therein does the of a fugitive slave had not been warrant commit the prisoner until considered, and no provision had surrender is made upon the rebeen made in reference to such quisition of the proper authorities, cases. It was not for the Court to as required by statute, or until interpose a consideration which discharged according to law. The had not been taken into account prisoner, therefore, was not, under by the contracting parties. It was this warrant, in custody awaiting the duty of the Court to interpret a surrender under the treaty with the express terms of the treaty the United States, but is in jail and the statute, without reference awaiting discharge according to to some consequence which might law. As to the nature of the be incidental to their judgment. charge that the prisoner did “ wil. He was of opinion that they were fully, maliciously, and feloniously bound to remand the prisoner. stab and kill ” Diggs, that did not

Mr. Justice Burns concurred in amount to an express charge of the judgment of the Chief Jus- murder, and the evidence returned tice.

in the depositions did not, in point Mr. Justice McLean came to a of fact, establish that precise oftotally opposite conclusion. His fence which was charged. (His Lordjudgment, which he delivered at ship examined the evidence migreat length, is a noble specimen nutely.) On the ground, therefore, of judicial force. The question, that the prisoner was arrested in he said, was whether the prisoner the first instance on an insufficient was now detained in legal cus- complaint, that he was detained on tody. The commitment was not, an insufficient warrant, and on inin his opinion, in conformity with sufficient evidence, and on an unthe statute, either in form or sub- defined charge, he thought the stance. The charge was that the prisoner entitled to his discharge. prisoner did “ wilfully, maliciously, In referring to that portion of and feloniously stab and kill one the case wbich raised the question Seneca Diggs ;" for this offence of the right of a black mau to slay

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