that the person charged might be brought before him, to the end that the evidence of criminality might be heard and considered; and if, on hearing such evidence, it appeared to the justice to be sufficient to sustain the charge according to the laws of the Province, he was to certify the same to the Governor, who thereon might issue his warrant for the surrender of such person, according to the Treaty.

Anderson lived in Canada unmolested until the spring of 1860, when he was recognised. Thereon the officers of the State of Missouri took proceedings in Canada. Anderson was brought before a justice of the peace of the town of Brantford on a warrant issued on the depositions of certain persons; the justice held the evidence sufficient to sustain the charge, and certified to that effect to the Governor; and committed the prisoner in the meanwhile for safe custody to the gaol at Brantford. General Cass, the American Secretary of State, thereon made a requisition to the Governor of Canada for the extradition of the accused person.

The distinctive circumstance of this case was that the accused person had killed a man who had, not in execution of any legal warrant, attempted to deprive him of his liberty. The principles of English law, acted upon to all its consequences in circumstances of great atrocity, hold homicide committed under such circumstances to be justifiable; but that doctrine is directly opposed both to the fundamental principles of the American law, and to the municipal statutes of that country. Here, then, the laws of England and of the United States were at direct variance, and the case was entirely unprovided for by the Ashburton

Treaty. "The officer administerin the Government" of Canada (thị Governor-General, Sir Edmund Head, was at this time in England. applied to the Secretary of State for the Colonies for instructions. The Colonial Secretary conferred with the Foreign Secretary, and then instructed the Governor "to take such measures as are authorized by the laws of Canada," to deliver up the fugitive. In the meanwhile the friends of Anderson had not been idle. They made application to the Court of Queen's Bench, in Canada, for a writ of habeas corpus, and the legality of Anderson's detention was ably argued before that Court. The essential question was, of course, whether the act with which Anderson was charged by the officers of the United States was or was not the crime known to legal science as "Murder;" and whether it was so or not depended upon whether the incidents were to be weighed by the laws of the United States, or by those of Great Britain.

The Justices of the Queen's Bench differed in opinion, and delivered their judgments at great length. It had been raised as a preliminary objection that the warrant of commitment was informal, inasmuch as that it charged Anderson that he did "wilfully, maliciously, and feloniously kill and stab one Seneca T. P. Diggs " -whereas it was argued to be essential, to bring the case under the treaty and statute, that the charge should be expressed in the term of art "murder." This argument, however, Chief Justice Robinson set aside. It was, he said, essential in an indictment that the technical word "murder' should be used; but a defect of that nature in a warrant was not fatal; that upon a return to a

habeas corpus it was the foundation of the warrant to which the Court would look; and here the warrant of commitment did describe the charge in such terms as to show clearly that what the law holds to be murder was the offence with which the prisoner was charged before the justices. Other varia tions from the terms of the statute the Chief Justice pointed out, but considered them as insufficient to justify a discharge of the prisoner on the ground of informality. It was, he said, on the question whether the commitment of the prisoner, with a view to his being surrendered under the Ashburton Treaty was warranted by the evidence that the case had been argued. He had some doubts whether it was competent for the Court to interfere where in the case of a person charged under the Ashburton Treaty the justices had made the necessary certificate. No doubt the Court of Queen's Bench in Canada could exercise the same control over the inferior jurisdictions as was exercised by the Court of Queen's Bench in England. But this was an offence committed in a foreign State, over which the Court had no jurisdiction; and the detention of the accused, with a view to his being surrendered to the Government of that State, was a proceeding apart from its ordinary jurisdiction, and rested wholly upon the provisions of a treaty between Great Britain and a foreign Government, and of a statute passed in conformity with that treaty. The words of the statute were that the accused was to be charged upon such evidence of criminality as according to the law of the place where the fugitive or person so charged shall be found, would justify his apprehension and commitment for trial, if

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the crime or offence had been there committed," and in another place "and if on such hearing the evi dence be deemed by him sufficient to sustain the charge according to the laws of this Province." It had been argued for the prisoner that these words had reference to the law of the Province as regards the particular offence, and not hereby as regards the nature of the proof to be received and its conclusive tendency. But Chief Justice Robinson entertained no doubt that the intention was that the justice should judge whether the evidence was sufficient, if credited by a jury, and not rebutted in a material point, to sustain the particular charge- they referred merely to the means of proof. Were it otherwise, the construction would exact that there should be a similarity between the law of the State from which the person had fled, and that of our country, in all the features and attributes of the particular crime. But neither the treaty nor the statute could be taken to have been founded upon the presumption that the criminal or the civil law prevailing in the territories of the two contracting Powers would be the same. That which was murder by the law of England was murder by the law of Missouri. But the municipal laws of Missouri extended to murder incidents and attributes which were not recognised by English law. The law of England made it murder if a man killed another who was attempting to arrest him under a legal warrant; and the law of Missouri authorized any person to apprehend any negro being or suspected of being a runaway slave. Diggs, therefore, was acting under legal authority as much as if he had been armed with process. If this prisoner were

surrendered, and put upon his trial for murder, it would be for the jury to dispose of the case under the direction of the Judge. It might be that there would then appear sufficient reasons to warrant the jury in taking a favourable view of the case, and to find circumstances of justification; but it was not for the justices at Brantford to assume the functions of a jury, and intercept a trial for the grave offence. It had been urged that slavery was not recognised by the law of England, and that the prisoner, if surrendered, would, even if he were acquitted, return into a state of slavery. That, he thought, was rather a question for the framers of the treaty. The case of a fugitive slave had not been considered, and no provision had been made in reference to such cases. It was not for the Court to interpose a consideration which had not been taken into account by the contracting parties. It was the duty of the Court to interpret the express terms of the treaty and the statute, without reference to some consequence which might be incidental to their judgment. He was of opinion that they were bound to remand the prisoner.

Mr. Justice Burns concurred in the judgment of the Chief Jus

tice.

Mr. Justice McLean came to a totally opposite conclusion. His judgment, which he delivered at great length, is a noble specimen of judicial force. The question, he said, was whether the prisoner was now detained in legal custody. The commitment was not, in his opinion, in conformity with the statute, either in form or substance. The charge was that the prisoner did" wilfully, maliciously, and feloniously stab and kill one Seneca Diggs;" for this offence

the keeper of the jail at Brantford is commanded to "receive the said John Anderson into his custody in the said common jail, and there safely keep him until he shall be delivered by due course of law." Now what was the due course of law? There was no course of law in that Province that could take cognizance of such a case, none by which he can be delivered from jail, except that which had been adopted. There was nothing before the Court to show that the justices of the peace had come to the conclusion that the evidence was sufficient to sustain the charge "according to the law of this Province;" nor if the offence had been committed therein does the warrant commit the prisoner until surrender is made upon the requisition of the proper authorities, as required by statute, or until discharged according to law. The prisoner, therefore, was not, under this warrant, in custody awaiting a surrender under the treaty with the United States, but is in jail awaiting discharge according to law.

As to the nature of the charge that the prisoner did "wilfully, maliciously, and feloniously stab and kill" Diggs, that did not amount to an express charge of murder, and the evidence returned in the depositions did not, in point of fact, establish that precise offence which was charged. (His Lordship examined the evidence minutely.) On the ground, therefore, that the prisoner was arrested in the first instance on an insufficient complaint, that he was detained on an insufficient warrant, and on insufficient evidence, and on an undefined charge, he thought the prisoner entitled to his discharge.

In referring to that portion of the case which raised the question of the right of a black man to slay

one who should attempt to reduce or replace him in slavery, Mr. Justice McLean spoke as became one who wears the ermine which Mansfield dignified. "Could it be expected," said the learned magistrate, "from any man indulging the desire to be free which nature had implanted in his breast, that he should quietly submit to be returned to bondage and to stripes, if by any effort of his strength, or any means within his reach, he could emancipate himself? Such an expectation, it appears to me, would be most unreasonable, and I must say that, in my judgment, the prisoner was justified in using any necessary degree of force to prevent what, to him, must inevitably have proved a most fearful evil. He was committing no crime in endeavouring to escape and to better his own condition, and the fact of his being a slave cannot, in my humble judgment, make that a crime which would not be so if he were a white man. If in this country any number of persons were to pursue a coloured man, with an avowed determination to return him into slavery, it cannot, I think, be doubted that the man pursued would be justified in using, in the same circumstances as the prisoner, the same means of relieving himself from so dreadful a result.

which would not be tolerated for a moment if those who are reduced to the condition of slaves, and deprived of all human rights, were possessed of white instead of black or dark complexions. The Declaration of Independence of the present United States proclaimed to the world that all men are boru equal, and possess certain inalienable rights, amongst which are life, liberty, and the pursuit of happiness: but the first of these is the only one accorded to the unfortunate slaves; the others of these inalienable rights are denied because the white population have found themselves strong enough to deprive the blacks of them.

"A love of society is inherent in the human breast, whatever may be the complexion of the skin; its taste is grateful, and ever will be so till Nature herself shall change;' and in administering the laws of a British Province, I never can feel bound to recognise as law any enactment which can convert into chattels a very large number of the human race.

"I think that on every ground the prisoner is entitled to be discharged."

The majority of the Court being of opinion that the detention was legal, the prisoner was remanded to jail. Notice was immediately given of an appeal to the Court of Error and Appeal in Upper Canada.

The British Government were not insensible to the magnitude of the principles involved in the case of Anderson. On receiving intelligence of the decision of the colonial Court of Queen's Bench, the Secretary of State sent a despatch to the Governor of Canada.

"If the result of the appeal be

adverse to the prisoner, you will bear in mind that, under the Treaty of Extradition, he cannot be delivered over to the United States' authorities by the mere action of the law. That can only be done by a warrant under the hand and seal of the Governor. The case of Anderson is of the gravest possible importance, and Her Majesty's Government are not satisfied that the decision of the Court at Toronto is in conformity with the view of the Treaty which has hitherto guided the authorities in this country. I am, therefore, to instruct you to abstain in any case from completing the extradition until Her Majesty's Government shall have had further opportunity of considering the question, and, if possible, of conferring with the Government of the United States on the subject."

In the meanwhile, the case of the unfortunate negro had met with great sympathy in England. The British and Foreign Anti-Slavery Society took prompt steps to vindicate the principles the objects of their peculiar care. Their Secretary, M. Chamerovzov, moved for a writ of habeas corpus in the Court of Queen's Bench at Westminster. As will be seen from the proceedings in the Canadian Court, the difficulties inherent in the subject are great. In the present application there was this further difficulty lying at the threshold. The colony of Canada has an independent Legislature and its own courts, whose jurisdiction is entirely independent of the control of or appeal to the English courts. The question was whether the English courts had, in this matter of the writ of habeas corpus, a jurisdiction concurrent with that of the local courts of judicature in the foreign possessions of the

Crown. The arguments in Westminster Hall were directed solely to this preliminary point-whether the Court could direct the writ to officers in Canada.

In support of the application, it was argued that the Crown had, through the Court of Queen's Bench, power to issue the prerogative mandatory writ of habeas corpus to any part of the Queen's dominions, the Queen having a right to an account of the imprisonment of all her subjects.

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Upon a proper occasion," said Lord Mansfield, "the Court may issue the writ to every dominion of the Crown of England; there is no doubt of the power of this Court where the place is under the subjection of the Crown of England - the only question is as to the propriety.' This power, however, did not extend to the foreign dominions of a Prince who succeeds to the Crown of England-not, for instance, to Scotland or to the Electorate of Hanover. Many instances were cited in which this power had been exercised, some even in Canada itself. These last cases, however, had occurred when Canada was not in the same relation to the parent country as at pre

sent.

"The question," said Chief Justice Cockburn, "is whether Canada is now within the ambit of the jurisdiction of this Court, or whether the Crown, by concurring in the establishment of a separate judicature for Canada, has not vested the exercise of the right of issuing a habeas corpus in the courts of that country."

The unanimous judgment of the Court of Queen's Bench was delivered by Chief Justice Cockburn. "We have considered this matter, and the result of our anxious deliberation is that we think the writ