Page images

that the person charged might be Treaty. “The officer administerin brought before him, to the end that the Government” of Canada (ths 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 suffi- 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 accused person.

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 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 indictmeut 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 un provided for by the Ashburton fatal; that upon a return to a

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 a 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 bad 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 avd 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 in. in 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 which raised the question Seneca Diggs;" for this offence of the right of a black man to slay

one who should attempt to reduce which would not be tolerated for or replace him in slavery, Mr. a moment if those who are reJustice McLean spoke as became duced to the condition of slaves, one who wears the ermine which and deprived of all human rights, Mansfield dignified. “ Could it

“ Could it were possessed of white instead of be expected,” said the learned black or dark complexions. The magistrate, “from any man in- Declaration of Independence of dulging the desire to be free which the present United States pronature had implanted in his breast, claimed to the world that all men that he should quietly submit to are boru equal, and possess certain be returned to bondage and to inalienable rights, amongst which stripes, if by any effort of his are life, liberty, and the pursuit of strength, or any means within his happiness : but the first of these is reach, he could emancipate him- the only one accorded to the unself ? Such an expectation, it ap- fortunate slaves; the others of pears to me, would be most un- these inalienable rights are denied reasonable, and I must say that, because the white population in my judgment, the prisorier was have found themselves strong justified in using any necessary enough to deprive the blacks of degree of force to prevent what, them. to him, must inevitably have “A love of society is inherent proved a most fearful evil. He in the human breast, whatever was committing no crime in en- may be the complexion of the deavouring to escape and to better skin; its taste is grateful, and his own condition, and the fact of ever will be so till Nature herself his being a slave cannot, in my shall change ;' and in administerhumble judgment, make that a ing the laws of a British Province, crime wbich would not be so if he I never can feel bound to recogwere a white man. If in this nise as law any enactment which country any number of persons can convert into chattels a very were to pursue a coloured man, large number of the human race. with an avowed determination to re- I think that on every ground turn him into slavery, it cannot, I the prisoner is entitled to be disthink, be doubted that the man charged.” pursued would be justified in The majority of the Court being using, in the same circumstances of opinion that the detention was as the prisoner, the same means of legal, the prisoner was remanded relieving himself from so dreadful to jail. Notice was immediately a result.

given of an appeal to the Court of “ Can, then, or must, the law of Error and Appeal in Upper slavery in Missouri be recognised Canada. by us to such an extent as to The British Government were make it murder in Missouri while not insensible to the magvitude of it is justifiable in this Province to the principles involved in the case do precisely the same act ? I con- of Anderson. On receiving infess that I feel it too repugnant to telligence of the decision of the every sense of religion, and every colonial Court of Queen's Bench, feeling of justice, to recognise a the Secretary of State sent a derule, designated as a law, passed spatch to the Governor of by the strong for enslaving and Canada. tyrannizing over the weak-a law “ If the result of the appeal be

[ocr errors]


adverse to the prisouer, you will Crown. The arguments in Westbear in mind that, under the minster Hall were directed solely Treaty of Extradition, he cannot to this preliminary point-whether be delivered over to the United the Court could direct the writ to States' authorities by the mere officers in Canada. action of the law. That can only In support of the application, it be done by a warrant under the was argued that the Crown had, hand and seal of the Governor. The through the Court of Queen's case of Anderson is of the gravest Bench, power to issue the prerogapossible importance, and Her Ma- tive mandatory writ of habeas corjesty's Government are not sasis- pus to any part of the Queen's dofied that the decision of the Court minions, "the Queen having a at Toronto is in conformity with right to an account of the imprithe view of the Treaty which has sonment of all her subjects." hitherto guided the authorities in Upon a proper occasion,” said this country. I am, therefore, to Lord Mansfield,

6 the Court may instruct you to abstain in any case issue the writ to every dominion from completing the extradition of the Crown of England; there until Her Majesty's Goveryment is no doubt of the power of this shall have had further opportunity Court where the place is under of considering the question, and, if the subjection of the Crown of possible, of conferring with the England — the only question is Government of the United States to the propriety.” This on the subject.”

power, however, did not extend In the meanwhile, the case of to the foreign dominions of a the unfortunate negro had met with Prince who succeeds to the great sympathy in England. The Crown of England-not, for inBritish and Foreign Anti-Slavery stance, to Scotland or to the ElecSociety took prompt steps to vindi- torate of Hanover. Many instances cate the principles the objects of were cited in which this power had their peculiar care. Their Secre- been exercised,

even in tary, M. Chamerorzov, moved for Canada itself. These last cases, à writ of habeas corpus in the however, had occurred when CaCourt of Queen's Beuch at West- nada was not in the same relation minster. As will be seen from to the parent country as at prethe proceedings in the Canadian sent. "The question,” said Chief Court, the difficulties inherent in Justice Cockburn, “ is whether Cathe subject are great. In the pre- nada is now within the ambit of sent application there was this the jurisdiction of this Court, or further difficulty lying at the whether the Crown, by concurring threshold. The colony of Canada in the establishment of a separate has an independent Legislature judicature for Canada, has not and its own courts, whose jurisdic- vested the exercise of the right of tion is entirely independent of the issuing a habeas corpus in the control of or appeal to the English courts of that country." courts. The question was whether The unanimous judgment of the the English courts had, in this Court of Queen's Beuch was de matter of the writ of habeas corpus, livered by Chief Justice Cockburn. a jurisdiction concurrent with that * We have considered this matter, of the local courts of judicature in and the result of our anxious dethe foreign possessions of the liberation is that we think the writ


« PreviousContinue »