Once a Week (magazine)/Series 1/Volume 4/Last week (January 26, 1861)
Last Week commenced under happy auspices, inasmuch as on Wednesday last—the l6th of January—there was reported in our public journals the decision of the Court of Queen’s Bench in the matter of John Anderson, the fugitive slave, now lying in Toronto gaol. An affidavit was presented to this Court on the part of L. A. Chamerovzow, the secretary of the British and Foreign Anti-Slavery Society, in which it was stated in substance that John Anderson, of the city of Toronto, in her Majesty’s province of Canada, a British subject, domiciled there, was illegally detained in the gaol of that city against his will; that he was not legally accused, tried, or sentenced for the commission of any crime or offence against the laws of Canada, or recognised by the laws of that province, or in any other part of the Queen’s dominions; and that unless a peremptory writ of habeas corpus should issue, the life of the said John Anderson was in the most imminent and immediate danger.
The application was based primarily on the ground that John Anderson was a British subject domiciled at Toronto. The law presumes primd facie that the place of a man’s actual residence is the place of his domicile. This presumption may, of course, be rebutted by positive proof that he has either come to live in a foreign land for a limited time, or for a special purpose; or, in legal phrase, that he has not in point of fact an animus manendi, or an intention of making that country his place of permanent abode. Clearly in the case of John Anderson the proof confirms the presumption. There can be little doubt, indeed, that any suggestion to the effect that Anderson contemplated either presently, or at any period, however remote, a return to the province of Missouri, in the United States, would be disposed of readily enough.
We must crave the indulgence of our readers if we venture to introduce for once the jargon of lawyers into the columns of Once a Week. The interests of humanity, and the fair name, and honourable reputation of this country, are involved in the decision to be pronounced in the case of this poor coloured man. The contest must be decided by lawyers, and in courts of law; it may not therefore be amiss to examine in popular language the chief points which have fallen, or which may fall under their consideration. These are the tools with which we must work in this matter—it is as well to understand their use.
The Canadian Court having decided, as we think (and as we stated a fortnight back, immediately upon receipt in England of the intelligence), erroneously, that the fugitive slave Anderson should be handed back to the agents of the United States, the next point was, as far as the Canadian judges were concerned, that they should discuss his right of appeal. If this were granted, the ultimate decision of the case would lie with the Judicial Committee of the Privy Council in London. There would be little to fear from any conclusion at which this learned body might arrive; but, meanwhile, the Canadian judges may go wrong in the affair of the appeal, as they have gone wrong according to all probability in their original decision.
Under these circumstances the application was made Last Week to the Court of Queen’s Bench here in London that a habeas corpus might issue, directed to the Governor of the Province of Canada—to the sheriff of Toronto—and to the keeper of the gaol there—commanding them to bring up the body of John Anderson, together with a statement as to the cause of his detention.
It seems to be correct law—at least we now have it upon the authority of the Chief Justice Cockburn, and the Judges of the Queen’s Bench—that such a writ may issue in the Queen’s name to Canada. Lord Mansfield had previously laid down the law upon the subject in the following words: 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. To foreign dominions which belong to a Prince who succeeds to the Throne of England, this Court has no power to send a writ of any kind. We cannot send a habeas corpus to Scotland, or to the Electorate; but to Ireland, the Isle of Man, the Plantations, and (as since the loss of the Duchy of Normandy, they have been considered as annexed to the Crown in some respects) to Guernsey, and Jersey we may: and formerly it lay to Calais, which was a conquest, and yielded to the Crown by the Treaty of Bretigny.” The Chief Justice and his fellows considered Last Week that nothing short of a legislative enactment could deprive our Courts here of concurrent jurisdiction in such a matter, even where local legislatures and local Courts of Justice had been established. In the absence of such enactment it is a question of concurrent jurisdiction.
Such, then, is the way in which Anderson will be brought to England. But in considering his case we must disabuse our minds of the old honourable clap-trap about a slave’s recovery of liberty, as soon as his foot touches English soil. Anderson is not claimed by the United States under the Extradition Treaty, because he is a Fugitive Slave, but because he is a Fugitive Murderer.
The facts are, that being held in slavery in Missouri, he was endeavouring to effect his escape, but that one Digges endeavoured to interrupt his flight;—that Anderson, being otherwise unable to escape from his assailant and would-be captor, resisted with all his might, and in the course of the struggle struck Digges with some weapon, or instrument. The wound proved mortal, and Digges died. It does not appear that Digges held any special warrant for the arrest of Anderson, or that he was employed in carrying out the process of any Court when he attempted to capture Anderson. There is, however, a law in the State of Missouri which empowers, and, we believe, requires all citizens of the State to arrest any slave who may be found at a certain distance from his master’s house and plantations. Digges was acting under the authority of this municipal regulation when he endeavoured to capture Anderson, and in so doing met with his own death.
Let it not be forgotten that such is the law of Missouri, and of other slave states; but it is not the law of New York, of Massachusetts, of Connecticut, of Rhode Island. It is not the universal law of the United States of North America. It is a municipal regulation which holds good in certain states, but not in others.
But were it ten times the law of the United States, the terms of the Extradition Treaty, by virtue of which the delivery of the slave—or call him if you will the alleged murderer—Anderson, is required would not be satisfied. By the language of the treaty it is expressly provided that certain criminals, or rather persons charged upon fair presumptions with certain crimes enumerated, are to be reciprocally given up by the contracting countries. But the question of crime, or no crime, is to be considered, not according to the law of the place where the deed was committed, but according to the law of the place where the alleged culprit is found, where he is arrested, and where his conduct is challenged according to form of law.
In the present case Anderson was arrested, and brought before the courts in Canada.
He was charged with this: that he, being held in bondage, and being a slave, did fly from his master’s service and authority, and that during such flight he struck down a man who endeavoured to arrest him, and take him back into captivity, whereby the pursuer died. Is this murder according to British or Canadian law? Anderson was a free man according to British law, which ignores the very existence of slavery. Had Digges, being a Canadian subject of the British Crown, done in Canada what he did in Missouri, Anderson would have had a right to free himself quocunque modo from his grasp. Should it even be proved that he had used undue violence, and more than the occasion warranted, it would have been manslaughter at the most—but manslaughter is not among the offences enumerated in the Treaty. Here, then, is the pith and marrow of the question: had Anderson killed Digges in Canada as he killed him in Missouri, would he have been held to be a murderer? We will boldly say, that no judge in England would have summed up for a conviction, and no jury in England would have brought in a verdict of “Guilty of murder” in such a case.
If this is so, there is an end of the debate. The United States, for the purposes of this Treaty, cannot make that out to be murder which we, the subjects of the British crown, declare not to be murder. Still less, if even the Federal Government are unable to do this, can a single province of the Union elevate a municipal regulation of its own not only to the force of a national law, but to the dignity of a universal canon, binding upon the conscience of the human race.
First, and as of right, we have dealt with the very words of the treaty, for of course mere parol evidence could not be let in to vary, or even explain, the meaning of so solemn an instrument. But having shown that the language of the instrument suffices for the purpose of our argument, we may, in the way of illustration, show that the construction which is patent upon the face of the Treaty was in the minds of our legislators at the time they gave their consent to it. Had they not been well-assured that the construction we have mentioned is the correct one, they would not, in point of fact, ever have given their consent to the Treaty at all. Mr. George Denman has forwarded the following cento of extracts to the Editor of “The Times,” as the result of his examination of the debate which took place in our House of Commons on the 11th of August, 1843, when Sir Frederick Pollock—then Attorney-General—had explained the objects of the Bill. When Sir Frederick had concluded, the late Lord (then Mr.) Macaulay asked,—
“Take the case of a slave who had committed murder in his own defence. Suppose a man scourged him, pursued him. The slave had surely a right to resist, and, in his defence, to kill his assailant. By the law of England that would be justifiable homicide. By the law of Georgia it would be murder,” &c.
The Attorney-General said,—
“That in all the cases put by the right hon. gentleman no doubt could arise. The Bill expressly said the fugitives must be tried by the laws of the country where they were found.”
Mr. Macaulay asked,—
“Whether he was to understand, then, that an action not criminal in a free man, would be held not to be criminal in a slave?”
The Attorney-General said,—
“He was of opinion that an English magistrate would not be at liberty to enter into the question as to whether the fugitive brought before him was a slave or not. He could only enter into such questions of common law (which, of course, means English law) as might arise out of the case; and if the accused person was not shown to be a criminal, no extradition could take place.”
“Did not go as far as some of his friends as to the effects of this Bill, and the explanation of the hon. and learned gentleman had gone far to remove the apprehensions which he might have entertained. He understood that in no case where a slave was charged with the offence of murder or robbery, would any English magistrate be justified in delivering him up for trial, unless the offence he was charged with was one which was looked upon as murder or robbery by the law of England; and he apprehended that any act that a slave might commit in resisting the coercion of his master could not amount to murder, and would not justify a magistrate in giving up the fugitive.”
The conclusion was that the Attorney-General said,—
“No fugitive, under the treaty, could be surrendered as a murderer, unless his offence were such as our laws would qualify with this epithet.”
This is surely decisive enough, and, save upon the supposition that the Canadian judges have been guilty of some act of enormous folly before the announcement of the decision in the Court of Queen’s Bench reaches them, there is little cause for serious apprehension in Anderson’s case. The intelligence, however, from the United States is of the most startling kind. We are informed that Mr. Buchanan and his advisers—at least those who have remained staunch to him after the secession of the Southern members of his Cabinet—have resolved to drive matters to a decisive issue. They are prepared to abide by the result of a conflict between the North and the South, and to enter upon it at once. Until the first shot is fired, we still cling to the belief that the wiser and cooler heads upon both sides will find some means for averting a collision which in any case must be attended with the most disastrous consequences to both parties concerned. It is difficult to suppose in the present temper of the world that a great Empire or Republic can subsist upon the basis of slavery. In the Brazils, which constitute the great example of the slave system thoroughly in work, the most certain apprehensions of a servile war are constantly entertained. The slaves are rather a hindrance to progress than a cause of it. In the first place, from their numbers, they are dangerous, if they should ever combine for concerted action; and, secondly, the white men cannot be brought to consider labour otherwise than as a degradation, where the negroes constitute the bulk of the labouring population.
We are told that the Southerners indulge in dreams of Mexican conquests, and of an extension of their dominion over the Southern portion of the North American Continent. On the most favourable supposition this would be a work of time, and before the idea could be carried out in practice it seems probable that the white men with their machinery would drive them from the markets of the world. The position of a bankrupt slave empire would not be a very enviable one. On the other hand, it is beyond doubt that the Northern States of the great American Confederation derive much of their prosperity from the South. As merchants, as brokers, as bankers, as holders of railway shares, as ship-owners, their wealth is inseparably bound up with the tranquillity and well-being of the Southern neighbours. If Charleston were bankrupt to-morrow, New York would feel the blow. Is it possible to conceive under such circumstances that men with English blood in their veins, and English brains in their heads, will push to extremity a contest which must end in grievous damage, if not absolute ruin, to the conquerors as well as to the conquered? Here in England we cannot be indifferent spectators of the strife, for it is perfectly appalling to think of what the result would be in our own manufacturing districts if the peace of the North American Confederation should be seriously compromised.
It is not, however, only on the other side of the Atlantic that clouds are hanging heavily on the horizon. No one can cast a glance at the present condition of Europe without considerable apprehension as to what may be the history of the year 1861. The policy of the French Emperor is the great enigma which we must solve at our peril. During the last two months, by prolonging the siege of Gaëta, he has done almost as much harm to the Italian cause, as he formerly did good by driving the Austrians out of Lombardy. It is also certain that he has largely reinforced the army of occupation in the Patrimony of St. Peter; he has caused Civita Vecchia to be fortified in a manner which would inspire a casual observer with the belief that he contemplated the withdrawal of his troops from the Italian soil. For some time past he has abandoned the policy of non-interference—if indeed it can be said with truth that he ever acted upon it. Whatever his intentions may have been, this is the result. The Kingdom of the Two Sicilies remains in a most disturbed condition, and the forces of Northern Italy are consumed in the effort to restore tranquillity. Should the Austrians—emboldened by their very despair—make any serious effort in the ensuing spring to reimpose their yoke upon Italy, Louis Napoleon has so contrived matters that he may make submission to his will in Southern Italy the condition of any assistance he may be disposed to afford in the North. Venetia may be the set off for the realisation of the Idées Napoleonnes in the Pontifical States, and in the Kingdom of Naples, and in Sicily.
The pivot of the situation seems to lie in Hungary, and in the discontented provinces now nominally subject to the rule of the Austrian Emperor. If the discontent is as great as it is stated to be, Francis Joseph will have difficulties enough upon his hands, without courting fresh dangers by an armed invasion of Italy. Again, if the Austrians are unable to try the results of another campaign, the combinations of the French Emperor, if we read them aright, will probably prove false. As he will not be called upon to make any more sacrifices, he will scarcely be able to claim any more compensation. Public opinion in France is very much opposed to the course he has pursued at Gaëta, and the opposition will increase if the French armies are not again involved in the chances of war. When the British Parliament meets, there will, no doubt, be very strong expressions of the view taken in this country upon Italian affairs, and just now it seems that the policy of Louis Napoleon is to live upon good terms with us. After all, much depends upon the course taken by the Italians themselves. If they have good sense, and public spirit enough to avoid discord and provincial jealousies, they may even yet defy the intrigues and policy of France. In Central Italy, during the course of last year, they so conducted themselves as to extort the admiration of Europe. Their independence has been the result. We note with sorrow and vexation that in Naples and Sicily at the present moment, it is not so. The rashness of political zealots at that extremity of the Peninsula, just now threatens the sacred cause of Italian freedom with the most serious dangers.
The idea at Paris is, that the French Emperor still clings to the Programme in which he announced his policy before the Italian campaign. Northern Italy is to be under the dominion of the Sardinian King—Central Italy to be given up to the Grand Duke of Tuscany—the Pope to be reduced to the patrimony of St. Peter, and to be guarded there by French troops—Southern Italy to be restored to the Ex-King of the Two Sicilies, with constitutional guarantees. In short, there is to be an Italian Confederation under the protection of France. The French Emperor does not like the prospect of a rival in the Mediterranean.