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ART. XVI.—THE CASE OF ANDERSON, THE FUGITIVE
HE correctness of the decision of the majority of the
members of the Court of Queen’s Bench, at Toronto, in this l'emarkable case, has been looked upon by many lawyers in this country as very questionable. It is doubtless difficult, in such a matter as this, to guard one's judgment on a dry point of law from being influenced one way or the other by considerations not of a strictly legal nature; and the lawyer, anxious to save Anderson from the clutches of the miscreants who seek his life, may unwittingly strain every point favourable to the accused, in the construction of the treaty under which the State of Missouri now claims its victim.
We have, however, endeavoured to consider the case calmly and dispassionately, and—being convinced that the giving up of this man by the British empire, whether rightly claimed or not, is an utter impossibility—we have, we believe, succeeded in dismissing from our minds all care and thought as to his safety, and are prepared to discuss the point of law, and the judgment of the Toronto Bench, with feelings not more excited or prejudiced than they would be were the question one of an ordinary nature, raised in our own courts.
It is unnecessary for our purpose to enter at length into the facts of the case, and it will be sufficient to remind the reader that Anderson, a fugitive slave, in effecting his escape from his master in the year 1853, was seen in Howard County, in the State of Missouri, by one Seneca Digges, who pursued and endeavoured to arrest him ; that Anderson, seeing no other chance of escape, stabbed his pursuer mortally, and succeeded in reaching Canada.
According to the laws of Missouri, Digges was acting in a lawful manner in endeavouring to arrest the fugitive; and therefore, according to those same laws, Anderson was not justified in killing him. Under these circumstances, the State of Missouri claims Anderson from the Canadian authorities under the extradition treaty between Great Britain and the United States ; and it is upon the construction of this treaty that the question we now propose to consider arises. It is thus stated by the Chief Justice (Robinson) of the Toronto Court of Queen's Bench :
“ The point which has been argued before us, and the only point, is what construction and effect it is proper to give to those words in the treaty and in our statute of the 22nd of Victoria, .cap. 8, sect. 1 (Consolidated Statutes of Canada), which, when read together, in effect provide that a person charged with committing, within any of the United States of America, any of the offences mentioned in the treaty--that is to say, murder, or assault with intent to commit murder, piracy, arson, robbery, or forgery and 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 the crime or offence had there been committed, may be apprehended upon complaint made under oath, in order that he may be brought before the judge or justice of the peace. who has caused him to be apprehended, to the end that the evidence of his criminality may be heard and considered; "and that if, on such hearing, the evidence be deemed sufficient by law to sustain the charge according to the laws of this province, he shall certify the same, together with a copy of all the testimony taken before him, to the Governor of the province, in order that a warrant may issue, upon the requisition of the proper authorities in the United States, or of any such States, for the surrender of the person charged, according to the stipulation of the treaty.”
Now, if Anderson can be claimed at all, it must be on a charge of having committed murder; and, if we discard unnecessary verbiage, the following is the effect of the treaty and the Canadian statute-namely, that if a person charged upon such evidence of criminality as, according to the law of Canada, would justify his apprehension and commitment for trial [ for murder, must here be understood]—if the crime had been there committed, he may be apprehended, and if the evidence brought against him be deemed sufficient by law to sustain the charge [of murder] according to the law of Canada, the accused must be surrendered.
We must therefore consider the case as if the whole occurrence had taken place in Canada, the criminal laws of which province are identical with those of Great Britain.
If Digges had endeavoured to arrest Anderson in Canada, he would clearly have been committing an unlawful act; and, supposing Anderson's liberty and life to have been thereby jeopardized, he would have been justified in slaying his pursuer. No magistrate, and no coroner’s jury in Canada, could in sueh case, and under such circumstances, have committed the accused for trial on a charge of murder. The offence must inevitably have been held to be either justifiable homicide or manslaughter, neither of which offences are mentioned in the treaty.
But there is this apparent difficulty in the case. Digges was, as we have said, acting lawfully, according to Missourian law, in attempting to arrest the prisoner. Of course if the Canadian Courts are at liberty to recognise the lawfulness of the attempted apprehension, there is an end of the matter, and Anderson ought legally to be surrendered. Let us therefore turn again to the words of the treaty,“ if the evidence be deemed sufficient by law." Now, we ask, can any evidence be received by any court in the British empire, to show the lawfulness of the arrest of a man because he is a slave? The notion is preposterous. And yet, unless the state of Missouri could show that Digges was authorized to arrest Anderson because Anderson was a slave, how could the right to arrest him be proved ? “ You slew Digges," say the accusers ; “Yes,” says the accused; "but it was in selfdefence, and the law of Canada does not permit you to prove that I was a slave, and was therefore resisting lawful authority." This point appears to us to be so perfectly clear, that we cannot conceive how two British judges could have taken any other view of the question.
There is yet one other point. The Chief Justice said :" Before
his [Anderson's] trial on a charge of murder, if he shall be surrendered, and if he shall be tried for that offence, it will be for the jury to dispose of the case under the direction of a judge. There may then appear sufficient reasons to warrant the jury in taking a favourable view of the case, and to lead them to think it probable that the prisoner advanced towards the deceased, and stabbed him under an apprehension that it was necessary, not merely to facilitate his own escape, but to save his life, or to avert threatened violence at the moment. But the case, in my opinion, is not one in which the justices at Brantford would have been warranted in assuming the functions of a jury, and intercepting a trial for the graver offence.”
Nothing, in our opinion, can be more erroneous than this view of the Chief Justice with regard to the duties of the justices. Were it correct, it would have the effect of inserting the word “manslaughter” in the treaty. The Canadian authorities are the persons to decide whether the evidence is sufficient to commit the prisoner for trial for murder; and if they are of opinion that it would not be sufficient, according to Canadian law, to commit him for that offence, though it would be sufficient to commit him for the lesser crime, they are bound to discharge the prisoner. For this purpose, the treaty has impliedly invested them with the functions of a jury, and any other construction of it would lead to the absurd result, that a person who may have committed an offence not named in the treaty, might be claimed under it by any foreign State which should have passed a law that such offence should be deemed to be one of the named offences. But, happily, the treaty is sufficiently clear on this point, and it is only if the evidence be deemed sufficient to commit the accused on the particular charge that he can be surrendered.
On all points of law, therefore, we think the court was wrong; and that Mr. Justice M‘Lean, who delivered a most able judgment, and differed from his learned brothers, took the right view of the case, in ignoring slavery altogether as an abomination not to be taken notice of in a British court. Fortunately for the credit of this empire, and for the welfare of the world, the
Court of Queen's Bench at Westminster has issued its writ of habeas corpus; and there can be no manner of doubt in any one's mind, who knows how this court is now constituted, that the law will be truly and firmly interpreted, without fear or favour.
THE LAW AMENDMENT SOCIETY: ITS RECENT PAPERS, WITH SOME REMARKS UPON THEM.
is one of the functions of associations like the Law Amend
ment Society, to furnish papers to be read before it on important topics. Useful discussions may arise out of the consideration of such papers, if they are in themselves worthy of debate. But it is a difficult task to obtain the service of competent men who can thus employ their time for the public good; and it is fatally easy to get men of another class to manufacture and produce worthless and tiresome essays. The cacoethes scribendi, legendi, "et loquendi, is strong upon not a few. Every club has its bores, and every society its obtrusive members; and these persons form one of the common means of deteriorating the character and position of useful associations. The Law Amendment Society numbers among its members not a few of zealous and able men who sacrifice time for the public good; but we regret to say it also contains some who hinder and obstruct real and beneficial business. We have before us now two papers, one by Mr. Pulling, of which we will say that, though we are not prepared to concur with the writer in all his suggestions, it is a meritorious, able, and useful essay. The other, by Mr. Edward Webster, possesses none of these qualities, but is a good example of the mischievous abuse of the opportunities afforded by the Society, to gentlemen addicted to word-spinning platitudes, and mere reproduction of popular fallacies.
And first we will assume the grateful task of referring to Mr. Pulling's paper as being worthy of preservation, and not too long; so that we shall do better to give it in extenso, without further coinment. It is headed
SUGGESTIONS FOR IMPROVEMENTS IN OUR SYSTEM OF LEGISLATION BY
“The phrasesystem of legislation-in reference to private Bills has, at this day, a received meaning, though it is not altogether appropriate