Release of Anderson, the Fugitive SlaveThe Illustrated London News, vol. 38, no. 1078, p. 223.
March 9, 1861
At Toronto the fugitive slave, John Anderson, claimed by the United States' Government, on the charge of murdering one Seneca P. Digges, in the State of Missouri, in the year 1853, while making his escape from slavery, and whose extradition to the Missouri authorities was on the 15th of December last ordered by the Canadian Court of Queen's Bench, was, on the 9th ult., brought before the Court of Common Pleas, on a writ of habeas corpus issued by Chief Justice Draper. The proceedings are reported at great length. The points urged on behalf of the prisoner are these. First, that the prisoner was entitled to the writ on which he was brought before the Court, and upon the return to that writ to have inquired into the matters charged against him. Second, that the evidence was not sufficient to put him upon his trial for the crime of murder, assuming that he was entitled to the protection of British law. Third, that the treaty requires that a charge under it should be first laid in the States, and that the evidence did not show that any charge had been laid against the prisoner. Fourth, that even if we are bound to administer this law of Missouri, the evidence did not show that this state of Missouri had any power to pass such a law, and it cannot be presumed that she had that power, inasmuch as she is but a municipality in relation to other Governments, and the law is against natural justice. Fifth, that the word "murder" mentioned in the treaty means murder according to the laws of both countries; and, if not, that by the treaty itself and our statute the crime charged is to be determined by the laws of Canada—that it is the criminality that is to be determined by the laws of Canada. After hearing the evidence, Chief Justice Draper said that the Court desired to dispose of this case as quickly as possible, so that Anderson might not be kept in custody any longer than was necessary, if the decision went in his favour; but it was questionable whether, if judgment was to be given on all the points involved, the case could be decided during the present term. At all events they would give the prisoner the benefit of a speedy discharge if they came to an opinion in his favour on the technical point as to the insufficiency of the commitment. On this question they would probably be able to give a decision that day week—the last day of term. An order would be made for the prisoner to be brought up next Saturday, and in the meantime he would be committed to the custody of the Sheriffs of the united counties of York and Peel.
On Saturday, the 16th ult., the Court of Common Pleas, as was generally anticipated, discharged Anderson, on the grounds that the warrant of commitment was not issued in conformity with the statute, because—1st. It did not contain a charge of murder, but merely of felonious homicide; whereas the treaty and our statute do not authorise a surrender, and, consequently, not a committal for the purpose of surrender, for any homicide not expressed to be murder. 2nd. That it was not expressed to be for the purpose of surrender, but only until the prisoner should be discharged by due course of law—whereas the statute requires both. Upon the merits of the question itself no judgment was given.
The following extract from Chief Justice Draper's judgment will show what he thought of the case:—"I have, so far as the limited time and the pressure of the business during the week would permit, considered some of the questions involved. I have at least been able to appreciate the difficulty of disposing of them. One doubt arises on the threshold, namely, whether the statute gives the Court power to look into the depositions and to adjudge whether they contain evidence of criminality sufficient to sustain the charge of murder. It is easy to suggest objections to the placing the power of exclusive and final adjudication on this point in the hands of a single Justice, even although his decision is not binding on the Government, to whom he must certify the same and the evidence, and on whom rests the ultimate responsibility of surrendering or refusing to surrender the prisoner. Still, however weighty I might deem such objections, if the statute does confer that jurisdiction on a single Judge or Justice of the Peace, the statute must be obeyed. And I am free to confess that there is some difficulty in affirming this Court can review the decision of the Judge or Justice without running counter to the opinion expressed in ex parte Besset. But conceding that we have that province, and as a necessary incident to it to bring the depositions before us by certiorari (as to which some technical objections may be suggested), I require further time before I can adopt as a principle of the law, that because a man is a slave in a country where slavery is legalised he is legally incapable of committing a crime, that he is not to be deemed a "prisoner" who may be charged with an offence. Nor am I prepared to decide that on a charge of murder, sufficiently sustained by evidence to warrant his being committed for trial according to our law, the prisoner accused of that crime would not be within the meaning of the treaty because, if acquitted on a trial in the country where the accusation arose, he would be detained in bondage as a slave, or because it might be feared, and even with reason feared, that because he was a slave he would not be treated in the same spirit of justice and impartiality as a freeman before the tribunals of a foreign State where slavery is established by local law. Or, to take a possible case to arise in a Free State, let it be supposed that a slave flies from a Slave State into a Free State, whose laws, nevertheless, unlike our own happy institutions, sanction and require his surrender merely as a slave—that the fugitive kills an officer of the Free State who is endeavouring, under regular process, to arrest and detain him with a view to his surrender, and, having killed the officer, escapes into this province, I do not yet see any way to the conclusion that we could hold the case not to be within the treaty, and the act so clearly not to be murder, that there would be nothing for a jury to try, but that the Court could dispose of it as a pure question of law. For if there be a question of fact to be tried, I apprehend he must be surrendered, as such question could only be tried in the country where the fact arose. These and other similar questions are of too serious a character to be decided upon impulse or in haste, and I do not scruple to say that, so long as the prisoner sustains no prejudice by the delay, I desire to defer pronouncing an opinion upon them. I am reluctant on the one hand where the accuser does not make it indispensable to declare that each individual of the assumed number of 4,000,000 of slaves in the Southern States may commit assassination in aid of his escape on any part of his route to this province, and find impunity and shelter on his arrival here. I am reluctant on the other hand to admit that Great Britain has entered into treaty obligations to surrender a fugitive slave who, as his sole means of obtaining liberty, has shed the blood of the merciless taskmaster who held him bondage. An occasion may arise when it will be my duty to adjudge one way or the other. But the necessity does not exist at present, and I am not afraid to avow that I rejoice at it. I am, however, glad that the discussion has taken place, that the doubts and difficulties it suggests have been brought prominently forward. The power of dealing with them is in the hands of others, and the necessity of dealing with them must, I think, be felt by those who possess the power."
As the facts of the Anderson case may have escaped the memory of some of our readers we briefly recapitulate them. John Anderson, a negro slave, but with apparently a mixture of white blood in his veins, was brought up in the State of Missouri, and married a slave girl, by whom he had one child. Sharing the lot of his master's other live stock, he was sold into a part of the country many miles away from his wife. In the year 1853 he fled from the plantation to which he was transferred, and appeared in the quarter where his wife was located. Here he was descried by a planter named Seneca Digges, who had no claim over him, but who, in the common interest of slaveholding, gave chase with four slaves, whom he placed on the track of the fugitive. They ran down Anderson, as though he had been a mad dog, and Digges at last closed with him. Anderson, thus brought to bay, stabbed Digges mortally. He then made his way to Canada, where he has ever since lived the life of a quiet, industrious citizen. The wife and child of Anderson are still in bondage in Missouri, and he is most anxious to purchase their freedom. This object might easily be effected by a public subscription. Will some public-spirited individual stir in the matter?
Our Portrait is from a painting in oil, life-size, taken by Mr. James Forbes, of Toronto, whilst Anderson lay in the Toronto gaol.