QUESTION. (Hansard, 8 February 1861)

§ MR. H. B. SHERIDAN
said, that in rising to ask the Question of which he had given notice, in reference to the fugitive slave Anderson, it was not his intention to take up much of the time of the House. The first Question was, Whether in the Canadian Extradition Case, the Government had any doubt that the writ of habeas corpus issued by the law courts here, requiring that the body of Anderson should be brought before them, would reach Canada in time to prevent the judgment of the Canadian courts being acted upon? He had struck out the words "ordering surrender of the prisoner," because it appeared that the Canadian courts did nothing but decide on the abstract question of law. The prisoner was, therefore, remitted to the Sheriff, and it was left to the Governor to decide whether he should be given up or not. He knew there were many persons who had doubts as to whether the writ would arrive out in time; and there was further no little surprise expressed that Judges presiding over a British court should be found to give so 219 remarkable a decision as that given in Canada. The Questions, therefore, which he wished to ask the First Lord of the Treasury, were:— Whether, in the case known as the Canadian Extradition Case, Her Majesty's Government have any doubt that the Writ of Habeas Corpus issued by the Court of Queen's Bench in this country, requiring that the body of one J. Anderson should be brought to that Court, will reach Canada in time to prevent the judgment of the Canadian Court from being acted upon: And whether Her Majesty's Government have any doubt that the Writ on its reception by the Canadian Court will be attended to and obeyed: And whether any steps have been taken to secure the safe passage of J. Anderson through American territory, if that route should be selected, to reach this country: And if Her Majesty's Government are aware whether or not the said J. Anderson is now in prison in any of Her Majesty's gaols in any part of Her Majesty's dominions as a felon or otherwise, and subject to the ordinary treatment of persons who have broken the Laws: And, whether Her Majesty's Government, finding that it is the opinion of certain British Judges that there exists a Treaty with the United States of America by the terms of which Great Britain has declared that there are some men who have no natural or legal right, have taken any and what steps to revise or to put an end to and dissolve such a Treaty, in order that for the future no misunderstanding shall exist as to the meaning of such Treaty, or as to the intention of the British people with reference to the question whether one man has or has not the power to enslave another.

§ MR. COLLIER
said, he thought that not an inopportune occasion to make a statement in which he was confident he should be supported by his hon. and learned Friends in the House—that it was the almost unanimous opinion of Westminster Hall, that the decision of the Canadian Courts was wrong, and that Anderson ought not to be given up. It was a question to decide which did not require a legal education. It was one which every Member of that House was as competent to form an opinion with as any lawyer. He would briefly state what it was. The question arose upon the construction of the Ashburton Treaty. He might observe, in the first place, that with regard to extradition treaties generally, it was stated by Sir James Mackintosh, that the object was the extradition of great offenders—offenders against the law of nations, which was the basis of the code of all civilized countries—and not of offenders against merely the peculiar, conventional, and exceptional laws of particular States. But, in order to guard against any question being raised that they were 220 bound to surrender offenders against the peculiar laws of the United States an express provision was made in the treaty. The provision was:— Provided that this (extradition) shall only be done upon such evidence of criminality as, according to the laws of the place where the fugitive or persons so charged shall be found, would justify his apprehension and commitment for trial if the crime or offence had there been committed.", That was in the country where the fugitive was found. A question was asked in that House, in 1843, by Lord Macaulay of the officers of the Crown as to the construction of this treaty—whether or not this treaty j would apply to offenders against the peculiar laws of the slave States. Sir Frederick Pollock, who was then Attorney-General, stated that it would apply only to cases in which an offence had been committed against the laws of England or those of Canada.—[See 3 Hansard, lxxi. 572.] He (Mr. Collier) believed that opinion of Sir Frederick Pollock to have been perfectly correct. If the words in the treaty which he had just quoted were read in their plain and simple interpretation, no man of common sense could help coming to the same conclusion, and it would require a great deal of legal ingenuity indeed to pervert them. He understood that by the judgment of the Courts of Canada this was not the interpretation which had been put upon them—a judgment with which he altogether differed. The magistrate before whom Anderson was brought had to consider whether he had committed a crime according to the law of Missouri, and then to determine whether the evidence of that crime was sufficient, according to the law of England. There could be no proceeding more inconvenient than to require a magistrate to deal with the laws of two different countries—to consider the law of one country with respect to crime, and then to determine upon the evidence respecting that crime by the law of another country. If they were to judge of this crime by the law of England, the case was quite clear. An attempt was made to apprehend Anderson, who was pursued for the purpose of capture. He killed his pursuer in defence of his liberty. He (Mr. Collier) said that was not murder according to the law of any civilized country. Then how did it become murder? Why, upon the proof of the additional fact that he was a slave. But the law of this country did not recognize slavery—and, therefore, 221 that fact was wholly immaterial. He, therefore, ventured to say, with great respect, that it seemed to him the Courts of Canada had frittered away the plain meaning of the words to be found in the treaty, and had given them a meaning never intended by either of the contracting parties. Let them see for a moment to what consequences this interpretation would lead. If the criminal law of Missouri were to prevail this would follow. Suppose the Missouri authorities were to enact that any slave who struck work, or who read the Bible, should be guilty of murder—the logical consequences of such an interpretation would be that this country would be bound to surrender him upon proof that he had struck work or read the Bible—a conclusion so absurd that it was impossible to suppose such an interpretation would be insisted on by any country. He had only to express an anxious hope that Her Majesty's Government would be able to give a satisfactory answer to the question which had been put in reference to this subject. He felt certain that the Government could not possibly give any other instructions to the Governor General of Canada than not to surrender Anderson.

§ MR. WARNER
said, it would probably be in the recollection of the House that some years ago a claim was made by the Government of this country upon the Government of the United States, for the extradition of a person charged with murder in Ireland. He believed the accused party bore the appropriate name of "Cain," and the crime with which he was charged was that he had waylaid his landlord and shot him dead. The case came before the Courts of the United States, and they held, first, that the treaty did not apply to political offences; and, secondly, that the shooting of a landlord in Ireland was a political offence. He apprehended that in this country it was no answer to a charge of murder to say that the victim was a landlord; but let them apply the doctrine held by the American Courts to the present case. He was not going to dispute the common opinion which seemed to prevail in this country with regard to the absurdity of the Ashburton Treaty. He was willing to admit that it stood almost unrivalled as an instance of diplomatic incapacity and want of common sense. But it was clear that its words could not bear a double interpretation—that there could not be one interpretation for the Government of the United States and another for this 222 country; and by whatever rules of interpretation the United States Government; arrived at the conclusion that the murder of a landlord in Ireland was not within the treaty, the Government of Canada could not avoid coining, by the same process of interpretation, to the conclusion that homicide in defence of personal liberty was not within the treaty. Whether the decision of the Court of Queen's Bench in Canada in the case of Anderson was right or wrong did not now so much matter, inasmuch as the question was taken out of their hands, and rested with the Canadian Executive. He wished to ask the noble Lord whether he had reason to believe that the Canadian Executive would be officially cognizant of the precedent he had quoted, and whether he thought there was any reason to fear that, from over-scrupulousness or any other cause, they might put a construction on the treaty contrary to that which the United States' Government had established in their own case, as well as opposed to those glorious traditions which were the property of Canada equally with our own country.

§ VISCOUNT PALMERSTON
In answer to the first Question, put to me by my hon. Friend below the gangway (Mr. Bristow), I have to say that it is not the intention of the Government to introduce this Session any measure with respect to church rates. There is a Bill already before the House on the subject. With regard to the question whether we should object to proceeding by Resolution, it will be for the House to determine that; but it does not appear to me that the question is one to which the method of Resolution is at all applicable. With regard to the Question of the hon. Member for Dudley (Mr. H. B. Sheridan), which has just now been matter of discussion, I will state exactly how the matter stands, and, of course, that statement will be a reply to many of the questions that have been put. My noble Friend the Duke of Newcastle wrote on the 9th of January to the Governor General of Canada that he was not to surrender Anderson to the American Government until he had received positive instructions from Her Majesty's Government to do so. Therefore, there is no chance of Anderson being surrendered until the question shall have been fully and completely considered. There is a general impression that the decision of the Court of Queen's Bench in Canada would 223 have the effect of rendering it necessary that Anderson should be given up. But it has no bearing on that point. The effect of the decision of the Court of Queen's Bench, whether right or wrong, is that Anderson was not to be taken out of the custody in which he then was; but it rests, not with the Court of Queen's Bench, but with the Governor General of Canada, to issue the official warrant for his surrender, when application for that surrender is made. Of course, it is not for me to answer the question as to the conflicting jurisdictions of the Court of Queen's Bench of this country, and the Court of Queen's Bench in Canada; or to say what is the course likely to be pursued by the Court of Queen's Bench in Canada, when it shall have received the writ issued by the Court of Queen's Bench in England. It is plain enough, however, that if Anderson were to be sent to England in compliance with the writ, he would not be sent through the American territory—and, therefore, the writ cannot be executed, if it is to be executed, until the communication is open with Canada, without going through American territory. My hon. and learned Friend (Mr. Collier) has plainly stated the effect of that portion of the Ashburton Treaty which relates to this question: but I do not concur with my hon. Friend behind me (Mr. Warner) in considering that the treaty is very imperfect and unintelligible. On this point, however, it is clear as day—it requires proof that when a criminal is claimed under its provisions he must be accused of one of the offences mentioned in the treaty, and that the circumstances urged as the grounds for asking for his surrender, must be such as would show that he was liable to be prosecuted for the crime according to the law of the land in which he then was. That in this case would be the law of England. It is quite plain to my understanding that the American Government must establish that Anderson committed an offence which by the law of England is murder, and that they must give proof which would be sufficient to satisfy an English justice of the peace that he ought to be committed to be tried on that accusation. I will not go into the question which has been so ably discussed by my hon. and learned Friend, whether a free man who kills in self-defence another who attempts to reduce him to a state of slavery is guilty of manslaughter, or justifiable homicide, or murder. I think it probable that no Eng- 224 lish lawyer would place the act under the last mentioned head: and if it is not murder, then clearly no accusation has been established under which the surrender of Anderson could be claimed under the provisions of the treaty. That is only a passing opinion; but what must be satisfactory to the House to know is that, by instructions from the Secretary of State for the Colonies, the Governor General of Canada is not to surrender Anderson until the question shall have been fully considered by the Government at home, and until instructions shall be sent to him from hence.