§ MR. HALIBURTONsaid, that before putting to the Under Secretary for the Colonies the question of which he had given notice, he wished to refer briefly to what had appeared respecting the slave Anderson. He bad been an inhabitant of the State of Missouri, and had escaped from slavery, He took the life of a white man, also an inhabitant of that State, who was endeavouring to capture him while he was trying to flee from his master. After that event Anderson succeeded in effecting his escape, and got into Canada. The relatives of the man who was killed, having traced him out, demanded him under a law of the province—not under a treaty, as had been stated in this country— but under a law of the province containing many provisions of the treaty of extradition. Certain provisions of the treaty that had been agreed upon between this country and the United States had been adopted by the province and passed into a law, and it was in that way that the treaty received the only validity which it could have in Canada. Under that law Anderson had been arrested, and the question had been brought before the Supreme Judges whether or not he should be delivered up to the officers of the State of Missouri. It had been inquired into and adjudicated on by that Court. He wished that he might not be misunderstood, for in a case of the kind, which had created so much feeling in this country, he might be misrepresented. He, therefore, distinctly stated that it was not his intention to offer any opinion on the act of the man Anderson, as to whether it amounted to murder, or manslaughter, or justifiable homicide; as to whether he was rightly captured in Canada, or as to whether the judgment of the Court there was right or wrong. On all these questions he had no observation to make. His object was neither to vindicate the rights of the 822 State of Missouri nor to maintain the rights of the prisoner Anderson, but to state that there had been two violations of the rights of the people of Canada during the trial of this case, and before its final termination. After the decision of the Canadian Court had been given, an application was made to the Court of Queen's Bench in this country for a writ of habeas corpus to bring Anderson out of the gaol in Canada and before the Court, in order to have his case inquired into. There had been some very singular circumstances attending this case in the Queen's Bench. Here, again, he wished to explain that it was very far from his intention to make any remark whatever disrespectful to the Judges of that Court. Their learning, their very great ability, and the wisdom and impartiality with which they decided everything that came before them, not only entitled them to, but commanded for them, the respect of every one. The country ought to be proud of such a Court, and he should be wanting in self-respect if be made any remark derogatory to its Judges; but at the same time they were not infallible. Appeals from decisions of the Queen's Bench had at various periods of our history been brought before the House of Lords; and in some cases those decisions had been reversed. In the present case he could only suppose that the Court acted on the supposition that they were adjudicating on the terms of a general treaty between Great Britain and the United States, which was within their cognizance and jurisdiction. But, if such was the fact, one would have imagined that some reference would have been made to the law officers of the Crown, and, in the application to the Court, the services of the hon. and learned Attorney General would have I been employed. Instead of that the affair was a voluntary one. A man with an unpronounceable name, who he (Mr. Haliburton) believed was a Polish refugee, and in no way connected with the authorities of Canada, or those of this country, made the application. Upon the voluntary affidavit of that gentleman the discussion in the Court of Queen's Bench took place, and the case was dealt with as being a simple and common application for a habeas corpus. Several reported cases were referred to in the argument, which had nothing whatever to do with that before the Court. The writ of habeas corpus was granted, and addressed to the gaoler who 823 had possession of the prisoner, and to the Governor of Canada, a civil officer with military powers. A writ of habeas corpus. might with as much propriety be addressed to the Governor of Newgate and the Duke of Cambridge. He spoke the sentiments of the ablest lawyers in this country when he said that the decision of the Court of Queen's Bench had created great surprise here, and he knew that it had caused the greatest consternation in the colony. In these observations he made no reference to the case of Anderson. They would apply equally to any other case. The sympathies of the people of Canada were with Anderson, but, at the same time, they complained that their constitutional rights had been violated. The Court of Queen's Bench, no doubt, founded its jurisdiction on the treaty; but the best authorities in Canada called in question the power of the Government of this country to make any treaty, that was obligatory on them, where its provisions had to be carried out in the colony. The colony had a government and a legislature of its own, and was competent to perform all the acts that were necessary to the government of its people. In all internal matters it was supreme, and its jurisdiction exclusive. There was provision made for appeals from the decisions of its courts of law. If a man was dissatisfied with the decision of any of the ordinary courts, he had a right to appeal to a higher tribunal, and from that again he could appeal to the Privy Council. That was the only mode in which the judgments of the Canadian Courts could be reversed, and a very proper mode it was. Such a constitutional appeal was willingly conceded. It was beneficial to the people, and a great relief to the Courts. For however able and learned the Canadian Judges might be, they were themselves ready to admit that they had neither the experience nor the erudition of the Judges of England. But to send a writ to Canada to take a man out of the country, and bring him over here to be adjudicated upon, was to invade the constitutional rights of the people of Canada, and was a claim on the part of the Queen's Bench that would never be submitted to. The people of the colony, and especially of Montreal, rejoiced to think that they had got rid of the responsibility of this case, and were nearly illuminating their houses from joy, until they found that this relief could only be obtained, at the expense of their own independence. The ordinary course of ap- 824 peal had been passed over; a writ of habeas corpus had been sent out, and an officer despatched with it to receive the man. It was rather a humiliating proceeding to see an officer of one of the superior courts of this country sent on such an errand, considering the answer he was sure to receive. The answer would be that they did not recognize the authority of such a court as the Queen's Bench extending to Canada, which had a responsible Government, and an independent judiciary of its own. He certainly wished that they would deliver the man up under protest as such a case was not likely to occur again. No one pretended to say that there was any intentional violation of the rights of Canada in what had been done. It was regarded as a hasty and inconsiderate but not an aggregate act. He supposed the Judges of the Court of Queen's Bench had some idea that there was such a place as Canada, just as he had learned that the Channel Islands were Guernsey, Jersey, Alderney and Sark. He took it for granted that there was such a place as Sark as it was to be found in the map, but he had never seen it, and never saw a man who had. The Judges of the Court of Queen's Bench seemed to have some such idea of Canada, and to have attached similar importance to it. With regard to the orders sent by the Duke of Newcastle to Canada he should like to know first of all what authority he had to send orders at all. The Colonial Office seldom interfered in the colony at the right time, and when it did interfere it usually did so in a wrong manner. He hoped the correspondence would be laid on the table, that the people of Canada, and of the other Colonies too, might be able to see what these orders of the Duke of Newcastle were, and whether they were justified by the constitution of Canada. As the nominee of the Colonial Office, the Governor of Canada was often in communication with the Colonial Secretary; and there might he many occasions on which it was necessary for the latter to communicate advice to the Governor, and to recommend that he should take such-and-such a course, under certain contingengies, and such correspondence as might be inconvenient to disclose. But direct orders were public documents, and as such ought to be made known. The country was not to be governed by orders that were not to be seen. The Government of a constitutional colony was to be carried on by the Governor by and with the advice of his 825 Council. If, therefore, any order went out which directed him to pursue a certain course without the advice of his Council, it would be a contravention of the constitutional rights of the people. It would place him in antagonism with his constitutional advisers, and be subversive of anything like responsible government. The Duke of Newcastle had been recently in Canada, and had seen there the noble reception given to his Royal Highness the Prince of Wales; he had seen the enthusiasm and heartfelt demonstrations of the people—not demonstrations got up, as in a neighbouring country by means of spies and police, but hearty honest outbursts of loyalty and affection; he might have seen also from the very different receptions he met with himself, where they conceived themselves injured or slighted, what the character of those colonists was—that they were Englishmen in feeling and principle, and not a people likely to put up tamely with what they considered a slight or an insult. He took it for granted, therefore, that the Duke of Newcastle would be cautious how he addressed them, and that the orders contained nothing that was unconstitutional. But if the production of these orders was refused, he would take it for granted that they were like certain letters which he wrote to the mayors of some of the towns of Canada during his recent visit to Toronto, of which, whether rightly or wrongly, the people made loud complaints. It might be said that this was only bad manner, but bad manner implied bad conduct. They were not people to put up with nonsense, although they would do anything they were asked in civil language. The difficulty arose merely from their having been badly managed, tie would, however, say no more on this subject, as it would probably at no distant day be brought before Parliament. He would confine himself at present to asking the Under Secretary of State for the Colonies for information as to the extradition of the American slave Anderson, now in custody in Canada; and if he would lay upon the table copies of all correspondence that had passed in relation thereto between the Secretary of State for the Colonies and the Governor in Canada and for all orders issued thereupon.
§ MR. CHICHESTER FORTESCUEThere are one or two points in the speech of the hon. Member into which the House will not be surprised if I do not follow him, I do not intend to follow him in the ob- 826 servations which he has thought it right to make upon the conduct of the Duke of Newcastle in his dealings with the Orangemen of Canada. I am glad, however, that an opportunity will be offered to my noble Friend in "another place" of justifying himself; and I am quite content to leave the defence of his conduct in his own hands. But the hon. Gentleman has spoken to-night in terms of complaint, which I trust will not be echoed in Canada, of the efforts made by the Government and by private individuals in this country for securing to the unfortunate man Anderson a fair and full consideration of his rights. The hon. Gentleman represents that a double invasion of the rights of the people of Canada has taken place—the one consisting in the action of the English Court of Queen's Bench, which has deemed it right, upon the application of a private individual, to issue a writ of habeas corpus to Canada. It is not my duty on the present occasion to enter into any discussion of the matter. I shall neither discuss whether the Court is entitled to issue the writ, or whether, if it is, that is a fit state of the law. This, however, I will say, that the only step taken by the Colonial Office has been to forward a despatch simultaneously with the writ to the acting Governor General, instructing him that in case any action should be necessary in consequence of the issuing of the writ he is to be guided by the opinion of his Canadian law advisers. The other invasion complained of by the hon. Member consisted in this, that my noble Friend the Duke of Newcastle, with great promptitude, and with a decision which the country appreciated, despatched that instruction to Canada of which the House was informed some days ago by my noble Friend at the head of the Government. I have the despatch here, and I will read the passage bearing upon the subject. My noble Friend had heard a few days previously from Governor Head, who was then in this country, of the decision of the Court of Queen's Bench at Toronto. Now, considerable misapprehension existed with respect to the effect of that judgment. The effect of it was neither more nor less than this—the Court refused to grant the writ of habeas corpus, and they remanded Anderson to prison. They did no more. The Court of Queen's Bench said it could do no more. It might have set Anderson free on the habeas corpus, or it might, as it did, have refused to do so; but to deliver him up to any fo- 827 reign Power was not within the competency of any Court of justice. That is fully admitted by Chief Justice Robinson himself. He stated the law accurately when he said that the power of the Governor General, under the statute, to surrender or retain a fugitive could not be affected by anything said or done by the Court. That is the fact. The fugitive, Anderson, can only be delivered up under the hand and seal of the Governor General of Canada, and it was with a knowledge of that fact that my noble Friend thought it right to address those instructions to the Governor General to which the hon. Member has referred. But when the hon. Member talks of it as an invasion of the rights of the people of Canada that the Secretary of State should have addressed such instructions to the Queen's representative in the colony, the hon. Member makes a claim which it is impossible to admit in this House, and which will not be asserted by any reasonable person in Canada. Just consider the nature of the case. The controversy arises entirely out of a treaty concluded, not between the colony of Canada, but between the Imperial Government and the United States. I have now in my hand the despatch of my noble Friend, dated the 9th of January, and it contains this passage—
If the result of the appeal should be adverse to the prisoner, you will bear in mind that under the treaty he cannot be delivered over to the United States by mere action of the law—that can only be done by a warrant under the hand and seal of the Governor. The case of Anderson is of the gravest possible importance, and Her Majesty's Government are not satisfied that the decision of the Courts in Canada is in uniformity with the views of the treaty hitherto held by the authorities in this country. You will, therefore, abstain from completing the extradition in any case until further opportunity has been afforded for the consideration of the question.Such were the instructions of my noble Friend, and I have no further information to give, for the only communication since received from Canada has been a simple acknowledgment of that despatch. Her Majesty's Government have under their consideration what instructions should be sent to the Governor General; but I can assure the hon. Member that the production of the papers in our possession would add nothing substantial to the information I have communicated. At the same time, in a transaction of this delicate nature, which may lead to a diplomatic correspondence, it is not usual or advisable to lay papers before the House. In conclu- 828 sion, then, let me say, the question is not in the hands of any Court of justice here or elsewhere, but in the hands of Her Majesty's Government, and the House may safely leave it there.