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.”
Viscount Palmerston—
“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.”
