by John Boyko
Newspapers across Canada reported the decisions. The Quebec Mercury was typical of its province’s abolitionist, pro-Anderson consensus and demanded Chief Justice Robinson’s impeachment.54 Similarly, the Globe decried the decision as criminal and announced that it was organizing a public demonstration to allow people to parade their anger. It printed the text of inflammatory handbills that were plastered around Toronto spreading fear and reporting rumour as fact: “When the inhabitants of the Northern States are petitioning by Tens of Thousands to be united to Canada, this is not the time to succumb to the slave power and their invasion in Canada. Arouse then, Petition our Government, Petition our Beloved Queen, No surrender of a Freeman at the dictation of Slaveholders. Let Death or Liberty be Your Watchword.”55
Toronto mayor Adam Wilson opened the December 23 rally in the St. Lawrence Hall. Several hundred people were there. He advised calm and came down on neither side of the issue. But every speaker who followed was clearly a supporter of Justice McLean’s interpretation, and cheers rose whenever his name was mentioned. Professor Daniel Wilson made the point that all of Canada, and indeed the entire British Empire, was now watching to see if a blow might yet be struck against slavery.56
Among the speakers that night was John Scoble. He spoke in detail about the Webster-Ashburton Treaty and about the work he had done to bring pressure to bear on British politicians when the treaty was being negotiated. Scoble explained to the attentive crowd that Ashburton had personally assured him that Article 10 was not intended to be applied to the cases of fugitive slaves. He quoted Canadian governor general Lord Metcalf as having said that he agreed with Ashburton and would never be party to the treaty being used to bring harm to fugitive slaves.57
Rallies were also held in many other cities and towns. Montreal mayor Charles Seraphin Rodier painfully rose from his sick bed to attend the boisterous meeting at the James Street Mechanics’ Hall. He and the other speakers were highly critical of the decision and all argued that if the treaty demanded that Anderson be returned to the United States then the treaty was wrong and should be amended or ignored. The rally’s consensus view became that of Montreal’s newspapers, which had been filled with editorials spewing various degrees of invective levelled against the decision, the justices, the power of the British treaty over Canadian domestic affairs, and the slave catchers and Southern interests that had led to Anderson’s predicament in the first place. 58
Before a large crowd at Montreal’s St. Patrick’s Literary Society, the powerful political leader, future Father of Confederation, and passionate spokesperson for Montreal’s large Irish-Catholic minority Thomas D’Arcy McGee shouted, “The true voice and spirit of this province is that when the fleeing slave has once put the roar of Niagara between him and the bay of the bloodhounds of his master—from that hour, no man shall ever dream of recovering him as his chattel property.”59
Freeman was running out of options. He wrote to Macdonald asking for advice. Macdonald recommended that he advance the case to the Court of Error and Appeal, which could hear it in February. Despite all the criticism that was being heaped upon Macdonald, he remained a strong advocate for Anderson, while recognizing the importance of adhering to the law and using the case to either establish a precedent or have the treaty amended so that no one else would be in Anderson’s position in the future. Macdonald wrote, “I have the strongest hope that I shall be able to relieve you of the necessity of making an order for the surrender of ‘the negro.’ ”60
The Anderson case had become both a window and a weapon. It allowed all to see the precarious nature of the Canadian political and legal systems labouring under Britain’s imperial shadow, and the relationship between Canada and the United States that was tilting toward American dissolution and cross-border confrontation. Things could only get worse if complicated by a sudden intervention by Britain—and Britain moved.
THE EMPIRE STRIKES BACK
Thomas Henning, secretary of the Anti-Slavery Society of Canada, had maintained a regular correspondence with Louis Alexis Chamerovzow, his counterpart at the British and Foreign Anti-Slavery Society. In one letter Henning had written, “The cry here is throughout the land, Anderson is not a murderer but a hero and he must not be given up.”61 Chamerovzow had, in turn, been keeping British political and civil society leaders abreast of the Anderson case and stressing its importance.
The British law community had been aroused by the many issues the Anderson case raised. There were more law journal articles about the ramifications of the case than about any other in years. There was near unanimity that Anderson should not be surrendered to the Americans.62
The Robinson court’s split decision on Anderson had led many British newspapers to dismiss the entire Canadian justice system as incompetent, inhuman or both. The London Post, for instance, posed the rhetorical question: “Are they [fugitive slaves] all to be relegated to the whip and the tortures of the planter because a majority of Canadian Judges think that the word ‘murder’ in the treaty is to be interpreted according to the laws of Missouri, and not in accordance with the enlightened and human principles of English freedom?”63
There had been further outrage when Robinson declined to hear an appeal. The Times suggested that if the law said Anderson and others like him should be returned to the United States, then the law should be ignored and a prison break should be arranged. Claiming wide support for its conservative point of view, the article said, “We suppose there will be hardly a man in England who will not hope for the success even of his forcible rescue, if things come to that.”64
On January 4, 1861, the British and Foreign Anti-Slavery Society executive committee discussed the Anderson case at length. It was agreed that Anderson had become the symbol of all that was right with the abolitionist movement and all that was wrong with America.65 Unwilling to wait any longer for the British government to intervene, Chamerovzow prepared to take the Anderson case to the Court of Queen’s Bench. He would argue that Anderson was being held without a charge, demand that a writ of habeas corpus be issued, and spring him from the possibility of extradition to America by bringing him to London. It was a bold gambit.
On January 15, Chamerovzow stood before Chief Justice Alexander Cockburn who, from beneath his outrageously large horse-hair wig, heard that Anderson was in imminent danger, as extradition would likely lead to his death. Chamerovzow cited precedents, reviewed the Webster-Ashburton Treaty, and argued that because the Canadian legal system had been created by Britain, it remained under its jurisdiction and so could be overruled.
Cockburn and his fellow justices came to a decision after only twenty minutes of deliberation: the Canadian courts were British courts and so the writ could be issued and Canadian law officers would be obliged to obey it. Anderson would be brought to England. The packed courtroom erupted in cheers. A writ of habeas corpus was prepared.
Cockburn’s decision meant that the case was no longer just about slavery, or about British, Canadian and American relations, or about America’s internal struggles. It was now, even more than before, about Canada’s evolving independence and national pride. Cockburn was no fool. In rendering his decision he said: “We are sensible of the inconvenience which may result from the exercise of such a jurisdiction. We are also sensitive that it may be thought to be inconsistent with the higher degree of colonial independence, both in legislation and judicature, which has been carried into effect in modern times with happy results.”66
The decision indeed seemed to be in contradiction to British policy, which for years had been granting Canada a fuller degree of sovereignty. A step toward political independence had been taken with the establishment of responsible governments following the 1837 Upper and Lower Canada rebellions. Subsequently, greater economic independence had evolved through the 1854 Canadian-American Reciprocity Treaty, which for the first time in British imperial history saw a colony establish a bilateral free trade agreement that did not involve or bring value to the mother country
. In 1859, Canada became the first of Britain’s colonies to place duties on the importation of a number of British products.
The Cockburn decision was debated at length at the British cabinet table and on the floor of the House of Commons. Concerns about British relations with the United States were balanced against precedents regarding colonial independence. Abolitionists, anti-Americans, and others who had for some time been advocating saving money by cutting the colonies loose, all weighed in.
Finally, Prime Minister Lord Palmerston announced to the House of Commons that his government supported the writ of habeas corpus, as it would ensure that Anderson would not be surrendered to American officials. He said Canadian authorities should do nothing with Anderson until his government issued instructions.67 As secretary of state for the colonies, the Duke of Newcastle was blunt in his assessment: “The case of Anderson is one of the gravest possible importance, and Her Majesty’s Government are not satisfied that the decision of the Court at Toronto is in conformity with the view of the treaty which has hitherto guided the authorities in this country.”68
A number of issues were considered in the cabinet’s decision. Henry John Temple, Third Viscount Lord Palmerton, was Britain’s prime minister from 1855 to 1858 and he returned to office from 1859 to 1865. At the time of the Anderson decision he was seventy-six years old, with long, white hair and side-whiskers, but he remained a wily politician and, despite a half century in public life, one whom few wished to cross. Palmerston was an avowed abolitionist, who held America and Americans in rather low esteem.69 But he was a clever player of realpolitik. He understood that Britain needed to maintain its supply of southern cotton if its textile mills were to keep operating and so he wanted to avoid unnecessarily provoking the United States. Then again, if an Anglo-American war would help the United States to break in two or shatter to shards, then the balance of global geopolitical power that had been teetering toward America might totter back to Britain.70 A series of Anglo-American spats in the mid-1850s had made clear that, just as there was a need for diplomatic calm and understanding, those elements of the relationship were demonstrably absent.
Palmerston also needed to keep his eye on Europe, where the growing unity of a new Prussian-German state was made more even troubling by the fact that Britain was still recovering from the Crimean War and a crisis in India. Those crises had necessitated the shifting of troops and resources from its colonies, including Canada, to engage in struggles that were expensive, divisive and inconclusive.
With respect to Canada, while Palmerston and Foreign Secretary Lord John Russell had never supported Canada’s steady evolution toward political and economic independence, they were reluctant to impose British interference on colonial legislatures and courts.71 Yet there was anger on the part of many British leaders that Canada’s Militia Act of 1856 had demonstrated Canada’s reluctance to muster the money and men to adequately defend itself against possible American threats, and that the 1859 Canadian tariff on British goods had served up a bit of economic pain with a large dollop of colonial temerity. Although Palmerston and Russell did not count themselves among their numbers, the so-called Little Englanders, who argued for a reduction or perhaps even a severing of colonial ties, were growing in power among Britain’s political elite. And if all that was not enough, Palmerston’s government was on unsteady political ground, with unreliable support in the caucus and the House and victory in the next election by no means assured.
The British government’s Anderson decision told Americans that abolitionist sentiment would be a considerable factor in Britain’s reaction to their growing sectional crisis. And for Canadians, Palmerston’s decision made it clear that Britain had no compunction about overriding Canada’s nascent sovereignty. The old lion had roared. Southern secessionists and Canadian nationalists took heed.
The London Times supported the decision and predicted criticism from the United States, but argued that morality and the law were on the side of the Cockburn court. It also noted that Canadians deserved to be shocked by the decision. “It may excite surprise, when we consider the ample powers of self-government possessed by Canada … to find the Court of Queen’s Bench assuming to act directly on the rights of persons within her territories, just as if Toronto were situate on Windermere instead of Lake Ontario.”72 The Liverpool Post was also prescient in predicting the negative response of both Canadians and Americans: “While a quarrel between the United States and Great Britain is therefore possible a dispute between this country and Canada seems inevitable.”73 Canada’s governor general, Sir Edmund Head, had seen the whirlwind coming too. He had warned his British superiors against intervention, saying, “Self Government, which is only to operate when its acts agree with the opinions of others, is a contradiction in terms.”74
Canadian reaction was indeed hostile. Established enemies came together against a common threat: imperial overreach. The Globe called the writ an “arrogant claim” and demanded it be rescinded.75 The Globe‘s great rival, the conservative Toronto Leader, took the same stand. It wondered whether the infringement on the rights and powers of the Canadian judiciary might soon be followed by Britain’s overriding decisions of the Canadian executive and legislatures as well.76
Thomas Chandler Haliburton, who had enjoyed a career as a legislator and judge in Nova Scotia before moving to England and becoming a Tory member of the British House of Commons, denounced the Cockburn decision and Palmerston’s support for it. In Canada, he argued, the courts are as independent of Britain as the governor general, who is responsible to the government of Canada and not to the whims of Westminster.77
Macdonald kept his anger private. He wrote to the governor general, stating that what was at stake was the independence not just of the Canadian courts but of the Canadian people. Macdonald wrote: “In the case of Anderson the writ of habeas corpus was without doubt, sued out from praiseworthy motives, but it may hereafter be applied for … the withdrawal of Criminals from the control and jurisdiction of our Courts, and perhaps for the oppressive removal of individuals from their own country to a distant one.”78 He urged the governor general to press the British government to pass a law in the next session of its Parliament rendering it illegal for British courts to issue writs in Canada. The language was tough, perhaps treasonous, and perhaps revolutionary. America was inspiring Macdonald to become a little less British and a little more Canadian. The man who took such tremendous pride in being British, and had until that point largely rejected notions of Canadian independence, was being pushed by the Anderson case to rethink his most fundamental political beliefs.
American reaction to the British attack on Canadian sovereignty, and Britain’s desire to save Anderson, betrayed a residue of the moral and ideological outrage from the American Revolution, as well as blatant self-interest. George Dallas, the American ambassador in London, had attended the Cockburn court and cabled his notes to Washington. He told President James Buchanan that the significant and widespread British opposition to slavery was at the heart of the case and was revealed by the positive public reaction to the decision to issue the writ. 79
Britain’s actions brought the Anderson case again to the front pages of a number of American newspapers. The New York Times, for instance, recognized that the case was accumulating attention throughout the American south and that Canadians were, from the Southern view, insultingly claiming the moral high ground in their refusal to release the fugitive slave. The case, the paper stated, had become a cause célébre and an element of the struggle that was tearing the United States apart.80 The New York Herald was among many papers that reprinted Canadian stories and supported them with interpretations that were sometimes wildly off-base. The Herald, for instance, predicted a Canadian revolution and the likelihood that Canadians would soon ask to join the United States. The gain of Canada, it argued, would more than compensate for the possible loss of any Southern states. 81
More attention in American papers came when famed New York abol
itionist Gerrit Smith spoke at Toronto’s St. Lawrence Hall. Before a crowd of hundreds, he attacked the Canadian courts for the decision to return Anderson to certain death in Missouri and praised the British for their desire to save him. Many southern papers used their reports on the Smith speech to reassure their readers that Britain’s need for southern cotton was such that, if the time came, it would quickly support the South’s cause. Others saw things differently. The New York Times, for example, argued: “In this determination of Great Britain to protect the fugitive, and in the overwhelming popular sympathy that the fate of Anderson has excited, our Southern politicians may learn the monstrous absurdity of their hope that a Confederacy based upon Slavery will ever be recognized by the Government or the people of England.”82
While the case was catching fire in Britain, Canada, and the United States, few paused to consider Anderson himself. An exception was Canada West’s Peterborough Examiner, which in a front-page article mixed a little empathy with its anti-American sentiment: “The dread of a decision which will return him to the blood hounds of the South, will haunt his sleeping as well as his waking hours, and the fearful conviction that if given up, a cruel death, or a more cruel bondage awaits him, must weigh heavily upon his spirits.”83
DECISIONS
Despite its growing notoriety, other events were overshadowing the Anderson case. In November 1860, Illinois Republican Abraham Lincoln had been elected president of the United States. His election was the final straw for Southerners. The campaign had seen Southern secessionists conflate Republicans with abolitionists, and warn that the election of any from that party was another nail in the coffin of slavery, states’ rights, and the Southern way of life. Those believing the propaganda ignored the fact that, while Lincoln indeed personally found slavery reprehensible, he had advocated not its immediate eradication, but just a restriction of its growth. Emotion ran roughshod over reason.
