Authors: John Boyko
Macdonald’s major political rival was Reformer George Brown. The two had clashed for years and seen political rivalry escalate to personal hatred. Macdonald concealed his feelings with barbed wit but Brown was transparently contemptuous toward his Conservative enemy. Because Brown was one of the abolitionist movement’s chief spokesmen, it would have been politically hazardous for Macdonald to enthusiastically support Anderson. Macdonald sought to avoid political problems by ordering Matthews to “require evidence of criminality sufficient to sustain a charge
according to the laws of the Province before extradition should follow.”
33
In other words, stick to the law.
The court heard a deposition from one of Digges’s slaves and then testimony from his son, both of whom had been present at the stabbing. It also heard an interpretation of the Fugitive Slave Law, which decreed that Digges had been legally obliged to try to stop anyone suspected of being a runaway slave. Finally it was Anderson’s turn. He testified that it had not been his intention to kill Digges. He explained that he had needed to use force to escape from the situation and from the United States in order to be free.
Matthews took little time to come to a decision. He explained to the court that his interpretation of the Webster-Ashburton Treaty led him to rule that Anderson should be extradited to the United States. The final step would be for the Canadian government to approve of the court’s decision. It would be up to Macdonald.
Missouri’s governor, Robert Stewart, was in a political pickle as treacherous as Macdonald’s. Should he remain quiet and allow the Canadians to decide a property issue involving one of his citizens? Should he use the power of his office to exert pressure on Canada and be seen by the people of his state, and indeed the people of the South, as doing so? Or should he do nothing? To do nothing would mean surrendering to the northern abolitionists and to Canadians, who had for some time been placing enormous pressure on slave states such as his and, in so doing, helping to make the secessionists’ case.
Stewart decided to join Missouri senator James Green, who had also been carefully following the Anderson case, and the two wrote letters to Secretary of State Cass. They demanded that the federal government intervene through Britain or directly with Canada.
34
In his final speech upon leaving office in January 1861, Governor Stewart said that no state had suffered more as a result of what he called slave abductions. But, he continued, while he hoped his state would remain loyal to the Union, Missouri must continue to fight to retain its rights. And among them was the right to maintain slavery and do all that could be done to have runaway slaves returned from Canada.
35
Cass responded to Stewart and Green’s lobbying efforts and penned a formal request to Britain. Like the Canadian and American governments, the British government needed to balance a host of considerations in its response, and primary among them was the desire to avoid conflict with the United States. Westminster’s instruction to Canadian Governor General Sir Edmund Head, who had succeeded Lord Elgin in December 1854, was clear. Canadian authorities were to take whatever actions were necessary according to Canadian law but then they were, according to British Foreign Secretary Lord John Russell, to “deliver up the person of the above named John Anderson to any person or persons duly authorized by the authorities of Missouri to receive the said fugitive and bring him back to the United States for trial.”
36
Freeman, the Hamilton attorney and founder of the Anti-Slavery Society of Canada, had petitioned the Canadian government on October 1, and on October 6 he began a fascinating correspondence with Macdonald. He wrote that the case rested entirely upon an interpretation of the Webster-Ashburton Treaty, and Macdonald agreed.
Freeman wrote to the attorney general explaining that he wished to present the argument that because Anderson and Digges had fallen into a scuffle while Anderson was attempting to flee, he was not guilty of murder but at most manslaughter.
37
Manslaughter was not included in the treaty’s list of extraditable crimes. Furthermore, there was the precedent stating that any action taken in escaping slavery was justifiable. It was a broad moral argument, leaning more upon natural law than upon a narrow interpretation of Canadian law and the British treaty, but it might work.
During his long and storied political career Macdonald earned the nickname “Old Tomorrow,” for he was a master at knowing when it was wise to postpone decisions. In this case, he opted to do just that. He wrote to Freeman stating, “I have come to the conclusion with great regret, but without any doubt existing in my mind that this party has committed the crime of murder: under which circumstances all I can do is to give you every assistance in testing the question before the Courts or a Judge by
Habeas Corpus.”
38
Macdonald also secretly pledged to have the government pay all of Anderson’s legal fees.
On November 4, 1860, Anderson stood as three sombre men in black robes entered Toronto’s Osgoode Hall courtroom. He could hear the sounds of the crowd in the packed and overheated hallways.
Freeman made the arguments he had carefully rehearsed. He concluded by quoting respected British statesman Lord Denman, who had once said that the Webster-Ashburton Treaty and related cases were based on the belief that “no nation is entitled to enforce a law of another country which was believed to be founded in injustice, such as the law of slavery.”
39
Freeman then dramatically paused, slowly gathered his papers, carefully ordered them, and took his seat.
Henry Eccles led the Crown’s case. He dismissed Freeman’s moral arguments, saying that this was simply a narrow legal question. Furthermore, there was no exemption in the treaty for escaping slaves, and the court, he argued, could not invent one. He explained: “No doubt it is contrary to the spirit of every law of Great Britain and of this country, that anything savouring of slavery should be countenanced in the slightest degree, or that the least assistance should be lent towards forwarding the views or objects of such an institution, but we must be governed by the words of the treaty, which is to be construed as a contract, and we cannot add exceptions or provisions which it does not concede.”
40
Eccles concluded with the point that, according to the Fugitive Slave Law, Digges had not an option, but a legal obligation, to stop Anderson.
Anderson was allowed to read from a prepared statement. He stood slowly and straightened himself. After three months in jail, often chained and with bad food and little exercise, Anderson had lost a considerable amount of weight. He cleared his throat and read carefully from a single sheet of paper. He concluded, “When I made up my mind no man should take me alive I was compelled to do what I did.”
41
With that, Anderson sat and Chief Justice Robinson adjourned with the promise of a decision as quickly as possible.
Canadian newspaper reaction matched particular editorial bents. The
Globe
believed the case had been made for Anderson’s immediate release. In a series of articles and editorials it attacked Macdonald—nothing new for Brown’s paper—for shifting the political decision to the courts. The Conservative
Hamilton Daily Spectator
, on the other hand, attacked Brown and the
Globe
in an editorial that stated: “It is rather too much to accuse him [Macdonald] of being on the side of the slave catchers, and make people believe it, when it must be clear to everyone, that he could have no object of a personal or political nature in straining the law, as he is charged with having done.”
42
On November 15, the
Globe
reprinted an editorial from the
Daily Spectator’s
cross-town rival, the
Hamilton Times
. It bristled with piqued nationalist-imperialist fury,
It is not alone the interests of the poor fugitive which are now involved. The sanctity of the refuge which the British flag has been supposed to provide to the unfortunate, is at stake; the honour and dignity of Canada is assailed; the safety of thousands of industrious, long suffering and loyal subjects of the Empire is threatened. It has come to this, that Canada is to be made the preserve of the slave hunter.… If the poor creature is left friendless and alone to battle with his hungry foes, he is lost and Canada is dishonoured; but if his interests are properly cared for, our glorious heritage—the laws of England—will hold him harmless.
43
The decision was to come on November 29. Extra police were brought to Osgoode Hall and a large crowd mostly of Black men gathered outside. Chief Justice Robinson appeared just long enough to announce that the other two justices needed more time and so the decision would be delayed.
The delay allowed newspapers more time to stir flames of indignation. The
Globe
‘s editorial the next day was scathing. It said that a decision to send Anderson back to the United States would in itself be tantamount to murder: “The universal heart and conscience of the people of Canada and of the British nation will say upon the facts of the case that [Anderson]
is not a murderer in the sight of God, or under English law, and therefore, that to surrender him to the bloodthirsty slave catchers of Missouri is to make those who order that surrender guilty of the murder of [Anderson] with all its horrible accompaniments.”
44
The exploding notoriety of the case led a range of Canadian politicians to weigh in. Many new alliances were created and a number of old grudges forgotten. Reformers such as Michael Foley, for instance, who had previously been rather critical of Brown, swept into line behind him and attacked slavery, the Americans that hunted fugitive slaves in Canada, and Macdonald for his apparent support of their efforts.
45
At the same time, Macdonald was being criticized for an embarrassing incident that took place during the Royal tour of Canada by Edward, the Prince of Wales. His Royal Highness and the British secretary of state for the colonies, the Duke of Newcastle, had to spend twenty-two uncomfortable hours aboard a ship in Kingston harbour to avoid dealing with displays by enthusiastic members of the anti-Catholic Orange Order, which in Canada was a powerful force but in England was illegal. The incident was hardly Macdonald’s fault but the scandal wouldn’t die, so he took his case directly to the people with something that had never been done in Canadian politics—a speaking tour.
On December 3, in a crowded St. Catharines hall, the air smudged with smoke and the 350 people in attendance plying themselves with food and liquor, the attorney general took his stand on the two issues of the day. He handled the Orange Lodge matter with deft humour. No one could charm like John A. He then turned to the Anderson case and for the first time addressed it in a public forum.
Macdonald defended the rule of law, the professionalism of the three presiding justices and all the decisions that had been made. He was greeted by rousing applause and cries of shame whenever Brown’s name was mentioned. “Strange to say,” he said, “Mr. Brown of the
Globe
, attempts to make it a matter of political capital against me, that instead of sending the man to be tried in the States … and I had to the power to send him at once to Missouri—I sent the matter to the judges, to have it fully decided
whether a case was fully made out against him.”
46
Macdonald concluded with the argument that he and his party, and not Brown’s, were more avowedly anti-slavery.
Meanwhile, many American newspapers continued to raise concerns about the damage the Anderson case could do. The
Detroit Daily Advertiser
, for instance, published an editorial stating, “if this case is decided in favor of the claimants, it will virtually break up the underground railroad, and make Canada no longer a resort for runaways.”
47
The
New York Times
reported extensively on the Anderson case and reflected an understanding of its importance in Canadian internal political struggles and in Canadian, British and American relations. One article spoke of the case potentially leading to war, arguing, “as to the relations between Great Britain and the United States … [t]he case could be a
casus belli
between the two countries.”
48
The
Baltimore American
joined many Southern papers in making public the argument that Missouri governor Stewart and others were making privately: the Anderson case was playing a role in the debates taking place in many Southern cities regarding secession. One article, for instance, stated bluntly that Anderson needed to be quickly extradited to stand trial in Missouri to help dissuade those in the state wishing to secede. It argued: “It is important to the south that assassins like Anderson be returned to face their justly deserved punishment. When such deeds go unpunished, who will say that the people of the South have no cause of complaint.”
49
Finally, the justices were ready. It was December 15 and the day had dawned cold. A large and restless crowd had assembled and armed police were again ready with a contingent of soldiers assembled nearby. Just after ten o’clock, Chief Justice Robinson led justices McLean and Burns to their spots. The judges would rule separately, so it would take two decisions in Anderson’s favour to save his life.
Robinson began reading his carefully prepared statement. He presented the argument that it was not necessary to prove that the murder had been committed in order to extradite Anderson but only that there
was sufficient evidence for there to be a trial. That he stabbed Digges in an attempt to escape slavery was, bluntly, irrelevant. He concluded that Anderson should be sent back to Missouri to stand trial for murder.
Next up was Justice Archibald McLean. He disagreed with Robinson and took a broad interpretation of existing law, echoing Freeman’s moral argument. He said Anderson was “a fugitive from the adjoining republic [where] the evils and the curse of slavery are every day becoming more manifest and … in my judgement the prisoner was justified in using any degree of necessary force to prevent what to him must inevitably have proved a most fearful evil.… I can never feel bound to recognize any enactment which can convert into chattels a very large number of the human race.”
50