Borderline Crime: Fugitive Criminals and the Challenge of the Border, 1819-1914 9781487512835

Table of contents :
Contents
Foreword
Acknowledgments
Borderline Crime. Fugitive Criminals and the Challenge of the Border, 1819−1914
1. Introduction
Part One: Sovereign Borders and Criminal Law in Northern North America
2. The Everyday Challenge of Sovereignty
3. The Low and High Laws of Abduction in the Border Zone
Part Two: Uncertainty, Amorphousness, and Non-Law
4. International Law and Supranational Justice in Northern North America
5. The Non-Law of Refugees in British North America
Part Three: Law Formation in the Treaty Era
6. Civilization on the Continent: Law Reform and Imperial Power
7. Law Formation in the Common Law World
8. Conclusion
Notes
Index

Citation preview

Borderline Crime Fugitive Criminals and the Challenge of the Border, 1819−1914

Miller_5200_i.indd 1

12/08/2016 5:13:23 PM

PATRONS OF THE SOCIETY

Blake, Cassels & Graydon LLP Chernos Flaherty Svonkin LLP Gowlings McCarthy Tétrault LLP Osler, Hoskin & Harcourt LLP Paliare Roland Rosenberg Rothstein LLP Torys LLP WeirFoulds LLP

The Osgoode Society is supported by a grant from The Law Foundation of Ontario.

The Society also thanks The Law Society of Upper Canada for its continuing support.

Miller_5200_i.indd 2

12/08/2016 5:13:24 PM

Borderline Crime Fugitive Criminals and the Challenge of the Border, 1819−1914

Bradley Miller

Published for The Osgoode Society for Canadian Legal History by University of Toronto Press Toronto  Buffalo London

Miller_5200_i.indd 3

12/08/2016 5:13:24 PM

© Osgoode Society for Canadian Legal History 2016 www.utppublishing.com www.osgoodesociety.ca Printed in Canada isbn 978-1-4875-0127-3     Printed on acid-free, 100% post-consumer recycled paper with vegetable-based inks. Library and Archives Canada Cataloguing in Publication Miller, Bradley, 1979–, author Borderline crime : fugitive criminals and the challenge of the border, 1819–1914 / Bradley Miller. (Osgoode Society for Canadian Legal History) Includes bibliographical references and index. isbn 978-1-4875-0127-3 (cloth) 1. Criminal law – Canada – History – 19th century.  2. Criminal law – Canada – History – 20th century.  3. Criminal law – United States – History – 19th century.  4. Criminal law – United States – History – 20th century.  5. Canada – Boundaries – United States.  6. United States – Boundaries – Canada.  7. Sovereignty – History.  i. Title.  ii. Series: Osgoode Society for Canadian Legal History (Series) ke8809.m54 2016   345.71   c2016-904234-0 kf9220 za2 b73 2016

University of Toronto Press acknowledges the financial assistance to its publishing program of the Canada Council for the Arts and the Ontario Arts Council, an agency of the Government of Ontario.

Funded by the Financé par le Government gouvernement du Canada of Canada

Miller_5200_i.indd 4

12/08/2016 5:13:27 PM

For Josh

Miller_5200_i.indd 5

12/08/2016 5:13:27 PM

This page intentionally left blank

Contents

foreword   ix ack nowledgments  xi 1 Introduction  3 Part One: Sovereign Borders and Criminal Law in Northern North America 2  The Everyday Challenge of Sovereignty  19 3  The Low and High Laws of Abduction in the Border Zone  49 Part Two: Uncertainty, Amorphousness, and Non-Law 4 International Law and Supranational Justice in Northern North America  85 5  The Non-Law of Refugees in British North America  114 Part Three: Law Formation in the Treaty Era 6  Civilization on the Continent: Law Reform and Imperial Power  153 7 Law Formation in the Common Law World  181 8  Conclusion  215 not es  219 index  271

Miller_5200_i.indd 7

12/08/2016 5:13:27 PM

This page intentionally left blank

Foreword T H E O S G OODE S O C IE T Y F OR C A N A DI A N LE G A L H I S T OR Y

In the nineteenth century the precise location of the Canadian-American border was often contested but, beyond the realm of trade, did not much figure in the relations between British North America and the United States. Bradley Miller has written the first comprehensive history of cross-border Canadian-American interactions in relation to issues that did emerge and grew more important over time − fugitive criminals, escaped slaves, and refugees. Miller examines the complexity of those interactions, which involved formal legal regimes governed by treaties as well as informal and extra-legal phenomena such as abductions and ground-level “customary” cooperation between lowlevel officials. All of this is set against the background of a developing international law during the century and evolving ideas about extradition in other parts of the British Empire. The purpose of the Osgoode Society for Canadian Legal History is to encourage research and writing in the history of Canadian law. The Society, which was incorporated in 1979 and is registered as a charity, was founded at the initiative of the Honourable R. Roy McMurtry and officials of the Law Society of Upper Canada. The Society seeks to stimulate the study of legal history in Canada by supporting researchers, collecting oral histories, and publishing volumes that contribute to legal-historical scholarship in Canada. This year’s books bring the total published to 103 since 1981, in all fields of legal history − the courts, the judiciary, and the legal profession, as well as on the history of crime

Miller_5200_i.indd 9

12/08/2016 5:13:27 PM

x  Foreword

and punishment, women and law, law and economy, the legal treatment of ethnic minorities, and famous cases and significant trials in all areas of the law. Current directors of the Osgoode Society for Canadian Legal History are Susan Binnie, David Chernos, J. Douglas Ewart, Timothy Hill, Ian Hull, Mahmud Jamal, William Kaplan, C. Ian Kyer, Virginia MacLean, Roy McMurtry, Yasir Naqvi, Dana Peebles, Paul Perell, Paul Reinhardt, William Ross, Linda Rothstein, Paul Schabas, Robert Sharpe, Jon Silver, Alex Smith, Lorne Sossin, Mary Stokes, and Michael Tulloch. The annual report and information about membership may be obtained by writing to the Osgoode Society for Canadian Legal History, Osgoode Hall, 130 Queen Street West, Toronto, Ontario, M5H 2N6. Telephone: 416-947-3321. E-mail: [email protected]. Website: www .osgoodesociety.ca. Robert J. Sharpe President Jim Phillips Editor-in-Chief

Miller_5200_i.indd 10

12/08/2016 5:13:27 PM

Acknowledgments

At the end of this project I am overwhelmed with gratitude for the support of my family, friends, and colleagues. This book really began in 2002, when I was working for Wendy Burnham on a project researching the history of the Department of Justice. Wendy asked me for a quick report on the history of extradition – a couple of weeks’ work just to give her the gist, she said; I hope this was worth the wait. In all seriousness, I am forever thankful to Wendy for giving me a start in Canadian historical research. A while later, when I was working in the Squire Law Library at the University of Cambridge, the passion for international law among the librarians, graduate students, and faculty members convinced me to revisit the issue of international fugitives and to make something more of it. I am especially grateful to Lesley Dingle and Sir Eli Lauterpacht for giving me the opportunity to explore international law issues even though I had no earthly idea what I was doing. This project first took academic form in the Dalhousie history department where I wrote my MA thesis. Dal was a transformative experience, and I can’t say enough by way of thanks to the people there, especially Shirley Tillotson, Philip Girard, and Jerry Bannister. Shirley was a splendid academic role model and I am forever grateful for the compassion she showed me when my Dad was sick. Likewise, Philip (now of Osgoode Hall and the Osgoode Society) has improved this project at every stage – from its MA incarnation to his superb work as editor and peer reviewer on this final version. Philip is known far and wide for his thoughtfulness and generosity to students and colleagues; he deserves this reputation, and so much more. Finally, I owe a great debt to my MA supervisor, Jerry Bannister. Jerry’s graduate students

Miller_5200_i.indd 11

12/08/2016 5:13:27 PM

xii  Acknowledgments

used to joke about making WWJBD bracelets, to remind us that in any given situation we should think about what Jerry would do. If you know him at all, you’ll know why we felt that way. When I began doctoral studies in the history department at the University of Toronto, I won the lottery of teachers, comps supervisors, and dissertation committee members. Allan Greer was an academic inspiration and John Weaver improved this project in every respect as external examiner. I am grateful to Karen Knop for her help on the dissertation and lots of other projects besides. In particular, her feedback on this book manuscript made every single part of it better. I am also grateful to Ian Radforth, whose excellent academic and non-academic wisdom made such a difference during my time in Toronto. Likewise, Steve Penfold acted as teacher, comps supervisor, TA supervisor, dissertation committee member, and adviser in every possible respect. His generosity is astonishing. In my first PhD year he gave me two especially important pieces of advice which I’ve kept in mind ever since: “Don’t be a dick” (just about teaching, but arguably applicable to much else in life), and “Follow the question, wherever it goes” (about doing transnational history). Finally, this project would simply not have been possible if it weren’t for Jim Phillips. As supervisor, editor, and friend he has been unendingly generous with his time and wisdom. He and Christine Davidson are also the best dinner hosts in Canadian academia today, though many of my Sunday mornings have been rougher as a result. But for the Saturday nights, and for everything else, I simply can’t find the words to thank Jim properly. One of the best things about my time at U of T was the Toronto Legal History Group. Being a part of the group was a five-year-long lesson in how to read, think, and discuss. I am especially grateful to Balfour Halevy, Mary Stokes, and Paul Craven, each of whom have offered invaluable support alongside all kinds of references, documents, and excellent ideas. I am also grateful for the generous financial assistance I received during the formative years of this project. Scholarships from the U of T history department and SSHRC as well as the R. Roy McMurtry Fellowship in Legal History from the Osgoode Society allowed me to spend all the time I needed in the archives and writing up what I found there. I also owe two debts to colleagues and friends from Queen’s. Although I wasn’t his colleague or his student, Jeff McNairn helped me rethink my ideas from the time I was a new PhD candidate. His kind-

Miller_5200_i.indd 12

12/08/2016 5:13:27 PM

Acknowledgments  xiii

ness since then, especially his support supervising my post-doctoral fellowship, has continued to make a huge difference in my work. He’s also one of the best dinner companions out there. Likewise, Jane Errington’s insightful advice on this book manuscript improved it immeasurably. All of this good luck has continued in the history department at the University of British Columbia. The members of the Canadian Caucus read an early version of chapter 2, and their comments were crucial in getting it into shape. Tina Loo and Bob McDonald even took me out for dinner to delve deeply into how the paper could be improved; Tina also came up with the title Borderline Crime that night, which I appropriated on the spot. Meanwhile, Michel Ducharme read the entire draft manuscript and wrote up a detailed report, then took the time to hash it out with me one-on-one. That degree of incredible kindness is typical of Michel, and I have benefited from it, and from his friendship, again and again in the last three years. On a daily basis Michel, Tina, Bob, Tamara Myers, Heidi Tworek, Sebastian Prange, Tara Mayer, Michael Lanthier, and many other friends from UBC make me love my job. One final professional debt. Two parts of this book appeared in earlier form. Part of chapter 5 appeared in “British Rights and Liberal Law in Canada’s Fugitive Slave Debate, 1833–1843,” in Freedom’s Conditions in the U.S.-Canadian Borderlands in the Age of Emancipation (Durham, NC: Carolina Academic Press, 2011), 141–69, a volume edited by my friends Tony Freyer and Lyndsay M. Campbell. Likewise, material from chapter 6 appeared in “‘A Carnival of Crime on Our Border’: International Law, Imperial Power, and Extradition in Canada, 1865–1883,” Canadian Historical Review 90(4), December 2009, 639–69. I am grateful to CAP and UTP for permission to reprint. I am also grateful to UTP for the opportunity to work with Wayne Herrington, John St James, and Len Husband. I am also overwhelmed by support from friends and family. Jeffers Lennox and I met at Dal, and he has been a constant source of friendship, fun, and insight ever since. My fellow students made U of T an enduringly fun experience, beginning with our first night of sing-along bar music at the James Joyce. Nadia Jones-Gailani, Denis McKim, and Julia Rady-Shaw set inspiring examples, inside and outside of the Joyce. In particular, Julia is unwaveringly kind and joyful; as hosts, she and Jeremy are right up there with Jim and Christine in the area of Saturday night fun/Sunday morning fallout. For that and for everything else I thank her.

Miller_5200_i.indd 13

12/08/2016 5:13:27 PM

xiv  Acknowledgments

Finally, I wish my Dad could see this book; I miss him every day. But I am so thankful for the love of my family, especially Lora, Chris, Wayne, Carter, and Jack, and my Mom, who is one of the strongest people I’ll ever know. Last but not least is Josh Cramer. There’s too much to thank Cramer for, and I don’t have the words to do it right. I love him, and this book is dedicated to him.

Miller_5200_i.indd 14

12/08/2016 5:13:27 PM

Borderline Crime Fugitive Criminals and the Challenge of the Border, 1819−1914

Miller_5200_001.indd 1

12/08/2016 10:41:17 AM

This page intentionally left blank

1 Introduction

In September 1898, Crown prosecutor F.C. Wade of Dawson City wrote to the minister of justice about a case which he said represented a fundamental challenge to the enforcement of criminal law in his district. The case centred on a Klondike miner’s assistant named Arthur Perry, who had stolen a bag of gold dust from his employer and fled down the Yukon River into Alaska Territory. A North West Mounted Police officer tracked Perry there, arrested him, and started a return passage with his prisoner up the river towards Canada. But part way through the journey a US customs agent heard about the incident and threatened to arrest the Canadian officer for kidnapping Perry on American territory outside the purview of the extradition treaty if he did not release the prisoner and relinquish the bag of gold. For Wade, the case exposed the fragility of criminal justice along the international boundary. He told the minister that the extradition treaty was non-functional in the region and that in the absence of such formal legal mechanisms, police officers in both jurisdictions had long worked together across the boundary to surrender fugitives as a matter of reciprocal custom, a practice that the US official had for the moment stifled. According to Wade, that lack of any legal regime to deal with migrating criminals was inciting chaos by undermining the power of criminal law in the region. “Nothing is easier than to escape to the American side of the line with very little effort,” he wrote. “The fear that they would be unsafe even there has up to the present kept the criminal classes in

Miller_5200_001.indd 3

12/08/2016 10:41:17 AM

4  Borderline Crime

check. As that has now disappeared … crimes can be committed with impunity.”1 Wade’s fear highlights an enduring reality along the length of the northern North American border. In many different forms officials made the same complaint as Wade throughout the nearly one hundred years examined here. On the migration of criminals, the escape of slaves, the movement of Indigenous peoples and military combatants, the prevalence of counterfeiters, and the omnipresence of smugglers, officials across the continent were constantly and keenly aware of how the separate sovereignties and the disconnected jurisdictions of British and American territory undermined legal order and limited the power of states and state officials. This book examines how law reacted to that challenge of the border across nearly a century in the British North American colonies and post-Confederation Canada. It focuses in particular on the legal regimes surrounding international fugitives, including common criminals, escaped slaves, and political refugees. These regimes were driven by an enduring desire among colonial and Canadian policymakers to erode the refuge from law that fugitives often found by crossing the international boundary. The period examined here begins in 1819 when the renowned American judge James Kent issued a decision in his New York court decreeing that the extradition of criminals was a duty of international law. Criminals, he wrote, should not find safe haven by simply moving from one country into another. In the century that followed, officials ranging from high court judges and policymakers to local police officers along the border embraced that ethos of the transnational enforcement of criminal law. The result, in British North America/Canada and around the world, was a period of legal genesis, a century-long era of law formation. Formal extradition regimes were established and expanded, and soon much of the globe was enmeshed in a web of treaties and conventions that in theory allowed for little territorial refuge from the reach of the law.2 At the same time, across the northern North American border zone officials formed their own customary regimes of abduction to confront the immediate challenge that the boundary posed in their communities, as police along the YukonAlaska boundary had done before the Perry case. But as Wade argued and as the Perry case illustrated, these formal and customary regimes were often unstable, uncertain, and ineffectual at allowing domestic criminal law to reach over international boundaries.

Miller_5200_001.indd 4

12/08/2016 10:41:17 AM

Introduction  5

This book makes three primary arguments. The first is that by limiting the reach of domestic law, the international boundary and the sovereignties which it delineated structured state weakness and posed an everyday challenge to the rule of law in northern North America. The challenge of the border was thus grounded in a notion of sovereignty defined as supreme and exclusive territorial power. This version of the much older and more diffuse notion of sovereignty was increasingly dominant throughout the nineteenth-century world, a shift which culminated in its virtual deification in statecraft and international relations. In particular, as P.G. McHugh argues, by the latter half of the nineteenth century, the “Hobbesian belief in an absolute sovereign power had hardened into rigid doctrine,” and as Jordan Branch has recently argued, that power was territorialized in Europe and the New World from the seventeenth century onwards.3 That is, the supreme power of sovereigns was increasingly demarcated by linear, inviolable, and map-able borders within which they had jurisdiction everywhere and over everyone and claimed exclusive rights to the lawful use of force. As Branch and others show, this “modern sovereignty” gradually replaced older forms and practices of power – notions of permeable borders, relational rather than territorial allegiance, and overlapping royal, noble, and ecclesiastical jurisdiction: in Lauren Benton’s words, this older political geography was profoundly “lumpy” and deeply pluralistic.4 The levelling territorialization of sovereignty and its erosion of jurisdictional pluralism were only completed in Europe, Branch and others argue, in the wake of the Napoleonic Wars, and while other scholars point to this happening earlier or taking longer, the nineteenth century continues to occupy a central place in the historiography of territorial sovereignty.5 Imperial and colonial historians have contributed to this historiography by examining the ways orthodox sovereignty was used in or even arguably created by the encounter in the New World of Europeans and Indigenous people. Antony Anghie, for example, argues that sovereignty was “improvised out of the colonial encounter” by European jurists needing to create law to govern relations between natives and newcomers, which law would in some cases protect native property rights while allocating sovereignty exclusively to European monarchs.6 More recently, New Zealand and Australian scholars such as Shaunnagh Dorsett and Lisa Ford have pointed both to the prominence of legal pluralism in the early-nineteenth-century British empire and its

Miller_5200_001.indd 5

12/08/2016 10:41:17 AM

6  Borderline Crime

dissolution as settler law came to be imposed on everyone within colonial borders.7 As Ford writes, “perfect settler sovereignty rested on the conflation of sovereignty, territory, and jurisdiction” – a formula in which Indigenous law was stripped of its legality and native polities were denied jurisdiction.8 Yet while most scholars have focused on how territorial sovereignty empowered monarchs, imperial governments, and settler states, this book makes a different point. It illustrates how this crystallizing concept of territoriality had an ambivalent and everyday meaning. The same sovereignty that empowered states also continually humbled and undermined them by limiting the reach of their authority in a world in which people crossed borders with much more dexterity than law, as the Arthur Perry case illustrated. The second argument is that the legal regimes that emerged to deal with the challenge of the border were enduringly fragile and amorphous, riven with doctrinal doubt and frustrated by inter-governmental power dynamics on both sides of the boundary. As F.C. Wade’s complaints showed, officials often felt that both formal and informal legal regimes were defective in dealing with migrating criminals. In the early nineteenth century, during a period in which Britain and the United States had no extradition treaty, some northern North American jurists espoused an international law obligation to extradite that was rooted in centuries-old notions of natural law and supranational justice. Yet despite the historical roots of the doctrine, the idea of an international law obligation faltered in North American jurisprudence and statecraft in large part because, in being grounded in contestable legal values rather than clear and binding legal instruments, it was fundamentally amorphous. However, this uncertainty also impacted those such as fugitive American slaves who sought immunity from extradition as refugees. Despite decades of effort, these former slaves were unable to carve the notion of asylum, a principle that had broad rhetorical support, into British North American law or policy. In this sense, the legal amorphousness of the period rendered both fugitives and governments vulnerable. Moreover, the emergence of positive law in the form of treaties did not alleviate this confusion or fundamentally expand the reach of law over the border. For decades the Anglo-American extradition treaty contained only seven extraditable offences, meaning that for all other crimes the border continued to delineate a formal refuge for fugitive criminals. While late-nineteenth-century Canadian officials pushed hard to expand the law of extradition to encompass more offences, their efforts were continually frustrated by British imperial governments.

Miller_5200_001.indd 6

12/08/2016 10:41:17 AM

Introduction  7

As a result, this book offers a different perspective on law and state formation than much recent scholarship. In particular, recent work in Canadian legal history points to the nimbleness of law as it was used by both “high” and “low” authorities to regulate community life. Work on vagrancy, sexuality, gender, and race presents a vision of law as flexible enough to be used easily against subaltern populations.9 That work reinforces the conclusions drawn from scholarship on institution formation, especially institutions related to criminal justice and policing, which posits an increasingly powerful and even coercive state through the nineteenth century, the tentacles of which reached further and further into community life, targeting especially racialized, migrant, and otherwise suspect groups.10 This book takes a different approach. It focuses on law not as a clear and coercive force but rather as a continually riven, often underwhelming, and perpetually shifting aspect of governance. In charting the role of state power on the border, it focuses attention both on the development of law by state officials, a process I call law formation, and on the ways in which the law was continually clumsy, uncertain, and often easily evaded by those who wanted to seek shelter across the border, using the force of sovereignty to stymie the administration of criminal justice, as Arthur Perry tried to do in fleeing down the Yukon River in 1898. The third argument is that British North American/Canadian legal thought about the challenge of the border embodied an enduring belief in supranational justice and a focus on legal liberalization. By supranational justice I mean a belief in justice both between and within sovereign states and a belief that these domestic and international contexts were linked. In this context, that meant that states were obliged to work together to combat the migration of crime and criminals both in order to do justice to each other as a matter of international legal order but also in order to fulfil their sovereign responsibilities of order domestically. While supranational justice was the key aim of most colonial and Canadian jurists and officials, legal liberalization became the dominant juridical tactic to achieve that goal. I use the term legal liberalization for two reasons. First, because it captures the ubiquitous desire among jurists and policymakers in British North America/Canada to erode domestic barriers to the transnational enforcement of law – to aid what one judge endorsed in 1882 as the “‘free trade’ in criminals.”11 Second, because many jurists in this period described their jurisprudential methodology as “liberal,” as a foundational liberalizing judge did in 1865, writing that in interpreting extradition law courts should ap-

Miller_5200_001.indd 7

12/08/2016 10:41:17 AM

8  Borderline Crime

ply “a liberal and just spirit, not laboring with eager astuteness to find doubtful meanings in its words.”12 This liberalizing instinct shaped the conduct of officials ranging from high court judges generating extradition jurisprudence to local police officers conducting cross-border abductions. Among liberalizing officials and jurists justice came to signify almost exclusively fairness between states; individual rights and even entrenched civil liberties were widely dismissed as inconvenient and even un-just because they frustrated that international relationship. This book examines the role of this focus on supranational justice and legal liberalization across the spectrum of officials from high to low – that is, from “high law” officials such as judges and policymakers to “low law” officials such as local police officers and magistrates – in British North America/Canada as well as in Britain, the United States, and throughout the common law world.13 It shows that in British North America/Canada the desire to allow law to reach beyond the confines of the international boundary was central to law, policy, and jurisprudence, but also that these imperatives were far from universal even in jurisdictions with which Canada had much in common. In other words, the British North American/Canadian focus on supranational justice was not the only way that officials in the nineteenth-century world reacted to the challenge of borders. In examining legal thought, this book questions the links between law and society. In recent decades, legal historians have moved decisively away from an older model of “internal” legal history which focused primarily on the lineages of legal doctrines and which often served normative ends, and towards new models of scholarship which have offered extraordinary insight into how law was shaped by social context.14 While this book is not focused on doctrinal abstraction and does not make a normative argument, neither does it argue that law was simply the product of its contexts. Instead, by looking at the challenge of the border across a continent and nearly a century, and by putting that place and period in transnational contexts, this book tries to think beyond exigent political factors or social paranoias as the primary agents of law formation and to explore the often nuanced relationship between law and society. While it shows that law often embodied the desires of the social contexts in which it operated – the legal regime of kidnapping is an excellent example – the very challenge of the border itself renders that relationship more complex: the essential modern building block of states continually imperilled jurisdiction. Moreover, when law was generated on an international or imperial level it often

Miller_5200_001.indd 8

12/08/2016 10:41:17 AM

Introduction  9

detached the place of genesis from the place of execution, illustrating chasms between law as it was widely desired to be and law as it was. Likewise, this book shows that law was sometimes its own context. That is, assuming that legal order was tied directly to the whim of elites or to social mores ignores the role of deeply rooted legal methodologies in which courts were constrained by precedents and statutes, in which jurists looked primarily to one another as guides, and in which legal texts bred other legal texts. These flows of legal knowledge often served elite interests and social values, but the connection was not direct or absolute, as the Arthur Perry case yet again demonstrates. The Transnationality of British North American/Canadian Law This book focuses on British North America/Canada, but it is not a history of domestic law. Instead, it points to the fundamental importance of three overlapping transnational contexts in which British North America/Canada must be understood. The first is northern North America, where the boundary represented an immediate challenge on both sides. As a result, this book sees northern North America as an interdependent border zone and draws not simply from colonial/Canadian perspectives but from American ones as well. In contrast to recent American scholarship on extradition which has drawn from almost exclusively American sources and perspectives and, perhaps as a result, has depicted American policy as unilateralist and quasi-imperialist, this book shows that officials on both sides of the boundary participated together in the creation, development, and contestation of legal regimes across the continent and across the period.15 In fact, the period examined in this book begins in 1819 with the American decision written by James Kent that declared that extradition was a key part of supranational justice and a duty of civilized states under international law, a decision echoed in 1827 by Montreal chief justice James Reid. But this book also shows that legal thought did not simply flow one way, from the United States into British North America. In fact, the shared vision of these jurists shaped the actions of policymakers on both sides of the border, and together colonial and American officials carved out a fitful and fragile region of law in which fugitives were surrendered in a manner at odds with American federal and British imperial policies. Colonial and American visions of this practice often differed – colonial officials were much more likely to see their actions as compelled by binding international law than were Americans – but until the early

Miller_5200_001.indd 9

12/08/2016 10:41:17 AM

10  Borderline Crime

1840s this tenuous regional regime straddling the boundary remained operative. This book also shows how northern North American low law officials such as policemen, customs agents, and military officials formed their own transnational legal regimes along the border. As F.C. Wade argued in the Perry case, cross-border abductions were a matter of reciprocal custom all along the boundary. Abductions represented a legal regime in constant creation, fragile because of its ambivalent relationship with formal law, but widely accepted on both sides of the border. In contrast to recent American historians who see in such abductions the extension of US unilateralism, the growth of American imperial reach, and a growing disregard of international law, I show how they are much better understood as local, reciprocal, and customary law.16 Far from evidencing lawlessness or American expansionism, they illustrate the co-creation of low law by communities on both sides of the border in northern North America to supplement widely felt deficiencies in the formal system. The second transnational context is the international legal order. While Canadian historians have paid little attention to the role of international law in this period, and while recent American historians of extradition have detached the US from international influences and exchanges, this book highlights the role and power of international law (indeed, it concludes in 1914 because that year marked what one recent historian has described as the fundamental collision of different versions of international law with the outbreak of the First World War).17 Kent’s and Reid’s idea of an obligation to extradite, after all, was grounded in the idea that natural law principles and the ideas of law of nations writers created a law that was binding upon them and their governments. But this book also highlights the changing nature of international law in the nineteenth and early twentieth centuries with the rise of positivist, treaty-based legal regimes: the obligation to extradite faltered as an ideal in northern North America in part because jurists increasingly did not believe that international legal rules could be drawn from natural legal values in the way that Kent and Reid endorsed. Yet, alongside recent scholarship which has done much to question the idea of a linear shift from naturalism to positivism, this book also shows how values of supranational justice and international law remained central to Canadian law formation even in the era of legal positivism, especially with respect to refugees.18 During the US Civil War Confederate States of

Miller_5200_001.indd 10

12/08/2016 10:41:17 AM

Introduction  11

America combatants who sought asylum in British North America and immunity from being surrendered as criminals to the Union grounded their arguments not in domestic colonial law or policy, in which the notion of refugee status remained rhetorically powerful but legally amorphous, but rather in principles of international law, especially the laws of war. This made colonial courts venues for sweeping debates about what the rules of international law were and what methodologies judges should use in finding them. Likewise, in the wake of the war, Britain sought to implant specific protections for refugees developed in European international law into extradition laws around the British empire. This process of codifying the meaning of asylum sparked a confrontation between Canadian self-government and British efforts to in some ways usher its colonies into the international legal order. Finally, this book does not treat international law as the special preserve of diplomats and high court judges. It highlights the pervasiveness of international legal thought even among those low law officials who conducted cross-border abductions. It shows that kidnappers and their communities understood abductions in terms starkly similar to those that shaped formal international law: they deferred to territorial sovereignty, understood that the operation of law depended upon reciprocity, and believed that polities had to consent to the application of a rule for it to be binding law. In other words, these border zone positivists simply relocated the powers of sovereigns to make and enforce international law to themselves and their communities. The third transnational context is the British world, which I argue should be understood as both political and doctrinal in nature. That is, Britain occupied a two-pronged place in British North American/Canadian law in the nineteenth and early twentieth centuries.19 In the first, it set policy and made law as an active political agent. Britain negotiated treaties and passed legislation for its colonies and it also, long after the era of responsible government began, continued to delay, block, and override Canadian legislation. As a result, this book builds on the recent reinvigoration in Canada of imperial history, which has focused largely on social and cultural questions, by exploring the continued power that Britain wielded over its North American colonies.20 In fact, building on scholars who have charted the decline of legal pluralism within nineteenth-century empires and the rise of agendas of uniformity, I show that in some ways the exercise of that power increased rather than decreased in intensity.21 In the early nineteenth century, imperial govern-

Miller_5200_001.indd 11

12/08/2016 10:41:17 AM

12  Borderline Crime

ments allowed their British North American colonies to put their own interpretation of international law into practice – namely, that the law of nations imposed a duty of extradition – even though British policy was that no such obligation existed. Imperial diplomats even used that argument of legal obligation in representing colonial governments in Washington, even though they did not in representing their own. Yet as the British set about reworking their own law in the late nineteenth century this policy of intra-imperial pluralism was no longer possible. Instead, Britain used its continuing power over Canadian affairs to refashion provocative Canadian legislation into a mere copy of British law. In other words, even in the era of the self-governing dominion, Britain was still a powerful agent of Canadian law formation. This book also examines the role of the empire’s doctrinal iteration, the common law world. That is, it explores extradition law formation in common law jurisdictions across the globe, where jurists were acting within the parameters of the legal systems implanted there by Britain. It shows that in Canada, the United States, Britain, New Zealand, and the Australian and southern African colonies courts were grappling with the same challenges of migrating crime and criminals with the same broad repertoire of legal instruments and legal traditions. Examining this doctrinal aspect of the empire helps de-centre Britain in British imperial history, pointing to multiple currents of influence as well as the internal divisions within the British world. In fact, I show that the common law world was deeply heterogeneous in the way jurists thought about extradition and formed their jurisdiction’s extradition law. While Canadian and American jurisprudence was dominated by liberalizing perspectives through which judges actively facilitated international justice as they saw it, liberalization was not the only juridical response to the challenge of borders. In fact, a rival interpretive method emerged throughout the British colonies in New Zealand, Africa, and Australia that both formed and construed the law of extradition much more strictly than did the liberalizers. These strict constructionists prized individual liberty over fairness between governments, and they saw the emergence of legal liberalization as a threat to their notions of British liberty and British justice. Likewise, not only were there deep doctrinal divides within the common law world, but by mapping the transnational and trans-colonial flow of legal knowledge this book shows how the common law world in many ways functioned more as a set of distinct doctrinal sub-circuits and jurisprudential zones than as a coherent reiteration of imperial law.

Miller_5200_001.indd 12

12/08/2016 10:41:18 AM

Introduction  13

Structure, Timelines, and Sources Borderline Crime is organized into six substantive chapters divided evenly into three thematic parts; the central arguments of the book are woven into all three. The first part, “Sovereign Borders and Criminal Law in Northern North America,” highlights how the international boundary posed an everyday challenge to state power and the rule of criminal law. Using a wide array of documents, including police reports, consuls’ despatches, and newspaper reports from both British North America/Canada and the United States, it illustrates across nearly a century the constant, ambivalent meanings of territorial sovereignty. Chapter 2 explores this issue by examining the multiple facets of this challenge, including the refuges which the disconnected jurisdictions of the British colonies and the American states created for many different groups of fugitive people, from escaped slaves to whitecollar criminals, which governments struggled badly to erode. It also highlights how groups of criminals from smugglers to counterfeiters continually profited from this jurisdictional divide, moving people and goods back and forth across the border and in so doing continually escaping and undermining state authority on both sides. Chapter 3 examines one of the most important and enduring reactions to this challenge across the span of the nineteenth and early twentieth centuries: the abduction of fugitives by community members, police officers, and other border zone officials. Drawing from colonial/Canadian and American documents ranging from diplomatic correspondence to the affidavits of kidnapped prisoners, this chapter argues that abductions functioned as a regime of transnational low law, and shows how local people along the length of the boundary understood kidnappings in ways starkly similar to those in which elite jurists conceptualized formal extradition – as compelled by notions of supranational justice and as governed by rules of consent, reciprocity, and territorial sovereignty. It also shows how high government officials in Britain, the colonies, and the United States developed their own customary regime to essentially excuse abductions, largely ignore the violations of individual rights inflicted upon the prisoners who were being moved between countries, and to affirm the principle of exclusive territorial sovereignty. The second part of the book, “Uncertainty, Amorphousness, and Non-Law,” examines the period between Kent’s 1819 New York State decision and the end of the US Civil War in 1865. It explores how ju-

Miller_5200_001.indd 13

12/08/2016 10:41:18 AM

14  Borderline Crime

rists and policymakers seeking to extend the transnational reach of law, as well as escaped slaves and military combatants seeking to mitigate that reach, largely failed to generate clear and binding law. Chapter 4 focuses on how judges such as Kent and Reid as well as colonial and American policymakers tried to create a formal extradition regime in early-nineteenth-century northern North America that imposed a sweeping obligation to extradite fugitive criminals grounded in notions of supranational justice as well as natural and international law. Using court rulings, legal treatises, and diplomatic despatches from North America, Britain, and Europe, it shows how these efforts at law formation generated an amorphous, uncertain, and fitful extradition system, which ultimately faltered. This attempt to generate binding law using subjective legal values was supplanted in 1842 by the WebsterAshburton Treaty, which limited Anglo-American extradition to just seven crimes, in many ways deepening the challenge of the border for decades. But as chapter 5 shows, both the amorphous pre-treaty and the limited post-treaty extradition systems were enough to threaten the asylum that British territory afforded to escaped American slaves and Civil War–era southern combatants. Although asylum was deeply embedded in notions of British and colonial nationhood, this chapter, using petitions and court cases in which refugee-claimants attempted to convince governments and judges to safeguard them inside colonial territory, explores why their attempts to give substantive legal meaning to refugee status failed. It argues that British North American jurists and policymakers were deeply wary of crystallizing territorial refuges in law or policy or compromising the ethos of supranational justice on which northern North American extradition depended. For decades, then, asylum remained a legal value in British North America but one which lacked the enforceability of binding law. The third part, “Law Formation in the Treaty Era,” examines how policymakers and jurists attempted to apply and expand the positive law of extradition in the period between the ratification of the WebsterAshburton Treaty and the beginning of the First World War. It explores in particular how key figures used the ethos of supranational justice in the project of legal liberalization. Chapter 6 focuses on the efforts of post-Confederation Canadian politicians David Mills and Edward Blake to liberalize Canadian-American extradition. It shows how these officials, convinced that Canada and the United States were similarly civilized countries, deeply frustrated at the limits of the treaty, and

Miller_5200_001.indd 14

12/08/2016 10:41:18 AM

Introduction  15

keenly aware of the everyday challenge of the border, tried and for decades failed in their efforts at liberalization because of the British imperial government’s very different attitudes towards extradition. In contrast to the increasing liberalizing consensus in Canada, many imperial officials feared that expanding extradition would erode protections for political refugees which Britain had begun implanting in law in the 1870s. As this chapter shows, even in the period after Canadian confederation, Britain retained the imperial power necessary to block, delay, and ultimately rewrite Canadian attempts at law formation. Chapter 7 examines law formation in the courts, focusing on how judges in Canada and around the common law world created extradition jurisprudence from nearly nothing in the seven decades after 1842. Drawing on every published Canadian extradition decision from this period, it argues that Canadian judges felt the challenge of the border as keenly as politicians like Mills and Blake, and as a result created a self-consciously liberalizing extradition jurisprudence that prioritized the ethos of supranational justice and downplayed substantive issues of individual rights and civil liberties. Yet, as this chapter shows, jurists around the common law world reacted differently to that same challenge. Using dozens of key decisions from US federal judges and English high courts, as well as every extradition decision from Britain’s Australian, New Zealand, and southern African colonies published in this period, it shows deep doctrinal divisions within the common law world. In the United States, as in Canada, courts increasingly endorsed extradition as a requirement of civilized statehood, though in Britain more cautious judges only gradually rendered liberalizing decisions and rarely used the kind of expansive rhetoric that was so powerful in North America. But in Britain’s southern colonies courts were even more reticent about liberalization and in fact many jurists crafted explicitly anti-liberalizing jurisprudences, construing the law strictly to safeguard the individual rights of prisoners and to preserve what they saw as traditional pillars of British and colonial justice. In other words, the challenge of borders was felt around the globe, but the ways in which law was formed to meet this challenge varied hugely, even within the British world.

Miller_5200_001.indd 15

12/08/2016 10:41:18 AM

This page intentionally left blank

Part One Sovereign Borders and Criminal Law in Northern North America

Miller_5200_017.indd 17

12/08/2016 10:47:30 AM

This page intentionally left blank

2 The Everyday Challenge of Sovereignty

In 1827 and 1831 the sovereignty over a small piece of land on the Maine–New Brunswick border was contested in colonial court. The cases emerged from the decades-long Anglo-American dispute over the Madawaska territory, and in both cases American settlers in the area were charged with seditious conduct against the king – raising an American flag and pledging to block the operation of English law and attempting to install a local government under American authority.1 Both sets of defendants were convicted.2 Although the defendants claimed that they were American citizens inside American territory, both the Crown and the court disputed that notion and justified Britain’s claim of sovereignty by focusing on its past exercise of jurisdiction in Madawaska. In the words of the judge in the first trial, Britain’s “clear possession and undisturbed jurisdiction” gave Britain a lawful authority over the region which excluded all American power.3 In charging the jury in the second case, Justice Ward Chipman laid out the vision of sovereignty which underpinned this rationale, decisively linking territory to an ostensibly absolute jurisdiction: “Although the defendants might be American citizens, yet they owed a temporary allegiance while within our jurisdiction … They admit that it was their intention to set up another government in the Madawaska settlement; and that, in itself, must be a direct subversion of the government of His Majesty. The authority of the governing power in any country

Miller_5200_017.indd 19

12/08/2016 10:47:30 AM

20  Borderline Crime

must of necessity be exclusive and supreme, and cannot admit of a competitor.”4 The Madawaska prosecutions highlight the powerful relationship between sovereignty and criminal law in the nineteenth-century imperial world. In New Brunswick, as elsewhere around the world, criminal jurisdiction proved to be both a metric of and a catalyst for the establishment of what Lisa Ford has called “perfect settler sovereignty,” in which jurisdiction was made absolute and extended over all people within the borders claimed by settler states.5 But while the enunciation of exclusive and supreme territorial sovereignty around the imperial world empowered states, it also had an ambivalent meaning. Where people could migrate easily across boundaries and between sovereign states the very borders that delineated sovereignty came to represent the limit rather than just the hallmark of sovereign power and legal order.6 In other words, borders often showcased the weakness rather than the strength of law. This chapter shows that this was not a remote or marginal challenge to criminal justice; it was not theoretical or only felt by elite agents of distant governments. Rather, the challenge of the border was keenly felt and constantly feared on every part of the boundary and in every portion of this period. As many historians have shown, policymakers and publics in this period often fixated on perceived links between migration, foreign-ness of many kinds, and crime. In an age of mass migrations, human movement often represented both opportunity and threat, peopling new settler states while imperilling often deeply racialized notions of good order.7 Indeed, this sense of racialized threat helped drive what Kornel Chang has called the “institutionalization” of the boundary, as governments developed new agencies and powers to determine who and what entered their territory.8 Yet, too often the questions of how that institutionalization process took place or how the threat of migration was felt by governments are asked with respect to particular groups or fairly short but tumultuous periods, in effect begging both questions. But examining the broader issue of criminality and its relationship with sovereignty and the international boundary shows a more enduring relationship between migration and perceived disorder. Clearly officials did fear the movement of racialized and working-class folk devils, but those fears were conditioned by a sense of deeper and more widespread powerlessness. Since law could not move between countries as easily as people, it left borders – the essence of sovereignty – constantly and publicly threatening.

Miller_5200_017.indd 20

12/08/2016 10:47:30 AM

The Everyday Challenge of Sovereignty  21

Sovereignty and Criminal Jurisdiction in Northern North America Sovereignty was a powerful concept in northern North American law. For most officials that implied what has come to be the orthodox vision of sovereignty, centring on exclusive rights to force and jurisdiction, with a single law applying to all people within the boundaries of the nation state, a version which became a totalizing force in much of the nineteenth-century world.9 Even in the Madawaska cases, where the territory was officially disputed between sovereign governments, and where even the right to minor exertions of governmental power caused heated diplomatic debate, the orthodox territorial version of sovereignty was determinative. In court, defendant John Baker declared himself an American citizen who lived in US territory and was liable only to American courts. “I do decline the Jurisdiction of this Court,” he said.10 In response, the colonial attorney general did not take it for granted that the judge or jury would presuppose colonial jurisdiction in Madawaska. Rather, he tried to prove British authority by showing that Britain had exercised what the lieutenant governor called “an actual practical sovereignty” in the territory, by calling witnesses who testified both to the facts against Baker and to the practice of governmental power in the area, using the basic functions of government to define and demonstrate sovereignty.11 Likewise, during the ensuing diplomatic dispute Britain and New Brunswick rejected any notion of sovereignty except that which gave them exclusive authority in the territory. When the United States protested the arrest of the American settlers, they demanded that the colonial government release them and refrain from any act of what the American secretary of state called “exclusive jurisdiction” until the boundary question was settled.12 That is, they argued that neither Britain nor the United States yet had a legal right to the ordinary powers of sovereignty in Madawaska. But British and colonial authorities rejected that idea and contended instead that neither domestic nor international law could recognize even a temporarily non-exclusive sovereignty. Britain’s international law adviser told the government that while Britain had chosen to refrain from acts of jurisdiction in Madawaska, such as granting timber licences, that was a diplomatic concession and not a legal restriction.13 Instead, the adviser wrote, someone had to possess the right of jurisdiction, and since Britain had allegedly exercised control previously, it resided with Britain still, which made Baker’s criminal trial right and proper.14

Miller_5200_017.indd 21

12/08/2016 10:47:30 AM

22  Borderline Crime

Clearly the Madawaska cases should be understood in the context of the tumultuous and protracted Northeastern Boundary Dispute.15 But the context of that dispute does not explain the importance that orthodox territorial sovereignty, so key in the cases, had in legal thought throughout the nineteenth and early twentieth centuries, nor the way it often served to undermine rather than to reinforce governmental power and jurisdiction. Rather, the Madawaska cases and especially Chipman’s formulation of sovereignty reflect the power of territorial sovereignty and the exclusive jurisdiction which flowed from it around the imperial world. But while Chipman’s formula in the Madawaska cases empowered the colonial state of which he was a part, the concept of excluding all rival jurisdiction also undermined criminal jurisdiction and government power in northern North America constantly throughout the nineteenth and early twentieth centuries. In many ways, the real power of the concept of sovereignty is best seen not in cases where it served entrenched interests but rather in those in which governments submitted to its authority at the cost of their own policies and jurisdictions. Even, and sometimes especially, in periods of security turmoil, when governments most keenly felt challenges to their own authority, sovereignty-based limits on criminal jurisdiction were powerful. This was clear in 1839 during the period of continuing military uncertainty all along the colonial-American boundary, when Howland Hastings was tried and convicted by a local court in Upper Canada for an assault committed in Detroit. Hastings reportedly offered a bounty for the head of Loyalist officer and Windsor politician John Prince and assaulted a Canadian, both of which took place in US territory just after the rebel attack on Windsor in December 1838. He was later arrested in Windsor, explicitly for the Detroit assault, and then sentenced by Prince himself, sitting as a justice of the peace.16 Despite the fear all along the border of guerrilla attacks and renewed rebel invasions, and the threat Hastings posed to a key local Loyalist power broker, this assertion of extraterritorial jurisdiction was quickly denounced by the colonial and imperial governments, and Hastings was freed.17 The meaning of sovereignty can be even more clearly seen in cases where the difference between extraterritorial aggression and lawful jurisdiction was mere inches, a case of which emerged after the abortive 1871 Fenian invasion of Manitoba.18 After the Fenian effort dissolved, a Metis man named Louis L’Etendre was captured just as he crossed the Red River into the United States, and put on trial for his involve-

Miller_5200_017.indd 22

12/08/2016 10:47:30 AM

The Everyday Challenge of Sovereignty  23

ment in the raid. US consul in Winnipeg James Taylor and Archbishop Alexandre Taché among others lobbied hard for his release, arguing in part that L’Etendre had been inches inside the United States when he was arrested, which made the arrest a violation of American sovereignty.19 Taylor obtained witness statements saying that two-thirds of L’Etendre’s raft had crossed into the United States, and that when arrested L’Etendre was standing on the southern end of the raft, inside American territory.20 Eventually, L’Etendre’s death sentence was commuted by the federal government, though not explicitly because of the sovereignty questions. Releases in such kidnapping cases were comparatively rare, but the emphasis that Taylor and Taché put on the violation of territory demonstrates the perceived power of exclusive territorial sovereignty, and the limits it was understood to place on state power even amidst military instability. But appreciating the everyday impact of territorial sovereignty, especially in border communities, means going beyond such spasms of state crime. In cases throughout the rest of the nineteenth and early twentieth centuries, judges and other officials routinely policed territorially based limits on criminal jurisdiction, even where doing so led to criminals being released. In 1853, for example, the Nova Scotia courts released an American sailor charged with indecent assault on board an American ship on the high seas. After the master had fallen ill, crew members reportedly attacked some of the passengers, chiefly Irish migrants making their way to New York, beating some of the men and sexually assaulting some of the women. When the ship landed in Halifax because of storm damage, several of the crew were arrested and tried, but contested the colonial court’s jurisdiction, saying British law could not apply.21 There was no extradition treaty that covered indecent assault, and so the prosecution argued that the sailors would go free, their crimes would go unpunished, and the colony would fail to protect British subjects if the court denied its own jurisdiction.22 But the court did just that, with Justice William Blowers Bliss noting that it was not a difficult decision, as the ship, he said, was “part of the soil of the country to which she belongs. She is, as has been said in the books, a floating island.”23 Likewise, courts policed the monopoly on violence that was at the core of territorial sovereignty, even when doing so sparked widespread outrage, as it did in a Victoria case in 1884. The case began when an American steamship travelling its usual route from San Francisco to Seattle stopped in Victoria. On board were two American prisoners,

Miller_5200_017.indd 23

12/08/2016 10:47:30 AM

24  Borderline Crime

arrested in San Francisco and en route to their trial in Seattle, in the custody of a Washington Territory sheriff who had retrieved them from California. At some point the prisoners’ wives, who were travelling on the ship as well, obtained a writ of habeas corpus demanding that the sheriff show a reason under Canadian law for keeping them in custody. When he could not, the judge ordered their release. As the Boston Herald wrote, “the Sheriff, who thought he had them secure, was obliged to see them walk out of the court house without his having power to arrest them. Thus two more fugitives from United States justice find a refuge in Canadian territory.”24 The power and logic of territorial sovereignty was at the core of this quick transition from custody to freedom, shaping the powerlessness of the sheriff, who watched the fugitives he had hunted liberated from the confines of American custody at the order of a Canadian judge. In other words, the law could not run so easily between countries as the steamship. Across the continent officials believed that the border structured state weakness in hugely important ways. Many officials understood the problem of borderline law enforcement to be rooted in specific zones of lawlessness, areas where geography essentially denied jurisdiction, either because they physically hid people from state oversight or because the extent of shared territory diminished the power of both countries to determine who and what crossed the border. Officials often singled out Indigenous-dominated areas near the border as zones in which state power had little reach, or where the irrelevance of the border for much of community life threatened a legal order delineated by territorial sovereignty. In some areas and periods, that threat was military in nature. In the 1870s, as wars raged on the American great plains with the Sioux people and the buffalo herds were eviscerated, US consuls closely monitored the Sioux who fled north of the boundary, believing that their refuge in Canada would threaten the future of American settlements, and reporting back to Washington on their numbers and on the high-profile leaders who crossed over.25 Similarly, especially when it came to the illegal international liquor trade, officials cast Indigenous migration as fundamentally destabilizing. As one writer told a US consul in 1901, the movement of Chippewa people back and forth between reservations in Minnesota and northern Ontario confounded domestic efforts to stop the supply of alcohol.26 Likewise, Americans in Alaska told the US government in 1894 that liquor brought in from northern British Columbia was causing havoc among Indigenous and poor white people, but that since the source of

Miller_5200_017.indd 24

12/08/2016 10:47:30 AM

The Everyday Challenge of Sovereignty  25

the alcohol was beyond US jurisdiction, they were powerless to do anything, and pleaded for an international effort.27 The BC cabinet agreed with the idea that liquor was harming public order, but said that smuggling was a problem throughout the whole northern coastal region of the province, where the cabinet said that Indigenous populations in coves and on islands actively supported liquor smugglers, providing them safe haven in these zones that were already difficult to police and making it nearly impossible to combat the trade.28 While Indigenous areas often appeared to officials as one kind of distinctly threatening borderland or lawless zone, there was also a widespread perception that even white settler communities near the boundary were less loyal and less part of national polities. The archetype of lawless border towns and regions, in other words, had real resonance with officials across the continent, pointing them to the necessity of transnational efforts at policing. This was clear during the era of national security threats in the mid-nineteenth century, when governments singled out border areas, as they did in the wake of the 1837–8 Canadian rebellions. In that period British and colonial officials even argued that American control over areas in northern and western New York was so weak that American territorial sovereignty was permeable, meaning that the use of British force there to combat escaped rebels and American Hunters Lodges was authorized under international law.29 They also conceptualized the threat in terms of a borderland human geography that defied sovereign power. Years after the rebellions were put down, officials continued to feel a threat from what Governor General Sir Charles Bagot called “the floating population on the American frontier.”30 Likewise, during the turmoil of 1848–9, when colonial and imperial officials feared domestic political upheaval and watched attempted revolutions throughout Europe, Governor General Lord Elgin gathered information on the connections between what he saw as would-be Canadian revolutionaries and Irish activists in the United States.31 Indeed, Elgin claimed that his decision to sign the Rebellion Losses Bill was conditioned by the necessity of avoiding an invasion from the United States, which political discontent among French Canadians and Irish Catholics in Lower Canada might have brought about, he argued. In such an event, he said, “the borderers might … listen to the suggestions of those who whisper to them that the honor of being subjects to Her Majesty is hardly worth the cost.”32 Likewise, during the US Civil War, the Canadian government felt the international necessity of policing border areas closely. After Confeder-

Miller_5200_017.indd 25

12/08/2016 10:47:31 AM

26  Borderline Crime

ate raids on US targets in Lake Erie and northern Vermont in late 1864 staged from Canadian territory – and in which at least some of the perpetrators claimed asylum in the province – the US government threatened military action inside Canada, suspended the Rush-Bagot treaty which had banned armed vessels on the Great Lakes, and proposed a passport regime that would deeply limit cross-border trade and migration.33 The provincial and imperial governments felt this threat acutely, and took steps designed to appease the American government by exerting greater control over areas in southern Ontario and southern Quebec. As a result, in 1864 the province commissioned several key figures and formed specially designed police forces to patrol border areas, as well as to prevent Union forces from kidnapping men from the province to serve in the American army. As the executive council commission decreed, the officers were ordered to “prevent any outrages being committed on the Frontier of Canada, and any organization in this Province for committing outrages beyond the limits thereof.”34 Even outside of these periods of state security turmoil, officials routinely conceived of areas near the boundary as distinct and criminal borderlands. Southeastern Quebec, especially the Eastern Townships, attracted particular attention for decades as a haven for smugglers, counterfeiters, and cross-border burglars, robbers, and thieves.35 One US consul in Coaticook described smuggling there as a systematic and large-scale fraud on the American government.36 In 1854, the Lower Canadian attorney general acknowledged that counterfeiting and the traffic in counterfeit US money was occurring throughout much of the townships, and promised that it would be suppressed, though in 1866 a local Canadian sheriff described the problem as still deeply rooted in the area.37 The sheriff cast the practice as creating a kind of distinct extra-national criminal region, saying that “the Canadian frontier is a favourite resort for these gentlemen and they find along the line, both sides, congenial spirits with whom they carry on a large traffic.”38 Officials felt the same about many other areas along the border, often acknowledging the utter lack of control exerted by government power. In 1910, after the alleged kidnapping of long-time smuggler William Kelly from New Brunswick into northern Maine by American treasury agents, the officials attempted to explain their pursuit of the man as an effort aimed at restoring fragile state control over the region, while denying the actual kidnapping. The US attorney for Maine declared that it was essential to federal authority along the border that the population there see that the government could capture Kelly, who had been smug-

Miller_5200_017.indd 26

12/08/2016 10:47:31 AM

The Everyday Challenge of Sovereignty  27

gling in the region for years and who had beaten an American customs officer nearly to death in 1902.39 As the diplomatic debate over Kelly’s arrest continued, one of the American customs officers in the area explained that releasing him would be disastrous for governmental authority, writing that it would “demoralize our border line and render unsafe the lives of all US officers in this vicinity.”40 Indeed, he claimed that several of the agents in the area had already pledged to transfer away if Kelly were let go, because of the risk to their own safety.41 In many areas, part of the challenge of imposing and maintaining order was that the border itself was an innovation, sometimes uncertain and unknown, and often meaningless to the people, both Indigenous and settlers, who lived along its expanse. Particularly before the northwest boundary survey settled its location in the west in the 1870s, federal, state, and provincial governments who exercised jurisdiction in border areas very cautiously were often at odds with local people and local officials who were more aggressive about their territorial rights. As a result, when a Montana marshal seized buffalo robes from a group of white traders near Wood Mountain in 1874, the US consul in Winnipeg admitted that the scene was near the “unascertained boundary” but was generally thought to be in Canada, which he suspected indicated that the marshal’s invocation of legal authority was simply a pretext for robbery.42 However, even once the border was established by governments, local people caught up in criminal cases sometimes argued that the boundary specifically, but also the different sovereignties of Canada and the US generally, had little meaning or importance for them – that they should not be punished for violating laws premised on the boundary as a barrier to movement. Indeed, that argument sometimes attracted significant official support, as it did in 1889, when several Americans from Dakota Territory were arrested for illegally cutting timber near the border in Canada. The Canadian government decided to make an example of them in order, as one cabinet minister told the US consul in Ottawa, to “‘restrain the lawless.’”43 But the men claimed that they had crossed back and forth across the border for years without having to report to customs, and the consul lobbied on their behalf, telling the minister of the interior that they had not intended to violate the law.44 Likewise, in 1905 both the consul in Victoria and Canadian Indian Agents in British Columbia urged leniency for two Indigenous men charged with smuggling goods in Alaska because, as the consul told the American government, the law was broken through ignorance.45

Miller_5200_017.indd 27

12/08/2016 10:47:31 AM

28  Borderline Crime

That urge to excuse transgressions on the boundary sometimes led to mercy. But it did not obscure the crystallized concept of sovereignty that gave the boundary its meaning in domestic and international law. Throughout the nineteenth and early twentieth centuries, the notion of exclusive and supreme jurisdiction that Justice Chipman articulated in New Brunswick in 1831 was policed and enforced by officials throughout British North America/Canada, Britain, and the United States. Yet doing so both empowered and undermined the authority of those polities. By delineating the reach of their own law using territory, they limited the extent of their jurisdiction. In northern North America, as people and goods constantly flowed across the boundary, this amounted to an everyday challenge to the rule of law. Territoriality and Refuge beyond the Border By delineating sovereignty and limiting jurisdiction, the border created what were widely seen as dangerous pockets of refuge in northern North America for different groups of fugitive people, from escaped slaves to militarized rebel groups to thousands of common criminals fleeing the ordinary machinations of domestic justice. Governments did try to bridge the border in this respect, first with an extradition system that developed sporadically throughout this period, and later with the development of deportation powers and other legal tools. But these legal innovations and expansions of state power did not erase the legal meaning of the border by simply applying foreign law and handing over or shuffling out with no legal process whoever was wanted by the foreign government. Once fugitives crossed from one country to another, their status and the laws that applied to them changed, and for many officials throughout this period that often meant that jurisdiction was at odds with justice. These frustrations boiled over in 1870 during the protracted and expensive battle to win the extradition of Richard Baker Caldwell, a New York City businessman and a leader in a huge customs fraud scheme which reportedly netted his group up to $250,000. When the scheme was exposed, Caldwell fled to Montreal, where he spent thousands contesting his extradition, winning a habeas corpus discharge before being rearrested on another warrant, then released again, and then recaptured in Toronto, where the courts dismissed his last attempts to avoid trial.46 Caldwell’s case, and especially the prosecution’s initial loss in Quebec, reveals much of what the notion of criminal refuges meant to nine-

Miller_5200_017.indd 28

12/08/2016 10:47:31 AM

The Everyday Challenge of Sovereignty  29

teenth- and early-twentieth-century officials. Caldwell was among a huge group of migrants known as “boodlers,” which included wealthy businessmen and high-ranking public officials accused of crimes such as embezzlement or fraud. Many of these crimes were not extraditable until late in this period, and, as in the Caldwell case, many of those accused even of extraditable offences were sometimes able to draw out, and sometimes even successfully contest, their surrender.47 In Montreal, the consul involved in the case told the US government after Caldwell was released by the courts that “no one ever has been Extradited who had money sufficient to contest Extradition.”48 In this context, he said, “Montreal is now, and for aught I can see will continue to be … a city of refuge for all criminals fleeing from the United States.”49 That sense that the legal mechanisms that bridged the boundary were ineffectual at eroding the purported criminal refuges on both sides was pervasive in both countries throughout this period, shaping the way that officials saw the boundary as a constant source of state weakness. Much historical scholarship on issues like deportation and extradition has focused on the use of the law against political criminals or slaves.50 Indeed, the idea that the border created refuges and staging grounds for dangerous political dissidents or often-racialized threats to order, and that it undermined the military power of governments, was widely held by officials on both sides, especially in the mid-nineteenth century. In the period after the 1837–8 rebellions it even pushed colonial and imperial officials to rethink the nature of territorial sovereignty, and whether American territory truly gave rebels and Hunters what one British diplomat called an “extorted and abused protection.”51 During the US Civil War, many American officials saw Canadian territory as a similar kind of refuge. Throughout the war, consuls and other American officials closely monitored Confederate movements in British North America, and gathered information on plans for raids on northern states, which themselves became issues of criminal law enforcement in the colonies. In 1863 and 1864, when Confederate States of America agents hijacked ships on the Atlantic and Lake Erie, and attacked the town of St Albans in Vermont, they sparked criminal extradition cases in British North American courts in which jurists debated whether or not such actions in wartime could be treated as common crimes or whether principles of the law of war applied and should immunize the combatants from criminal liability, which would lead to their being safe behind colonial borders.52 The challenge of the border, in other words, was often most pressing in wartime.

Miller_5200_017.indd 29

12/08/2016 10:47:31 AM

30  Borderline Crime

The conversion of war and challenges to military authority into issues of criminal justice was also apparent on much more mundane levels. For decades in northern North America, the border was understood to encourage disorder in the military. As scholars have shown, desertion was a pressing problem for British and American forces, often dramatically weakening military power, and many civilian and military officials recognized that in North America the roots of that flow were often transnational in nature.53 That is, soldiers often decided to leave the forces of one country to enlist in the army of the other, or they saw the nearby border as an opportunity to escape the frequently brutal conditions of army life entirely with no risk of punishment, a reality widely recognized by governments. In 1821 the British minister in Washington described how British soldiers in Lower Canada had deserted to join a nearby US force, having “received encouragement to that effect from this side of the Boundary.”54 In crossing between countries, many deserters clearly understood how safe from punishment they were beyond the border, with many in Canada scheduling meetings with US consuls to negotiate pardons or re-enlistment in the military without being threatened with extradition.55 The mass mobilization of the American Civil War magnified these challenges, seen often in the huge number of bounty jumpers – men who enlisted in the Union army, received the payment for doing so, then deserted and crossed into Canada.56 The consul in Montreal reported in 1864 that 30–100 such men crossed the border each day, and that many bragged of being habitual offenders, going back and forth between Canada the United States, enlisting in different states each time. According to the consul, “this species of villainy is being constantly practiced and the frauds upon the government … are enormous.”57 American officials also saw the border as a particular challenge to the racialized political and legal orders governing Indigenous people and black slaves, and they described this challenge in terms of criminal law. In the 1860s and 1870s, as Sioux groups in the prairie west moved north, American officials often cast them as simply fugitive criminals seeking sanctuary in the same way as thieves and murderers.58 These arguments both cast Indigenous groups as collective criminals, instead of as legitimate belligerents, and conceptualized the border as an impediment to the enforcement of criminal law. In the aftermath of the Dakota War of 1862, as many Sioux people fled US power, one American officer in Minnesota wrote to the British governor at Red River notifying him that what he called “a party of murderers … to avoid the

Miller_5200_017.indd 30

12/08/2016 10:47:31 AM

The Everyday Challenge of Sovereignty  31

just punishment for their crimes” had moved north, and that since the location of the border had not yet been established, he deferred to Britain’s potential sovereignty and asked for British permission to attack them there.59 Later, after the Battle of Little Bighorn in 1876, Consul James Taylor in Winnipeg gathered information on the influx of Sioux north of the boundary, complaining that this was a problem that police in Canada were entirely unequipped to handle.60 Indeed, Taylor complained that although the Sioux arrived in Canada with American horses, mules, and weapons taken in the conflict, Canadian officials elevated the Sioux from criminals to combatants by seeing the goods as spoils of war and not simply as stolen property.61 An even more enduring controversy about the meanings of refuge and its implications for American racial order was over fugitive slaves. While the traditional depiction of Canada as the sole terminus of the underground railroad is simply inaccurate – as recent work shows, in addition to Canada and Britain, America itself was essentially a country of slave/free border zones – the international boundary was a symbol for many slaves of potential freedom.62 As a result, for decades the United States sought to include black slaves as a class in extradition arrangements, but Britain refused, with the foreign secretary reportedly telling a US diplomat in 1828 that while the government would be willing to surrender slaves, what he called the “mania” of British public opinion would likely not permit it.63 What remained an open question was whether slaves who had allegedly committed a crime for which extradition could be granted would be surrendered. There was never an explicit bar to such surrenders enunciated in Britain or the colonies in either law or policy. In fact, twice in the 1830s and early 1840s colonial and imperial officials decided that American slaves who had made it to Upper Canada but who were allegedly guilty of criminal offences in the United States could be given up, and ordered their extradition, though these decisions proved enormously controversial in the colonies.64 In the United States, slave-owners well understood the controversy, though they pushed back against the idea that slaves should be exempted from extradition. As a result, when a Kentucky slave-owner urged the government in 1843 to help extradite escaped slaves who had allegedly committed robbery, he suggested a strategy to minimize controversy by attempting to disguise their enslavement altogether. “The Indictment agt them should be as persons not as slaves,” he wrote.65 Others expressed frustration at what they saw as the unjust hesitance of colonial and imperial governments to surrender slaves. In 1857 Ten-

Miller_5200_017.indd 31

12/08/2016 10:47:31 AM

32  Borderline Crime

nessee slave-owner Thomas James lobbied the State Department for help extraditing two brothers, after he journeyed to Chatham, Upper Canada, where he found the men – whom he described as “fugitives from justice” – but was forced to retreat when the local black community mobilized against him. Faced with what he called the refusal of the authorities in Chatham to help him in the face of local opposition, James demanded that the US government use its diplomatic power. “I believe it to be the duty of our government to force the Canadian or English Government to deliver up both those negroes + I intend to push the subject as far as I can,” he wrote.66 Despite how intense the controversies were over fugitive slaves, Indigenous refugees, and military combatants, the most enduring and important issue in the North American diplomacy of crime was the cross-border flight of ordinary criminals, not political dissidents or refugee slaves, and the vast majority of these fugitives were white men, which helps recast our understandings of what cross-border criminality meant in the nineteenth and early twentieth centuries. In fact, in many ways the fugitives who posed the deepest challenges to law and order and those whose crimes struck most at the heart of North American civil society were those like Richard Baker Caldwell, elites whose fraud schemes or embezzlements often involved hundreds of thousands of dollars from public treasuries, savings banks, or investment houses, and who could use that money to confound the mechanisms of international extradition. In the Caldwell case, newspapers in the US and Canada followed the case closely, often publishing transcripts of the hearing as witnesses were examined and the details of the huge fraud were laid out in public.67 After his discharge by the Montreal courts, some in Toronto predicted Caldwell would win there as well, though he did not.68 The Caldwell case was in many ways typical of the “boodlers” extradition cases which received intense attention in the press. Besides the huge sums of money and the elaborate fraud scheme, the American press often reported that Caldwell had comfortable rooms in jail paid for at his own expense, that his lengthy legal battle and his victories in Montreal had been funded by the money he fled with from New York, and that his escape from Montreal was made possible when his prominent lawyer ushered him out of a side door of the courtroom and shut it in the face of a police officer before another warrant could be served.69 In many ways all of this echoed and prefigured other cases: although Caldwell lost in the end, he spent lavishly on lawyers, won

Miller_5200_017.indd 32

12/08/2016 10:47:31 AM

The Everyday Challenge of Sovereignty  33

some of the time, and delayed his surrender for months while the press speculated that he would defeat justice. More generally, though, the wave of prominent, white, establishment men, often guilty of embezzling huge sums, posed deeper or at least very different threats than the supposedly depraved Eastern Europeans, lascivious Chinese, or savage black men that often served as folk devils in Victorian North America.70 These white criminal elites sometimes used their social and economic power to defy legal order, at least temporarily, illustrating the often gaping holes in mechanisms of supranational justice and reinforcing the challenge of the border to the enforcement of criminal law. Indeed, the most salient aspects of the cases which dragged on the longest and most publicly in later nineteenth-century Canadian courts and which often sparked the most intense press interest was the professional, and often highly elite, statuses of many of the prisoners as well as the scope and impact of their crimes. These men arrived in Canada able and prepared to test the limits of the law in fighting their surrender – as one extradition defendant who did just that reportedly remarked in 1882, he “had lots of money and intended to obtain lots of law.”71 Indeed, the sums could be huge, and they included large frauds on government: Charles C. Browne, a New York customs officer, allegedly conspired to undervalue Japanese silk imports and so reportedly deprived the government of $1,000,000 in duties, while Levi D. Jarrard, the tax collector of Middlesex County, New Jersey, allegedly embezzled over $36,000.72 Likewise, in the early twentieth century, John Gaynor and Benjamin Greene were prominent businessmen who were given a federal contract to renovate the harbour at Savannah, Georgia. They allegedly billed for some $575,000 in work that was never done before fleeing to Quebec, where their massive pay-out from Washington fuelled a legal battle that lasted for three years, stretching from an extradition commissioner’s court in Quebec to the Judicial Committee of the Privy Council in London, and in which they won several of the more than ten reported decisions rendered by the courts, though they ultimately lost their fight against surrender.73 These cases exposed the massive power that respectable white elites had to cause suffering, and sometimes highlighted their legal impunity. This was typified by the case of Major Ellis Phipps, formerly the head of the huge Blockley Almshouse in Philadelphia. A member of Philadelphia’s Democratic Party elite, Phipps was eventually exposed as having plundered the almshouse during his years in charge, and stories surfaced of him selling off the institution’s copper roof and keeping

Miller_5200_017.indd 33

12/08/2016 10:47:31 AM

34  Borderline Crime

the profits, and of having spent thousands of dollars on lavish parties and fine clothing while the almshouse residents suffered in poverty.74 While Phipps was eventually given up – after, as a Philadelphia paper noted, spending a huge sum on “unprofitable litigation” to fight his return – two years later the case of a New York bank president named John C. Eno highlighted not simply the expense but indeed the flaws in the international extradition system.75 Eno was the scion of a wealthy New York family whose fortunes grew from banking and real estate development, and he himself was president of the city’s Second National Bank. But in the early 1880s he drained the institution of nearly $4 million, losing the money in risky investments, but covering it up by making false entries in the bank’s ledgers. Faced with imminent exposure in 1884 he siphoned off the last $95,000 the bank had and fled the country.76 As Katherine Unterman has noted, Eno’s flight came in the midst of a financial crisis in New York in which one major bank and one investment house had already failed, and the scandal that enveloped Eno’s institution sparked a bank run and the collapse of several more banks and brokerage houses, leading to the worst financial disaster in the United States in more than a decade.77 While Eno was soon arrested in Montreal, unlike Phipps, he defeated the American government in court. After a commissioner committed him for extradition, his lawyers challenged his detention in the superior courts on habeas corpus, where a judge found that the crimes of which he was guilty were simply not included in the extradition treaty. He was, in other words, free so long as he remained across the border.78 Governments responded to the threat of criminal refuges in various ways. They passed laws making it an offence to bring stolen property into the country and developed police forces in border zones, as Canada did during and after the Civil War, or passed or reinforced neutrality acts, as the United States did in the aftermath of the Canadian rebellions in the 1830s.79 But the most important of these initiatives, and arguably the most flawed, was the development of the extradition system by diplomats, jurists, and government officials in the decades after the 1842 Webster-Ashburton Treaty. Some early policymakers saw the treaty in provocative conceptual terms, arguing that it altered, at least in this one way, the nature of jurisdictional authority by merging British and American legal regimes. As the US minister in London put it in 1845, the treaty was meant to “consider the two countries in some respects as belonging to one jurisdiction.”80 Yet in ways large and small the convergence did not occur, and domestic law still mattered, as the

Miller_5200_017.indd 34

12/08/2016 10:47:31 AM

The Everyday Challenge of Sovereignty  35

US consul complained in the Caldwell case in 1870, when he reported back to Washington that Canadian criminal procedure was used to defeat the ends of American justice.81 While the consul, and many others in this period, argued that Canadian and American courts should simply automatically reinforce one another by handing over fugitives as a matter of administrative procedure with no discretion and minimal prerequisites, as jurisdictions might under the same government, that never occurred, and the border still served as a division between two distinct legal regimes. This jurisdictional divide was often amplified by social divisions that echoed the international boundary. Even with extradition – a legal process governed by treaties, statutes, and doctrines of domestic and international law – enforcement was bound up with partisan, racial, and national identity politics that sometimes affirmed these criminal refuges. The power of these political forces was clear in fugitive slave cases, where black Canadian communities and white supporters mobilized, demonstrated, and sometimes fought to prevent escaped slaves from being returned to the American south as criminals. In the 1830s and early 1840s, blacks and whites petitioned the colonial and imperial governments to prevent such surrenders, which they said would distort international law, violate principles of British freedom, and subject the prisoners again to the horrors of slavery.82 Abolitionists also took to the streets to demonstrate against attempted extraditions; in 1837 when blacks in Niagara, Upper Canada, mobilized to prevent a slave from being returned to Kentucky, they blockaded the jail and a race riot ensued, while in 1861, when John Anderson was freed by the Canadian courts after his attempted extradition to Missouri, he met crowds of black and white abolitionist supporters and subsequently left for England, where he spoke to thousands in London and reinvigorated the English anti-slavery movement.83 Likewise, when the Tennessee slave-owner Thomas James, frustrated by official inaction, appeared in Chatham in 1857 and attempted to arrest two of his former slaves himself (though it was not clear that as an individual and not a government official he could have any standing before colonial courts), he encountered a mobilized black community determined to prevent him, and instead retreated back to the United States. When he complained that Chatham’s mayor had refused to help him enforce the Webster-Ashburton Treaty, Upper Canada’s governor summed up the limits of state power. “In a free country it is not always easy to secure the speedy execution of an unpopular Law, especially by Officers not

Miller_5200_017.indd 35

12/08/2016 10:47:32 AM

36  Borderline Crime

appointed by the Central Government, but elected … by the municipality in which he resides.”84 But community dynamics and domestic politics may also have shaped the outcomes of even much less controversial extradition cases. Some officials believed that even seemingly ordinary extradition cases needed to be carefully managed to assuage public opinion. In the 1885 case of an Idaho postmaster named Isaac Hibbs who reportedly made off with some $20,000 in embezzled money before being arrested in British Columbia, US consul in Victoria Robert Stevens was attentive to the state of local views on the case. He reported back to Washington on public opinion in the city, writing at one point that he saw a change in this opinion as what he called the bias against the US position diminished when the oral arguments were reported in the press and citizens better understood American efforts to extradite Hibbs, and he happily told Washington that the US government’s written brief was also likely to be reprinted in the local newspapers.85 His enthusiasm about shifts in public opinion was likely less because the judges would pay attention to that opinion in their rulings – he clearly thought they were reliable already – than because the federal government might hesitate before surrendering a prisoner for whom there was a groundswell of local support. Officials sometimes read the results of judicial decision making in extradition cases as political in a different sense, manifesting either a pro- or anti-American attitude. This was clear in the crisis atmosphere that accompanied the Civil War extradition cases of Confederate combatants in New Brunswick, Upper Canada, and Lower Canada. There, consuls were convinced that both popular feelings and the views of elite policymakers about the war, American democracy, and the United States generally shaped legal outcomes. After a Lower Canadian judge decided in 1865 that the St Alban’s Raiders were belligerents exempt from criminal extradition under international law, consul John F. Potter derided the decision in the harshest terms in his report to Washington. Potter said it was “loose, dogmatical, illogical, and evinces the same illiberal and hostile feeling toward the Government of the United States, for which, and which only, the Bench and Bar of Lower Canada are distinguished.”86 A few months later the vice-consul reported back that the decision stemmed from the prevalence among Lower Canadians “of that hostile and illiberal feeling towards the U.S. Govt.”87 These political dynamics of the diplomacy of crime in northern North America were even more apparent in more ordinary cases. In cases that

Miller_5200_017.indd 36

12/08/2016 10:47:32 AM

The Everyday Challenge of Sovereignty  37

did not capture massive press attention and spark elite international debate, consuls and others routinely lobbied and pressured Canadian Justice Department officials and even Canadian judges, and strategized about the political connections of lawyers or the partisan implications of cases. In the 1880s the US consul in Ottawa described in a series of despatches how he met with the deputy minister of justice to discuss an American court decision that had recently stymied the surrender of a fugitive to Canada by creating a new procedural requirement for Canadian extradition requests. The deputy declared that until the US government successfully appealed the decision or overrode it with new legislation, Canada would apply the same procedural requirement to American requests, potentially causing delays and adding expense to the extradition of fugitive Americans.88 Unsatisfied, the consul then went over the deputy’s head and lobbied Justice Minister John Thompson, obtaining a promise from him not to allow that single American judge to reshape and degrade Canadian procedure.89 At other points the consul noted his efforts to pressure the department in other ways, including to decide on one case as soon as possible, as what the consul called “a special favour”; the minister obliged later that same day.90 In the Hibbs case, consul Robert Stevens found local officials in Victoria very open to his lobbying, and to his involvement in the case. He reported back to Washington that presiding judge Henry Pellew Crease told him socially that he was willing to grant the prosecution a delay to get more evidence, and also gave Stevens “confidential word” about when he was going to render his ultimate decision in the case.91 Stevens described Crease as “very cordial in his expressions intimating his apparently sincere desire to meet the wishes of our government to the fullest extent.”92 (The consul was likely right about Crease’s general inclinations – a few years later the judge bragged privately to the minister of justice that he was on such good terms with the US attorney general’s office that they sent him free copies of American statutes.)93 During the case Stevens also dined and had meetings with the lieutenant governor, who revealed what the federal authorities in Ottawa had told him about their approach to the case, and sent his private secretary to give Stevens updates on Ottawa’s decision to issue an extradition warrant.94 Stevens even met privately with the provincial chief justice, who would soon sit on the case when the prisoner appealed for habeas corpus, and who gave him advice on the workings of the Canadian extradition act.95 Part of this diplomacy of crime was also the careful selection of lawyers who brought with them political connections as well as profes-

Miller_5200_017.indd 37

12/08/2016 10:47:32 AM

38  Borderline Crime

sional and social respectability. In the Hibbs case, although the US government won the case, and Hibbs was surrendered, Stevens complained about the lawyers who had been hired against his recommendation, arguing that the firm he preferred had a much higher social as well as legal standing in the community, intimating how important it was that the American government be represented by men with social prestige as well as professional skill.96 The social and political implications of selecting lawyers were even clearer in the Caldwell case, where US officials felt they had to navigate the complicated denominational and partisan politics of Quebec. Thomas F. Wilson, who hired the lawyers to win Caldwell’s extradition, described his rationale in a memo to the consul general. According to him, the barrister T.K. Ramsay, who was hired, had an array of professional advantages: he had been suggested by the judge (who Wilson felt was anxious to find sufficient reasons to extradite Caldwell and seemed to have faith in Ramsay’s ability to deliver those reasons), and he had been successful in previous extradition cases. But political concerns, particularly those that might influence the government’s ultimate decision to authorize or deny Caldwell’s surrender, were also pressing. As in the Hibbs case, Wilson noted the power of public opinion, and observed that Ramsay was the editor of two government-allied newspapers by which “a good deal of public opinion is manufactured, so at least the Government is sustained in the course it may choose to take.”97 Moreover, he told the consul that Ramsay’s purported antiAmerican attitudes made him even more useful as a tool of the American government, since he would have influence with Canadian officials whatever their views on the United States. Conversely, there were only two lawyers in the city with pro-American views, Wilson said, and neither was suitable, since one was simply not very skilled, while the other was skilled but was also a Rouge Liberal politician and a Catholic reformer and so would weaken the American case with the Conservative federal government and with many more conservative Catholics.98 In other words, even basic decisions like selecting lawyers involved political and quasi-diplomatic strategies designed to reinforce the administration of the formal law, and so to erode socially and politically, as well as legally, the criminal refuges offered by the international boundary in northern North America. But the fact that governments saw these tactics as necessary to best bridge the boundary and expand over it the reach of criminal law points to the fundamental disjuncture that the boundary represented in northern North America. Even

Miller_5200_017.indd 38

12/08/2016 10:47:32 AM

The Everyday Challenge of Sovereignty  39

among governmental and legal elites who believed deeply in the rule of law and the authority of government, stretching the reach of domestic criminal law over the border to erode the refuges it afforded to criminals was far from simple. National Borders and Transnational Crime In the early 1890s, Levi Myers, the American consul in Victoria, bombarded his government with reports about smuggling from British Columbia into the United States. According to him, processed opium and Chinese migrants were being hustled into the United States in increasing numbers from BC. Although he urged the government to try to curb these flows, he acknowledged that it would not be easy, since the smugglers were clever, well organized, and well connected among local elites. As he told the State Department, “What gives strength and tenacity to these different branches of the smuggling business is that they are profitable, and that there are so many white men of financial strength and good standing on both sides of the Strait, behind them.”99 In this context, combating smugglers would mean policing both Canadian and American territory and using both formal and informal levers of state power: he suggested both a revenue cutter on Puget Sound and a network of paid spies on the ground in Victoria. It would also mean working quietly and subtly in the province to gather information, as Myers was already doing alongside local officials, an arrangement which nearly came crashing down in the summer of 1890 when a long report of their cooperation was leaked to the press. As a result, the Canadian officials publicly denied working with him; the smugglers, he said, would simply change their tactics, knowing that they had been observed.100 The 1890 episode highlights the kinds of problems officials faced in trying to transform the legal meaning of the northern North American border into a barrier for people and property. Not simply did the sovereignty delineated by the boundary create criminal or fugitive refuges, but crime and criminals also actively migrated back and forth between countries. In other words, the problem was not simply national refuge but also transnational criminality. As historians have long argued, throughout the nineteenth and twentieth centuries government officials, people, and the press across northern North America drew powerful connections between migration and crime, often singling out racialized foreign-ness as deviant and threatening, which reinforced

Miller_5200_017.indd 39

12/08/2016 10:47:32 AM

40  Borderline Crime

arguments for immigration restrictions or the disproportionate policing of minority communities. But the associations between movement and crime were more nuanced and diverse than these analyses alone might suggest, and they often fixated on the limits that British/Canadian and American sovereignty placed on the enforcement of criminal law. During this period officials across the continent saw the illicit cross-border movement of goods and people in ways that were at once more ordinary than the racialized archetypes of depraved foreigners, and more threatening, because of the ease with which almost everyone could move between countries for most of this period and the threats that they posed to economic development and government power in doing so. But just as with the challenge of cross-border criminal sanctuaries, policing transnational crime was also bound up with the often profoundly ineffectual nature of state power. People in areas near the international boundary sometimes felt the threat of migrating crime and criminals the most directly. Government officials and victims of crime often expressed a keen sense of powerlessness at the way the border rendered them vulnerable to crime, and they often argued passionately that the extradition regime had to be developed to reflect the transnational reality of border-zone life. As two merchants in northern Vermont told the American government in 1862, after their store had been burgled by Canadians – which was not then an extraditable crime – Canadians could “come over the line and commit kinds of depredations and we have no chance at them.”101 Like others in border areas, the men stressed the necessity of official action and international cooperation as both practical deterrents and symbols of the imposition of legal order in the border zone, saying, “If we can get these three fellows and make an example of them it will be apt to quiet them.”102 Likewise, the perceived threat of border-town lawlessness and social disorder stemming from criminal migrations increasingly extended further from the formal boundary, as it seemed to do in 1886, when an Arkansas man was arrested for a stabbing in a Hamilton, Ontario, saloon while in the company of prostitutes who themselves allegedly worked in both Ontario and New York.103 But the migration of petty criminals was not the only one which troubled officials. The migration of white-collar criminals, who often perpetrated large-scale fraud schemes, was also constant. One such case unfolded in Toronto in 1898 as a man named J.C. Harvey protested his fraud conviction to the US consul. The eloquent and impassioned Harvey was convicted for selling subscriptions to a newspaper that he

Miller_5200_017.indd 40

12/08/2016 10:47:32 AM

The Everyday Challenge of Sovereignty  41

had no intention of actually publishing, though he claimed innocence. Harvey told the consul that he was an entrepreneur, not a criminal, and that he was an American citizen, that his children were likewise American citizens, and that they were suffering because he was not able to provide for them while he was unjustly imprisoned by a judge who disregarded Canadian law.104 When the consul investigated, though, a different picture emerged. Far from respectable, Harvey had left wives in Michigan and New Jersey, and far from staunchly American, he had stressed at trial that he was Canadian born and a proud British subject. It also emerged that he had practised the same fraud scheme in Washington, DC, and throughout New Jersey as he had set up in Ontario.105 While the cross-border migration of people clearly challenged legal order, in many ways the transnational movement of commodities was even more threatening. In particular, the production of forged money was a focal point of fear about transnational crime. Throughout northern North America the large-scale business of producing fraudulent currency struck at the very core of national economic development.106 But policing the trade in forged money was also understood as a transnational problem with special roots in border areas, where counterfeiters took advantage of the refuges offered by the boundary and so continued to undermine the state in this crucial way from just beyond its reach. As Jack Little has shown, the Eastern Townships were a centre of counterfeiting activity in the nineteenth century, and attempts to combat it there involved Canadian and American authorities, often exposing the weakness of both.107 In 1854, a group of Massachusetts banks helped bring about the arrest of a group of counterfeiters there, and the state’s governor asked the president to offer US government support at the trial.108 Meanwhile, the Lower Canadian attorney general extolled Canadian efforts to crack down on counterfeiters of American money inside colonial territory, and argued that the traffic in counterfeit money “which has extended through a large portion of the Eastern Townships will be wholly suppressed.”109 It was not, however, and a decade later the Canadian sheriff of Bedford told the local US consul that while he knew that a counterfeiting ring was operating along the border, he lacked the resources to stop it and was “powerless” without money from the American government.110 Even more threatening and widespread than counterfeiting, however, was the practice of international smuggling. While scholars of nineteenth- and early-twentieth-century North America have highlighted smuggling activities in particular regions or periods, it is im-

Miller_5200_017.indd 41

12/08/2016 10:47:32 AM

42  Borderline Crime

portant to appreciate the enormity of the practice: on every segment of the border, in every part of the century examined here, goods and, increasingly in the late nineteenth century, people were moved illegally between countries to evade import duties or immigration restrictions. At various points officials in British North America/Canada and the United States found out about rings or individuals bringing across produce, building materials, leather, livestock, liquor, opium, and would-be Asian and European migrants. The officials who knew most about the traffic described it as commonplace, and sometimes at the core of local economies. A customs officer in 1830s New Brunswick said that smuggling was the basis of the plaster trade there, while in the 1840s a Great Lakes collector said that every ship from either country which had ever come into the port had carried smuggled goods at some point.111 At other times, officials from Canada and the United States reported that the entire central Canadian border zone was “swarming with bands of professional smugglers,” that vast amounts of opium were smuggled into the United States on the prairies and Great Lakes, that the magnitude of smuggling was overwhelming customs officers in San Francisco, and that hundreds of thousands of dollars’ worth of goods smuggled into the British Columbia interior was compromising the provincial government’s attempts to develop the economy there.112 In a period in which governments were dependent upon import duties, then, the routine nature of smuggling served to starve the state of funds and to highlight for a mass audience the inadequacy of the state to enforce its own policies. In other words, smuggling was – and was perceived to be – a crime that undermined government power as counterfeiting did, but on an even larger and everyday scale. The extent to which goods poured illicitly over the international boundary highlights the limits and defects of state power, and the official awareness of that flow served in some ways as a catalyst for institution formation and the expansion of state power. From the beginning of this period officials describing the scale of the smuggling problem asked for more money, personnel, or logistical support, and identified what lax resources meant for border enforcement. On the coasts, officials often asked for revenue ships, as the collector at St Andrews, New Brunswick, did in 1833 when he wrote that without one there was “no restraining power to this traffic.”113 Elsewhere, police, customs officials, and consuls asked for more state power in a variety of forms. In 1895, the BC government asked Ottawa to guard its southern border with mounted police, while on the prairies NWMP officers urged that

Miller_5200_017.indd 42

12/08/2016 10:47:32 AM

The Everyday Challenge of Sovereignty  43

the only way to curb smuggling was to deploy officers to watch the trails which crossed over the international boundary.114 On the American side there were similar pushes for more state power, especially more federal agents detailed to border crossings and ports.115 Yet this was not simply a push for uniformed and salaried government employees, the usual barometers of state formation.116 Many US consuls in Canada pressured their government to pay spies and informants in Canadian cities and towns because of the difficulties faced by ordinary officials. As the consul in Windsor wrote, American immigration inspectors and treasury agents, as well as local Canadian police, were known as such in the community, and so could not work undercover or conduct investigations without attracting attention.117 As a result, some consuls hired spies themselves, as the consul in Toronto did in 1865. Paid by the consul, F.A. Routh went undercover in cities and towns on both sides of the border throughout the lower Great Lakes region and wrote detailed reports on smugglers and their tactics.118 Likewise, in Victoria in the early 1890s Myers told the State Department that paying local people for information was essential to curbing the smuggling of Chinese people and opium into the United States.119 In fact, a group of men in Victoria, which included a city detective, approached Myers in 1892 and gave him information which led to opium seizures in the United States. At first the group transmitted the information free of charge to show Myers how helpful they could be to the US government, but they soon demanded payment and ultimately asked for 30 per cent of the value of any seized drugs. Myers saw this arrangement as enormously beneficial, and according to him, if the government cooperated with the men no large shipment of opium could leave Victoria undetected.120 Part of the reason Myers and others turned to ad hoc informants was that state power on the border was often neither impressive nor effective. That is, even as the processes of state formation produced uniformed and salaried police officials and bureaucrats, the state was often ineffectual and un-coercive – and was widely seen as such by local people. One NWMP officer on the prairies, for example, reported in 1908 that even if he could catch smugglers, the Canadian collector in the area operated on a self-reporting system for people importing goods, so that anyone he stopped on smugglers’ trails could simply claim to have not yet filed their paperwork.121 Likewise, consuls regularly wrote to Washington that collectors were not using agents intelligently, or that they were simply not guarding the border very well.122 One of

Miller_5200_017.indd 43

12/08/2016 10:47:32 AM

44  Borderline Crime

Routh’s reports on Great Lakes smuggling described how customs officers did not go out on patrol on the dark and stormy nights on which smugglers most preferred to land goods.123 He also told the consul that smugglers had people on shore who watched the routine patrols of the customs officers and signalled their location to waiting boats.124 Moreover, officials well understood how good smugglers were at disguising whatever it was that they were bringing over the border. “The devices adopted by Smugglers to avoid the Law are as numerous as they are adroit,” wrote the consul in Toronto, having read Routh’s reports, while a consul in Quebec City told Washington that the smugglers on both sides of the border “are as sharp as they make them.”125 Indeed, smugglers developed sophisticated tactics and networks of support. Going undercover among smugglers, Routh reported that the Great Lakes fishing boats were specially fitted up with holds for liquor bottles and kegs, while a riverside hotel at Windsor had a trap door installed so that boats could pull up and unload directly beneath the floor, while some stores in the area had hidden back rooms that served as clearinghouses for smuggled goods.126 He also reported that along Lake Ontario, millers in Napanee and Port Hope would pack whatever goods people wanted to take across to the United States into flour containers, even going so far as to make sure the packages were as heavy as they would otherwise have been, in case customs inspectors decided to weigh them.127 Elsewhere in the same period, US officials on the Great Lakes and in the Eastern Townships reported that liquor and other goods were being taken through official border crossings packed in barrels of fish, kegs of butter, and packages of eggs.128 On the Pacific Coast, smugglers sometimes paid steamship line officials to cooperate in thwarting on-board customs inspectors. One officer would reportedly receive bags of opium through a specially cut hole in the deck above his office in order to keep them from customs officers during inspections, while other vessels had false pillars and carefully disguised reservoirs for drugs and other smuggled products.129 The dexterity of these strategies meant that the officials who knew the most about smuggling knew that governments were detecting only a small fraction of smuggled goods. As a result, when Robert Stevens, then the consul in Victoria, visited old friends who were customs officers in San Francisco in 1889, he was unsurprised by their indifference to what he saw as the pressing duty of stopping smugglers. According to him, “the magnitude of the combination both inside and outside, and the natural obstacles to successful effort, seemed to overwhelm them, and induced apathy.”130

Miller_5200_017.indd 44

12/08/2016 10:47:33 AM

The Everyday Challenge of Sovereignty  45

But state power was not simply lax or outmanoeuvred by smugglers’ tactics, it was also rife with corruption across the continent. Officials who believed in combating the flow of illegal imports often found themselves working against others who were personally profiting from smuggling schemes, as reports showed routinely. In the 1860s, for example, the informant sent undercover by the US consul in Toronto revealed that local detectives in American towns let smugglers know who was being investigated and when a raid was being planned, while at Detroit a city detective relieved customs officers and actually stood guard while smuggled goods were being carried off a ship.131 Decades later a consul in Windsor reported back to Washington that he had reliable information on a ring smuggling Chinese labourers into the United States, which, he said, consisted of and was supported by local police officials and other government agents.132 On the Pacific Coast, the corruption of US customs officers and their complicity in smuggling opium and Chinese migrants reached an even larger scale. Throughout the early 1890s Levi Myers in Victoria expressed frustration at how ineffectual US agents were, and described the corruption of steamship officers and telegraph company employees, the latter of whom he said leaked his despatches on smuggling to smugglers.133 He also began to suggest that customs officers in the United States were involved and urged the government to investigate, after tips he sent to them were ignored or only cursorily investigated.134 This was not paranoia: in 1893 he was proved right when a federal court in Portland tried and convicted a ring of businessmen, customs officers, and Chinese merchants for smuggling Chinese migrants into the United States from Victoria, in what became one of the largest smuggling cases on the American west coast.135 One of the indicted was the treasury agent Myers identified, who had reportedly been paid $1300 a month by the ring.136 Myers himself served as a witness before the grand jury, where he said he had long believed the man was involved in smuggling because of how lax he was in his duties, and because informants, including some smugglers, told him so.137 Moreover, just as with efforts to erode criminal refuges through extradition, enforcing the laws against smuggling proved subject to the dynamics of community life, in which smugglers often had widespread support in their communities generally and among influential elites in particular. These links routinely stymied attempts to curb the flow of goods and people across the border, and in effect, officials found themselves trying to disrupt an alternative, transborder economy. In the

Miller_5200_017.indd 45

12/08/2016 10:47:33 AM

46  Borderline Crime

1860s a US consul in the Eastern Township reported on how prevalent and powerful smuggling into the United States was among Canadian businesses. According to him, Canadian merchants “in all the Towns and Villages in Canada both East and West along the Frontier are thus making large Sales and good profits at the expense of the United States Government.”138 Likewise, NWMP officers in Saskatchewan in the late nineteenth and early twentieth centuries, for example, described how almost everyone in the area knew about smuggling, including how and when the smugglers went over the border. Indeed, the inspector at Carnduff wrote in 1908 that the majority of the wheat grown there was smuggled across the boundary, and that it was common knowledge in the area that the teams which took wheat across smuggled other goods back into Canada.139 Similarly, in aboriginal-dominated areas, which were already often considered lawless, officials believed that the people there welcomed and harboured liquor smugglers and others involved in illegal traffic.140 In this context, where smugglers were often popular and powerful, officials understood that anti-smuggling efforts had to be as secret as possible, as Levi Myers argued from Victoria. The scale of this influence was illustrated by the aftermath of the US government’s leaking Myers’s report on anti-smuggling cooperation between US and Canadian officials in Victoria, when the city’s port inspector explicitly denied the allegation to local newspapers. “Inspector of Ports Young wishes it understood that he has not devoted his official time to helping the US customs officers to ferret out the smuggling,” it read in part. “He has nothing whatever to do with the enforcement of the U.S. laws.”141 Nor was Victoria unique in this respect. US consuls gathering information in Canadian cities and towns well knew how delicate the work must be. In 1902, for example, when city health inspectors in Windsor found more than thirty Chinese people soon to be moved into the United States, they told the US consul there, but insisted on a pledge of secrecy because the smuggling organization was so powerful. Even the consul remarked that if his report on the subject were made public in the city he would be widely shunned.142 Likewise, a consul in Quebec City described an opium smuggling ring he had uncovered, but warned the State Department that his informant must be shielded and that “it must be quietly worked” by investigators.143 But as Myers also wrote, the challenge was not simply corruption of police or customs officers, it was that smuggling often had powerful and broad support among local elites and key figures in the respectable

Miller_5200_017.indd 46

12/08/2016 10:47:33 AM

The Everyday Challenge of Sovereignty  47

white power structures across the continent and on both sides of the border. As Sarah Griffith has pointed out in her examination of the 1893 Portland trial, the smuggling organizations cut across class and racial barriers – putting white officials and business elites into league with Chinese merchants.144 But while Chinese people were often brutally policed in both Canada and the United States in the era of Chinese exclusion acts around the Pacific world, when it came to smuggling officials were often most concerned not with the migrants being moved across the border or the Chinese businessmen often involved in the smuggling rings, but rather with the white elites who seemed to pose the biggest challenge to good order. In Victoria, Myers and other consuls routinely described the challenge of combating smuggling in a society where many key elites and government agents were indifferent to or were even involved in the business. Indeed, he told the US government after the Portland trial that the best outcome might be a change in public opinion on the Pacific coast by exposing the unsavoury nature of the smuggling business. As he wrote, “Smuggling was scarcely regarded as an offence at all. Among leading and prominent citizens it was a thing to be joked about, and even engaged in when opportunity presented itself. The leading editor of Portland said to me with a smile that was more significant than his words that ‘smuggling is a venal offence.’”145 Just as with extradition cases, where consuls made what they saw as political choices in order to shape public opinion or to respond to partisan divides in Canada, officials battling smuggling paid keen attention to elites such as journalists, businessmen, and government officials who they believed could shape community opinion and the exercise of Canadian state power. As Myers suggested, it was difficult to make a case in public or to the government agents involved in policing that smuggling was a pressing crime when so many prominent people considered it either acceptable or unimportant. Investigations in Ontario, for example, found routinely that judges, lawyers, and other local elites themselves routinely brought goods illegally across the border, often in small, personal amounts, or were involved in the rings which organized smuggling on a larger scale.146 In Victoria, Myers continually reported on the powerful business interests in the city implicated in the trade. Although he noted that Chinese and white merchants were working together, “the real backbone of the business” was respectable white business leaders who sometimes shaped broad public perceptions of smuggling. “These ‘respectable’ or ‘prominent’ members of the firms,” he wrote, “are powerful enough to form and control public opinion and

Miller_5200_017.indd 47

12/08/2016 10:47:33 AM

48  Borderline Crime

feeling, to a large extent.”147 It is in this context that the city’s port inspector felt it necessary to formally deny that he was working with the United States to curb smuggling. His doing that reinforced the powerlessness of the US government to deal with the challenge presented by the separate sovereignties of Canada and the United States. The mobility of crime and criminals in nineteenth- and early-twentieth-century northern North America and the financial opportunities involved in evading tariff collection and migration controls made human movement a threatening prospect in addition to one that was essential to the peopling of a settler society. As Levi Myers found out, the fundamental disconnect between the laws of the two countries made the violation of those laws constant and costly. Conclusion In November 1909 when an undercover US treasury agent tried to lure the New Brunswick smuggler William Kelly into US territory, Kelly’s wife feared for his safety. “I hate to have you go to the line tonight,” Sarah Kelly reportedly said. “I feel as if something might happen.”148 Kelly’s prescient comment, not long before her husband’s alleged kidnapping into Maine, evinces a clear understanding of what the nearby international boundary meant in law. Although William had been a smuggler for years, and was a wanted fugitive in the United States, having beaten an American official nearly to death years before, he felt that he could live in safety a short ride from Maine so long as he remained on the Canadian side of the boundary. As a result, both William Kelly’s cross-border movements and the official inability of US law to follow him back and forth between countries highlights the challenge that territorial sovereignty posed to legal order in northern North America. Borders and the sovereignty they delineated created and empowered settler states, but they also limited law’s reach. Although governments in Canada, Britain, and the United States developed institutions, agencies, and legal regimes to both police and bridge the boundary in some ways, to try to erode these pockets of refuge and to curb transnational crime, they did not fuse the jurisdictions together, nor could they disconnect the administration of the criminal law from domestic politics and community dynamics. As a result, even in places like the spot where William Kelly was allegedly dragged into the United States, where the difference between Canadian and American jurisdiction was a dirt road, the meaning of the boundary remained.

Miller_5200_017.indd 48

12/08/2016 10:47:33 AM

3 The Low and High Laws of Abduction in the Border Zone

In March 1876 an American soldier named Eugene Shinkle left his post in Dakota Territory on leave, crossed the nearby international boundary at Emerson, Manitoba, and got very drunk in a bar. This might have gone relatively unnoticed, but a junior United States Army officer named Gates was then just south of the border hunting deserters and heard about Shinkle being drunk and disorderly north of the boundary. The lieutenant asked a friend of his named Thomas Bevans, formerly an American soldier and now a Canadian lawyer in Emerson, to seize Shinkle and to help get him back across the border so that he could be returned to Fort Pembina.1 Once Bevans agreed, the men made their way to the bar, where Bevans entered first and physically subdued Shinkle, while a small crowd soon gathered, probably drawn by what Shinkle later described as drunken language for which he could not be held responsible.2 Bevans explained the situation to the people, after which they mostly dispersed. Then Bevans and Gates took their prisoner across the international boundary in a sleigh, Shinkle was returned to the fort, and Bevans went back to Emerson, where he found the next morning that there was a warrant out for his arrest.3 Then he, too, slipped across the border into the United States, where the American consul in Winnipeg advised him to stay, telling him to “remain on American territory for the present and until a way might be found to adjust the affair quietly.”4

Miller_5200_049.indd 49

12/08/2016 1:52:02 PM

50  Borderline Crime

Shinkle’s abduction was part of a regime of customary law that was an enduring and transnational response to the challenge that territorial sovereignty posed to the rule of law all along the international boundary. The idea that Shinkle’s arrest reflected a broader legal regime was key to the case from the moment that the American lieutenant first asked his friend for help. While Bevans was concerned that he could not legally make the arrest, he asked Gates as well as the local Canadian customs agent and both told him that this was an uncontroversial method of catching deserters and keeping order that was recognized and legitimated by communities and authorities on both sides of the boundary.5 That was echoed by other officials, who indeed used the language of customary law to describe the practice. The US customs collector at Pembina argued that Bevans had acted, as he put it, “under the knowledge of several precedent cases,” while the consul in Winnipeg reported that the cross-border abduction of deserters had been hitherto accepted “by the authorities and people of this province, especially in the vicinity of the frontier.”6 As the consul reported, if governments sought to establish what he called “a different rule,” local state practices would have to change on both sides of the boundary.7 Ultimately, the provincial government seemed to agree, telling the consul unofficially that all charges against Shinkle’s kidnappers would be dismissed, as they had no interest in making the case into what the consul called “a complication.”8 The abduction regime was one of low law, a term legal historians increasingly use to describe the workings of the legal system as it was most directly applied to as well as experienced and shaped by ordinary people, focusing more on magistrates’ courts and local police than on reported high court decisions, and more on actual practice than legal doctrine.9 As the officials in the Shinkle case made clear, the abduction regime was often recognized by central governments and elite policymakers, but it was not created by them. Instead, it was a system developed and continually reproduced and recreated by state officials and community members cooperating across the border to supplement what were widely seen as the defective mechanisms of formal law, and by recognizing one another’s right to obtain perceived justice regardless of the international boundary. In this sense, abductions manifested not a contest between law and lawlessness, but rather different practices of legal order. As scholars of vigilantism and lynching have shown, communities across the continent often resented the supposed ineffectiveness of criminal courts and state-derived law, and saw a kind of

Miller_5200_049.indd 50

12/08/2016 1:52:02 PM

The Low and High Laws of Abduction in the Border Zone  51

residual right in the community to uphold its own values, which might or might not reflect the government’s criminal law, and which were often shaped by racial, class, and gender hierarchies.10 This local rejection of central governments’ exclusive jurisdiction over crime recasts the history of criminal justice as in part a contest of control even within white settler areas, and can help layer our ideas of the meaning of sovereignty, pointing to the way that government power was imbricated in more diffuse notions of justice. As this chapter shows, however, low law did not simply operate within communities and countries, but between them as well. In other words, in contrast to recent American scholarship that sees American abductions from foreign states as evidence of US unilateralism and quasi-imperialism, this chapter argues that abductions are much better understood instead as a shared, reciprocal, and transnational border zone response to the challenge of the international boundary across northern North America.11 Motivated by shared beliefs in supranational justice and frustrated at the limits of formal high law, kidnappers created an enduring but sometimes controversial low law regime of their own. Abductions also highlight the continuation of borderland mentalities all along the international boundary. As the consul noted in Shinkle’s case, this type of trans-border law enforcement was especially common in areas that were within easy physical reach of the border and they overwhelmingly involved the transfer of fugitives between contiguous or nearby states and provinces, highlighting the frustration communities and local officials in those areas felt with the way the boundary limited the reach of the government’s law in areas where people moved easily between countries. In abducting fugitive criminals, police officials and communities crafted what Peter Sahlins has called a “zonal” border and a region of law along the colonial/Canadian-American border that antagonized and violated but also paralleled and reinforced formal systems of domestic and international law.12 On a basic level, the kidnappings operated beyond the sanction (and often in direct violation) of formal criminal law, but they were not carried out to subject a prisoner to arbitrary punishment by the kidnappers themselves – Gates did not administer a punishment to Shinkle, he brought him back to the United States to be dealt with by the military command structure. Rather, the abduction system operated to put fugitives back into the jurisdiction from which they had come when formal law could or would not. The way that abductions were understood as customary low law also paralleled broader ideas of international legal order, apparent in

Miller_5200_049.indd 51

12/08/2016 1:52:03 PM

52  Borderline Crime

the way that officials in Shinkle’s case in Dakota and Manitoba stressed the legitimating power of local community acceptance. That focus on community consent paralleled the positivist reliance in international law on sovereign consent to binding rules – it simply relocated the power to commit a jurisdiction to transnational law from monarchs and legislatures to border communities and local sheriffs. Yet abductions also mark the convergence between low law and what might be called the highest of high law – the international law that applies between sovereign states – as well as the power of custom as an agent of that legal order. Once a case was reported to governments, it became the purview of diplomats and elite policymakers and was dealt with primarily through a system of elaborate rituals conditioned by broader notions of international law and supranational justice. These customs were designed first and foremost to stabilize relations between the countries and to affirm the underlying international rule of law premised on the rights of territorial sovereignty. The rituals often began with a stylized outrage at the idea that sovereign rights had been infringed, followed first by an apology that reinforced the power of sovereignty if indeed it had been infringed and then by an offer to release the prisoner. But these often led to no substantive results – neither the prisoner’s discharge nor the prosecution of the kidnappers; what was important was the affirmation of sovereignty. There was no treaty or formal arrangement governing this process of reconciliation – and when one was proposed at the end of this period, it appears to have failed. Thus, the customary norms and principles of international law were key at every stage, demonstrating both the power of customary international law in practice and the central role of custom in international legal order, particularly in reaffirming the inviolability of territorial sovereignty.13 The abductions also demonstrated the powerful meaning of territorial sovereignty, even inside the border zone and even among officials who attempted to stretch the criminal law across the boundary in defiance of formal legal systems. Both the governmental rituals designed to affirm international law and the behaviour of local people involved in kidnapping cases point to the powerful meaning of the sovereignty that was delineated by the international boundary. In Shinkle’s case, law and authority worked across the border, but the significance of the boundary in the eyes of Bevans, Gates, and others was still clear, particularly the monopoly on violence that was at the core of territorial sovereignty. The American army officer Gates, after all, asked the Canadian

Miller_5200_049.indd 52

12/08/2016 1:52:03 PM

The Low and High Laws of Abduction in the Border Zone  53

resident Bevans to do the work of subduing Shinkle, and Bevans’s affidavit says that he had taken control of the soldier before the lieutenant even entered the bar.14 That caution – ensuring that an American government official did not use force inside Canadian territory – was likely not an accident. Throughout the abduction cases the foreign officials who often planned and led the arrests routinely stepped back or left the scene at the moment physical force was used, or carefully avoided using any force themselves, making clear that a citizen or resident of the area rather than a foreign state agent had deployed violence. As in the Shinkle case, that changed the moment the group recrossed the international boundary – at that physical point the right of jurisdiction transferred. Moreover, even in a border zone, the boundary still delineated a refuge premised on sovereignty, albeit a permeable one. When Bevans himself became a fugitive by fleeing Manitoba he did so explicitly, as he wrote, to get out of the jurisdiction of the judge who had issued his arrest warrant. That is, even though he had just been part of the cross-border reach of authority, the border was not negligible in his eyes, and still served to limit the operation of domestic criminal law in some respects, as the consul indicated in advising him to stay in American territory. In other words, the border might have been zonal and permeable, but it was also freighted with social and legal meaning. “The Reciprocity Principle”: Sovereignty and Customary Low Law on the Border In April 1899 a county sheriff from Washington State sent an itemized bill to the provincial police office in Grand Forks, British Columbia. According to the sheriff, he was owed $115.50 for food, housing, and transportation costs incurred in the two days it took him to transport two Canadian fugitives from Republic, Washington, to the CanadianAmerican border. The men were not charged with anything in the United States, nor had an extradition judge, the state governor, or the US president agreed to their removal from the country. Instead, the sheriff had made a formal arrangement with a BC provincial constable to bring the fugitives back to Canada. After the American policeman had the men secured and had started towards Canada, the provincial officer met the party somewhere south of the border and on reaching the boundary at Carson, BC, took final custody of the two prisoners, who were then taken before a Canadian magistrate and committed to jail.15 One of the prisoners, Martin Everett, quickly protested his abduc-

Miller_5200_049.indd 53

12/08/2016 1:52:03 PM

54  Borderline Crime

tion, and when he was still in jail nearly two years later, he told the US consul in Vancouver that “those cheap assassins that kidnapped me” must be manipulating the provincial government, since otherwise the injustice of his imprisonment would be clear, and he would be free.16 But while the consul was trying to free Everett, telling the State Department that such cross-border kidnappings imperilled law and order all along the international boundary, and even travelling to the BC interior to gather evidence, he found that almost no other official seemed disturbed by the abduction. According to most, Everett was a dangerous criminal and the police officers on both sides had acted for the right reasons, however much they were operating outside the formal law. Closer to the border, though, he heard more about Everett’s arrest being simply part of a reciprocal regime of cross-border cooperation. One jailer in southern British Columbia candidly put it this way: “I think that in this case your officers have delivered the prisoner to us without due process, and later on the Canadian officers will make that all right and place a man on your side of the border, when your officers want one.”17 That comment, and the wider case of Martin Everett, illustrates how much abductions were conditioned by notions of legality. Most importantly, many officials involved in kidnapping described the practice as a customary legal regime, infused with many of the same principles that guided the broader development of formal customary international law. In the Everett case, the two policemen came to a formal agreement about expenses, and in fact in the aftermath of the kidnapping, the Canadian officer was more worried about an allegation that he had offered a personal reward to the sheriff, rather than simply agreeing to cover the cost of his journey, than he was about the idea that he had broken the law by ordering an illegal arrest.18 Likewise, as in the 1876 Shinkle case in Manitoba, many officials specifically used the language of “precedent” or “precedent cases” to describe previous abductions, from which they inferred the lawfulness or at least the customary legitimacy of their own actions.19 In fact, comments to this effect occurred frequently both in statements from alleged kidnappers and in reports from higher officials tasked with investigating them. In the Shinkle case, the kidnapper Thomas Bevans, who was a lawyer in Manitoba, specified in an affidavit that he was “not ignorant of the international law upon the subject,” and that he had initially told the American lieutenant who asked him to make the arrest that no legal authority existed for such a proceeding. But since the lieutenant as well as the Canadian

Miller_5200_049.indd 54

12/08/2016 1:52:03 PM

The Low and High Laws of Abduction in the Border Zone  55

customs agent and his deputy all told Bevans that this was a matter of routine practice, he agreed to seize Shinkle.20 The Winnipeg Free Press even noted that this practice “has been prevalent for years without hindrance or remonstrance.”21 In another deserter case, this one involving British deserters at Sault Ste Marie in 1850, similar sentiments were deployed by the officers who arrested the men. There the British officer asked his American counterpart to issue a formal written invitation to cross over and seize the men, since he feared his commanding officer “might not understand the subject … in the light that it was understood here.”22 In another Sault Ste Marie case, this one involving fugitives wanted on murder and riot charges in 1884, an American village watchman who helped hand over the fugitives to Canadian authorities swore that “it is and heretofore has been the practice of this place that when suspicious characters removed here from Canada to get them out of this town.”23 The pervasiveness of this custom seems to have been well known across British North America/Canada spanning the entire period studied here. In 1842, for example, the Upper Canadian MLA and Huron County magistrate William “Tiger” Dunlop admitted to the legislature that for sixteen years as a justice of the peace he had knowingly broken colonial law by sending back American criminals when he was asked to by US authorities.24 Likewise, in 1900 a man named George Renolds wrote to the US consul in Victoria from New Westminster to complain about the abduction of a friend. Renolds laid out his friend’s case and concluded that “he is not the only man that has been served the same way and it is about time that a stop was put to that kind of bisness [sic] for it is getting to be a kind of an every day occurrence.”25 As one Buffalo, New York, paper noted in 1869, the practice was “rather irregular but was winked at by our officials.”26 Elite policymakers and diplomats were also well aware of this practice among local officials. Both comments of these officials themselves and reports made to them by more subordinate officers illustrate how much they knew about the extent to which kidnappings went on across the border. In 1864 Governor General Lord Monck observed that it was “a practice [which] has grown up on the part of magistrates and peace officers on both sides of the boundary line.”27 Indeed, during the Shinkle case the US consul in Winnipeg described abduction as “common practice on both sides of the frontier” and in fact told the State Department that since he understood that the two governments desired to alter this norm, he had begun an investigation and had already turned

Miller_5200_049.indd 55

12/08/2016 1:52:03 PM

56  Borderline Crime

up several previous cases.28 Similarly, after the US official stopped the abduction of Arthur Perry along the Yukon/Alaska border in 1898, the Crown prosecutor told the minister of justice that he was quite surprised at their doing so because it had been customary in the area for US and Canadian officers to facilitate the return of fugitives, noting that “the practice was found to be most beneficial in helping to maintain law and order.”29 Local understandings of abduction also embodied a set of quasi-legal principles which paralleled more formal understandings of international law even while they seemed to violate many of these formal doctrines. First and foremost was a recurring deference to territorial sovereignty. The way in which Everett was arrested and deposited at the boundary by formal arrangement between two police officers, held in the United States by the American officer, and then taken hold of by the Canadian once they crossed into Canada, as well as the jailer’s notion of making that “all right” by Canadian officers reciprocating the kidnapping spoke to the way that abductions frequently worked within the parameters of territorial sovereignty and international law while operating as a customary system of transnational law in their own right. Kidnappers were routinely savvy and indeed preoccupied with the notion of territorial sovereignty. It was clearly evident in the kidnapping of a South Carolina doctor named Rufus Bratton from London, Ontario, in 1872.30 In that case the US government agent who masterminded the kidnapping was very careful to exercise no force or explicit control over Bratton until they crossed into American territory. The agent had planned the arrest for weeks, decided how and when Bratton would be seized and then taken across the boundary, and convinced a local Canadian official to make the arrest. But at the moment when the arrest was made and Bratton was tackled, pushed to the ground, and handcuffed, the agent walked off by himself. He then communicated with the arresting Canadian official through an intermediary as they waited at the train station, and only once the train car had crossed over into the United States did the agent take Bratton into his own custody.31 This was not an uncommon degree of caution. In an 1864 case a US sheriff seized two men on a sandbar near the Canadian shore of the Detroit River. As their boat docked on the American side the sheriff apparently made sure to say in the presence of witnesses, “I have made no arrest but I make my arrest now on American soil.”32 In another case a prisoner seized in 1893 in northern New York State by Canadian and American officers alleged a similar practice. According

Miller_5200_049.indd 56

12/08/2016 1:52:03 PM

The Low and High Laws of Abduction in the Border Zone  57

to him, when the party pulled up to a shed on the Canadian-American border, the US officer relinquished control, the Canadian officer took out handcuffs and said, “Now we’re in Canada; see that post over there that is the Canada line.” He then produced a Canadian arrest warrant.33 A preoccupation with sovereignty was also evident in the cases where the precise physical position of the border in relation to the scene of the arrest was at issue. In the 1909 New Brunswick case in which a US customs officer allegedly kidnapped Canadian smuggler William Kelly into Maine, for example, the key question in the aftermath of the capture was whether the customs agents had overpowered Kelly on one side of a road or the other, since it ran directly alongside the international boundary. The difference between a lawful arrest and a violation of territorial sovereignty and international law, in other words, was a mere few feet. At no stage in the planning or execution of the arrest was this lost on the US officers. In fact, while the customs agents were planning how to lure Kelly into Maine, the arresting officer’s superior took him to the site to show him precisely where the boundary was, and allegedly told him to on no account seize control or make the arrest until they had left Canadian territory.34 A similar debate took place in a 1907 Manitoba case when another US customs officer was said to have commandeered an alleged smuggler’s wagon a few feet from the border on International Avenue, in Emerson, Manitoba, while the agent said he was careful not to exercise any authority until they had clearly crossed into the United States – again, a difference of a few feet at most.35 Alongside this appreciation of territoriality, abductions also reflected localized understandings of other elements of international legal order. Just as nineteenth-century diplomats and legal scholars emphasized reciprocity and state consent in developing the rules of positivist international law, so too did many of those who participated in or commented on the abductions. Indeed, the idea of reciprocity is at the core of many of these cases, as the jailer in the Martin Everett case made clear. The idea that police officers and others who participated were not simply expelling or abducting a fugitive but participating in an ongoing and mutual relationship emerges from many of these files. In 1832, for example, a magistrate from Sandwich, Upper Canada, named Charles Eliot complained to the attorney general about plans to explicitly bar local officials from unilaterally arresting and surrendering foreign fugitives without the permission of the colonial executive (a plan which ultimately resulted in an 1833 statute that formally empowered

Miller_5200_049.indd 57

12/08/2016 1:52:03 PM

58  Borderline Crime

colonial authorities).36 Eliot’s letter of protest and his view of the role of local officials in surrendering criminals were grounded in an informed view of the law. He quoted from Blackstone’s Commentaries on the Laws of England, English case law, English statute law, and passages from the Bible selected for their implication that natural law compelled the punishment of all criminals. He also stressed how the reciprocal cooperation of officials on either side of the border was essential to legal order, and how willing the Americans in Michigan had been to comply with Canadian requests for fugitives. The Americans, he said, “have ever evinced extreme eagerness” to help in this regard, and he noted “how merited then would be the reproach upon us, were we in no one instance to alternate with them.”37 Shortly thereafter, when a high court judge liberated two US prisoners, Eliot wrote again to complain that he could not now ask the governor of Michigan for the return of Canadian fugitives given how the colony had broken up the reciprocal relationship.38 Eliot’s comments may reflect more on a formal pre-treaty extradition system than on what might best be called abductions, but his emphasis on both local power and the bonds of reciprocal custom reflect enduring trends which informed the custom of kidnapping. Many officials also understood abductions as required by an ongoing trans-border obligation of reciprocity. One Buffalo newspaper commented in 1869 that the practice of abduction was so frequent on both sides of the border that it “had become a sort of method of exchanging civilities between officers.”39 Likewise, in an 1892 BC case, a Victoria police officer told the Daily Colonist newspaper that the interests of justice were best served by provincial and Puget Sound officers “working on the reciprocity principle” in this respect.40 It was in this general context that the jailer in southern British Columbia explained, regarding the Martin Everett case, “I think that in this case your officers have delivered the prisoner to us without due process, and later on the Canadian officers will make that all right and place a man on your side of the border, when your officers want one.”41 The phrase “make that all right” was especially illustrative here, pointing as it did to the explicit and mutual duty between officers being the most important aspect of the case, and not any violation of international or domestic law or individual rights. Just as a reciprocity that paralleled formal international law was key to the way abductions worked across the border, so too was the idea of local community consent as justification. Here many of the explanations offered by officials involved in kidnappings echo strongly the ideas of

Miller_5200_049.indd 58

12/08/2016 1:52:03 PM

The Low and High Laws of Abduction in the Border Zone  59

local natural law rights to self-defence which historians of lynching and other forms of community justice have shown were widespread among Americans. In 1868 the mayor of Cornwall, Ontario, made this argument after he led an expedition across the St Lawrence River into New York State in pursuit of a group that had broken into a Canadian shop, blown open its safe, and taken some $500 in cash. The mayor was acutely aware of the potential diplomatic ramifications, telling Sir John A. Macdonald, “If I have acted illegally or contrary to international law I am perfectly willing to make such amends as may be in my power.”42 Yet the mayor stressed that he acted “with the consent of the American authorities and citizens” and that their “kindly feelings” had induced him to go after the robbers, just as he had done when American criminals escaped into Canada.43 Similarly, in the Shinkle case the US lieutenant who arranged the affair explained that he thought that it was allowed in part because the Canadian who agreed to make the arrest was not only a lawyer but also a respected citizen of Emerson who “was not only acquainted with the laws but represented the feelings and sentiments of the people of the country.”44 In that case, the US collector of customs wrote to the American consul to ensure that the Canadian faced no consequences for having cooperated. The collector stressed that the deserter’s removal was one of many, but also that it was “fully approved by the whole Emerson community.”45 Although quantifying public opinion in these cases is nearly impossible, a Manitoba newspaper commented at the time that Emerson residents thought “it was a pretty good thing” to be rid of the deserter.46 Beliefs about local power and consent and a kind of legality which flowed from them emerged throughout these cases, suggesting that local communities had ideas about sovereign rights different from the versions articulated in formal high law. In several a sweeping belief was apparent in the power of local officials and military commanders to allow foreign forces to use violence inside their borders. This was evident in the 1850 Sault Ste Marie deserters case. There both the British and US officers believed the American officer had the authority to invite the use of force by British soldiers on the American side of the river. (As noted below, this was not a belief shared by the governments of the two countries, though the American’s invitation did mediate the diplomatic fallout from the affair.) An even clearer example of this occurred in the wake of the 1837–8 rebellions, when river pirates on the St Lawrence were attacking and robbing British boats in the Thousand Islands region. The Royal Navy commander struck a

Miller_5200_049.indd 59

12/08/2016 1:52:03 PM

60  Borderline Crime

deal with US General Alexander Maccomb to create a kind of borderless jurisdiction in the islands for the purpose of catching the pirates. Each force was permitted to land on any island, British or American, and to attack and subdue pirates where they were found, so long as any prisoners taken were ultimately turned over to the government on whose lands they had been caught.47 Likewise, in the 1860s, when the American army wanted to attack and seize a band of Sioux allegedly responsible for atrocities in the United States who had gone into Rupert’s Land, the federal government first asked to do so through formal diplomatic channels, but the British government said this could not be allowed. A few months later, however, an American army commander at Pembina wrote directly to the governor of Rupert’s Land and was this time granted access.48 But despite the unorthodox allocations of the power to consent, the meaning of those borders was clear: consent was necessary because sovereignty was a powerful force, even in the border zone. The difference between the views of officials who ruled nations and empires and those who lived in border zones and understood the threat that borders posed to criminal jurisdiction was key. For national and imperial officials kidnapping was often a symptom of defective governance and a threat to international goodwill, but for local police officers and communities all along the northern North American boundary kidnappings represented something very different. In the border zone abductions typified not lawlessness but the preservation of law, and though kidnappings were never subject to a stable set of continentwide rules, they nevertheless functioned as a constantly replicating and reciprocally reinforcing system of transnational low law, one that echoed concepts embedded in formal international law. Kidnappings allowed local notions of justice and jurisdiction to stretch across the international boundary even as many of the officials who took part in them deferred to the legal meaning of the border and to the panoply of sovereign rights which it signified. Police kidnappings, in other words, point to the coexistence of borderlands with bordered lands. “Go with them and get the boy, we don’t want him here”: Customs, Tactics, and Kidnappings In September 1891 a fifteen-year-old farm labourer named Harry Gale fled across the St Lawrence River from eastern Ontario into New York State, and made plans to keep travelling on to Boston or New York

Miller_5200_049.indd 60

12/08/2016 1:52:04 PM

The Low and High Laws of Abduction in the Border Zone  61

City. Instead, he was lured to a hotel in the village of Madrid, where a local constable, under orders from a local magistrate, took hold of him, declared him a prisoner, and drove him back towards the river. A few days previously Gale had been charged with assault in Ontario. According to the evidence from his later trial, Gale had hidden under the bed of Josephine McDonald, the niece of his former employer, and after she had come into her room and laid down he emerged, choked her, punched her repeatedly in the face, bit her fingers, and tried to force a pillow over her mouth and nose.49 Once he was charged with the crime, Gale headed across the river, but Josephine’s family followed him, and on the road back towards Canada he and the American constable met her brother, a farmer and deputy reeve in Ontario. The brother and a neighbouring farmer had come over from Ontario, met the magistrate and the constable, told them about the crimes that Gale had allegedly committed against Josephine, and secured their help. Later on, after Gale had been captured, the group boarded their own small boat and headed out onto the river. Once they were about halfway across, the constable reportedly said, “Here can nobody touch us now, we are in Canadian Waters.”50 The way that the fugitive teenager Harry Gale was abducted from the United States into Canada reveals much about the use of kidnapping as a tool of transnational low law all along the northern North American boundary – a tool used by local officials and community members to confront the everyday challenge of the border. In Gale’s case, as in many others across the continent and throughout the nineteenth and early twentieth centuries, officials and community members on different sides of the border both recognized one another’s authority and jurisdiction and appreciated the threat that the international boundary posed to social and legal order in their own country. In other words, people seized and abducted fugitives out of a belief in supranational justice – that is, that they were upholding both transnational and domestic order by enforcing the law in communities beyond the boundary while safeguarding their own from dangerous and mobile foreigners. As in Gale’s case, the fugitives kidnapped across the border were largely working-class people and the crimes they were accused of committing were often starkly different from the offences targeted by the formal international extradition system. Those might involve bank presidents and millions of dollars in embezzled money; abducted fugitives were, like Harry Gale, much more often farm hands or labourers accused of petty theft or minor assaults. Yet while the formal law

Miller_5200_049.indd 61

12/08/2016 1:52:04 PM

62  Borderline Crime

did not prioritize these crimes, they often had intense significance in the communities in which they occurred, as did the assault on Josephine McDonald, and enough officials on both sides of the boundary acknowledged that significance and were willing to recognize the legitimacy of that foreign claim to justice and jurisdiction, that fugitives were easily brought between countries by force. In Gale’s case, after learning what the boy was accused of doing, the New York magistrate issued a simple order to the local constables to cooperate with the Canadians, an order that echoed many others across the continent: “Go with them and get the boy, we don’t want him here.”51 Macro views of kidnapping cases help illustrate these currents of trans-border localism and low law in abductions. The pool of cases examined for this chapter encompasses seventy-seven allegations or proven occurrences of kidnapping in northern North America culled from Canadian, American, and British sources. With only two exceptions, these kidnappings were staged or conducted by police or other state officials, often with elaborate cross-border cooperation between these officials. Such arrests and abductions were an enduring feature of policing in Canada and the United States. The cases examined here show that they occurred both before the 1842 Webster-Ashburton extradition treaty (and indeed before statutes such as the 1833 Fugitive Offenders Act in Upper Canada gave the executive branch in that colony the legal power to deliver fugitives) and after the treaty had been widened to make extradition possible for a wide range of offences. Abductions were largely a feature of border zone policing, involving communities where the limits which the international boundary placed on criminal jurisdiction were often most deeply felt by communities and officials. The vast majority of cases involved only a short distance between the state or province where the arrest occurred and that where the prisoner was wanted. In cases where both localities are known, 83 per cent involved jurisdictions that were contiguous, sharing either a land or water border. In this, the two most important state–province relationships highlight these local connections: Ontario and New York, between which 20 per cent of the abductions took place, and Ontario and Michigan, which accounted for a further 16 per cent. Moreover, while it is sometimes difficult to know where precisely within the state or province the fugitive was wanted or arrested, communities such as Windsor, Detroit, Niagara Falls, and Buffalo – traditional focal points of social and legal concern about border-town disorder – played a prominent role in these relationships. The next most significant relationship

Miller_5200_049.indd 62

12/08/2016 1:52:04 PM

The Low and High Laws of Abduction in the Border Zone  63

was that between Maine and New Brunswick, which accounted for 7 per cent of the cases, followed by Minnesota and Manitoba with 5 per cent. Abductions were a tool of border-zone policing which targeted crimes and criminals whose offences often went unnoticed by the elite policymakers and diplomats who developed the formal extradition system. The most common offence in kidnapping cases was theft or larceny, which made up 26 per cent of the known charges, and these allegations generally involved comparatively small amounts of money.52 The next most common offence was desertion, which made up 13 per cent of cases. The remainder of offences varied widely, including several cases involving bigamy, seduction, and interracial marriage. Interestingly, and as with the extradition decisions, relatively few of the abductions involved violent crimes. Although they include a surprising number of murders (9 per cent of the known charges), beyond that there were only two other violent offences alleged. Most of the offences alleged against abducted prisoners were also not extraditable. That is, for much of this period when the 1842 Webster-Ashburton Treaty limited formal extradition to just seven crimes, abductions were primarily done to target fugitives who simply could not be brought to justice under the formal law. Forty-six abduction cases, from the implementation of the treaty until its enlargement in 1889, are examined here, and in forty-one of these the charge alleged is known. In 88 per cent of these cases the underlying charge was not extraditable under the treaty. In only five cases, which all involved murder, could extradition have in theory been accomplished lawfully. Yet it is worth noting that after the enlargement of the treaty in 1889 and again in 1901, when large numbers of additional offences were added, including most of those involved in abduction cases, allegations of kidnapping continued. The allegations increasingly concerned offences to which the formal system now applied: of the twenty cases which occurred between 1889 and 1910, eleven involved offences which were, in fact, extraditable. These cases also embodied a powerful and enduring shared, transborder ethos of low law policing. As in the Gale case, where Josephine McDonald’s brother easily found officials and local people who were willing to help bring the fugitive back to Canada, abduction cases frequently illustrated how readily officials and communities on both sides of the border cooperated against crime outside the regimes of formal law. In 1856, Michigan police arrived in Sandwich, Upper Canada, with a warrant against a black man named Archy Lanton, charged with horse

Miller_5200_049.indd 63

12/08/2016 1:52:04 PM

64  Borderline Crime

stealing, which was not an extraditable offence. Nonetheless, two local magistrates issued an arrest warrant – which specified both that Lanton was a “colored man” and that the offence alleged against him had occurred outside Canada – and he was soon taken into custody.53 After a constable left Lanton in the custody of the Americans and then conspicuously left the building, the prisoner was hustled across the river and into more formal custody. In other cases, officials were explicit about their intent to put a prisoner back in the jurisdiction whose laws they had violated, as an American army captain in North Dakota articulated in 1883, when he arrested an Indigenous man, again for horse theft. The captain wrote to an NWMP officer in Canada noting that they had also taken control of the horses and would return them at the border the next day. “The Indian prisoner … will be put across the line at the same time,” he wrote.54 These were not isolated cases – rather, cross-border communications, the mutual recognition of authority and jurisdiction, and a shared interest in controlling the migration of fugitive people were enduring norms in northern North America. This shared ethos was not always limited to local officers and communities. More senior officials sometimes gave tacit sanction to kidnappings. In 1900, for example, an NWMP officer named J.H. Seeley travelled to Washington State to bring back George “Kid” West, who was wanted as both a witness and a defendant in a Yukon murder case. West was already in custody in Seattle on burglary charges and Seeley asked the local officials to simply turn the prisoner over to him for transportation to the Yukon. According to Seeley, the local district attorney told him to see the state attorney general, who sympathized but said that he could not advise the governor to commit an illegal act. The constable then met with the governor, who said that he could not formally release West but still advised Seeley to “get the Sheriff to turn him over to me,” which soon happened.55 Similar advice was given by the New York secretary of state in 1839 when Upper Canada wanted the state government to extradite an alleged mail robber. The secretary told a Canadian official that although the government had no such power, if Canada simply arrested the fugitive and took him back to British territory by force, the “authorities would not be disposed to consider it a breach of amity.”56 Although the regime of kidnappings was not grounded in state law, the local officials who took part in it brought with them key manifestations of state power. That is, many of these cases drew not simply on the person of the local sheriff or army officer himself, but also on

Miller_5200_049.indd 64

12/08/2016 1:52:04 PM

The Low and High Laws of Abduction in the Border Zone  65

many of the accoutrements of the state such as jails, weapons, badges, warrants, and the physical force marshalled by commanding officers through their position. On a fundamental level, of course, that nearly all of these kidnappings involved police or other state officials means that public money funded the arrests, and sometimes on a large scale. In an 1867 Eastern Townships case an officer tracked the fugitive from Iowa to New York State, and into Quebec, and appears to have offered local people on both sides of the border rewards of $50 to help with the arrest.57 Likewise, in the 1872 case in which the South Carolina doctor Rufus Bratton was abducted on the orders of a US agent, that agent stayed in Canada for weeks while he hunted the fugitive, observed his movements, and recruited local assistance.58 The resources of the state were crucial in many other ways. One of the chief ones was the ability of officers to gather subordinates and then deploy them as brute force, something especially clear in cases involving military officers who led expeditions to abduct deserters.59 The institutional infrastructure of the state was also key, especially in the use of jails to hold prisoners before or during the abductions, sometimes for days at a time in preparation for the removal of a fugitive over the boundary, as in one Washington State case where the prisoner was held in Tacoma while police in Victoria, BC, travelled south to take him back.60 Kidnappers also used the symbols and mechanisms not simply of formal law enforcement but of formal notions of justice. In one Detroit River case affidavits show that the Michigan officer conspicuously displayed his sheriff’s star.61 In many other cases, police wielded arrest warrants in detaining fugitives, sometimes issued in the foreign country and sometimes emanating from local magistrates – and sometimes the police appear simply to have lied about having any authority at all. These documents, whether real or merely mentioned, were often used to dampen a prisoner’s will to resist, probably because they connoted, even to prisoners unfamiliar with the nuances of law, a legal process to which they must submit and from which they could expect certain entrenched rights. In 1879, for example, police in Niagara Falls, Ontario, lied to a prisoner named James Cahill whom they took over the border by saying that they were acting on an arrest warrant from elsewhere in Ontario rather than a complaint from American officers in Buffalo. The arresting officer afterwards admitted frankly why they had taken this approach, declaring that they “did this in order to throw him off his guard so that he would go more easily than he would have done had he known that he was wanted for a robbery in Buffalo.”62

Miller_5200_049.indd 65

12/08/2016 1:52:04 PM

66  Borderline Crime

These cases illustrate a legal regime which, across the breadth of the continent and the length of this period, drew on a relatively consistent pool of tactics and practices. Across the continent and period, on both sides of the border, police officers and other state officials acted with surprising uniformity. They confronted the challenge of the border by cooperating across it to shuffle fugitives between countries, fulfilling, as they saw it, norms of supranational justice shared throughout the border zone. This low law regime may have operated outside and in some ways contrary to formal high law, but it also both reinforced and echoed that system. Kidnappers targeted offences which had largely been excluded from international extradition treaties and acted with a keen awareness of territorial sovereignty and the obligations of international reciprocity. Far from evidencing lawlessness, the abduction regime instead shows both the variety and the consonance of legal regimes operating in the border zone. High and Low Law Converge: Abductions and the Affirmation of Sovereignty In November 1821 the US secretary of state sent what was essentially a form letter to the British minister in Washington. For at least the second time that year, John Quincy Adams wrote to protest the reported abduction of a British North American fugitive from US territory. In both cases Adams’s letters were preoccupied with the possibility that US sovereignty had been infringed on by colonial officials using force inside American borders. In both he demanded the release of the prisoners from colonial custody and some kind of reparation for what he called in the first case “the outrage upon the territorial rights of the United States,” and in the second the “violated jurisdiction” of the United States.63 The minister, meanwhile, responded to each with his own formulaic panegyric to sovereignty, offering to investigate the cases and emphasizing that neither the imperial nor colonial governments would sanction a “wilful violation of territorial rights.”64 Ultimately, it appears that neither prisoner was released. In the second case, although a fugitive debtor had indeed been illegally shuffled across the St Lawrence River from New York State and into the custody of an Upper Canadian sheriff, the work of detaining and holding the prisoner had seemingly been done by Americans, which seemingly meant that America’s oftmentioned territorial rights remained intact and respected by the colonial government as well as their local officials.65

Miller_5200_049.indd 66

12/08/2016 1:52:04 PM

The Low and High Laws of Abduction in the Border Zone  67

The 1821 cases illustrate common features of the way that abductions were understood and handled once they were reported to governments. At that point, they became international law events – from low law they became subject to the highest of high law. It is not that Adams and the many other elite officials who wrote protest letters against kidnappings were unconcerned by cross-border abductions. Rather, the kind of rhetoric that Adams and the British minister used, combined with the frequent (though not universal) lack of any substantive remedy in the form of releasing the prisoner or prosecuting the kidnappers, highlights the century-long focus of elite officials who handled the aftermath of abductions. For them, preserving and affirming the rights of territorial sovereignty was the overriding issue. The prisoners sometimes were released as acts of state contrition, and kidnappers sometimes were put on trial – but those results were highly contingent and inconsistent. Among elite policymakers the abductions were dealt with first and foremost as threats to the notion of territorial sovereignty, and the governments developed a pattern of rituals conditioned by the customs and principles of international law that were designed to affirm their shared belief in that notion. These rituals tended to proceed in three parts: from initial outrage, to a stylized apology if an abduction had taken place, to frequent inaction, which often left the prisoner to face the justice of the country to which they had been taken, however illegally. The result was that despite a century of controversies about cross-border abductions, governments made little effort to stamp out the custom. Their responses to abductions entrenched the legal meaning of the border while also mediating the challenge that it presented to the rule of law. Official reaction to kidnappings varied remarkably little across the nineteenth and early twentieth centuries. The first stage of the process of international reconciliation was that the government whose officials had done (or ordered) the kidnapping would acknowledge and apologize for the violation of sovereignty. Since sovereignty was most often the core issue between the governments, the formal ritual of apology for this violation of international law was crucial. In the kidnapping cases the apology served several purposes. It expressed acknowledgment and regret over wrong-doing, it disavowed the act, and it let the government whose territory had been violated know that the offending state was in no way complicit in the occurrence and was not staking any claim of jurisdiction over the territory where it had happened. In other words, apologies also served to reinforce respect for sovereignty

Miller_5200_049.indd 67

12/08/2016 1:52:04 PM

68  Borderline Crime

in general, as the British minister did in 1821 when he reassured the United States that the British government would never sanction a violation of territorial sovereignty. Similarly, in an 1863 case the secretary of state firmly denounced the action of a US soldier who had seized a deserter in Canada, which he called “the violation of the sovereignty of a friendly state.”66 The next most important aspect of the diplomatic reaction to abductions was the question of returning the prisoner to the country from which they had been taken by way of making amends for their arrest. In correspondence going back to the 1820s demands were made by the country from whose territory a prisoner had been taken for their discharge, as happened in 1821. These demands continued, in very similar form, to the very end of this period.67 Likewise, throughout the period in cases where the guilt of the kidnapping country’s officials was clear, that government usually offered to discharge the prisoner from custody and return them back across the border.68 These offers and demands were part of the process of resolution. The logic was simply that a government guilty of such a violation of sovereignty should not be allowed to benefit from its wrong-doing. Thus, it was much less a vindication of the prisoner’s rights against illegal arrest than a chastisement of a government which had infringed on foreign territory. One state had deprived another of its jurisdiction to decide whether to shelter or surrender a fugitive within its territory and to maintain a monopoly on the legitimate use of force. The offer to return that prisoner, then, was another way of acknowledging these rights and reaffirming the sovereign power from which they stemmed. Gauging the extent to which the actual return of a prisoner could be called an international law remedy is difficult. The slim scholarship dealing with the history of international abductions is divided on the subject, with some scholars claiming that international law mandates such return and others claiming that it did not in the past and does not now.69 But it is clear that insofar as these scholars are making arguments about customary international law – law drawn from the practice of states – they do so from a very small basis of cases, and with limited use of primary sources other than reported cases and some published diplomatic correspondence. Of the seventy-seven cases examined here, the last available evidence shows the prisoner to have been discharged from custody in only thirteen cases – 17 per cent of the total. In 9 per cent of cases the abduction failed to get the prisoner either into custody or across the border, in 5 per cent the prisoner had been re-

Miller_5200_049.indd 68

12/08/2016 1:52:04 PM

The Low and High Laws of Abduction in the Border Zone  69

leased by the time the diplomatic debate took place, and in 27 per cent the outcome is unknown based on the last available files. However, in 39 per cent of cases the evidence suggests that the prisoner was not in fact discharged, and it is unclear in how many of these cases a formal government protest was registered and pressed. Yet given the nature of many of these files, it is unwise to draw too many conclusions. Certainly, some of these cases probably involved allegations of kidnapping that were untrue, likely manufactured by the prisoner as a final effort to avoid imprisonment, and governments may simply have found their claims far-fetched and so disregarded them. It is also clear that the rhetorical positions often taken in the debates by diplomats – and the persistent, even formulaic tenor of outrage embodied in their letters – were more about affirming the ideal of sovereignty through a kind of ritual of protest than they were about the real and desired outcome in each particular case. Partly, this ritual was also meant to distance the government whose officials had done the kidnapping from the actions of those officers. In various cases of American soldiers or police officers entering Canada to make an arrest themselves, for example, US diplomats leaned heavily on the abduction not being sanctioned either by commanding officers in the military or police forces, or by any executive or judicial authorities.70 This was easier to argue where the arresting officer was a town sheriff or some other purely local official. Cases where the officer was linked to the national government of either country could be thornier. In the 1858 case of a deputy US marshal who brought a whole ship across the Detroit River at gunpoint and shot one of the sailors, for example, it was a recurring element of the British and Canadian protests that he was, as one diplomat put it, “a functionary of the United States.”71 But even in that case, the US attorney general was able to argue that the marshal acted without executive or judicial sanction, and so he expected that “the proper disclaimer of this Government will no doubt be entirely satisfactory to that of Great Britain.”72 This emphasis on the distance between the abductor and the central government was almost certainly used to downgrade the matter from a full-scale international one to one involving a rogue, often local, officer, and to illustrate that the hierarchy above that person remained committed to sovereign rights. But alongside these apologies and affirmations of sovereignty governments sometimes partially justified kidnappings, appealing in particular to notions of supranational justice. In many cases both sides

Miller_5200_049.indd 69

12/08/2016 1:52:04 PM

70  Borderline Crime

mediated the breach of relations by stressing the bad character of the prisoner to suggest that while the officers involved might have violated international law they did so for the admirable reason of enforcing the law against a highly undesirable person, ensuring that criminal jurisdiction was not defeated by the international boundary. In these cases, official responses were conditioned by class status, race, and criminal background, as they were in an 1898 case where Marion “Peg Leg” Brown killed a police officer in London, Ontario, and fled to Washington State, where he was arrested on a trivial if not fictitious charge, held, and ultimately turned over to an officer from Victoria, BC, before being transported back to London.73 Although murder was an extraditable charge, Brown’s formal return was not sought. The US consul in London reported the case to the State Department only because of the legal issue involving his abduction, which practice he said was “reprehensible.”74 But the consul was also clear about his disdain for Brown, writing that he “should dislike to place any obstructions in the way of the just punishment of this man unless necessary in order to place the Stamp of disapproval upon a dangerous precedent, for I am induced to believe that the prisoner is a desperate and dangerous criminal.”75 He continued, writing that Brown “belongs to the genus Tramp,” was of mixed black and aboriginal heritage, and had been a Texan cowboy in his youth.76 An internal State Department memo suggests that all of this shaped the diplomatic approach to Brown’s case, with one adviser telling the assistant secretary that “in view of the deep guilt of the man I would not treat the matter diplomatically unless he or his counsel invoke the intervention of this Govt.”77 Ultimately Brown was convicted and executed and there is little evidence that the United States interfered in any significant way because of the abduction. Indeed, the Canadian Justice Department’s capital case adviser alluded in only very oblique terms to the manner of Brown’s return to Canada, writing that he had simply come over from Washington “with” the police officer.78 Brown’s race almost certainly played a role in the American government’s unwillingness to intervene in the case. But his supposed character and particularly his crime of shooting a police officer were probably much more important in shaping official reactions, since many other cases involving white defendants played out in a similar fashion. In the 1860s several occurred in which British, Canadian, or American officials all used the supposed character of the prisoner or the nature of the offence to justify non-interference with their prosecution. In 1863 Secretary of State William Seward reviewed the evidence and found that

Miller_5200_049.indd 70

12/08/2016 1:52:05 PM

The Low and High Laws of Abduction in the Border Zone  71

two men who had been taken from Michigan were “felons who have violated the laws of Canada.”79 Under these circumstances, he wrote, the US government “cheerfully leaves them to the penalties which have [been] adjudged against them by a judicial tribunal of the country which they have offended.”80 A few years later the British ambassador took a similar position after an abduction from Ontario to Michigan. Seward offered to return the prisoner, but the ambassador declined, writing that “we can have no sympathy with the individual in question,” who had betrayed a Michigan sheriff and fled the country to avoid paying a fine.81 It is worth noting that in both these cases the offending government offered an explicit apology and a disavowal of the abduction on the standard model, so that once that gesture of contrition was made, the apology itself was deemed sufficient, especially given the character of the individuals who had been taken.82 Taken together, these factors helped stabilize relations between the governments after a reported kidnapping and an official diplomatic complaint. But this orderly set of rituals and the generally amicable international discourse could sometimes be complicated by issues of domestic and international law. Indeed, it was often uncertain whether a government even had grounds to complain or to demand an apology after the illegal removal of a prisoner from its territory. That is, since so many of these cases involved cooperation between foreign and local officials, with the local officials often doing the abducting themselves at the instigation of the foreigners, the right of the government to complain that its soil had been violated was unclear. Here the answers to the legal question were somewhat inconsistent and a variety of views were at play regarding the implications of local officials’ actions for the rights of territorial sovereignty, though the circumstances in the cases on this point often varied. In 1850, for example, after the Sault Ste Marie deserters case in which the US officer invited his British counterpart across the river, the British foreign secretary partly excused the action because of the explicit invitation but nonetheless admitted that a violation of US territory had occurred and apologized for it having happened.83 In 1864, though, the Canadian government reached a somewhat different conclusion after a kidnapping into the United States which was done entirely by Canadians. According to the governor general, the prisoner might have a cause of action against the Canadian officers, but the Canadian government had no grounds for complaining that its territorial rights had been violated by Americans who had instigated the abduction but not participated in it.84

Miller_5200_049.indd 71

12/08/2016 1:52:05 PM

72  Borderline Crime

Another slightly different view emerged in the Rufus Bratton case. Since the US detective in Canada had taken care to instigate and guide the arrest and detention of Bratton there, but had not actually exerted any force himself, the international law question received considerable attention. At first it was not clear whether the Canadian or British governments could complain or demand Bratton’s return, and the British ambassador and the imperial government’s legal advisers thought not; given the lack of physical force on the part of the American detective and the overriding role of the Canadian official, Canada had no right to ask for a remedy under international law.85 Ultimately, though, as it became clear how integral the detective was to the arrest, the government changed its position, with the imperial law officers doing an about-face and calling the incident “contrary to the practice of all civilized Countries” and “a serious violation of the territorial rights, the independence and sovereignty of this Country.”86 A similar question about sovereignty emerged from cases in which the police alleged that the prisoner left the country voluntarily. This was a routine occurrence – in at least twenty-two of the cases there was an assertion, most often from local officers who made the arrest or foreign police who received the fugitive, that the prisoner had gone across the border of their own free will after being convinced, but not forced, to do so. Some of these excuses seem quite plausible, at least in part, such as in the James Cahill case, where the Canadian police argued that he had gone over the Niagara suspension bridge of his own accord after being threatened with a vagrancy prosecution. Over and above whether the police in these cases were simply lying about their own actions, such cases raised a tricky legal question about the meaning of sovereign rights: what degree of suasion could a police officer use to get a prisoner over the border without violating either domestic or international law. The most substantive available meditation on this issue occurred in the Cahill case where the Canadian deputy minister of justice considered the question at length. He conceded that “improper influences” – namely, the threat of prosecution – might well have been used at the behest of US officers to get Cahill over the bridge.87 But he also argued that the issue for the federal government was not why Cahill decided to leave Canada, but whether he decided to leave of his own accord or was forced across. If he decided for himself, the deputy minister wrote, “no breach of the international relations with the United States has taken place – for it would lead to infinite complications and refinements if the reasons which induced a person to

Miller_5200_049.indd 72

12/08/2016 1:52:05 PM

The Low and High Laws of Abduction in the Border Zone  73

a particular conclusion in a case like the present formed part of the international question involved.”88 As a result, in cases where minimal coercion could even plausibly be said to have been used, governments often demanded no substantive redress. Having investigated, debated, and apologized for abductions, governments largely did not try to stamp out the abduction system by prosecuting kidnappers. In only ten of the seventy-seven cases did files indicate that the kidnappers faced some consequences for their actions, and there was little consistency to this punishment. For example, in Canada the government dismissed two magistrates who ordered the 1856 arrest of Archy Lanton on charges which were not extraditable. The government’s decision sparked considerable local protest, including a petition for their reinstatement signed by many prominent local people and government officials.89 Indeed, one scholar has argued that after the abduction of another black man in 1857, a magistrate who explicitly aided in the kidnapping faced no consequences at all due to public protest over the Lanton firings.90 Likewise, in 1863 a US army captain in the volunteer forces was discharged from the military after seizing an apparent deserter in Canadian territory, while in a similar case a few months earlier the soldier who made the arrest was only reprimanded.91 In other cases kidnappers were actually prosecuted for their actions. In at least one case – that of Rufus Bratton – the Canadian official involved was tried, convicted, and sentenced to three years in the penitentiary.92 In another, the 1873 case of a pseudonymous fraudster, “Lord Gordon Gordon,” who claimed to be a Scottish noble and defrauded the American railroad titan Jay Gould before fleeing to Manitoba, a group of Americans who tried to force him back into the United States was brought up on kidnapping charges.93 Yet in both cases the exigencies of international politics and diplomacy were powerful. In the Bratton case, the imperial law officers were initially sceptical about Canada’s right to launch a diplomatic complaint over the arrest in light of the central role of the local official. However, they eventually concluded that such a complaint would be legal under international law so long as that official was prosecuted first.94 Conversely, in the Gordon case international politics seemed to mediate the prosecution. Because of concern over strained relations with the United States on the prairies, former Manitoba lieutenant governor Adams Archibald privately recommended that the government quietly intervene with the judge to ensure that the defendants were granted bail.95

Miller_5200_049.indd 73

12/08/2016 1:52:05 PM

74  Borderline Crime

Moreover, kidnappers brought up on prosecutions were sometimes sentenced to minimal punishment if not acquitted, which often signalled either official acquiescence to specific instances of kidnapping or broader local community support for the practice. In the Gordon case, for example, the defendants were sentenced to just twenty-four hours.96 Likewise, the deputy US marshal who shot and killed a man while attempting to bring a ship and its crew across from the Canadian side of the St Clair River (and who for various legal reasons was tried in the United States) was sentenced to only thirty days in jail and a one dollar fine.97 Community support for the kidnappers could also sometimes lead to outright acquittals, as it did in the Martin Everett case, where the local American sheriff was tried in the United States for his role in the arrest, but acquitted despite clear evidence of guilt. The US consul in Vancouver who investigated the case extensively was not surprised by the result. “I found that the feeling against Everett, and in favor of the sheriff’s action was so strong that I did not expect that a jury would convict the sheriff for his act,” he told the State Department.98 Clearly, the customary rituals and doctrinal debates that sometimes followed kidnappings were shaped by a wide range of factors, and could result in uncertain outcomes. This continuing uncertainty prompted British ambassador to Washington James Bryce to make a seemingly provocative suggestion in 1910 to codify and clarify these rituals. In the midst of two abduction controversies Bryce met with State Department officials and forwarded a suggestion by which, he said, “the principles of international law might be maintained without defeating the ends of municipal justice.”99 He meant by this that the accepted concept of inviolable territorial sovereignty should somehow be reconciled to the recognized importance of punishing criminals, thereby affirming sovereignty without letting the boundary defeat criminal jurisdiction. His idea was to develop a formal mechanism by which all future cases could be investigated, adjudged, and settled, and one which removed the issue from the uncertainties of diplomatic pressure. Once a kidnapping was reported, a two-member commission consisting of one magistrate or judge from each country would travel to the scene of the arrest, conduct an inquiry, and tender a joint report to the two governments.100 If they could not agree on the facts, their materials would be turned over to the new International Joint Commission created by the 1909 Anglo-American treaty to settle an array of CanadianAmerican disputes.101 The judicial role in this plan was to answer two questions: had international law been violated by the arrest, and had the prisoner commit-

Miller_5200_049.indd 74

12/08/2016 1:52:05 PM

The Low and High Laws of Abduction in the Border Zone  75

ted an extraditable offence. If the arrest had violated sovereignty and no extradition crime was charged, the kidnapping government would apologize and return the prisoner. But if both questions were answered in the affirmative, the government would still apologize and extend the offer of return, but the other government would waive the surrender.102 Clearly, the proposal drew on the customary rituals that had characterized much of the diplomatic practice on this question for decades. It implicitly acknowledged that abductions were often done in the spirit of enforcing the law, but it was predicated on the idea that respect for sovereign rights and the maintenance of good international relationships were the primary concerns. According to Bryce, his plan would “facilitate and fortify this practice at present based merely on courtesy and comity.”103 In this effort to make abductions a matter not of diplomacy or ad hoc fact-finding efforts but of international legal adjudication, he also reflected so much of the innovation then taking place in European international law, particularly the birth of permanent judicial institutions such as the Permanent Court of Arbitration that emerged from the 1899 Hague Peace Conference.104 Bryce’s plan does not appear to have gone beyond this initial stage, perhaps because of official resistance to recognizing in any way the low law system of abductions. Bryce claimed that the proposal had significant American support, but the British Foreign Office was more sceptical about what the proposal implied for the twinned ideas of domestic law and order and territorial sovereignty. Foreign Secretary Sir Edward Grey was concerned that it implied that the governments were prepared to acquiesce in such violations of territory by local police. According to Grey, abductions might be more effectively combated by simply issuing more strict instructions to local officials, though he was not prepared to block the idea, so long as the Colonial Office agreed.105 Shortly thereafter the matter appears to have gone to Ottawa for consideration, where little appears to have happened, and there is no sign that the proposal was implemented. As a result, by the end of this period the enduring array of diplomatic customs brought to bear on abduction cases as they occurred remained the only available mechanisms for resolving them. High law custom, then, was absolutely key to how these cases were understood and dealt with by policymakers, just as low law custom shaped how abductions were carried out in the border zone. Customs and customary international law generally conditioned how governments packaged their complaints about abductions, how they assessed the responsibility of their own officials, how they viewed the legal sig-

Miller_5200_049.indd 75

12/08/2016 1:52:05 PM

76  Borderline Crime

nificance of the border, and how they made restitution when their governments were found to be at fault. While these customs may not have coalesced into clear-cut rules which were applied in every case, they amounted to a predictable constellation of concerns which shaped the debate. However uncertain the outcome in individual cases, the ideas and principles governing these discussions prioritized the affirmation of territorial sovereignty and the preservation of international relationships, and minimized the practical importance of individual rights. In high law as in low law, officials searched for ways to meet the challenge of the border while preserving the essence of territorial sovereignty. “They did not care for Queen Victoria or me”: Individual Rights, Sovereignty, and Abductions In 1886 the US Supreme Court rendered its decision in the case of Frederick Ker, a Chicago bank clerk who fled to Peru after reportedly stealing $55,000 from his employer. He was abducted from Lima by a Pinkerton’s detective agent hired by the bank, and when he was put on trial in Illinois months later, Ker challenged the jurisdiction of the court by raising the circumstances of his arrest. Although Ker fought his case through the state and federal courts, it ended with the Supreme Court roundly rejecting his arguments.106 According to the court, Ker was within the jurisdiction of the American courts and whatever had happened to him in Peru was not. Peru might have a cause of complaint against the United States or might prosecute the Pinkerton’s agent, but Ker obtained no rights against prosecution by the manner in which he was brought to the United States.107 That decision has been harshly criticized by recent historians and political scientists who have sought to link the court’s seeming disinterest in individual rights enforcement to broader social and political contexts. One extradition scholar has even called it “symptomatic of a low point in public morality” typified by a disinterest in human rights and civil liberties.108 Others have linked Ker to the United States’ increasing late-nineteenth-century imperialistic reach into and power over Central and South America. Describing the decision as “expansive and astonishing,” one writes that it “stands as one of the baldest and most profound assertions of US unilateralism and sovereign reach ever uttered by the Court.”109 Likewise, another historian argues that Ker made new law and empowered American officials and private detectives with wide scope for extra-legal activities outside the United States. “Previously international borders had

Miller_5200_049.indd 76

12/08/2016 1:52:05 PM

The Low and High Laws of Abduction in the Border Zone  77

constrained policing,” she writes, “but now they actually facilitated it, because they gave law enforcers more power to act outside the country than within it.”110 This image of the decision as a reflection of late-nineteenth-century America is in many ways misguided. In fact, rather than breaking new ground, Ker reflected enduring views about sovereignty and the limited jurisdiction of courts; rather than newly empowering unilateralist American officials, it simply reiterated decades of precedent from American, English, and Canadian courts. Individual rights were clearly irrelevant to the Ker analysis, but that was nothing new and nothing that is best linked to America’s late-century power. Throughout the nineteenth century kidnapped prisoners attempted to use the illegality of their arrests as a bar to their prosecution, trying to create an individual rights protection out of an infraction of international law. Here the approach of courts in Canada, Britain, and the United States was uniform: these attempts always failed. The foundational case on this issue was the 1829 English decision in the habeas corpus petition of Susannah Scott, who had been seized in Brussels by an English police officer and brought back to London by force. Her lawyers made a nuanced but liberty-based argument, telling the Court of King’s Bench that while the courts would not discharge the prisoner in a felony case, Scott was indicted for a misdemeanour. “In favour of the liberty of the subject,” they contended, “the Court ought to refuse to extend the rule established as to charges of felony.”111 The court brushed this aside, and the Lord Chief Justice concluded that once an individual was in the jurisdiction and charged with an offence the courts could not inquire into the manner of arrest. The country from which Scott was taken might complain about the violation of their sovereignty or prosecute those involved in their own courts, or she might sue the arresting officer in the foreign country, but she had no right against prosecution once back in the jurisdiction.112 This position remained decisive in English law.113 It also emerged as the uniform position of the American courts. Likely the first reported case involved a prisoner abducted in 1834 from the Eastern Townships for shop-breaking in Vermont. Here the defence took a slightly different approach from the Scott defence in England, stressing at the forefront the infraction of international law rather than the rights of the accused. The defence lawyer argued that courts had no jurisdiction over prisoners brought before them “by a violation of the rights of a foreign nation.”114 But the Vermont court adopted the same position as the English King’s Bench: the prisoner had no rights in the

Miller_5200_049.indd 77

12/08/2016 1:52:05 PM

78  Borderline Crime

United States which were created or violated by the abduction. Rather, any offence was against British sovereignty, and that was beyond the jurisdiction of the court.115 Similar views were apparent in two other reported trial court rulings involving abductions from Canada. In 1858 the Buffalo Superior Court dealt with the case of a man brought over the suspension bridge by Canadian and American officers and formally handed over to American custody at the US end. The judge held that “whether the dignity of Great Britain has been insulted … we are not called upon to inquire. The question is an international one, and cannot arise unless her Majesty’s government shall see fit to lay the matter before our government.”116 In fact, a federal district court made a similar ruling just before Ker was handed down in 1886.117 In British North America/Canada a series of unreported nineteenthcentury cases suggests that courts there took the same approach as English and American judges. Indeed, in an 1866 Upper Canada case it appears that when the defence lawyer attempted to raise the issue while cross-examining witnesses, the Crown attorney objected and was sustained by the presiding magistrates.118 In an 1876 BC case in which a prisoner being transported through US territory attempted to escape and in so doing assaulted a police officer and was tried for the attack, the self-represented prisoner was allowed to question his kidnappers on whether they had been in the United States when they subdued him after his escape attempt.119 But when Justice H.P. Crease charged the jury, he instructed them to disregard this element of the case and to assume that the prisoner had been captured either in British territory or in an area where he claimed there was concurrent jurisdiction because of the unsettled Alaska-BC boundary.120 Likewise, in the 1891 Ontario prosecution of fifteen-year-old Harry Gale, who was charged with assault and had been brought back from New York State by his victim’s brother and local American sheriffs, the judge decided that the abduction “was a question with which I could not deal at the time” and that, as a result, “I took little notice of it.”121 The court took a similar view in the “Peg Leg” Brown case in 1898. The judge in that case refused to grant a delay while the defence attempted to get the US government involved and later observed in passing that he thought Brown had returned to Canada voluntarily, the only mention of the issue in the judge’s capital case report.122 These issues were finally litigated more thoroughly in the 1905 case of R. v. Walton, likely the only reported Canadian decision on the subject. In the Ontario Court of Appeal the defence made a strained and

Miller_5200_049.indd 78

12/08/2016 1:52:05 PM

The Low and High Laws of Abduction in the Border Zone  79

convoluted argument about Walton’s arrest in the United States precluding charges for any offence other than the one on which he was initially detained and abducted – a position heavily influenced by an emerging legal doctrine examined in chapter five. They offered no apparent support for this position.123 Yet despite the peculiarity of this approach, Justice Featherston Osler went into the general question of jurisdiction after a kidnapping. He drew from and sided with the Scott decision from England and the Ker decision from the United States, holding that he could not inquire into the circumstances by which Walton came before the court. “If he is found in this country charged with a crime committed against its laws,” Osler wrote, “it is the duty of our Courts to take care that he shall be amenable to justice.”124 Clearly, then, the weight of judicial opinion was against the idea of prisoners having a right against abduction which could invalidate their prosecution. Again and again courts, like most policymakers and diplomats, held that the question was an international one in which the individual was nearly irrelevant. Prisoners and their allies as well as officials who opposed abductions did make rights-based arguments outside of courts, and directly to governments, in protesting their incarceration. Occasionally, these arguments focused primarily on individual rights, particularly the idea that if abductions were allowed to continue they would compromise liberty in the border zone.125 But most protests and concerned reports did not draw primarily on individual rights issues. More often, they linked and subordinated these individual rights issues to national rights of sovereignty and citizenship. The line of argument linking the prisoner’s rights to the violation of sovereignty was especially common in the reports of government officials. In this correspondence there was often a concern for the individuals, but it always took a secondary role to the sovereignty question, often reflected in the way complaints were phrased. In an 1836 case the governor of Lower Canada complained chiefly about what he called an “infraction of the Law of Nations,” which he said was “accompanied by Acts endangering the Lives, & violating the Liberties of His M’s Canadian subjects.”126 Likewise, in 1872 a US consul in Winnipeg expressed outrage at the arrest of the alleged Fenian fighter Louis L’Etendre south of the border and declared that the United States should demand the man’s release since the Canadian government was “guilty of an outrage on international law as well as on individual rights” – and as the case developed, it was the international law issue which took primacy.127 This link between the offence to the

Miller_5200_049.indd 79

12/08/2016 1:52:06 PM

80  Borderline Crime

individual and to the law was often made by prisoners themselves protesting their detention. One stressed that his kidnappers had said that they “did not care for Queen Victoria or me,” while another declared that he was “harshly treated in open disregard of my country’s sacred rights.”128 Likewise, governments often mentioned compensation to the individual involved in their initial letters of protest, but in only one of the cases examined here was there evidence that compensation was in fact insisted upon by the government and ultimately paid.129 Those protesting abductions also stressed what they perceived to be the rights of national citizenship. In official correspondence the abduction of a citizen from their country’s own soil served as an aggravation of the violation of international law. That is, the seizure of a citizen sometimes took on more weight than the arrest of a non-citizen might have, at least rhetorically and largely only at the outset of the diplomatic exchanges.130 Interestingly, this theme is even more prominent in letters from prisoners and their allies. Again and again in their letters and petitions prisoners stressed their citizenship and argued that the rights which they believed were guaranteed to them had been violated. “I feel as a British subject that I am entitled to that protection due her subjects,” one wrote from jail in Massachusetts.131 Another protested from a penitentiary in Washington State what he called “an indignity against a British subject on British soil.”132 In another case, by way of trying to interest the Canadian government in his plight, a prisoner stressed that he had been a Canadian resident for two years.133 The widespread assumption that citizenship could be key in this regard is reflected in other cases where prisoners even lied or misled authorities about their citizenship in an attempt to win that government’s protection. This occurred during the 1884 Sault Ste Marie riot and murder case. On initially crossing over from Canada to Michigan, where they were later arrested, at least two of the fugitives quickly filed papers stating their intention to become US citizens, a move which began a years-long process of naturalization but certainly did not confer citizenship. Yet after their arrest and return to Canada they protested and their lawyer claimed for them “the rights of American citizenship and the protection of our laws and flag.”134 The men themselves falsely declared in a shared affidavit that they were naturalized Americans and that the police had ignored their naturalization papers.135 Only later were they shown to be not yet full-fledged Americans. Clearly, then, citizenship and the rights which some thought that it implied were key to diplomatic complaints and prisoner protests. But

Miller_5200_049.indd 80

12/08/2016 1:52:06 PM

The Low and High Laws of Abduction in the Border Zone  81

these concepts were much less important in practice once these cases were dealt with by the two governments and they do not appear to have been determinative in the way cases turned out. Both the rhetorical importance of citizenship and its ultimate practical insignificance are evident in the 1865 Peter Needham case. The prisoner claimed to have been arrested in Guelph, Upper Canada, by Canadian and American police, hustled over the Niagara suspension bridge at gunpoint, and eventually taken to Memphis, Tennessee, where he was shackled to the floor of his cell for five months.136 Needham complained to the British consul and invoked his British citizenship, which sparked an extensive investigation in which the US government disputed Needham’s claims to be British. A former friend and co-worker swore that Needham had never claimed to be British-born and had long been politically active in St Louis, Missouri, as an organizer and voter, and had exercised other aspects of US citizenship. In fact, he claimed that Needham might be living under an alias and might actually be German.137 As this evidence emerged and was sent from Washington to Canada, the Canadian government clarified its position, with Lord Monck saying that the only question at issue was the violation of British territory. Monck told the British ambassador that Needham’s citizenship was ultimately irrelevant – even if he were American Canada would have the right of complaint if a violation of territory had occurred, and if he was British it would give him no special immunity to American justice.138 Monck’s opinion, rendered two decades before the US Supreme Court decided Ker v. Illinois, illustrates the enduring irrelevance of individual rights to the low law system of cross-border abductions in northern North America. This system existed to supplement formal justice, but since those who conducted the kidnappings arguably violated both domestic and international law, the two were also in tension. However, that tension primarily revolved around sovereignty, and once territorial rights were affirmed and preserved, the prisoners who had been hustled across the international boundary were largely irrelevant. Ker, then, did little except add to an enduring transnational consensus. Conclusion Eugene Shinkle, Harry Gale, and Martin Everett were just three of the unknown number of fugitives that police officials and community members forced across the international boundary throughout the nineteenth and early twentieth centuries without the permission

Miller_5200_049.indd 81

12/08/2016 1:52:06 PM

82  Borderline Crime

of extradition courts or national governments. Often done at gunpoint or while the prisoner was shackled or held down by force, these abductions were a constant feature of policing in the northern North American border zone. But these exertions of authority represented not lawlessness or mob rule or American unilateralism in the border zone, but rather a distinct and nuanced low law regime in themselves, engineered and replicated by officials and communities in both British North America/Canada and the United States across the continent and throughout the period examined here. It was not just that kidnappings were not arbitrary punishments but rather procedures to aid the power of formal criminal jurisdiction, but also that they echoed practices and principles of formal law. They drew on notions of supranational justice, reciprocity, sovereign consent, and natural law justice. They also, like the high law that was sometimes brought to bear upon them when central governments took notice, represented the powerful meaning of the border and of territorial sovereignty in northern North America. High and low law might have differed on the specific means of bringing international fugitives to justice, but in key respects abductions represented the essential convergence of these notions of what legal order meant in a world of sovereign borders. At high and low levels, officials grappled with how to meet the challenges that those boundaries represented to state power and the rule of law.

Miller_5200_049.indd 82

12/08/2016 1:52:06 PM

Part TWO Uncertainty, Amorphousness, and Non-Law

Miller_5200_083.indd 83

12/08/2016 1:55:28 PM

This page intentionally left blank

4 International Law and Supranational Justice in Northern North America

In November 1835 the Portuguese government pleaded with an American federal judge in Virginia to detain Jose Ferreira Dos Santos. Moments earlier, a grand jury had refused to indict Dos Santos on piracy charges. But before the prisoner could be discharged, the Portuguese consul argued that if the United States was not going to put Dos Santos on trial, it should extradite him home to face murder charges, and he asked Judge Philip Pendleton Barbour to order his detention until a formal surrender request could be sent to the president in Washington. While there was no extradition treaty between the United States and Portugal, the Portuguese contended that the American duty in this case was much more deeply embedded in fundamental ideas of law and justice that transcended treaties and, indeed, transcended nation states.1 At the core of the Portuguese argument was a notion of international society, a concept that had been animating instances of extradition in northern North America for decades. The consul’s lawyer argued that America and Portugal existed in a community of civilized nations within which sovereign governments were bound to help enforce a shared and universal legal order.2 Since sovereigns could not simply invade one another’s territory when fugitives crossed borders, a doctrine had emerged over the centuries allowing a sovereign whose laws had been broken to request a fugitive’s surrender and obliging the sovereign in whose territory the criminal was sheltered to deliver them

Miller_5200_083.indd 85

12/08/2016 1:55:28 PM

86  Borderline Crime

up to punishment, at least when the offence in question was one which both justice systems punished with death. In cases of such a universal or quasi-universal felony, sovereigns became complicit in criminality if they sheltered its perpetrator. This doctrine, argued the consul’s lawyer, “proceeds upon the benign confidence that all enlightened nations, on terms of peace, will contribute to the promotion of a great common purpose … to bring flagitious offenders to merited punishment.”3 To limit this common purpose to treaties, he continued, “would be to make one nation dependent on the treaties of another, and to interfere with the convenience of all, by taking those principles of natural law, which are … relied upon, in their intercourse, by those nations, between which no treaties exist.”4 Judging an international duty by the instruments through which it was expressed, in other words, would frustrate a much more fundamental system of justice. In contrast to the low law abduction system, this was the return of fugitive criminals being engineered by the highest of high law, the law of nations. The Portuguese argument represented a transnational convergence of European and North American legal thought. As the consul’s lawyer told Barbour, towering jurists from Hugo Grotius to Jean-Jacques Burlamaqui to Cesare Beccaria believed in a legal right to request extradition and a concomitant obligation to extradite, and he touted these writers as persuasive authorities before the US court.5 But the Portuguese also pointed to modern authorities in North America, especially Chancellor James Kent of New York, already a renowned judge and legal scholar, and Montreal chief justice James Reid of Lower Canada, both of whom had ruled in their own courts in favour of an international law obligation to extradite and an inherent executive power to surrender. Indeed, whether the Portuguese knew it or not, officials in the British North American colonies and northern United States had surrendered fugitives many times, partly on the basis of this idea, a practice that had addressed the challenge of the border by fitfully stretching the domestic rule of law across it in the decades before Dos Santos. The Portuguese consul asked that Barbour apply that notion to the Dos Santos case. But Barbour refused. In fact, his decision was a hallmark of the decline of both the idea of an obligation to extradite generally and the power of that idea in northern North American jurisprudence and statecraft. His decision contained a sweeping review of law of nations literature, diplomatic practice, case law, and US foreign policy. In it, he repudiated the idea of an obligation to extradite and ordered that Dos Santos be released from custody. Without a treaty,

Miller_5200_083.indd 86

12/08/2016 1:55:28 PM

International Law and Supranational Justice in Northern North America

87

he wrote, the United States was under no legal obligation to surrender fugitive criminals.6 The Dos Santos case and the core question of international obligation and sovereign rights at issue in it illustrate much about the changing and in many ways fragile and amorphous nature of international law in nineteenth-century North America. In the decades before Britain and the United States agreed to a new extradition treaty in 1842, northern North American officials routinely drew on ideas of supranational justice, international society, and the responsibilities of civilized states to demand and surrender fugitives. In cases going back decades, elite officials had used these high law principles to confront the challenge of the border. But this remained a legal regime in the process of creation and contestation by 1842, and what the Portuguese consul was asking Judge Barbour to do in 1835 was in essence to participate in that process, and to draw together notions of law from within and beyond the United States into law that could be applied to hold the prisoner, as other colonial and American judges had, rather than to apply a rule that was clearly binding already. The reliance of this regime-in-process upon concepts and values rather than acknowledged legal instruments like treaties and statutes opened it to contestation and left it vulnerable to the growing nineteenth-century shift towards international legal positivism – the increasingly powerful approach to law that stressed sovereign rights over international obligation and decreed that states were bound only by the rules to which they had agreed.7 In fact, as this chapter shows, there is much in the debate over extradition before 1842 that reflects this tectonic shift in the international legal order. But as this chapter also shows, the extradition system argued for by the Portuguese in Dos Santos failed for other reasons as well. The core notion of an obligation to extradite was doubted even within international law, and core concepts that underlay it were rendered impossible by the domestic legal regimes of Britain and the United States. Most importantly, America’s constitutional order hindered officials from believing, as Kent and Reid had done, that international law was directly binding upon them no matter what jurisdictional power they had as officials. In short, this abortive legal regime was fragile for reasons far beyond the rise of positivist international law. Examining northern North American extradition as it was framed by international law and supranational justice shows that, just as with low law abductions, trying to stretch domestic criminal law over the international boundary often rendered it amorphous and uncertain.8

Miller_5200_083.indd 87

12/08/2016 1:55:28 PM

88  Borderline Crime

Extradition, Juridical Thought, and International Society When the Portuguese government argued that international law obliged the United States to detain Dos Santos, they invoked an idea with deep conceptual roots. Going back centuries, natural law and law of nations writers and philosophers had seen extradition as a central component of supranational justice – that is, justice both within and between sovereign nation states. When lawyers took these ideas into court in British North America and the United States, they tried to convince judges to apply these notions as law, thereby safeguarding the domestic rule of law by stretching it across borders. This approach was in many ways enormously appealing, both conceptually to jurists who saw their own jurisdiction as enmeshed in a universal system of law, and to practical-minded policymakers who saw the separate sovereignties of British North America and the United States as an everyday menace. Pro-extradition jurists believed in a supranational obligation to maintain law and order. For this group of jurists, the most influential thinker was Hugo Grotius, author of the 1625 treatise On the Law of War and Peace. Grotius has long been known as the “father of international law,” and his theories of natural rights and the law of nations were profoundly influential for centuries.9 Two hundred years after its publication, his treatise was still the starting point for early-nineteenthcentury jurists and officials arguing for the obligation to extradite, and many other issues besides. Simply put, Grotius argued that a sovereign should not screen offenders from justice.10 For him, international law in this area worked as a system of rights. The right to punish or forgive crimes within a national community rested with the state, but when crimes affected other independent states or sovereigns – when the subjects of one committed crimes in another or criminal refugees fled to a foreign country – that exclusive authority no longer applied. When this happened, the other sovereign had the right to require either the surrender of the fugitive or their trial in the country of refuge. Grotius called this “a right essential to the dignity and security of all governments.”11 These arguments reflected a broader vision of international society composed of sovereign states with sovereign rights, who were nonetheless part of a larger law-abiding community.12 That central notion echoed outwards into legal, philosophical, and religious writing. The English cleric and natural law writer Thomas Rutherforth described

Miller_5200_083.indd 88

12/08/2016 1:55:28 PM

International Law and Supranational Justice in Northern North America

89

this order in 1754 as the unification of civil societies, each of which was “a distinct and entire body,” into “a collective person” by a “social compact.”13 For Grotius and his successors, then, the sovereign’s responsibility to ensure the punishment of fugitives by extradition or prosecution was a reflection of this dynamic of community in which the rights of jurisdiction came with responsibilities of governance and maintaining order both domestically and internationally. When Grotius noted that the right of expecting either extradition or prosecution was “a right essential to the dignity and security of all governments,” he was envisioning a reciprocal system in which states protected one another from criminals and so were themselves protected. The English legal writer Edward Wynne took up this idea in 1768, drawing together the notions of national and international community, writing that domestic order could not be achieved without this cooperation between countries. “The interests of society itself, in general,” he wrote, “are so deeply involved in this respect, that it can never be the real interest of one country to nourish an impious criminal in its bosom, who flies there for refuge against the justice of his own.”14 Nations were bound to assist one another in promoting the ends of justice, he wrote, and by doing so ensured their own preservation.15 In this line of thinking, defying the responsibilities of supranational justice meant that states could themselves become criminals or delinquents within international society. Grotius, for example, maintained that states could become responsible for the actions of their citizens against other states if they cooperated in the crime, knew about it in advance, or shielded the offender from punishment.16 Likewise, the English lawyer Robert Ward argued in his 1795 history of the law of nations in Europe that granting protection “to those who have offended the peace of other Communities, is itself little less than the same sort of crime.”17 Rutherforth and Wynne agreed that not surrendering a fugitive made the sovereign an accessory to that person’s crime, but they both went further, and contended that refusing extradition gave the requesting country a just cause for war.18 These ideas were echoed, but only faintly, in a few English court cases dealing with extradition. Although there were cases of prisoners fighting their surrender to Ireland in the seventeenth and eighteenth centuries, and losing before the courts, these were within the same sovereign realm and so did not necessarily reveal much about attitudes towards the international question.19 The Court of Exchequer came closer to addressing the issue in a 1749 case in which the judge observed that the

Miller_5200_083.indd 89

12/08/2016 1:55:28 PM

90  Borderline Crime

government might surrender a fugitive to a foreign country to answer for a crime that “may not involve his country, and to prevent reprisals,” though there was little by way of explication or analysis of the roots or limits of that power.20 Likewise, in 1811 Justice John Heath of the Court of Common Pleas observed that criminals were punishable according to the law of the country in which they committed the crime. This, he wrote, “has always been the law of all civilized countries.”21 But Heath also wrote that fugitives were surrendered by the comity of nations, leaving open the question of whether he believed that an actual legal obligation existed.22 Moreover, this case also involved an arrest in Scotland, so Heath’s comments were not even directly relevant, and he was the only one of four judges who wrote decisions in the case to mention the issue. Still, Heath’s comment had resonance. The English lawyer Joseph Chitty included the substance of it in his famous 1816 Practical Treatise on Criminal Law, in which he seems to have taken the point as settled law.23 In fact, it survived into several American editions of Chitty’s work, and appeared in his 1826 edition of Sir William Blackstone’s Commentaries on the Laws of England.24 North American jurists more clearly addressed the idea of an obligation to extradite. Their opinions, on both sides of the issue, dealt more explicitly and carefully with the notions of international legal obligation and the domestic power to carry it out than had any European writer or English judge. Probably the first such reported case – and certainly the most influential – was that of Daniel Washburn in 1819, who was arrested in New York State for a theft of $4000 in Upper Canada.25 The judge here was the famous Chancellor James Kent, former chief justice of New York and author of the hugely influential Commentaries on American Law. After Washburn was arrested, his lawyers applied to Kent for habeas corpus, arguing that the court had no power to detain Washburn for foreign crimes. But Kent rejected that idea, and found both the power and the necessity of holding Washburn in the dictates of international law. “It is the law and usage of nations,” he wrote, “resting on the plainest principles of justice and public utility, to deliver up offenders charged with felony … and fleeing … into a foreign and friendly jurisdiction.”26 While judges could not make surrenders themselves, Kent believed that if there was sufficient evidence to warrant the arrest they were bound to commit the fugitive so that the governor or president could turn them over to the foreign country.27 Kent’s decision embodied the Grotian idea of international society and drew from it that treaties were not necessary for a state to demand

Miller_5200_083.indd 90

12/08/2016 1:55:28 PM

International Law and Supranational Justice in Northern North America

91

extradition. He leaned heavily on the concept of a state becoming an accomplice in crime if it refused to give up a fugitive, drawing not simply from Grotius but other European writers on international law. He cited the eighteenth-century German jurist Johann Gottlieb Heineccius and the French legal and political theorist Jean-Jacques Burlamaqui, and concluded from them that extradition was a “common and indispensable obligation.”28 Here he drew also from Edward Wynne and contended that the obligation existed independently of any specific treaty which the United States might negotiate with a foreign power. Indeed, he argued that extradition treaties in this respect were only declaratory of international law; that is, that the rights and obligations of demanding and surrendering fugitives were recognized by treaties and not created by them.29 In other words, the obligation was more fundamental than a treaty provision, being rooted in the natural law of nations. Kent’s focus on the deep roots of international legal order illustrates his desire to cement the United States within the tradition of European civilization.30 In this, he argued, legal writers had a key role in guiding the conduct of states towards one another given the inherent challenges of establishing and maintaining legal order between sovereigns and the amorphous and sometimes conflicted nature of international law. According to Kent, international law consisted of principles of natural justice, usages and customs, and positive treaty law. Likewise, where treaties did not spell out the obligations of states, or where customs were unclear or natural law needed organizing, legal writers were to be relied upon – hence the deference he paid to law of nations authors in Washburn.31 This was part of why he revered Grotius so much – he thought Grotius had crafted a systematic international code, thereby “dispelling darkness and confusion, and imparting light, and guides, and security, to the intercourse of nations.”32 Still, international society had continued to develop since the seventeenth century, and while Grotius had done much to establish clear rules, the law of nations remained a complex composite of national legislation, judicial decisions, opinions of statesmen, and ideas of classic and modern treatise writers. These last were especially important given the variety of sources from which the law drew. Kent emphasized their role, arguing that “no civilized nation, that does not arrogantly set all ordinary law and justice at defiance, will venture to disregard the uniform sense of the established writers on international law.”33 In British North America, some jurists put these notions of supranational justice into practice in the same way as Kent. The best example of

Miller_5200_083.indd 91

12/08/2016 1:55:29 PM

92  Borderline Crime

this is the decision of Montreal chief justice James Reid in the 1827 extradition case of Joseph Fisher – a decision that the Portuguese invoked as authoritative in Dos Santos. Fisher was arrested in Lower Canada for a theft in Middlebury, Vermont, and after Governor General Lord Dalhousie issued a warrant ordering his extradition, Fisher applied to Reid for habeas corpus.34 In the same way that Washburn’s lawyers had, the defence contended that there was no power to detain and surrender Fisher for a foreign crime and that even if this power did exist it had never been used except in cases of the most serious crimes, such as murder.35 In opposition, the solicitor general himself argued that such power did exist, and cited Grotius, Vattel, Heineccius, Burlamaqui, and other European writers to demonstrate its existence.36 In the end, Reid roundly rejected the defence’s argument about the absence of power, and in doing so drew from Grotius and other natural law theorists. In fact, he used these ideas about supranational justice to delineate the scope of national, sovereign power, and at the core of his analysis was the idea that international law embodied the governing rules of international society and that this law was binding on Lower Canada as a member of that society. According to Reid, “If we deliver up the accused … we only fulfill our part of the social compact which directs that the rights of nations as well as of individuals should be respected, and a good understanding maintained between them.”37 Reid also declared that if the colony screened Fisher from punishment, “we become parties to his crime, – we excite retaliation, – we encourage criminals to take refuge among us. We do that as a nation, which as individuals it would be dishonourable, nay, criminal to do.”38 Reid’s decision reflects an intellectual cosmopolitanism in colonial law that remains poorly understood, in which English law coexisted easily with broader ideas about international and supranational order. The ideas of Grotius and the other publicists were key to Reid’s decision, but he also looked for English authority, and reached out to the handful of English cases which arguably implied an international law obligation to extradite. To bring international and English law together, Reid quoted Blackstone’s Commentaries, arguing that international law was part of the English common law, and claimed too confidently that the few English cases illustrated what his responsibility was under both.39 But Reid drew authority from US law as well, and looked to the differing opinions of American courts, citing both Kent’s decision in Washburn and a Pennsylvanian case which disputed that any obligation existed. Reid sided squarely with Kent on this question, writing that he entirely approved of the chancellor’s decision, which was “founded

Miller_5200_083.indd 92

12/08/2016 1:55:29 PM

International Law and Supranational Justice in Northern North America

93

on a fair interpretation of the law, and well suited to the national intercourse and good understanding between the two countries.”40 As he wrote, this kind of international cooperation against crime was “the more requisite among neighbouring states.”41 In other words, Reid’s view of the law of nations was informed not simply by legal theory and published precedent, but by an instrumentalist view of the relationship between law and security along the northern North American border. Reid’s views about international society and international legal order echoed the meagre colonial writing on international law from this period. Although there were no colonial treatises devoted entirely to international law, some writers did describe it in similar terms to Reid and Kent. Beamish Murdoch’s 1832 Epitome of the Laws of Nova Scotia described international and municipal law as the two branches of the laws of mankind (as distinguished from the natural law ordained by God).42 Murdoch wrote that the law of nations was composed of the customs and treaties of “civilized states,” though he dealt only briefly with it beyond the issue of admiralty law.43 Meanwhile, in his 1841 Fundamental Principles of the Laws of Canada, the Montreal notary Nicolas-Benjamin Doucet called international law “as invariable as the laws of nature.”44 Like Reid, he wrote that the same moral rules which bound individuals together in families and families together in nations “also link together these commonwealths as members of the great society of mankind,” and noted the work of Grotius in laying out the system within which this society existed.45 Though nations acknowledged no common superior, he argued that they were nonetheless bound to practise towards one another “honesty and humanity,” though he offered little by way of substantive interpretation of the rights and responsibilities of the international system.46 But while colonial authors did not do much writing about international law, it would be wrong to assume that such influences did not affect jurists in British North America. While we know far too little about colonial legal thought, scholars have demonstrated a wide awareness of American and continental European ideas in nineteenth-century Canada, and clearly ideas of supranational law and justice found a receptive audience in the colonies as well, especially among border zone lawyers faced with the everyday threat of the boundary.47 Statecraft and Supranational Justice in Northern North America These ideas about international law and supranational justice were echoed to different degrees throughout northern North American statecraft on both sides of the border. In the four decades before the Anglo-

Miller_5200_083.indd 93

12/08/2016 1:55:29 PM

94  Borderline Crime

American treaty of 1842, policymakers in the British North American colonies and the northern American states routinely drew on the same repertoire of concepts to request and surrender fugitive criminals. But while many policymakers did believe in an international law obligation to extradite, it is clear that what was going on in these cases was something less than the application of clear and binding law. While Kent and Reid had in some ways both obliged and empowered their jurisdictions to demand and surrender, and while it is clear that many other officials did believe in stretching the rule of law over the colonialAmerican border, the practice of doing so was even more amorphous and dependent on the application of subjective concepts of justice than its juridical formulation by judges and legal philosophers. In the British North American colonies the legal notions underlying extradition were clearest in Lower Canada. Among the British North American colonies, Lower Canada was the only one where the power and rationale of surrendering was clearly supported by a reported judicial decision. Reid’s decision in Fisher, however, both reflected and shaped colonial practice of demanding and surrendering fugitives. Six years before the decision, for example, the governor general surrendered a well-known forger named Jacob Smith to New York after Governor DeWitt Clinton requested him. According to the Montreal Courant, that decision reflected an ongoing and reciprocal cooperation against crime. “The principle, we are happy to perceive,” the editors wrote, “seems to be recognised by this government of delivering up renegade criminals from the United States; and we hope it will be readily and gladly reciprocated by the authorities of the States.”48 The Montreal Herald, meanwhile, noted that “for the future, all refugee vagabonds from the United States are to be delivered up in the same manner – they therefore will do well to keep clear of us.”49 But in subsequent years, after Fisher, the colonial government explained its belief that the executive had the authority to surrender fugitives by citing Reid’s decision. In 1842, when the imperial government reviewed an American request for two fugitives said to be in the province, officials in Westminster questioned whether the governor could legally give them up. Specifically, they wanted to know whether there was positive law or established custom empowering him to do so.50 Lower Canada attorney general C.R. Ogden advised that governors had surrendered fugitives as acts of “high executive authority,” and in the end Sir Charles Bagot decided that he did have the power under Canadian law “as interpreted by the chief court of the province.”51

Miller_5200_083.indd 94

12/08/2016 1:55:29 PM

International Law and Supranational Justice in Northern North America

95

In Lower Canada, the ideas of international law and supranational justice that formed the core of Reid’s decision were echoed throughout the official discourse of extradition. In 1839 Sir John Colborne claimed fugitives from Vermont, writing that he did so “in accordance with the rules of international Law.”52 Interestingly, it was not simply the governor who deployed this view of the law, but also the British ambassador, who attempted to convince Washington to make the surrenders despite the fact that Britain did not itself acknowledge the obligation to extradite. In 1839, British minister H.S. Fox told the US secretary of state that the United States should “perform the required act of international justice … in compliance with the acknowledged obligations of publick law and usage between conterminous countries.”53 Fox’s comment about “conterminous countries” speaks to an idea, echoed by Colborne and Reid, that a variation of international law could or should exist when two countries shared a border. As Colborne put it in writing to Governor Silas Jenison of Vermont, Canada and the northern states were governed not simply by the general principles of international law, which, he wrote, “bind all civilized nations in a state of peace, but by the more enlarged and extensive principles, which necessarily govern the conduct inter se of coterminous States, where the escape of criminals from justice into either dominion encourages border crimes and enormities, by the hope of impunity.”54 Whether drawn from Fisher or not, this view clearly echoes Reid’s argument that extradition was a necessity between bordering states. Yet despite the pervasive notion that a regional dialect of international law might exist along the border, colonial officials also drew heavily on ideas about universality and civilization. Simply put, in this view some offences made the criminal a universal outlaw, and this language was used to reinforce the inherent and supranational justice of extradition. In 1829, when the executive council explained its belief in the obligation and power to extradite, it declared that not simply did the offences have to be criminal in both Canada and the requesting American state, but that the acts “must be such as are mala in se, and are universally admitted to be Crimes in every Nation.”55 North American law, then, was being indexed to a universal, civilized standard. This idea also emerged again and again in individual cases, as Lord Sydenham showed in 1841 when he agreed to surrender an accused forger to New York. Sydenham wrote that the crime in this case was “an offence against those general laws which prevail in every civilized community.”56 Likewise, Lower Canada deployed the idea of a univer-

Miller_5200_083.indd 95

12/08/2016 1:55:29 PM

96  Borderline Crime

sal offence in asking American jurisdictions to surrender criminals. In 1839, Colborne asked the governor of Vermont for the extradition of an accused murderer, writing that the offence was “regarded with abhorrence in all communities.”57 Lower Canada was not alone in using these ideas. The obligation of combating offences that were universally treated as heinous was a key part of the Portuguese case in Dos Santos, where the consul’s lawyer argued for what he said was the most limited version of the obligation to extradite – that which compelled simply “the most flagrant offenders … those guilty of the ‘mala in se,’ the crimes capitally punished by all civilized states.”58 In that case, the defendant was an accused pirate, and piracy was for centuries the essence of international crime, subject to the earliest version of universal jurisdiction. As John Quincy Adams put it in 1818, piracy was an offence according to “every civilized government.”59 Likewise, when a US consul asked the Prussian government to surrender pirates that same year, he described them as “men who have committed injuries towards human society.”60 But the idea of universal offences went beyond piracy in this period. In 1817, the French ambassador to the United States asked the federal government to extradite an accused murderer outside of any treaty, and he cast the issue as supranational in nature: “The punishment is an act of common justice, [in] which all States, all Families, all Legislations, are interested. The Surrender in these extraordinary cases is a measure in which all jurisdictions seem to be bound to concur.”61 This rhetoric of civilization was not accidental or empty. As Gerrit Gong has shown, the “standard of civilization” was a powerful selfimposed code of behaviour among European countries.62 The standard pledged states to observe basic domestic rights, such as life and property and freedom of commerce and religion. Civilized states also wielded state power and had organized bureaucracies and the capacity for efficient administration and self-defence. Civilization also imposed international obligations to partake in diplomatic exchange, to ensure domestic justice not simply for citizens but also for foreigners, and to adhere to norms of international law.63 Indeed, legal order and civilization were inextricably intertwined concepts. Kent, for example, wrote that after the American Revolution the United States “became subject to that system of rules which reason, morality, and custom had established among the civilized nations of Europe, as their public law.”64 Likewise, the American jurist and diplomat Henry Wheaton’s 1836 treatise – arguably the most important nineteenth-century American

Miller_5200_083.indd 96

12/08/2016 1:55:29 PM

International Law and Supranational Justice in Northern North America

97

work on international law – defined international law “as understood among civilized, Christian nations,” though as Gong has shown, the concept became more secular and more inclusive of non-European countries throughout the nineteenth century.65 In this context, appeals to surrender fugitives on the grounds of a common civilization drew on deeply rooted discourses of international legal order. Ideas about reciprocity also served to reinforce the notion that extradition was a duty of civilized states. Colonial and imperial governments frequently linked the idea of a duty arising from international law generally and the particular regional legal relationship between the colony and the northern states to a duty arising from custom, which they implied had become part of that regional legal dialect. As H.S. Fox noted in one case, his request for a surrender was made pursuant to international law and custom, and “in reciprocation of similar acts of national justice and good faith.”66 (Fox also included the correspondence from a recent case in which the colony had surrendered an American fugitive, to make that point very clear.) In another case, Colborne asked Jenison to surrender a fugitive, calling it “an act which the reciprocity in such conjunctures long subsisting between this province and the State of Vermont would seem to demand.”67 To buttress his claim for Lower Canada having aided Vermont, he told the governor in another letter that he need only cite the case of Joseph Fisher.68 Indeed, colonial officials frequently leveraged their own actions in previous cases to cast extradition as reciprocally binding custom – so long as states asked for their own fugitives back, they were bound to surrender colonial fugitives. This made reciprocity both a diplomatic tactic and a kind of quasi-legal notion, linked to but also slightly distinct from the idea of a universalized or even regional international law responsibility. Of the British North American colonies, Lower Canada most clearly articulated these ideas about international law and supranational justice. In the other colonies, these concepts were much more murkily defined, but still seemed to have been powerful elements in the practice of extradition. In Upper Canada there was no precedent in the courts until 1832, when doubt about executive power to extradite prompted a test case to explore the law before Justice James Buchanan Macaulay of the Court of King’s Bench in which the attorney general acted as counsel for two men facing extradition to Michigan, while the solicitor general acted for the Crown.69 The intention of the hearing was to clarify the limits of the governor’s power, but Macaulay’s ruling lacked the kind of force of Reid’s in Fisher, Kent’s in Washburn, or Barbour’s in Dos San-

Miller_5200_083.indd 97

12/08/2016 1:55:29 PM

98  Borderline Crime

tos. That is, it did little to empower or restrict either the judiciary or the executive from detaining or surrendering fugitives. Unlike these other judges, Macaulay did not come to clear conclusions about either international or domestic law. He wrote that he did not “deem it susceptible of receiving a fixed rule” and wrote that each case must be considered on its own merits.70 Certainly he did think that there were cases in which foreigners might be surrendered by some kind of law or policy, as happened in Lower Canada – he listed common law, international law, and comity as potential sources. But he also noted many contingent factors to be weighed in doing so: the amount of evidence submitted, the promptness of the foreign request, the seriousness of the crime, and any political motivations behind the offence.71 Macaulay was also not sure that all crimes were extraditable – he thought murder likely was, but was not so certain about less serious offences like theft. Nor was he certain about how much time the foreign government would have to formally request the surrender before the prisoner could apply for habeas corpus, or even what degree of evidence the government should present to the court.72 In general, the decision left more questions than answers, so it is not surprising that despite his comment that the governor might sometimes extradite, the colonial legislature passed a statute in 1833 called the Fugitive Offenders Act to clarify that power, to define its procedure, and to set a standard for the evidence required to detain and surrender.73 While this statute clarified executive power, there were some like the colonial attorney general Christopher Hagerman who believed that it merely declared what he called the “well established principle” of international law in favour of surrendering criminals.74 It appears that neither New Brunswick nor Nova Scotia had a court ruling or a statute to clarify executive and judicial power, but both surrendered at least some fugitives. In 1826, Chief Justice John G. Marshall of the Inferior Court of Common Pleas in Sydney, Cape Breton, ordered the arrest and detention of several crew members of the American schooner Fairy for murder committed on the high seas.75 Marshall examined witnesses, compiled evidence, and sent the prisoners to Halifax, where Lieutenant Governor Sir James Kempt soon despatched them for trial in Massachusetts.76 Similarly, in 1839 New Brunswick lieutenant governor Sir John Harvey ordered that Richard Batchelder, who was indicted for a larceny worth a little over $100, be sent back to Maine for trial.77 In some ways, what is especially interesting about the Nova Scotia and New Brunswick cases is how simple the issues seemed and how

Miller_5200_083.indd 98

12/08/2016 1:55:29 PM

International Law and Supranational Justice in Northern North America

99

little invocation of legal doctrines or instruments there is in the surviving documents. In his report to the provincial secretary in the Fairy case, for example, Chief Justice Marshall simply noted that the murders were committed out of the jurisdiction of the colonial courts and by US citizens. Under such circumstances, he committed the perpetrators to jail for transportation to the jurisdiction where they could be tried.78 After that, Sir James Kempt told the British minister in Washington that since the men were Americans, he was ordering their conveyance to Boston.79 Neither official was preoccupied with the authority by which they detained the sailors. Thomas Chandler Haliburton, himself a lawyer and soon a judge, noted the case in his Historical and Statistical Account of Nova Scotia, writing simply that Kempt’s decision was “nothing more than an act of courtesy to a friendly Foreign power.”80 Similarly, Sir John Harvey’s surviving 1839 warrant of extradition observed that Batchelder was an American, and it was thus “fit and expedient” that he be “made amenable” to the state whose laws he had broken.81 Likewise, in September 1838, when a Maine justice of the peace wrote to Harvey asking for the surrender of Thomas Russell on theft charges, he cited no authority at all, and simply asked that the defendant be delivered to be dealt with by Maine law.82 In the United States, northern state governments varied in the kinds of approaches they took to extradition. Michigan authorities were often willing to extradite even without statutory power, and at least once in the late 1830s the governor of Vermont agreed to do the same, though the practice in that state appears to have been conflicted.83 Not surprisingly, given James Kent’s leading role in sparking the extradition debate, New York led the way in developing formal tools to practise extradition. In 1822 Governor DeWitt Clinton called for a state extradition law in his annual address to the assembly. The announcement came just three years after Kent’s decision in Washburn, which enabled, and indeed almost mandated, the authorities to deliver fugitives, illustrating how contentious that decision was and how many doubts it probably left in the minds of jurists. Clinton declared that a statutory enactment would have “a salutary tendency in preventing and punishing crimes and in expelling from our territories malefactors who resort to it from other countries, in expectation of impunity.”84 Part of the motivation for the bill was the idea of reciprocal obligation – he specifically urged the legislature to enable him to reciprocate under clear authority the recent surrender of the forger Jacob Smith by Lower Canada. “As policy enjoins, so comity requires a reciprocation of the same friendly and liberal offices whenever it shall become necessary,”

Miller_5200_083.indd 99

12/08/2016 1:55:30 PM

100  Borderline Crime

he said – tellingly, as will be shown below, not using the term law and instead invoking comity, which implied discretion or courtesy.85 A few months later, such an act was passed, giving the governor power to surrender fugitives if their crime would have been punishable by death or imprisonment if committed in the state.86 Clearly, then, the British North American colonies and at least some of the northern states cobbled together a transnational regime of extradition without the guiding authorities of London or Washington. Yet the conceptual and instrumental roots of this regime varied, and sometimes changed over time. Jurists and officials who supported this system grounded it in ideas of supranational justice or international or natural law, trying to convert subjective legal values into binding law. This, however, left northern North American extradition amorphous, less a legal obligation than a regime-in-process and a decades-long attempt at law formation. Anti-Obligation: Statecraft and Legal Thought Dos Santos was not the first case in which a judge decided against the obligation to extradite. In fact, only four years after Kent’s decision in Washburn, Pennsylvania Supreme Court chief justice William Tilghman wrote a strident rebuke of the doctrine. His decision in Commonwealth v. Deacon became the central doctrinal counterpoint in the United States to Kent’s vision of a binding obligation. Although the decision did not destroy the doctrine entirely in northern North America – Chief Justice Reid in Montreal discussed both cases in 1827 and chose Kent’s view – from Deacon onwards, jurists and policymakers had a crystallized juridical argument for the necessity of treaties in creating and not simply in codifying the international law of extradition. In short, Deacon was a hallmark of the fragility of the obligation to extradite and marked the beginning of its marginalization in American jurisprudence. The divide between the two versions of the law also reflected a deepening divide between the British North American colonies and the United States, in which colonial officials continued to cling to the idea of a legal obligation that bridged the international boundary, while American officials increasingly talked about extradition in very different ways, highlighting the uncertainty of the regime. By the early 1840s this discursive difference helped end the fragile and fitful system of extra-treaty extradition in northern North America. In deciding against the obligation, Tilghman targeted every aspect of the arguments in favour of an obligation to extradite. As Barbour

Miller_5200_083.indd 100

12/08/2016 1:55:30 PM

International Law and Supranational Justice in Northern North America 101

would do in Dos Santos, he used American state papers to show that the United States had not acknowledged an international law obligation to extradite, and while he wrote that he greatly respected Kent’s opinion, the chancellor had laid out a principle of international law that the United States did not recognize and that he felt he could not now enforce.87 Yet, Tilghman’s decision was not a simple positivist conceptual dismissal of natural law, international society, or even of the legal writers who were so influential in Kent and Reid’s version of the law. Rather, Tilghman pointed to the internal limitations and conceptual challenges of the older view. He stressed the disagreement on the issue among international law writers, including giants of the natural law tradition – as he put it, “There are great names on both sides.”88 So Tilghman acknowledged the authority of legal theory and its authors in making international law, even as he explored divisions within international law thought that profoundly undermined the authority of what some jurists touted as binding rules. Likewise, Tilghman pointed to the threat that Grotius’s view of the obligation posed to American liberty and asylum. He noted that while Grotius had singled out crimes against the state as those which international society must be particularly careful to punish, modern, liberal states such as the United States provided refuge from tyrannical regimes and for those who challenged such tyrants.89 Similarly, he contended that there were no conclusive answers in the general, often vague and conceptual, international law thought for key questions surrounding the practical administration of extradition, such as which offences would be extraditable. In Tilghman’s view, the modern practice of protecting refugees and the discretion allowed to sovereigns on the details illustrated that no binding obligation to surrender existed.90 In short, it was not just that Tilghman claimed a right for the United States to decide as part of its sovereign prerogative what international rules to acknowledge as binding international law, but also that he simply did not believe that this particular rule was real. Tilghman’s decision helped relegate Washburn to the peripheries of American jurisprudence. Just six years after Kent’s opinion, William Rawle’s book on the US constitution laid out the Tilghman idea of nonobligation, and noted Washburn, in a footnote, as simply “a contrary opinion.”91 Likewise, Supreme Court justice Joseph Story’s hugely important Commentaries on the Conflict of Laws, first published in 1834, built on the Tilghman approach but took the idea of non-obligation even further, emphasizing an international system premised on sovereign con-

Miller_5200_083.indd 101

12/08/2016 1:55:30 PM

102  Borderline Crime

sent rather than international society. On criminal law, Story argued that crimes were strictly local, not universal, in nature. “No other nation has any right to punish them; or is under any obligation to take notice of, or to enforce any judgment” from the home country, he wrote.92 He observed, almost in passing, that fugitives had been surrendered as a matter of comity and occasionally under treaty, a comment which seemed to dismiss entirely the view of extradition as an international duty.93 Finally, in 1836, in what became arguably the most important American work on international law in the nineteenth century, Henry Wheaton came down squarely against the obligation to extradite. But as with Story, more telling than his position is the manner in which Wheaton made the declaration: in less than one hundred words, with no reference to Kent or Grotius or any of the cases.94 In other words, for key figures in US legal thought, the obligation to extradite was by the 1830s an arcane and irrelevant notion. A key part of the doctrinal rejection of the obligation to extradite was, as Tilghman and Barbour showed, a deference to what the American government had acknowledged as international law, and what it had not. As Tilghman noted, the federal government resisted extradition in the absence of a treaty. While various eighteenth-century statesmen including Thomas Jefferson had spoken out against the duty of surrendering criminals, the most influential legal analysis of the question probably came from William Wirt, attorney general from 1817 to 1829. Wirt dealt with the question at least twice when the British government requested criminals, and both times he argued strongly against the Grotian idea that states had to surrender them. “We know that the law of nations, as it has been presented by Grotius, and the writers who have succeeded him,” he told President James Monroe in 1821, “beautiful as it is in theory, has … been found too perfect to be introduced into practice.”95 Instead, Wirt was keen to highlight what he called the “common practice of nations.”96 This practice, he argued, established that among modern states extradition was a conventional and not a natural duty – that is, one grounded in treaty obligations and not natural law.97 Here he singled out the European countries, contending that when they did not wish to surrender a fugitive they simply disavowed the crime, and so avoided becoming complicit in the way that Grotius and his successors had described.98 Certainly Wirt knew that extradition frequently happened in Europe, but he drew a distinction between a practice grounded in national courtesy and one grounded in law. As he put it, “If the obligation were a perfect one, and enjoined by the im-

Miller_5200_083.indd 102

12/08/2016 1:55:30 PM

International Law and Supranational Justice in Northern North America 103

mutable and universal law of nations, there would be no option in the case; the thing would happen not more frequently but always.”99 Wirt had two more foundational points. The first was grounded in American sovereignty. As Tilghman would several years later, he argued that America’s sovereign rights and the principles of international law gave the United States a perfect right to afford asylum to anyone it chose. This basic prerogative of sovereignty was incompatible with the kind of obligations to enforce foreign laws envisioned by Grotius, he argued.100 The second objection was even more fundamental: whatever international law might decree, the United States had no constitutional power to arrest a person in US territory except to try them before US courts. “We cannot arrest where we cannot ourselves punish,” he advised Secretary of State John Quincy Adams.101 If they did, he argued, the prisoner would certainly be granted habeas corpus.102 But while Wirt set out these limits on executive power in the absence of positive law, he did not endorse them as policy and he acutely understood how they would weaken American responses to the challenge of the border. As a result, he seems to have believed that even if the obligation to extradite was not a matter of binding law, there were duties of supranational justice in favour of surrendering fugitives. Given these duties, he said, the present state of federal power was “crippled and imperfect.”103 Wirt’s view of the deficiencies of US power shaped federal policy for decades. Long after his term as attorney general ended, successive administrations told foreign governments that they had no authority to return criminals.104 While imperial diplomats touted the Lower Canadian governments’ belief in an obligation in presenting their extradition requests to Washington, the British government long denied as a matter of its own policy that any obligation existed. British legal advisers consistently informed the government that it had no right to demand fugitives as a matter of right under international law, and no power to comply when foreign governments made such requests on them.105 Without a treaty and an enabling act of Parliament, they advised, the executive had no power to arrest and detain people for crimes in foreign countries. In fact, the British adhered to this view even in cases when it actively worked against their own policy interests. Imperial opinions in these cases were produced in moments where powerful international or colonial pressure was exerted in favour of simply handing a fugitive over for trial or asking another government to send one back. For example, when Spain requested the surrender of Cuban convicts who had been shipwrecked

Miller_5200_083.indd 103

12/08/2016 1:55:30 PM

104  Borderline Crime

in the Bahamas en route to jail in Cadiz, the attorney general and solicitor general told the government that the local colonial authorities could not act. So long as the former prisoners complied with local law, they were “entitled to be dealt with as free agents.”106 Likewise, when Upper Canada wanted to demand the extradition of the Rebel leader Benjamin Lett for murder in 1839, during a period of intense anxiety about continuing Rebel threats to the colony, and pleaded with Westminster to intercede with the Americans, the Queen’s advocate declared that “this Country has not by the Law of Nations, or otherwise, a right to insist upon the Delivery up of Mr. Lett” – though the diplomatic branch of the government did sometimes use that legal argument anyway.107 In practice, then, the much-vaunted duty of extradition failed on both international and domestic grounds in the Anglo-American world. For key officials, the obligation was absent and the power was lacking. Beyond the denials of London and Washington, one of the most powerful objections to an obligation to extradite was, as Tilghman noted, that not even all international law writers agreed that it existed. That is, as Deacon laid out, even accepting the authority of treatise writers in shaping the international rule of law, there were “great names on both sides.” This division served a key purpose in denying the idea that any obligation could be found in universal, natural law. This position was taken up powerfully by modernizing positivists in the eighteenth and early nineteenth centuries. The German writer G.F. Martens, who published a sweeping summary of the law of nations in 1789 that was drawn almost entirely from positive law sources, denied that any binding obligation existed.108 But this notion was also far older than modern positivism. The seventeenth-century English writer and judge Sir Edward Coke cast the issue in terms of asylum, writing in his Institutes of the Laws of England that “it is holden, and so it hath been resolved, that divided Kingdoms under several Kings in League one with another are sanctuaries for servants or subjects flying for safety to another, and upon demand made by them, are not to be delivered.”109 But perhaps most damningly for proponents of an obligation, there were divisions even between giants of the natural law tradition. As Tilghman and Barbour both noted, the seventeenth-century German writer Samuel von Pufendorf explicitly denied the notion, taken up by writers like Ward, that non-extradition tainted a sovereign with national criminality. Surrendering fugitives, Pufendorf wrote, must be done under a treaty between sovereigns rather than pursuant to what he described as “any common Obligation.”110 These divisions, especially those between

Miller_5200_083.indd 104

12/08/2016 1:55:30 PM

International Law and Supranational Justice in Northern North America 105

proponents of natural law, gave jurists and officials like Tilghman and Barbour broader interpretive scope to focus on what the United States had accepted and not accepted as international law. These divisions were echoed by the 1830s in the increasingly stark cross-border difference over the role of international law in extradition between the British colonies and the United States. Colonial officials continued to rely on the rhetoric of a universal and binding international law, while Americans carefully avoided any such language which might obligate their governments. What emerged was a contest of discourses between legal obligation and acts of comity or courtesy in which both sides struggled to impose their understandings on the broader relationship. Certainly, the federal government long disbelieved in an obligation to extradite, but Washington also consciously avoided surrendering fugitives as a matter of courtesy, in part because it might, as Attorney General William Wirt worried, “incautiously create a precedent which may embarrass us on future occasions.”111 As a result, American requests for extradition came couched in language that strategically avoided or outright denied the obligation. Secretary of State Martin Van Buren did this in 1829 when requesting an escaped slave and the man who had shepherded her into Canada. Van Buren wrote that he was aware that there was no legal principle upon which a formal demand could be based, and he instead appealed to a shared “liberality” and a common interest in maintaining order in both countries.112 This was a careful diplomatic strategy of the federal government, as Secretary of State Henry Clay outlined in instructing a US diplomat in London in 1827 to request the surrender of a fugitive bank teller from Virginia who had fled to England. “The application which you are instructed to make to the British Government is not founded [upon] strict rights, that Government being under no obligation by any existing treaty or by the public law to surrender the fugitive,” Clay wrote. Instead, the diplomat was to appeal “solely to the courtesy and discretion of that Government.”113 Increasingly, though, state governments were cautious about law in the same way as Washington. The contrast between the colonial invocation of international law and American reticence was especially apparent in a series of 1839 cases between Lower Canada and Vermont. In January, Sir John Colborne asked for the surrender of James Grogan, accused of politically motivated arsons in the Eastern Townships after the Rebellions. According to Colborne, his request for extradition was “justified by the general rules of public law, which bind all civilized na-

Miller_5200_083.indd 105

12/08/2016 1:55:30 PM

106  Borderline Crime

tions in a state of peace,” and he noted also the comity exercised by his government towards Vermont.114 Governor Silas Jenison replied that he was uncertain of his constitutional power in this regard, but said that if it were found that he did not have the authority to reciprocate what he called Lower Canada’s comity he would try to get such authority, presumably from the state legislature or through federal permission.115 A month later, Colborne wrote again, requesting the return of George Holmes, charged with murder in Kamouraska, and again relying upon “the rules of international law,” though he again added also “in pursuance of the comity” that existed between Lower Canada and the northern states.116 In the latter case, while Jenison decided to surrender Holmes, he specifically rejected the notion that he did so under an obligation. He told Colborne that he came to this conclusion “more by the consideration of the amity which has heretofore subsisted … than from any obligation imposed by express enactments.”117 In fact, just a day later, Jenison asked Colborne for the extradition of an accused forger, specifying that he did so only “in accordance with the amity which has heretofore been so liberally extended to the authorities of this State.”118 In Canada, then, the issue was one of law; in Vermont, at least, it was something less binding. But how much less than law was the comity so often noted in these letters? Generally, comity in the international context is the recognition that courts in one country give to the court rulings of another, and how nations defer to one another’s laws out of voluntary willingness to cooperate rather than out of a legal obligation. But in this period, on the subject of extradition, comity and law sometimes blurred together, illustrating the fundamental uncertainty that surrounded concepts crucial to northern North American extradition. The Lower Canadian government often used them together, citing the “rules of international law” and bolstering their plea with a reliance on reciprocity and comity. Likewise, Justice Macaulay in the 1832 Upper Canada test case mingled common law, international law, and the comity of nations when saying that in certain cases a foreign fugitive might be given up by the government.119 Chief Justice Reid used the term in the same way in Fisher.120 But how far countries were obliged to enforce each other’s law was contested. The Portuguese government actually equated comity and law in Dos Santos, arguing that the doctrine of comity recognized the right of one country to demand a fugitive’s surrender and the obligation of the other to comply.121 More generally, the author of the first significant American legal publication on the conflict of laws argued

Miller_5200_083.indd 106

12/08/2016 1:55:30 PM

International Law and Supranational Justice in Northern North America 107

that judges should apply foreign law out of “something like an obligation upon sovereigns,” based on international law.122 As Joel Paul has shown, while opinions diverged on this point in the early part of the century, the legal mainstream shifted decisively on this question with the work of Joseph Story in the 1830s, which was steadfastly against the idea of one country being obliged to honour the laws of another. What remained was courtesy, which a government or court could voluntarily exercise so long as it did not conflict with their own domestic law or public policy.123 If the notion of a universally recognized international law obligation to extradite had faltered, so too had the binding practice of reciprocity, which existed as a quasi-legal and pointedly diplomatic supplement to the idea of a legal obligation. As Wirt noted, if the obligation were real its effect would be continuous, but US disbelief in an obligation was not the only limit imposed on extradition in this period. In fact, in Britain and the British North American colonies British subjects were immune from surrender to foreign countries under the 1679 Habeas Corpus Act.124 This prohibition had a stark impact on real statecraft in the colonies, blocking the surrender of prisoners in several important cases. In 1832 Justice Macaulay released the two defendants in the Upper Canada test case for that reason, while in 1833 the governor of Lower Canada refused to surrender British subjects to face murder charges in New York.125 Likewise, in Fisher, as well as in the Nova Scotia and New Brunswick cases, officials went out of their way to specify that the prisoners were not British subjects, and so were liable to surrender. This exception of British subjects undermined the idea of a binding and perfect obligation, and upset the notion of a reciprocal relationship. One Upper Canada magistrate in Sandwich, for example, noted the 1832 decision and complained that it would hamper extradition relations with the hitherto-cooperative governor of Michigan. “What shall I say on this liberation to His Excellency Governor Porter?” he asked. “And how can we now apply to him?”126 Certainly many Americans agreed that the exemption was fatal to the idea of a binding international law obligation to extradite. In the 1840 US Supreme Court case discussed below defence counsel argued that no international obligation could exist for the United States to surrender its citizens, because Canada could not surrender its own.127 On the other side, as constitutional questions in the United States increasingly barred the surrender of anyone, citizen or foreigner, reciprocity was further eroded. In 1840, for example, Secretary of State John

Miller_5200_083.indd 107

12/08/2016 1:55:31 PM

108  Borderline Crime

Forsyth told a New York district attorney that since Washington had no power to surrender prisoners it could not consequently demand fugitives from Canada.128 This too was noted across the border, and in 1841, when New York made a request on Lower Canada, the British minister in Washington observed that colonial authorities might not “find themselves at liberty” to comply, given recent American refusals to do the same.129 That this kind of discretion could be converted into a diplomatic tactic illustrated how far colonial-American extradition was from the clear rules envisioned by James Kent and James Reid.130 Their attempt to generate clear and binding law from legal values faltered badly in the 1830s, making the challenge of the border an even more daunting and daily reality in northern North America. The End of Uncertainty Even with key concepts disputed between governments and fundamental doubts about the scope of executive power lingering, it was the division of powers in the US constitution that ended the reciprocal practice of international law–based extradition in northern North America. At issue was whether states had the power to surrender criminals, or whether that authority rested with the federal government. Certainly, Washington had the treaty-making power and control over foreign relations, but in the absence of a treaty, a powerful question existed whether states could detain and surrender foreign fugitives pursuant to their police powers. From the time of Kent’s decision in Washburn there was doubt on this point. After all, while strongly endorsing the international law obligation, even Kent noted that the question was open as to whether it was Washington or the states that had the power to execute this responsibility.131 Likewise, in 1825 Governor Cornelius Van Ness of Vermont refused to surrender a fugitive to Canada, saying that he had no power to act without federal permission, and that the secretary of state refused to assist or endorse any action of his.132 There were doubts even in New York, where there was positive law in place after 1822 giving the governor power to extradite. The constitutionality of this statute was tested on habeas corpus in an 1831 case in the Recorder’s Court of New York City, and while Recorder Richard Riker ultimately decided not to overrule the governor’s extradition order, his analysis of the federalism question was meagre.133 Not surprisingly, the debate over the constitution did not go away. In the late 1830s, with a change in administration in New York State,

Miller_5200_083.indd 108

12/08/2016 1:55:31 PM

International Law and Supranational Justice in Northern North America 109

the legal view there shifted decisively. In 1839, when Upper Canada requested Benjamin Lett on murder charges, Governor William H. Seward decided that he could not act without federal permission.134 Washington, meanwhile, maintained both that the federal government had no power without positive law and that the subject involved foreign relations and so was a federal responsibility. But the acting secretary of state suggested that Seward act anyway by detaining Lett and so beginning a test case that would ultimately go to the Supreme Court for a decision on the division of powers question.135 Seward declined the offer. As his own secretary of state replied, the governor could not “perform what he deems an unconstitutional act for the sake of trying experiments or resolving doubts which he does not entertain.”136 However, almost at the same moment the governor of Vermont agreed to give up George Holmes, accused of murder in Kamouraska, Lower Canada. It is possible that Jenison agreed to let this be a test case for state power, though there is no sign of that in his letter to Colborne agreeing to extradite. Either way, in April 1839 Jenison committed Holmes to jail and in July Holmes’s motion for habeas corpus was argued before the state Supreme Court. It appears that the court’s decision was never reported, and a search of available newspapers turned up no record of its being published in the press. However, the arguments of Holmes’s lawyer were published, and these help to reveal the kinds of issues at play in the state court, particularly the continuity of arguments against extradition from Tilghman to Barbour and onwards to the 1840s. The defence lawyer in the case was Cornelius Van Ness, the former governor who refused extradition in 1825 on constitutional grounds. He made four arguments, beginning with his contention that there simply was no international law obligation to surrender fugitives. Indeed, Van Ness was actually hostile to the naturalist notion of international law in a way that previous commentators on the subject had not been. He argued that there was nothing in Vermont law to authorize surrender, and that since the prosecution’s arguments rested in large part on treatises of the law of nations: “The honest farmers and mechanics of Vermont are directed to Grotius, to Puffendorf and Vattel, to learn what measures of personal liberty they are entitled to, and how far they can sit in security in the midst of their families.”137 Having attacked the idea of an obligation, he went on to argue that even if there were one it was a federal responsibility, and that even if there were a concurrent responsibility between Washington and the states the governor could do nothing without an act of the legislature. Finally,

Miller_5200_083.indd 109

12/08/2016 1:55:31 PM

110  Borderline Crime

he contended that whether grounded in obligation or comity, extradition should be reciprocal, and since Canada could not give up British subjects, the United States could not deliver the American Holmes.138 Holmes lost in the state court, though it is unfortunately not clear why. His lawyers immediately launched an appeal to the US Supreme Court which was heard in January 1840. Van Ness’s arguments were largely the same as he made in Vermont – he again devoted much of his time to attacking the idea of an international law obligation.139 But the eight judges who heard the case, and the five who wrote opinions, paid little attention to that issue. Instead, the court focused on the federalism questions: had the governor of Vermont invaded the federal treaty-making power in deciding to surrender Holmes? And did the court have the power to overrule the Vermont courts on this issue? Four judges decided in the affirmative on both fronts, notably including Joseph Story, who concurred in the opinion of Chief Justice Roger Taney, but did not write himself. Taney argued that the rights and duties of nations in extradition were part of international law and thus that the treaty-making power had authority to decide how they were discharged. By agreeing to surrender Holmes, Jenison had invaded that power, whether a formal treaty was used or not.140 Moreover, since Vermont was acting not to protect itself but to assist another nation, the state’s police power was irrelevant, he decided.141 This last position, with its disentangling of domestic and foreign legal order, was a clear departure from the older ethos of supranational justice so long influential in northern North American extradition. Four other judges disagreed with Taney, which left the court deadlocked. These four contended that they had no jurisdiction to hear the case under the Judiciary Act and the constitution. Smith Thompson, for one, argued that since the United States had no treaty with Britain, Jenison’s action was at most repugnant to a dormant power, which he did not think brought it within the purview of the federal courts.142 Interestingly, Philip Pendleton Barbour, who as a federal district judge in Virginia in Dos Santos had released the prisoner, agreed. Vermont had not entered into a treaty, he wrote, and the federal courts had no role in deciding if Jenison had violated his state’s constitution.143 Likewise, Henry Baldwin agreed with the idea that the federal power was dormant, but argued strongly that the state had authority to surrender under its police powers. The federal government could compel surrenders through a treaty, he argued, but it could not prevent the expulsion of a fugitive by a state.144 In the end, though, the most contingently im-

Miller_5200_083.indd 110

12/08/2016 1:55:31 PM

International Law and Supranational Justice in Northern North America 111

portant of these opinions was that of John Catron, who declared that no unconstitutional agreement had existed between Canada and Vermont because no demand for Holmes’s surrender had been made, or so he believed.145 This supposition would prove crucial. In immediate terms the ruling did little to resolve the lingering uncertainty and legal amorphousness surrounding extradition. The first question was the fate of George Holmes, whose lawyers immediately returned to the Vermont court with another habeas corpus motion. However, this time Jenison submitted a letter noting that Sir John Colborne had in fact asked for Holmes’s extradition, contrary to what Justice Catron had assumed in Washington.146 This documentary evidence made the difference. While Chief Justice Charles Williams devoted most of his decision to examining the international law issues – disputing the idea of an obligation and taking a similar approach to that of Tilghman in Deacon and Barbour in Dos Santos – the more decisive question was that of the constitution. He argued that whether it was founded on law or comity the surrender of fugitives was a federal responsibility, and that if Jenison’s letter had been before the court in Washington Catron would have sided with Taney in finding the surrender to be an unconstitutional encroachment on federal power.147 While one judge dissented, arguing that the power of extradition was crucial to the border states, the court ultimately decided 3–1 against the governor. After a year in jail, Holmes was released.148 Holmes marked a partial turning point, though not a clear-cut one. Given the divided bench in Washington, the decision was less than definitive. New York Governor William Seward wrote of the decision that it had only “rendered doubtful the right of the state so that the power could no longer be safely exercised.”149 Moreover, in 1841, when Sydenham asked Seward for the surrender of John DeWitt on arson charges, the governor turned to the State Department, where Secretary Daniel Webster actually approved the extradition. In defiance of precedent, he declared that the federal government “would see with entire approbation the exercise of the power understood to be vested in your Exclly by the laws of N.Y.”150 Nonetheless, federal attorney general Hugh Legare subsequently rejected that advice, and wrote that from Holmes, “we may consider it as law” that the power of extradition was exclusively federal.151 Nor did the case and the faltering prospects of reciprocity immediately end colonial willingness to surrender. It appears that after the decision Upper and Lower Canada extradited several people to the

Miller_5200_083.indd 111

12/08/2016 1:55:31 PM

112  Borderline Crime

United States.152 Most importantly, the colony decided to give up the escaped Arkansas slave Nelson Hackett, a decision which emerged from a years-long debate over granting asylum to fugitive slaves.153 The Hackett surrender, coupled with other cases around the empire regarding slaves, persuaded the imperial government to rein in colonial authority over extradition. Indeed, the Colonial Office despatched instructions to governors not to surrender fugitives to foreign governments without first referring the cases to London for review.154 The combined result of Holmes and the renewed imperial scrutiny of colonial extradition helped bring the former legal regime, in which some of the northern states and the British colonies exchanged fugitives, guided by ideas of international law, supranational justice, international society, and executive power, to an end. The DeWitt case was probably the final one in which state or federal authorities allowed extradition. Meanwhile, imperial authorities took it upon themselves to investigate not simply each case as it arose, but the nature of colonial power over extradition. As noted above, they were persuaded by Bagot and the Lower Canada law officers that Canadian governors were exercising lawful executive authority (there was no comment on Nova Scotian or New Brunswick actions). Still, the situation was deeply imperfect and rested on conflicting visions of international law. The British diplomat Lord Ashburton, for one, bemoaned “the anomalous state of international law on this subject,” arguing that it had led to criminals of the worst description escaping punishment, likely an allusion to accused murderer George Holmes.155 Ashburton noted that between Canada and the northern states in recent years, criminals had been sometimes surrendered and sometimes refused. The reciprocity necessary to keep the system going was tenuous at best, and the lawfulness of the authority to make these surrenders was doubted. As he observed, in the United States fugitives were surrendered “under no authority but the arbitrary will of the respective Governors.”156 For the colonies, as for Ashburton, this was not a satisfactory situation while the daily menace of the border loomed. Conclusion This legal amorphousness and uncertainty soon came to an end. Diplomats in Britain and the United States had already begun to explore the possibility of a new Anglo-American treaty to address festering issues like the north-eastern boundary dispute, and in 1842 those efforts

Miller_5200_083.indd 112

12/08/2016 1:55:31 PM

International Law and Supranational Justice in Northern North America 113

started in earnest, as long noted by diplomatic historians.157 Britain sent Lord Ashburton to Washington to hammer out this agreement, and what emerged helped stabilize the profoundly tense Anglo-American relationship. It did not resolve every contentious issue between the two countries, but it did bring the end of the immediate “crisis” period so often noted by historians. The treaty also ended the extradition debate discussed in this chapter by including a clause which bound the two countries to surrender fugitives charged with piracy, murder, assault with intent to murder, robbery, arson, forgery, and utterance of a forged paper. While the article was long seen as a deeply flawed instrument of international extradition, it did set Anglo-American extradition on an entirely new and concrete position. Gone were the citations of Grotius and Vattel, and the discussions of international society and the natural law of nations. As a result, the treaty not simply marked a new stage in the Anglo-American relationship, but was part of the wider shift in the underlying notions of what made international law and international order: from naturalism to positivism, from a set of legal principles binding civilized states to which consent was not necessary to a system of rules agreed upon through treaty and custom. From 1842 onwards, supranational justice might be an animating spirit in administering the treaty, but it was no longer the legal bedrock of colonial-American extradition or the only available high law answer to the challenge of the border.

Miller_5200_083.indd 113

12/08/2016 1:55:31 PM

5 The Non-Law of Refugees in British North America

In late 1910, letters of protest flooded into Ottawa over the possible extradition of a Russian political activist named Savva Fedorenko.1 The Russian government was requesting Fedorenko’s surrender on murder charges, alleging that he had shot a village constable attempting to detain him during a period of martial law. Although Fedorenko fought his surrender through the Manitoba courts, claiming immunity from extradition as a political refugee, a protected class under Canadian extradition law, Chief Justice T.G. Mathers denied him that status. Mathers cursorily rejected the political offence argument and committed Fedorenko for return to Russia.2 His ruling set off a firestorm of mass meetings, angry letters, and indignant newspaper editorials denouncing the possibility that Canada might surrender a political dissident to czarist tyranny. In pressuring the federal government to refuse Russia’s request, protestors and editorial writers cast asylum as an inviolable and deeply embedded principle. Many linked it to a tradition of British political freedom which, they said, Canada had inherited. The Winnipeg Liberal Association told Prime Minister Sir Wilfrid Laurier that it was “an essential and leading feature of British Liberty and policy that no political offender who has sought protection beneath the British flag shall be surrendered to any foreign government.”3 Likewise, the Fort William Times Journal declared that “Canada is on trial so far as its consistency with British traditions of liberty and justice is concerned.”4 Others,

Miller_5200_114.indd 114

16/08/2016 3:59:56 PM

The Non-Law of Refugees in British North America  115

such as the Fedorenko Defence League, which met in Hamilton in early December, made even broader, ethnicity-based arguments about the purported Anglo-Saxon world. The league resolved that “it has always been a cardinal principle with the Governments of English-speaking countries to extend the fullest possible measure of protection and the Right of Asylum to the politically persecuted and oppressed of other countries.”5 Finally, many cast asylum in terms beyond simply political refuge and pointed to the role of the British North American colonies as havens for fugitive American slaves before 1865, making an argument that all oppressed people qualified for refugee protections against extradition. Canada, wrote the Toronto Star, “should range itself on the side of freedom,” as it had done for those slaves, “and refuse to hand over the prey to the pursuer.”6 As the Fedorenko outrage illustrates, asylum was clearly a meaningful concept in early-twentieth-century Canada. It was also one that existed in tension with the increasing norm of international extradition, since before the onset of modern immigration restrictions asylum was primarily about immunity from extradition.7 But in this context, in order for the conceptual significance of asylum to be implanted in law or policy, exceptions to extradition needed to be carved out – the transnational rule of law and the notion of supranational justice needed to be qualified, and a protected category of refugee needed to be reified in law, not simply wielded in protest rhetoric and public discourse. This chapter examines attempts to do this is in practice, focusing on three waves of controversy over the meaning of asylum in British North America. Looking at two separate periods of debate about fugitive slaves as well as at Civil War–era cases involving purported Confederate States of America combatants, it shows how those who claimed refugee status usually failed to make that status meaningful in law. In other words, although they invoked powerful notions of justice and freedom, they were usually unsuccessful in crystallizing a law of asylum. Instead, as with the issue of an international law obligation to extradite, asylum was a legally amorphous concept for decades in British North America. It was also one with deep roots in Western legal thought. Greek and Roman law famously recognized that individuals could escape slavery, persecution, or punishment for crime by reaching certain special places within the jurisdiction or by fleeing into a neighbouring state.8 In medieval and early modern Europe, likewise, doctrines of religious asylum and the right to leave a state developed.9 In the wake of the French

Miller_5200_114.indd 115

16/08/2016 3:59:56 PM

116  Borderline Crime

Revolution, ideas of asylum led to an array of innovations in law and state practice across western Europe which recognized the category of refugee, though these reforms did not always guarantee the claimants immunity from surrender or liberty in the country to which they had fled. Belgium, for example, offered those that it had decided to expel a “choice of border,” so as to avoid the possibility of sending refugees back into the hands of their persecutors, while France spent huge sums of money sheltering and sustaining refugees there, while monitoring them closely as potential sources of political instability.10 Likewise, around western Europe countries increasingly implanted a legal mechanism now known as specialty in their extradition law, which meant that an extradited fugitive could only be tried on the offence for which they had been surrendered – a provision which was intended to prevent a government from claiming refugees for common crime and then persecuting them for political offences.11 Regardless of European innovation, as the protestors in the Fedorenko case suggested, Britain touted itself and its empire as a special haven for oppressed people, including refugees sought by tyrannical governments. Throughout the nineteenth century, British and colonial rhetoric surrounding asylum became bound up with beliefs about a uniquely perfect British liberty and British justice. Historians such as Bernard Porter have argued that Britain created rights for foreigners more by the absence of state control over them, reflected in part by a decades-long resistance to international extradition, than by positive law. In fact, throughout the nineteenth century Britain’s approach frequently irritated and often outraged its Continental neighbours, and Britain entrenched its belief in asylum in law beginning in the 1870s.12 But the history of asylum is clearly not a linear progression towards legally entrenched notions of sanctuary. In fact, many historians argue for a kind of late-Victorian decline of asylum. Faced especially with the threat of international anarchism and other movements which attacked liberal governments and imperial power, they argue that national governments cooperated more closely than ever against crime, especially political crime, generating what one European scholar calls “transnational security regimes” in which extradition, asylum, political policing, criminal law reform, and institution formation were all reshaped.13 In this context, it is argued, governments throughout the Western world began retreating from the rush to protect refugees by repealing or revising their refugee protections, and courts began narrowly construing the statutory and treaty provisions developed in the preceding

Miller_5200_114.indd 116

16/08/2016 3:59:56 PM

The Non-Law of Refugees in British North America  117

century that protected political offenders from extradition. This new fear about asylum would seem to explain Chief Justice Mathers’s rejection of Savva Fedorenko’s claim to political offender status – where, in just a few words, he asked rhetorically if the murder itself could have had a political object, decided it could not, and omitted to explore or explain any broader context of the crime.14 The debates over refugees in British North America push back against the arguments both for a mid-Victorian era of protection, in part through a lack of law in Britain and its empire, and a late-century erosion of asylum. Instead, British North America highlights the opposite of both propositions. In the mid-nineteenth century, asylumseekers and their allies actually tried to make law in the colonies, and failed. They lobbied for statutory provisions or executive guarantees and urged courts to interpret treaties or apply what they saw as binding international law in ways that would create explicit legal protections for refugees. Yet these attempts usually failed. While the colonies surrendered only a small number of those claiming refugee status, it is clear from their cases that enough law existed to threaten their asylum, that the absence of legal protections or even clear parameters for asylum status often exposed fugitive slaves and other asylum-seekers to extradition, and that the idea of a late-nineteenth-century shift understates profound mid-century hostility to refugee status and its legal entrenchment. For reasons that existed long before the international anarchist threat, British North American officials were deeply wary of reifying the concept of asylum in law, even though the notion of British territory as a haven for the oppressed was powerful and popular. The tension between these two coexisting realities created decades of legal amorphousness. British Freedom, American Slaves, and Refugee Status Contrary to the assertions of the Toronto Star in the midst of the Fedorenko case, the British North American colonies had not always ranged themselves on the side of freedom in dealing with fugitive American slaves. In the 1830s and early 1840s the asylum that the colonies offered to fugitive American slaves was tenuous, as former slaves faced the spectre of slave-owners using criminal extradition to reclaim them from colonial territory. As they faced this threat, they discovered that colonial governments were willing to sanction their return across the border, that there were no legal protections in place to prevent that

Miller_5200_114.indd 117

16/08/2016 3:59:56 PM

118  Borderline Crime

from happening, and that although they were widely known as refugees, that concept had no clear meaning in colonial law. Faced with this threat, blacks, especially in Upper Canada, tried to change colonial law, and pressured colonial and imperial courts and governments to create a protected refugee status that would immunize them from criminal extradition. In doing so, they drew on sweeping notions of justice and liberty, but they appealed not primarily to abstract ideas about human rights which were increasingly influential around the Atlantic world. Rather, they attempted to mobilize pervasive notions of British justice, British freedom, and imperial loyalty and service to demonstrate not simply that they should be protected in the colonies, but also that they actively deserved this asylum. This argument for a codified asylum failed, however, and the response of colonial and imperial officials revealed a profound wariness about creating a crystallized law of asylum in British North America, especially for escaped black American slaves. For most colonial and imperial officials, the pressures of maintaining a pre–Webster-Ashburton treaty extradition system that was dependent upon legal values and notions of supranational justice, coupled with a deep fear of escaping slaves causing continental chaos, dramatically overrode concern for the principles of asylum in British territory. As slave extradition cases in the 1830s and early 1840s reveal, the threat of criminal extradition was a live one to fugitive slaves in Upper Canada. During this period Upper Canada’s 1833 Fugitive Offenders Act empowered the governor to detain and surrender fugitive felons and of the four cases discussed here – Thornton and Lucie Blackburn in 1833, Jesse Happy and Solomon Moseby in 1837, and Nelson Hackett in 1842 – colonial authorities twice decided to exercise this power and to extradite former slaves for American crimes.15 These cases mostly involved crimes that slaves committed in escaping from the American south. The exception was the 1833 Blackburn case, where it was the Michigan government that requested extradition on the grounds that the Blackburns had committed crimes during a riot sparked by their attempted removal from Detroit by an official from Kentucky.16 In the other three cases, though, slave state authorities asked the colonial government to extradite for thefts committed by slaves in the course of escaping from slavery. The government decided the 1837 Happy and Moseby cases differently, though both involved the theft of a slaveowner’s horse. The government shielded Happy from extradition partly because he had left the horse in the United States before crossing the border and told the owner where to find it – thus he had demon-

Miller_5200_114.indd 118

16/08/2016 3:59:56 PM

The Non-Law of Refugees in British North America  119

strated no felonious intent to deprive the owner of his property.17 In the Moseby case, by contrast, the government felt that the prisoner had taken more than he needed and agreed to his surrender. Only a race riot near the Niagara jail, during which Moseby escaped, saved him from return to Kentucky.18 In 1842 Nelson Hackett was not so lucky. After the government concluded that he, too, had taken more than necessary, including a valuable watch, he was returned to Arkansas, where he was flogged instead of tried for the theft, and apparently sold to a new owner in Texas.19 In the midst of these cases black Upper Canadians and their allies mobilized to protest and to pressure the government to refuse extradition. The core of their arguments against individual extraditions and in favour of a codified asylum revolved around perceived traditions of British constitutionalism, British liberty, and British freedom. In the Jesse Happy case, for example, petitioners praised “the laws and constitution of the British Empire under which they had the happiness to live.”20 In another, nearly one hundred blacks declared that they had “received the protection of the British Government and been admitted to the Privileges of British Subjects.”21 Some historians have argued that such language typified the development of an African British North American identity in this period.22 In Nova Scotia in this period black refugees participated in public displays of loyalty, praising the freedom that blacks enjoyed in British territory, and carrying banners on parade days that read, for example, “Victoria and Freedom.”23 But it is also important to remember that this was largely the conventional language of nineteenth-century British North American political petitions and of politics more generally. Even those campaigning for sweeping democratic reforms in the post-Rebellion period used very similar tactics: British flags and other symbols, the rhetoric of British constitutionalism, and pledges of personal loyalty to the queen.24 The concept of Britishness, then, was both ubiquitous and malleable in Canada.25 This rhetorical commitment to Britishness and British citizenship also had key legal dimensions. A May 1839 memorial to Queen Victoria sent by a group of black Upper Canadians declared that slaves in the pre-Revolutionary United States had “never forfeited any rights which might belong to them or their parents, as natural born subjects of the British Monarch.”26 With American independence they had no power to dissent and so could not have chosen to remain loyal to Britain. Under such circumstances, the petition asked that upon reaching British territory, escaped slaves should be considered naturalized sub-

Miller_5200_114.indd 119

16/08/2016 3:59:56 PM

120  Borderline Crime

jects of the queen.27 In some ways, this plea is typical of the nineteenthcentury discourse on Britishness: the petitioners professed their loyalty and praised the liberty ensured by the British constitution. In fact, the proposal echoed a long-standing debate after the American Revolution about the effect of independence on the citizenship of those who chose to remain in the United States and their children.28 But there was also likely a more specific intent underlying this claim of citizenship, namely, that as British subjects they would likely be immune from extradition. The 1679 Habeas Corpus Act, an enduring bulwark of the rule of law in Britain and the empire, exempted British subjects from being sent to foreign countries for trial, a provision which was well known in the colonies.29 In other words, granting fugitive slaves immediate citizenship would immunize them from extradition, making citizenship the most immediate route to legal asylum. The opponents of surrendering slaves also used what they alleged were the differences between the British and American justice systems to propose more nuanced ways of securing asylum. In the Happy and Moseby cases, for example, petitioners alleged that the American affidavits contained falsehoods and that the charges were drummed up merely to get the men back into slavery. British law, in other words, was being used a pretence for injustice.30 “The moment he lands on the other side of the Niagara River,” the Moseby petitioners declared, “the charge of horse stealing would be withdrawn and him dragg [sic] off once more into irremediable Slavery.”31 Likewise, in the memorial to the queen the petitioners argued that American law afforded slaves little substantive justice – that they were allowed jury trials on only a handful of offences, while for most others they were subject to the arbitrary will of their masters.32 These declarations certainly appealed to the pride taken in British criminal procedure, and in jury trials in particular, as a key facet of British freedom.33 But in building their arguments about procedure, the petitioners also borrowed ideas from American and possibly European sources, as well as from British law. In particular, they asked in the Happy case for a “more full examination of the evidence,” though it is not clear what they expected such an inquiry to yield.34 If the American depositions contained fallacious evidence against Happy, as his supporters suggested, it would be very difficult for a Canadian magistrate to pick apart the falsehoods. However, it would ensure that at least some evidence of criminality was submitted both in Happy’s case and in future ones. Although there was no specific reference to American law, the

Miller_5200_114.indd 120

16/08/2016 3:59:56 PM

The Non-Law of Refugees in British North America  121

proposal is thus generally reminiscent of the “personal liberty laws” in the American free states, through which these states attempted to make recovering a slave very difficult by imposing procedural blocks that entailed presenting evidence to a court in order to take possession of an escaped slave.35 The personal liberty laws were echoed more strongly in the 1839 memorial to the queen, in which the petitioners asked that blacks be given a trial before a jury of British subjects for any crime charged while they were slaves or for which their extradition was sought.36 It is not certain whether this was a plea for an application of extraterritorial British criminal law – a full trial and possible imprisonment in Canada for American crimes – or whether they were offering a proposal similar to that of the northern states, in which jury trials were sometimes imposed as a preliminary to surrender. However, this proposal came in the same memorial in which, as noted above, the petitioners asked that escaped slaves be treated as naturalized British subjects, which would likely exempt them from extradition. This coincidence of ideas suggests that what they proposed was indeed extraterritorial British justice. Certainly, the petition declared that they desired to be both protected by and amenable to British law, and as the British author and politician Sir George Cornewall Lewis observed in an 1859 essay, extraterritorial criminal laws were relatively common across Europe in the nineteenth century. He noted that France, the Netherlands, Belgium, Sardinia, and many of the German states allowed for the prosecution of their citizens at home for a wide range of crimes committed abroad.37 As a result, the jury trials proposal may have reflected a convergence of several traditions of legal thought under the guise of seeking the application of British justice. While the petitioners cast British justice as the epitome of fairness, they also argued that blacks actively deserved its protection because of their service to the empire. In this they used the context of the 1837–8 Canadian rebellions and their aftermath of insecurity to bolster their arguments and to give their professions of loyalty more weight. In this context, the memorial to the queen in May 1839, with its pronouncement of “devoted loyalty and attachment both to Her Majesty’s person and Government” had special resonance.38 A similar message emerged from a January 1838 meeting in which a group of blacks met in Toronto and issued a series of resolutions. The group condemned American slavery, lamented the recent attempted extradition of Solomon Moseby, praised British freedom, and professed their own loyalty. One

Miller_5200_114.indd 121

16/08/2016 3:59:57 PM

122  Borderline Crime

resolution was especially poignant given the climate of political turmoil: “That we express the universal feeling of our coloured brethren throughout this Province when we state our perfect contentment with our political condition.”39 Moreover, black Upper Canadians did more than simply praise the political status quo – many enlisted in the militia and fought during the rebellions. While we know far too little about the military service of blacks in the rebellions, one source suggests that nearly one thousand volunteered in the month after the insurrection began in Upper Canada and that five “Negro Companies” were authorized.40 In the late 1830s and early 1840s, blacks and their allies used this active loyalism in attempting to win more legal protection. This was clear from the actions of John Rolph, a white man sent by Upper Canadian blacks to London in 1839–40 to lobby for explicit protections against the extradition of fugitive slaves. In his correspondence with the Colonial Office, Rolph continually touted black allegiance to Britain. When the memorial to the queen went unacknowledged by the Colonial Office, he reminded them that blacks were a “loyal class of her Majesty’s subjects in Upper Canada.”41 And when, as discussed below, the imperial authorities provided an unsatisfactory, vague answer to his plea for explicit protections against extradition, Rolph returned to this theme and invoked the rebellions in particular. He praised what he called “the willing and eminent services rendered by this unfortunate body to her Majesty’s Government in Upper Canada, when the integrity of the Empire was menaced by internal commotion, and … repeated acts of foreign invasion.” This service in dire circumstances, he argued, “should cause any application to be viewed in their regard with more than common interest.”42 In many ways, the appeal of these arguments for an advanced and distinct British freedom on the issue of slavery had special resonance in the decades after the British abolition of the slave trade and especially in the years after the imperial emancipation act. In this period Britain’s anti-slavery policy quickly became a cornerstone of national pride at home and throughout the North American colonies.43 Indeed, although the abolition of slavery in the empire was still very recent at the time of the fugitive slave debates studied here, many officials treated freedom from slavery as a kind of ancient British right. During the 1843 debates in the British Parliament over implementing the Webster-Ashburton treaty, for example, MPs routinely paraphrased Lord Chief Justice Holt’s famous 1701 observation about British ter-

Miller_5200_114.indd 122

16/08/2016 3:59:57 PM

The Non-Law of Refugees in British North America  123

ritory liberating slaves. As MP Benjamin Hawes put it, this was “the principle to which England owed so much of her glory – the principle, that a slave, the moment he touched her soil, became a free man.”44 Indeed, the fugitive Arkansas slave Nelson Hackett echoed this idea in his petition to Lord Sydenham written from the Sandwich jail in September 1841. He told the governor general that “the humanity of the British law made him a free man as soon as he touched the shores of the country.”45 Likewise, during the Canadian assembly debates over Hackett’s surrender, Denis-Benjamin Viger accused the government of having trenched on Britain’s constitutional authority over foreign affairs and, worse, of having compromised the imperial commitment to liberty. “Had the case happened under a despotic government … it could have caused no surprise,” he told the assembly, “but that it occurred under a liberal government like England, is astonishing.”46 But the issue of refugee slaves was more politically, diplomatically, and conceptually complex than rhetoric about British freedom and justice. As it was debated, the issue of slave extradition exposed not simply these complexities but also the pervasive underlying anxieties about crystallizing refugee status in law for escaped slaves. Lieutenant Governor Sir Francis Bond Head, for example, noted in the Happy case that he was “by no means desirous that this Province should become an asylum for the guilty of any color.”47 In the Hackett case, Governor General Sir Charles Bagot similarly argued that refusing to extradite any slave under any circumstances would transform the province into “an asylum for the very worst characters, provided only they had been slaves before arriving here.”48 In their thinking, offering clear immunity from extradition was unreasonable, since there were crimes which slaves could commit in escaping that should render them amenable to American law, and to offer to exempt from punishment even those who had committed those offences was to all but reward criminality. This fear was also common in the British parliament, as evidenced by the treaty-implementation debates in 1843. There, former foreign secretary Lord Palmerston said he did not wish Britain to “afford impunity” to slaves who had “really committed offences” – presumably crimes unrelated to or unnecessary for their escape – while Attorney General Sir Frederick Pollock said that a “plain declaration” that slaves would not be surrendered even on legitimate criminal charges would be “unbecoming the character of the British nation.”49 Indeed, during the treaty negotiations special envoy Lord Ashburton even told the American secretary of state that while Britain would not return slaves who made

Miller_5200_114.indd 123

16/08/2016 3:59:57 PM

124  Borderline Crime

their way to British territory simply on the grounds of their having escaped, “you may be well assured that there is no wish on our part that they should reach our shores, or that British possessions should be used as decoys for the violators of the laws of a friendly neighbour.”50 With this fear of asylum in the background, both the colonial and imperial governments responded to pleas for explicit protections for slaves with guarantees of equal treatment. The premise of the British position was that British justice signified equality and individual fairness, meaning that exemptions and special refugee rights were entirely outside the logic of the system. In the 1830s, colonial courts in the Blackburn and Moseby cases refused to consider slave status and the possibility of re-enslavement as factors in their decision.51 Executive branch officials echoed this view. Sir Francis Bond Head told petitioners in the Moseby case that he could not refuse to surrender Moseby simply “on account of his Colour.”52 In reply to petitioners in that case who claimed that the prisoner was not culpable for his offences because he was not a “free agent” at the time, Head told them that in obtaining freedom, a slave “becomes also responsible for his conduct like other free Men. British law gives him as much freedom as belongs to British subjects but no more.”53 This adherence to racial equality permeated each reply to the specific proposals made on behalf of black Upper Canadians. As the colonial secretary told the lieutenant governor, British law guaranteed individual equality, and beyond that, the queen could not “grant to one class of Her Subjects privileges or immunities not enjoyed by others.”54 Indeed, as laid out by the Colonial Office, such equal treatment was supposed to be a virtue. In reply to the memorial to the queen, for example, the Colonial Office declared that Upper Canadian law made no distinction between whites and blacks and between fugitive slaves and others arriving in the colony, and so it would not be lawful to extradite a fugitive slave in circumstances where a white would not also be surrendered.55 This principle was thought “amply sufficient for the protection of the Petitioners.”56 Likewise, as Rolph continued his campaign in London, the Colonial Office merely told him that all such measures would be taken which were “proper and requisite for the protection of the persons to whom you refer.”57 In addition to this focus on legal racelessness, colonial officials were also considering how refusing to surrender slaves might impact the notions of supranational justice and international law that underlay northern North American extradition before the 1842 treaty. In explaining his decision to surrender Nelson Hackett, Sir Charles Bagot told

Miller_5200_114.indd 124

16/08/2016 3:59:57 PM

The Non-Law of Refugees in British North America  125

the Colonial Office that there was no doubt of Hackett’s guilt, that the goods he had taken had not been solely to facilitate his escape, and that to refuse surrender under such circumstances would have been to establish a precedent “repugnant to the common sense of justice of the civilized world” – echoing the conceptual underpinnings of the jurisprudence of Chancellor James Kent of New York and Chief Justice James Reid of Montreal.58 This concern was common, and in this period colonial officials paid keen attention to how their decisions might impact the increasingly fragile idea that extradition was a reciprocal obligation imposed not simply through broad international legal principles, but also through the historical relationship of the British colonies and the American states. In the Jesse Happy case, where, asked for his extra-judicial advice, Chief Justice John Beverley Robinson argued that the fugitive slave should be surrendered, he grounded his position in part on ensuring the survival of the broader extradition system and the idea of an international law duty. If Canada refused the surrender, he wrote, “the Government and the people of [the United States] could feel themselves absolved from all obligation to surrender fugitives from Upper Canada.”59 For Robinson, law enforcement was a transnational concern, and, as he put it, “if Laws of this nature are not carried into effect on both sides according to their spirit they will soon cease to be acted upon on either side.”60 In other words, surrendering slaves when they were charged with criminal offences was part of the duty of reciprocity imposed by a much broader and much more important system of supranational justice. Asylum endangered a key conceptual and practical tenet of that system. Robinson’s aim was in part to bring down or continue suppressing domestic barriers to the transnational rule of law. He was certainly informed by this imperative in assessing the petitions in the Happy case. While Robinson acknowledged that the Fugitive Offenders Act gave the governor discretion to refuse surrender, he argued that the foreign government still had a claim “to expect that such a discretion shall be reasonably exercised and the Law shall be carried into effect agreeably to its intention.”61 In his opinion, the arguments for protecting Happy were not reasonable or consonant with this spirit of borderless justice. He also had little time for the argument that Happy would be re-enslaved. While slavery “politically considered is a great evil,” he wrote, it was legal in many civilized countries, and Canada should not attempt to change that by protecting even criminal slaves.62 He also brushed aside the argument that the charges against Happy and the

Miller_5200_114.indd 125

16/08/2016 3:59:57 PM

126  Borderline Crime

evidence supplied to back them up might be fallacious, writing that to conclude without proof that such a fraud was being undertaken and to refuse to regard the American documents as honest would be “unwarrantable and unjust.”63 In this, he echoed the colonial court’s decision in the 1833 Blackburn case, when the judges (Robinson included) did not recommend extradition. There, the court dismissed the fear of re-enslavement or fallacious charges, writing that courtesy towards foreign governments required them “always to assume that it has no motive or design on these occasions which is not just and fair and in short none but such as is openly avowed.”64 This opinion was echoed by the British attorney general during the debates over implementing the Webster-Ashburton treaty in 1843. Faced with questions over whether false evidence and false charges would be used to secure the extradition of slaves, Sir Frederick Pollock took precisely the same approach as Robinson, saying that it was not fitting for Britain to assume that the citizens of a friendly nation would commit perjury or for Britain to make some special legal provision against that possibility.65 Ultimately, this approach to the problem prevailed, and no express or implied exemption was built into colonial or imperial law or policy, or into international treaties in this period. As historians have long noted, the list of extradition crimes was narrowed during negotiations in large part to exclude from the 1842 treaty offences such as theft and mutiny, which slaves might readily commit in fleeing the United States.66 But for many MPs and Lords in Britain, as for Rolph and the black Upper Canadians who sent him to London, that was not enough, and the imperial government came under considerable scrutiny on this issue. MP Thomas Babington Macaulay declared that Britain must not “make ourselves the slave-catchers of the Americans,” while former attorney general Lord Campbell noted that his only worry about the sweeping and controversial treaty was whether slave-owners might “pervert” it to claim slaves, a worry which even the envoy who negotiated the treaty admitted to feeling.67 Yet an attempt to insert an explicit exemption for slaves failed, and the government offered only encouraging words about protecting slaves. For example, Foreign Secretary Lord Aberdeen led off the debate on the extradition bill by addressing the slave question and saying that the widespread concern was “unfounded.” He told the House of Lords that slaves committed no crime in escaping and were entitled to the support and encouragement of all Christian people.68 Moreover, he said that anything taken by a slave in order to effect their escape could not be counted as stolen as the act

Miller_5200_114.indd 126

16/08/2016 3:59:57 PM

The Non-Law of Refugees in British North America  127

lacked criminal intent.69 (He might also have said that theft was simply not in the treaty anyway.) These vague assertions were all that the imperial government could offer. Months before the ratification debate the Foreign Office had asked the government’s chief legal advisers whether slaves could be considered liable for a crime committed in a country in which they were enslaved, and whether the treaty could be used to claim them on that ground. The attorney general, solicitor general, and queen’s advocate replied that British law would consider a slave culpable in such a case. Moreover, they found that if evidence were provided of an extraditable offence, British authorities would be bound to surrender such a person.70 This was tacitly admitted by the attorney general in Parliament during the implementation debates. Similar to Aberdeen, Pollock told Parliament that slaves could not be guilty of theft in taking items essential for escape, and that, anyway, theft was not an extraditable offence in the treaty.71 But Pollock also admitted that if a plausible and extraditable charge were made against a fugitive slave, the law would deal with that person as an accused criminal and not as an ex-slave with a protected legal status. That is, once evidence was provided to a British court to support an extradition charge, that court had no business inquiring as to whether the accused had been a slave or had been escaping slavery at the time of the alleged offence. “We did not care whether the man had been a slave or not,” Pollock said. “That was a point to be settled on the man’s return to America.”72 With this admission the assurances given publicly in Parliament and privately to Rolph seemed increasingly inconsequential. Clearly, whatever the rhetorical power of their appeals to British justice, the attempt by fugitive slaves and their allies to implant asylum in either colonial or imperial law and policy had failed. The purported tradition of asylum touted in 1910 during the Fedorenko case, then, badly distorted what was traditional in British North America. The Law of Nature and Asylum In 1910, when the Toronto Star invoked Canada’s history of protecting fugitive American slaves to bolster its case for protecting Fedorenko, it singled out the 1860–1 case of John Anderson. After he was arrested in Upper Canada for having murdered a white farmer who was trying to stop his escape from slavery in Missouri, Anderson fought extradition through three separate colonial courts. Months after his arrest, after a

Miller_5200_114.indd 127

16/08/2016 3:59:57 PM

128  Borderline Crime

magistrate and three Court of Queen’s Bench judges had decided to allow his surrender to Missouri, the Court of Common Pleas ordered his release. Anderson was paraded through the streets of Toronto by his supporters, after which he embarked on a lecture tour in England before ultimately moving to Liberia. According to the Star in 1910, the colony had decided that Anderson’s crime was “an incident of slavery and would not deliver up the man who had sought shelter here,” and the Canadian government should apply that precedent to Fedorenko’s case.73 Yet this was not the decision that the colonial courts or the colonial government had made about John Anderson’s crime – rather, he was discharged by the court on narrow and technical legal grounds. While his case highlights another attempt to reify a legal asylum for fugitive slaves, the first major attempt since the early 1840s, it also reflected the enduring wariness among colonial officials of giving substantive meaning to this rhetorically hallowed concept. But this effort drew on very different concepts from the earlier controversies. Anderson’s defence attempted to reinterpret the AngloAmerican extradition treaty of 1842 and to do so using expansive notions of both domestic and transnational natural law. The defence argued that since defending oneself against slavery would not have been a crime in the British Empire, Anderson had not committed an extraditable offence. That is, since the treaty required evidence for extradition which would justify committal for trial if the offence had occurred in the country where the fugitive was found, Anderson’s lawyers used this provision to argue that since Anderson’s actions would have been lawful in Canada he was exempt from the operation of the treaty.74 Alongside and underlying this approach, though, Anderson’s lawyers made far broader arguments. In stark contrast to the earlier move to ground asylum in the territorially bounded and historically based notions of British justice, British freedom, and imperial loyalty, Anderson’s defence attempted to use ideas of natural law and human freedom to shape the way colonial courts interpreted the extradition treaty. In other words, the defence contended that Anderson had universal rights which Britain did not create, but which it and its colonies were bound to respect by sheltering him from extradition in colonial territory. But just as in the 1830s and early 1840s, this attempt failed and again exposed a deep fear among jurists of carving asylum into law, as well as the enduring amorphousness of the substantive meaning of extradition in British North America. British constitutionalism and a deference to British ideas were not absent from the arguments in this case. Anderson’s lawyers used ideas of

Miller_5200_114.indd 128

16/08/2016 3:59:57 PM

The Non-Law of Refugees in British North America  129

British justice and the authority of British sources routinely throughout the hearings. Defence lawyer S.B. Freeman invoked both Magna Carta and the Habeas Corpus Act of 1679 to justify seeking the intervention of the Court of Common Pleas, and cited British case law to reinforce most of the technical elements of his argument.75 He also drew from the 1842 parliamentary debates which occurred after a band of slaves took over the American ship Creole and forced it into Nassau harbour, as well as debates over the ratification of the Anglo-American treaty in 1843. His point in doing so was to demonstrate that what he called “the British mind” was in favour of exempting slaves from extradition for offences committed in escaping slavery – a view which he argued should be persuasive for Canadian courts.76 But this task of interpreting the treaty also transcended British justice and the authority of British legal sources. Anderson’s case was focused from the start on the dictates of natural law and the slave’s natural right to freedom.77 Anderson himself made this point in a petition written shortly after his arrest in Brantford. As he told the governor general, he had “always felt that he had a right to his freedom,” he “had never done anything to forfeit his liberty,” and as a result he could “lawfully use any means within his power to obtain his liberty.”78 Freeman built on this theme in court, deploying both the authority of the British government and also its adherence to a higher law, and telling the Queen’s Bench that his construction of the treaty was “consistent with the acts and policy of the British Government in relation to the natural rights of man.”79 As a result, Britain’s policy more declared and facilitated an existing natural right to liberty than created a new one. What was at issue, then, was whether the treaty and British and Canadian law would be perverted to support the inherently unjust subjugation of a rightsbearing individual. On this point, in both courts, he returned to the Creole debate, and quoted Lord Chief Justice Denman’s remark that he was sure that no British government would “act as policemen or gaolers to enforce the rights of the master over the slaves.”80 As Denman argued (and Freeman quoted, twice in each court), “no country was entitled to enforce a law which was believed to be founded in injustice.”81 In many ways that was the core of Freeman’s case. Canadian and British law had to be used because anything else would be against the law of nature, which guaranteed human liberty. “Personal liberty,” he told the Common Pleas, “or the right to be free in our persons, and to use them as we think fit, and personal security, or the right to be protected against injury to our bodies or danger to our liberty, are natural rights.”82 Freeman juxtaposed these rights of man with the depravi-

Miller_5200_114.indd 129

16/08/2016 3:59:57 PM

130  Borderline Crime

ties of slavery, briefly in the Queen’s Bench and more elaborately in Common Pleas. He told the former court that slaves were deprived of dominion over themselves and held captive; they could own no property and male slaves could not be the proper and recognized head of a family – all rights which he said attached to humanity.83 He was more graphic in the subsequent Common Pleas hearing, invoking the horrors of the Middle Passage and arguing that southern slavery stripped slaves of all the rights of man and in practice rendered them more vulnerable and more poorly treated than animals. He told the court that a slave girl could be raped by her master with impunity: “In this instance she is not looked upon as either a human being or a brute, but only so much of a human being as to prevent the connection being unnatural, and an abominable crime … and yet so much of a brute as to prevent it being rape.”84 Freeman used this denial of the natural rights of man primarily to build his case for Anderson’s act having been legitimate self-defence. His explicit hope was that this would transform the case from one about murder to one about manslaughter, a crime which was not extraditable under the treaty.85 His contention was that given the violence and the denial of natural rights inherent in slavery a slave had the same scope of self-defence rights in fending off an attempt to re-enslave him as anyone else would have in defending themselves against an attempt at murder. As he told the Common Pleas, “the thirst for liberty” was a human instinct and man’s “nature tells him that it is right for him to fight to obtain and maintain it.”86 In fact, Freeman called such actions by slaves “not only justifiable, but praiseworthy.”87 Natural law, then, was being used to interpret statute law in both very general and quite specific ways. Nonetheless, it was not a universally convincing case. As previous cases in Britain, Canada, and the United States had shown, and both the Crown counsel and, indeed, most of the Anderson judges contended, the role of extradition courts was not to try the case as a jury might. Rather, their role was to determine if the prosecution had presented prima facie evidence for criminality. According to Crown counsel Robert Harrison, Anderson’s victim was lawfully empowered to arrest him in Missouri and it was not the role of Canadian courts to determine if his power to do so would have existed in Canada. Demanding that the elements of an offence be precisely the same in both countries would render even ordinary extradition cases nearly impossible, Harrison said.88 Freeman was keenly aware of this argument and it seems likely that his focus

Miller_5200_114.indd 130

16/08/2016 3:59:58 PM

The Non-Law of Refugees in British North America  131

on the injustice of Missouri law and his attempt to have the courts use Canadian law to judge Anderson’s actions were intended to overcome this hurdle.89 In Freeman’s view, the white farmer was attempting not simply to arrest but to unlawfully subjugate and enslave Anderson in violation of natural rights and in a way forbidden by British and Canadian law. And while Freeman agreed that in extradition cases the foreign and domestic law did not need to define ordinary offences in precisely the same way, he argued that the two systems needed to be, as he put it, “alike in spirit.”90 That could not be the case between Canada and the United States when the distinction between slavery and freedom was not an issue of legal technicality but one which centred on a far more central concept of law and justice. In other words, the fundamental gulf between the British and American systems on the subject of slavery should shape the court’s application of the treaty. While legal historians have critiqued the argument as both naive and mistaken, Freeman’s strategic aim in relying so heavily on rights and natural law may have been two-fold.91 First, to take on a rhetorical strategy which would mobilize and solidify public support for Anderson, and so apply considerable political pressure to the executive branch to refuse extradition if the courts decided to remand him. As Patrick Brode has shown, the case certainly sparked an uproar in Canada, Britain, and the United States, and was followed attentively by newspapers in all three countries.92 Second, Freeman’s underlying legal aim may have been to raise enough doubt about the workings of the extradition treaty that the judges would apply the maxim of in favourem libertatis – that where the law was uncertain, it should be read to favour liberty.93 As discussed below, this had long been a key tactic and principle in abolitionist and emancipationist litigation in Britain, and it was certainly echoed in Freeman’s arguments. (Indeed, Justice William Buell Richards noted in his opinion that it was “the general rule … that that interpretation must be given which is most in favour of the liberty of the accused.”)94 As Freeman told the court, natural rights could be overridden, but the intention to do so had to be laid out clearly and specifically by positive law.95 That had not happened in the extradition treaty or the implementing statute, he argued, and given the opinions expressed in the British parliament on safeguarding slaves, and the anti-slavery efforts of British policy generally, the uncertainty about slaves must accrue to the benefit of the slave. If not explicitly removed, then, Anderson’s natural rights must be respected by Canadian law. As a result, his point was not that the British had built

Miller_5200_114.indd 131

16/08/2016 3:59:58 PM

132  Borderline Crime

an exemption into the treaty or statute for slaves, but rather that absent their express inclusion as criminals, British and colonial courts had no power to cooperate with slave law. This was clearly an argument with expansive implications. It would lead not simply to the liberation of Anderson, but to immunity for former slaves from extradition and to their inviolable asylum in Canada. These arguments were contentious. Indeed, Brode has critiqued Freeman’s reasoning as legally naive for relying on natural law before benches of mid-Victorian colonial judges charged with deciding on weighty matters of statutory and treaty interpretation.96 Yet, his ideas were not out of the imperial and Canadian mainstreams of legal thought. In fact, these general ideas of rights were firmly embedded in English legal and political thought.97 Most prominently, Blackstone devoted a chapter in the 1765 first edition of his Commentaries on the Laws of England to “the absolute rights of individuals,” which he said were drawn from “the natural liberty of mankind … a right inherent in us by birth.”98 According to Blackstone, society’s principal purpose was to “protect individuals in the enjoyment of these absolute rights, which were vested in them by the immutable laws of nature,” and which were restrained by the laws of mankind only as much as was necessary to preserve order.99 He contended that these absolute rights of Englishmen, embodying the natural rights of man, were chiefly personal security of life and limb, personal liberty, and property.100 On the issue of personal liberty, Blackstone specified that it was a “right strictly natural,” which could only be abridged by the “explicit permission of the law.”101 Although he modified the section in subsequent editions, Blackstone contended (paraphrasing Lord Chief Justice Holt’s famous phrase) that the spirit of liberty in England was so strong that a slave became free the moment he touched English soil, and was imbued with all the natural rights recognized in the realm.102 It is not surprising, then, that Freeman drew explicitly from Blackstone in his Common Pleas argument, where he told the court that the rights of personal liberty and personal security could only be affected by positive law and must otherwise remain in force.103 Similar links between slavery and inherent injustice were made during the 1843 British debates over the implementation of the extradition treaty. In fact, Lord Chief Justice Denman, who worried about the use of the treaty against slaves, declared that he “stood up for the liberty of mankind, for the natural rights which belonged to us all.”104 Likewise, Thomas Babington Macaulay argued as Freeman later would that ex-

Miller_5200_114.indd 132

16/08/2016 3:59:58 PM

The Non-Law of Refugees in British North America  133

tradition required the partner countries to have a “general assimilation of laws, manners, morals, and feelings” but that a “fundamental difference” existed between Britain and America over slavery.105 Meanwhile, Lord Palmerston argued for a statutory exemption of slaves for crimes committed during escape, saying that even a murder under such circumstances could not be treated as a crime for the purposes of extradition.106 According to Palmerston, a slave who made it to British territory “had rights which we were bound to give him the full enjoyment of.”107 There were also many elected officials in Canada and Britain who favoured a blanket asylum for escaped slaves, and many of them linked such sanctuary to the same notions of the natural rights of man invoked by Freeman. In 1842, for example, former attorney general W.H. Draper (who presided over Anderson’s second hearing as chief justice of the Common Pleas and voted to release him) argued in the legislative debate over the surrender of Nelson Hackett that it was an open question whether a human being from a country where he was considered to be chattel could even be held liable for a crime committed there.108 He was joined in this argument by Executive Councillor H.J. Boulton, who demanded an outright exemption for fugitive slaves on that basis.109 Seven years later, when the extradition issue was revisited in the legislature, Boulton spoke up again and argued that the slaves who seized the Creole had simply “struggled for that liberty which was dear to every man” and that slaves who fled to Canada came from a country “where they are treated as cattle or brute beasts.”110 Likewise, former premier Henry Sherwood “pleaded the laws of humanity” for the protection of slaves who had committed crimes in trying to escape bondage.111 Natural rights and natural law were also woven into colonial legal culture, though they are less well documented by Canadian historians than the kind of British rights to which slaves appealed in the 1830s and early 1840s.112 Natural law and natural rights were relatively common concepts in political and legal discourse in the three decades prior to Anderson’s case. Natural law appears as an underlying (if sparsely treated) force in two of the best-known general treatises on British North American law during this period. Nicolas-Benjamin Doucet’s 1841 Fundamental Principles of the Laws of Canada called the law of nature “the best and most authentic foundation of human laws,” and observed that it was “an immutable justice, always and everywhere the same; no human laws can alter it.”113 Meanwhile, Beamish Murdoch’s 1832 Epitome of the Laws of Nova Scotia similarly declared that “the laws

Miller_5200_114.indd 133

16/08/2016 3:59:58 PM

134  Borderline Crime

of man must be conformable and subservient” to the rules of natural law, “otherwise they cease to be laws, and can have no just claim to obedience.”114 The concept of both individual and collective rights deriving from natural law was also a prominent part of some important mid-century debates. In the late 1840s and early 1850s, for example, officials, merchants, and fishermen in Nova Scotia, New Brunswick, and Newfoundland complained to the imperial government about the treaty terms under which Americans had access to the inshore fisheries. Petitions from all three colonies declared that those fisheries were the natural rights of the colonists.115 In a similar vein, the Upper Canada Law Journal noted in a short 1856 article on “the rights of woman” that “the natural rights of man and woman are, it must be admitted, equal,” but that women surrendered most of them upon marriage.116 The same journal also observed in an 1858 editorial on freedom of the press that “it is the natural right of every man to think and to speak, and this involves the consequential right to print and to publish,” though such natural rights could be limited or moderated when necessary for the good of society.117 In other debates, officials went further and applied the concepts of natural rights – sometimes using the modern phraseology of human rights – to highly contentious questions of policy. For instance, Upper Canada superintendent of schools Egerton Ryerson called the right of children to an education an “undeniable human right,” and a “natural right” which was “fundamental and sacred.”118 The concept was also deployed in the debate over Sabbath day observance. A committee of the Upper Canadian Legislative Council wrote in 1857 that it was the paramount duty of every legislature everywhere to ensure that no inhabitant of their country was “unnecessarily deprived of the enjoyment of his natural rights and privileges.”119 The committee went on to describe the right to a day’s rest from work each week as a “human right” and urged the government to enforce the laws surrounding the Sabbath. These concepts of natural law and natural rights, then, likely had a relatively prominent place in British North American political and legal thought at the time of Anderson’s case. Moreover, the law of nature continued to have a role in legal thought around the British Empire and common law world long into the nineteenth century. In the 1860s, 1870s, and 1880s for example, courts in Caribbean and Australian colonies used it as a concept to stress the gravity of both civil and criminal infractions, or the fundamental roots of legal procedure.120 But particularly on issues relating to family law

Miller_5200_114.indd 134

16/08/2016 3:59:58 PM

The Non-Law of Refugees in British North America  135

and marriage it had a clear and powerful role in defining the source of legal norms. Throughout the nineteenth century Scottish courts noted in cases involving family support payments that the civil obligation of aliment was founded upon and imposed by the law of nature, as well as by the law of Scotland.121 Likewise, an important 1850 New South Wales case about marriage law dealt in some detail with the interconnections between natural and British law. Justice J.N. Dickinson declared that natural law was one of the three core components of English law (along with customs and statutes).122 In fact, Dickinson declared that natural law was universal to all mankind and must govern the decisions of judges where statutory or case law did not provide an answer.123 Moreover, he declared that when it came to deciding what portions of English law applied to the colonies, the test was the similarity of the “spirit” of that English law to the natural law, and that judges had to ensure as de facto lawmakers in this respect that English law did conform to the law of nature.124 Accordingly, he upheld a disputed marriage which he found accorded with the law of nature and declared that the defendant had been properly convicted of bigamy.125 Dickinson articulated the same view of the universality of natural law, and its applicability to the British colonies, in February 1861, just a few weeks after John Anderson was released in Toronto.126 Beyond the general and rhetorical weight of natural rights, they were also an enduring feature of slavery-related litigation in Britain.127 Most famously, this argument was used in the 1772 Somerset case, in which a slave who had been brought to England challenged the right of his owner to take him to Jamaica.128 James Somerset’s lawyers argued that his master’s claim of ownership was “opposite to natural justice” and inconsistent with the laws of England.129 They contended that slavery contravened “all the rights vested by nature and society” in man, rights which “immediately flow from, and are essential to, his condition as such.”130 They equated this use of the term “nature” with a fundamental morality “which no laws can supersede.”131 Ultimately, Lord Chief Justice Mansfield found for the slave on much narrower grounds, but did seem to admit the premise of the natural rights argument by observing that slavery was “so odious” that nothing but positive law could be held to support it as an institution.132 Freeman clearly used this concept in his argument for interpreting the extradition treaty to favour Anderson’s liberty. As he argued, “When a man’s natural rights are taken away by a law, the intent to do so must be expressed with irresistible clearness.”133

Miller_5200_114.indd 135

16/08/2016 3:59:58 PM

136  Borderline Crime

Besides Somerset, though, Freeman’s arguments echoed other British cases. In particular, lawyers in the 1778 Scottish case of Knight v. Wedderburn used a similar tactic. In that case, the slave Joseph Knight contested his owner’s power to transport him to Virginia. His lawyer told the Court of Session that slavery was unjust and repugnant to fundamental principles of morality.134 He contended that slavery “deprived men of the most essential rights that attend their existence,” and urged the court not to allow the Jamaican law under which Knight was enslaved any aid from the law of Scotland.135 The court’s decision, as reported by Edinburgh lawyer William Maxwell Morison, was that the dominion assumed over Knight under Jamaican law was simply “unjust and could not be supported” by Scottish law.136 A different report of the case, though, reveals more diverse opinions among the judges, with several willing to support the claims of the slave-owner.137 Nonetheless, several others relied firmly on the rights reasoning generally and on Mansfield’s observation about slavery’s odiousness in Somerset in particular. Lord Auchinleck, for example, wrote that slavery was not “agreeable to humanity,” while Lord Kames declared that “slavery is a forced state, – for we are all naturally equal.”138 According to Kames, Jamaican laws could govern Jamaica, but “we cannot enforce them; for we sit here to enforce right, not to enforce wrong.”139 Lord Westhall concurred, saying “I have only to declare my opinion for liberty in its full extent.”140 While neither Somerset nor Knight were extradition cases, they did involve questions of what standing slave law should have in British courts, and whether slaves could be sent out of British territory to a place where slavery was legally entrenched. There was, in other words, a legacy of British judges being receptive to and willing to apply natural law arguments in slavery-related cases.141 Moreover, as David Bell has noted, there was a “vogue of natural rights reasoning” in anti-slavery sentiment in Britain and North America generally in the late eighteenth and early nineteenth centuries.142 We also know that natural rights reasoning and both Somerset and Knight were well known and important to slave litigation in British North America as well.143 In the 1799–1800 New Brunswick case of R. v. Jones, for example, lawyer Ward Chipman took up the slave’s cause, calling himself “a volunteer for the rights of human nature.”144 Chipman’s brief in the case survives and the ideas of the Enlightenment philosopher Montesquieu, the natural law concepts of Blackstone, and the reasoning in Somerset, among other authorities, are dealt with at great length.145 Chipman even told the court that it was “beyond the power

Miller_5200_114.indd 136

16/08/2016 3:59:58 PM

The Non-Law of Refugees in British North America  137

of human laws to establish the condition of slavery,” and, like Freeman, he drew directly from Mansfield in making an argument for favouring liberty over the odiousness of slavery in the absence of positive law to the contrary.146 At least one of the judges in the Court of Queen’s Bench – where Anderson lost and was remanded for extradition – seemed similarly willing to apply what he saw as natural law and to use that law to shelter John Anderson behind the colonial-American border. Justice Archibald McLean’s dissenting opinion leaves little doubt that he was willing to use natural rights as an interpretive tool in favour of non-extradition.147 Alongside arguments about legal technicalities, his dissent took up Freeman’s more sweeping arguments about slavery, liberty, and natural law. When it came to the standing of American and Missouri law in colonial court, for example, he was frank about the application of these natural law principles to the case: “In administering the laws of a British province, I can never feel bound to recognise as law any enactment which can convert into chattels a very large number of the human race.”148 This case, he contended, could not have happened in Canada, where all people were equal regardless of race, and where the law carefully guarded individual liberty.149 Such praise for Canada’s purported culture of equality and such condemnation of American barbarity were typical of colonial abolitionist rhetoric.150 However, McLean was also willing to bring this general abhorrence of slavery to bear on his interpretation of the treaty. Indeed, the humanity of slaves and the inhumanity of slavery were key to the latter section of his decision. He wrote that slavery stripped slaves of “all human rights,” in stark contrast to the natural love of liberty which was “inherent in the human breast, whatever may be the complexion of the skin.”151 In light of the universality of that desire for, and right to, freedom, Anderson was justified in using whatever degree of force was necessary to safeguard his own.152 As a result, while the freedom argument was not the sole plank of McLean’s opinion, it was nonetheless central to his analysis. However, McLean was the only one of the six judges who heard the case in Toronto to endorse the applicability of natural law. There was little serious engagement by the other two judges on the Queen’s Bench with either Freeman’s arguments or McLean’s opinion. As with the courts and officials in the 1830s, the more powerful view in the Queen’s Bench in 1861 was that of a race-less administration of the law in which slave status was simply irrelevant. As Crown counsel Robert A. Harrison put it, there was no explicit exemption for slaves, and if charged

Miller_5200_114.indd 137

16/08/2016 3:59:58 PM

138  Borderline Crime

with an extraditable offence they must be treated “like any other person, bond or free, similarly charged, regardless of what may or may not be done to him when surrendered.”153 Chief Justice Sir John Beverley Robinson agreed, and as he had in the 1830s, argued that matters of fact were for a trial jury and not a foreign extradition court.154 The Common Pleas judges took a different but related approach. The court ultimately decided that errors in the magistrate’s committal warrant were fatal, and that Anderson should be released on that ground. As a result, they were not required to agree or disagree explicitly with the rights-based argument.155 Nonetheless, they engaged with the idea of exempting slaves more fully, if less conclusively, than the Queen’s Bench majority. In particular, both Chief Justice W.H. Draper and Justice John Hawkins Hagarty were openly wary of entrenching asylum in law and of allowing the Canadian-American border to provide an unqualified refuge for escaped American slaves. Both were careful to limit the scope of their ruling which freed John Anderson, specifying that while they were freeing Anderson, their decision did not settle the law in favour of exempting slaves and certainly did not proclaim an asylum for those who committed crimes in escaping slavery.156 Draper said quite frankly that he was not prepared to decide that even slaves who committed murder in escaping were immune to criminal extradition, and his opinion displayed a deep ambivalence about offering such asylum.157 “I am reluctant on the one hand … to declare that each individual of the assumed number of 4,000,000 of slaves in the southern states may commit assassination in aid of escape … and find impunity and shelter on his arrival here,” he wrote.158 Yet he said he was also reluctant to admit that Britain had agreed by treaty to surrender a slave who “as his sole means of obtaining liberty, has shed the blood of the merciless task-master who held him in bondage.”159 Clearly, Draper was among the many officials in Britain and Canada who were profoundly wary of opening a floodgate or of offering an incentive to acts of violent social upheaval in the United States. Hagarty was similarly uncertain, but he was even more fearful of exempting slaves altogether from criminal extradition. To exclude slaves from extradition outright, he declared, would allow impunity for offences not strictly necessary for escape.160 Likewise, insisting that offences be defined exactly the same in each country – as he seemed to believe Freeman was urging – would hamper the extradition of even common criminals, defeating the ends of justice and making each country a sanctuary for the criminals of the other.161 Yet Hagarty was

Miller_5200_114.indd 138

16/08/2016 3:59:58 PM

The Non-Law of Refugees in British North America  139

also unwilling to accept entirely Robinson’s and the Crown’s views respecting the irrelevance of slave status. This reasoning, he said, “can readily be pushed to extravagant results” – such as a slave girl being surrendered for the murder of a white man who was trying to rape her and who could do so lawfully, or a slave who resisted corporal punishment that was dangerous to his life or limb.162 The key distinction for Hagarty, then, was that resisting slavery itself did not justify taking a life in self-defence and did not amount to the kind of fundamental difference which made international cooperation impossible, but that other scenarios flowing from slave status might. As a result, despite resisting the arguments for slavery being beyond the pale, Hagarty did seem to agree that the natural law rights of self-defence could shape treaty interpretation in other instances. Yet his reluctance to write broadly illustrates a deep concern about using treaty or statutory interpretation to do more than decide the particular case of John Anderson. In Anderson’s case, as in the cases throughout the 1830s and early 1840s, colonial officials were profoundly concerned that giving legal meaning to the notion of refugee, reifying legal status instead of leaving it as rhetoric, could be disastrous for British North America. As a result, the chief arguments for an entrenched asylum were as legally amorphous in the early 1860s as they had been decades before – deeply rooted in traditions of British and colonial legal and political thought, but not yet grounded in clear instruments of law. In fact, it was the sweeping nature of these arguments for asylum that so threatened many officials and jurists. Siding with slaves and their supporters would mean creating a protected class of fugitives that would, at least for many Americans, violate ideas of supranational justice and would hold the Canadian-American border out as a definite limit on the reach of American law. This, for most colonial jurists, proved a step too far. Civil War and International Law In 1910, Chief Justice T.G. Mathers of Manitoba was excoriated in the press and by activist groups across North America for denying Savva Fedorenko status as a political refugee immune from criminal extradition. Mathers wrote simply that Fedorenko’s murder of a village constable was not in itself in pursuit of a political end and that as a result Fedorenko was liable to criminal extradition. The decision was reviled by many in Canada in part because the idea of British territory as a haven of liberty for refugees from oppression and conflict was embedded

Miller_5200_114.indd 139

16/08/2016 3:59:59 PM

140  Borderline Crime

in popular perceptions of the British Empire, even more than the widespread but wrong-headed belief that the colonies had never surrendered fugitive American slaves. For many critics of Mathers, political asylum was a broader concept and the analysis entailed in adjudicating it had to go beyond the specific intent behind the particular alleged act. For them, Fedorenko was simply not a criminal. Rather, he was an actor in an internal conflict who had shot an agent of an oppressive state, making the murder part of both an armed struggle and a campaign for political reform. As a result, the claim on asylum that was largely being made for him involved a distinction between violence and crime. In the nineteenth century, those attempting to entrench asylum in law used this distinction, already widely recognized in international laws of war with respect to soldiers, to argue for broad protections for those whose crimes were motivated by politics. While British North America had no extradition cases that were purely about political refugees in that sense, a wave of cases during the US Civil War tested how colonial jurists would apply and interpret that distinction.163 Although the white southerners enjoyed a certain amount of affinity among British North Americans and endured none of the racial hostility faced by blacks, and although their arguments in court drew on far more established legal principles than did those of fugitive slaves and their allies, they still encountered the deep continuing wariness among colonial jurists about offering unqualified asylum behind the Canadian-American border, and as a result, their cases highlight the continuing amorphousness of the law that surrounded asylum. In other words, the fact that Mathers could define political asylum as he chose in 1910 more reflected the past than broke with tradition. The wave of Civil War controversies began in December 1863 when a group of men, including some Confederate States of America citizens and some British subjects from New Brunswick and Nova Scotia, hijacked the American steamer Chesapeake after it left New York City, intending to convert the ship into a privateering vessel. The US navy cornered the ship off Nova Scotia and while most of the hijackers escaped initially, many of them were arrested shortly thereafter in New Brunswick, where the United States applied for their extradition as criminals.164 The next case began in September 1864 when another group, which included a young Scot named Bennet Burley, seized control of the Lake Erie steamer Philo Parsons, which they allegedly intended to use in a raid on the Union prison fortress at Johnson’s Island. After the plan dissolved, they sunk the ship off Windsor and fled into

Miller_5200_114.indd 140

16/08/2016 3:59:59 PM

The Non-Law of Refugees in British North America  141

Canada, where Burley was arrested and his extradition was sought.165 Finally, in October 1864, a band of southerners raided and robbed the small Vermont town of St Alban’s, notably plundering its bank of some $200,000. They fled back towards Lower Canada and many of them were arrested just across the border and brought to Montreal where they, too, faced extradition to the Union.166 In all three cases the defendants fought vigorously against their extradition and pleaded for sanctuary in British North America. The legal meanings of asylum emerged in different ways and were understood differently in each of the cases. In New Brunswick, Justice William Johnstone Ritchie decided to release the prisoners who had taken control of the Chesapeake. But he did not declare them refugees or immune from the force of the criminal law. Rather, Ritchie decided that the United States lacked jurisdiction to prosecute because the men had committed the international crime of piracy outside of US waters and so that power rested with colonial authorities.167 Likewise, in the Burley case a bench of four senior judges ruled that the prisoner had not established that he was a Confederate combatant, despite a letter from Jefferson Davis saying so, but they also declared that by organizing the attack from colonial territory Burley had violated Canadian neutrality law, exceeded any authority he might have had as a lawful combatant, and voided any claims that he had on asylum. They ordered that Burley be held for extradition to the United States.168 Conversely, in the St Alban’s case Montreal judge James Smith declared the opposite – that the raiders’ violation of neutrality had no effect on their status as belligerents, and he decided that as combatants they could not individually be held criminally liable for actions sanctioned by the rights of armed conflict. Smith ordered that the raiders could not be extradited.169 As a result, despite exhaustive arguments before magistrates and senior judges in three colonies, little by way of a coherent law of asylum in cases stemming from civil conflict emerged from the Civil War cases. Jurists on all sides agreed that asylum could be a legal question, but no real law was made. The arguments against extradition in these cases pushed the colonial courts into intense debates about international law, particularly about when and how that law could be enforced by domestic judges. The first argument for asylum – that combatants could not be held individually liable under civilian criminal law for acts done as part of a war and so could not be extradited by a neutral power on criminal charges – sparked long discussions about whether there was a properly called law of war

Miller_5200_114.indd 141

16/08/2016 3:59:59 PM

142  Borderline Crime

which the prisoners had exceeded by attacking civilian targets. Defence lawyers in all three cases argued that international law allowed belligerents to attack all people and property in the opposing state – that, in other words, there were no limits on belligerent forces or their soldiers and no protections for citizens of nations at war from enemy forces.170 As lawyer J.H. Gray told the court in Saint John, “Belligerents have no rights.”171 In Montreal, defence lawyer T.A.R. Laflamme argued even more graphically for the unrestrained conduct of hostilities. “War,” he told the court, “is licensed murder, pillage, plunder, devastation, and destruction … Beyond and outside of this principle of unmitigated and unrestrained hostility, there are no laws of war, except those implanted in the breasts of the belligerent by the Creator.”172 This, however, was a provocative doctrine. Counsel for the United States Bernard Devlin struck out at the idea of limitless attacks on civilians by combatants not under the direct command of sovereign governments, which he said would only amplify the horrors of war by allowing every citizen of each state to indiscriminately plunder and murder the civilians of their enemy with no accountability.173 Rather, he claimed that what he called marauders who acted without the authority of their government or the orders of commanders could be distinguished in law from regular soldiers, and lost the legal immunities from criminal penalties that regular soldiers could claim. Indeed, Devlin argued that these rules had developed out of usages and customs and had now taken on the force of binding law.174 The courts’ reactions to these arguments were mixed. This was partly because the circumstances of each case varied, changing the imperatives of adjudication. But the courts did acknowledge the sweeping rights of belligerents in wartime to attack every aspect of an enemy nation. As Justice Ritchie wrote in his Chesapeake decision, because international law allowed it, only treaty stipulations could restrain an enemy from hiring privateers to destroy the private commerce of an enemy. Nor were there any limits on what he called “private armed vessels” acting without a commission during a war. The sailors on either type of vessel might violate their own domestic law through some action in the course of their raiding, but they could not be prosecuted criminally by the enemy state as pirates. 175 Likewise, Justice Smith in Montreal decided similarly on belligerent rights, writing that in the Civil War context, international and not domestic law was binding upon him. That is, the recognition by Britain of the hostilities had made the violence of those claiming status as Confederate combatants a ques-

Miller_5200_114.indd 142

16/08/2016 3:59:59 PM

The Non-Law of Refugees in British North America  143

tion that transcended domestic criminal law. Smith wrote that although he personally found the attack on civilian targets in St Alban’s “cruel and barbarous,” and though the raiders had violated what he called the “modern usages of war,” he did not believe that those usages had taken on the force of international law. As a result, they did not restrain the rights of belligerent nations. Punishing the individual perpetrators of those operations, however cruel their actions, was “too monstrous to suffer me to entertain it for a moment,” he wrote.176 The methodology that jurists used to argue and decide these cases illustrates the continuing engagement of colonial courts with international law, seen clearly in the debate over the obligation to extradite before 1842. In particular, jurists in all three cases used international law writers in the same way that Chancellor James Kent and Chief Justice James Reid had – as authorities to be deferred to on what were the binding rules of the law of nations. Across the breadth of issues raised in each case, international law treatise writers played a profound role at every stage in each case, from the police court in Saint John, where the magistrate used texts by Henry Wheaton and Emer de Vattel, to the hours-long debates in the Montreal court over the interpretation of these and almost every other major work of the previous two centuries.177 Where an author was seen to have made a firm declaration about the law, or where there was a consensus among authors on a given point, lawyers on all sides deployed it as tantamount to settled law. In the St Alban’s case, lawyers for the defence, Crown, and US government all attempted to invoke the authority of these writers. W.H. Kerr declared that one aspect of the case “presents no difficulty,” because “the authors are quite unanimous.”178 Likewise, Crown counsel F.G. Johnson told the court that another issue was settled on the “clearest authority of writers on international law.”179 But where the writers were unclear or where they did not lay down a firm rule, the courts admitted their unease at not having guiding legal principles to follow or apply. In Burley, for example, Justice John Hawkins Hagarty declared that no respected writer had clearly shown the division between lawful acts of war and criminal acts of murder and plunder, clearly indicating that he thought wartime conduct could transcend into common criminality. In the absence of such authority, he wrote, the case must then be judged on its own facts and some kind of common sense decision made.180 The issue of the law of war dominated discussion in both Burley and the St Alban’s Raid hearings, but the distinction between violence and crime and its effect on political asylum was especially crucial to the

Miller_5200_114.indd 143

16/08/2016 3:59:59 PM

144  Borderline Crime

latter case. By the 1860s the idea of granting asylum to political offenders and specifically shielding them from extradition or expulsion was a common and powerful notion throughout Britain, America, and western Europe. In large part, the shift from extradition as a tool of monarchs against their enemies to one focused on common criminals, and that excluded political offenders, began in the wake of the French Revolution. Indeed, France soon became the catalyst for a new body of extradition diplomacy which specifically exempted political offences; France even included a clause in its 1799 constitution protecting refugee dissidents.181 As western European public sentiment shifted in favour of political asylum-seekers, France also led the European states in renovating its existing body of treaties to exclude political offenders from extradition, beginning with the modification of the treaty with Switzerland in 1833, and in negotiating new ones.182 In 1856, France even withdrew its request that Belgium return the attempted-assassin of Napoleon III, after courts divided on the issue of the crime’s political nature.183 Other nations quickly followed suit with similar policies.184 Political asylum was rooted in notions of both domestic and transnational civilization. As critics of Chief Justice T.G. Mathers noted in 1910, political asylum was a concept that Britain embraced as self-defining in the nineteenth century. The enduring and profound pride in Britain about the country’s status as an asylum state for political dissidents was reflected in the fact that for most of the century there was no legal mechanism to expel aliens and few extradition arrangements available to surrender them by request: this is the basis of Bernard Porter’s argument about non-law protecting refugees more than positive law.185 While this was often attributed, rhetorically at least, to the particular liberties of the British constitution, discussions over asylum and political refugees in the nineteenth century illustrate the importance of an international or transnational ethos of civilization. For example, the MP Sir James Mackintosh (who was also the author of a treatise on international and natural law) echoed many other members when he told Parliament in 1815 that “civilized states afford an inviolable asylum to political emigrants.”186 Similarly, in 1849, Foreign Secretary Lord Palmerston condemned Turkey for surrendering refugee Poles, writing that “if there is one rule which more than another has been observed in modern times, by all independent States … of the civilized world, it is the rule not to deliver up political refugees.”187 (In fact, Palmerston’s despatch acquired a certain degree of fame and the lawyers for the St Alban’s raiders quoted his assertion that “the laws of humanity, the

Miller_5200_114.indd 144

16/08/2016 3:59:59 PM

The Non-Law of Refugees in British North America  145

dictates of morality, the general feelings of mankind” forbid extraditing political offenders, and that any government which did so would be “deservedly and universally stigmatized and dishonoured.”)188 Likewise, in 1861 Britain condemned Saxony for surrendering the dissident Ladislaus Teleki to Austria, with the British minister in Dresden writing that the extradition had humiliated the Saxons before the world.189 Finally, in both 1852 and 1864 Parliament refused to implement extradition treaties with France and Russia respectively in large part out of concern that they could be used to surrender political offenders. In both cases the government went to great lengths to prevent such surrenders and to head off such concerns – including specific clauses forbidding extradition on political charges – but the debates in both cases reveal a powerful preoccupation with safeguarding refugees.190 The political offence exception was also embedded in Anglo-American international law literature by the end of the Civil War. In the United States, Yale president Theodore Dwight Woolsey’s work suggested that political refugees were an exception to the growing tendency of modern states to extradite under treaty obligations. He argued that states had a distinct right to offer such people asylum, and that indeed they would do so “unless weakness or political sympathy” led them astray.191 Similarly, the 1863 edition of Henry Wheaton’s textbook observed that the non-extradition of political offenders was a guiding principle for “constitutional governments.”192 Meanwhile, in England, MP and future judge Robert Phillimore’s 1854 treatise stated that the exemption was “generally admitted.”193 Former chancellor of the exchequer and future home secretary Sir George Cornewall Lewis took a stronger stand on the issue in his short book on foreign jurisdiction and extradition in 1859. According to Lewis, in cases stemming from civil war, revolution, or other political tumult, any powerful state was “impelled by the dictates of humanity” to refuse extradition, which he called protection “afforded to individuals against the tyranny of governments.”194 Judges in northern North America took note of the political offence exception as early as the 1820s. In the 1827 Fisher case Montreal chief justice James Reid distinguished what he called “offences of a political nature, arising out of revolutionary principles” from common crime, and wrote that while there was an international law obligation to extradite, a state could still grant asylum to political offenders – it did not qualify or negate the obligation for sovereigns to shelter political refugees. According to Reid, no state could ever be induced to deliver up

Miller_5200_114.indd 145

16/08/2016 3:59:59 PM

146  Borderline Crime

such people, which he called a “wise and humane policy, because the voice of justice cannot always be heard amidst the rage of revolution, or when the Sovereign and the subject are at open variance respecting their political rights.”195 However, it was not clear from Reid’s decision if he believed that this notion was judicially enforceable, meaning that courts could apply this idea and refuse to commit a fugitive for surrender, or if, simply, this was a value which he believed guided governments in the exercise of their power. However, Pennsylvania chief justice William Tilghman used the imperative of shielding political refugees as a reason why the dictates of Grotius and other writers who believed in an obligation to extradite were no longer applicable. These writers focused on facilitating the extradition of political dissidents and enemies of the state, wrote Tilghman, but in the modern world “liberal and enlightened nations” always granted such people asylum.196 In other words, there could be no obligation to extradite in part because it conflicted with one of the core concepts of civilized statehood. The political offence exception had even been applied in northern North America in a period of intense diplomatic conflict. In 1837, when Upper Canada applied to New York for the surrender of William Lyon Mackenzie for offences committed in the rebellion, the state government refused the request. The governor’s decision centred on an 1827 clause in the state’s extradition law which forbade extradition on treason charges – a very early statutory embodiment of the political offence exception.197 Although the charges against Mackenzie were not expressly treason, state attorney general Samuel Beardsley found them to be incidental to the attempt at overthrowing the colonial government. “It was a civil war,” he wrote, and those who participated in it “have not forfeited a right to an asylum within the limits of an independent state.”198 The prominence of inviolable political asylum was also made clear when John Rolph, who was sent to London by Upper Canadian blacks to lobby for explicit protections against the extradition of fugitive slaves, deployed the rhetoric of political asylum in 1839 and 1840. He likened the slave’s fight for freedom to the efforts of political dissidents, telling the colonial secretary that it was “entirely out of the practice of Europe to claim or surrender Political refugees,” and arguing that “coloured men in slavery are all political men.”199 Furthermore, Rolph even juxtaposed the legitimacy of the slave’s struggles with the much more suspect efforts of William Lyon Mackenzie, whose extradition was refused on these grounds: “Is he … that fights for human rights, that he may keep his wife, his Sister, his Daughter from the lust

Miller_5200_114.indd 146

16/08/2016 3:59:59 PM

The Non-Law of Refugees in British North America  147

and cruelty of white men, less worthy of refuge [than Mackenzie]?” he asked.200 By the 1860s, then, the notion of refuge that was linked to civil war and political conflict was hardly new in British North America, but key questions about its definition and execution remained. Although one of Burley’s defence lawyers told the magistrate’s court in Toronto that what he called “mere political offenders” were not covered by the extradition treaty, the issue was not significant in the Upper Canadian case.201 In the St Alban’s Raid case, however, it was argued at length, and Smith dealt with the issue in his decision. The defence argued that the raiders were not simply non-criminal combatants (as opposed to criminals), but also political refugees entitled to protection under what they said were accepted principles of international and domestic law. Indeed, the defence used British sources and the idea of British territory as a traditional safe haven for those fleeing tyranny in the same way that John Anderson’s lawyer had argued that the “British mind” was firmly in favour of protecting slaves. To demonstrate the ancient lineage of this approach, they quoted Sir Edward Coke’s declaration about England being a sanctuary, and told the court that this principle was “as old as any of the great liberties of her constitution.”202 Likewise, both the defendants and their lawyers made rhetorical appeals to Britain’s role as an asylum state. The raid’s leader, Bennett Young, told the court that “the flag of the empire has been an emblem of protection to the oppressed and out-cast alien for many a long year: and it will not fail to give me that impartiality, which has made it the joy of the fugitive for ages past.”203 Similarly, defence counsel Kerr argued that extraditing the raiders would abdicate Britain’s role as an asylum state for those fleeing tyranny, while his co-counsel Laflamme declared that the raiders sought “that British liberty which Britain never denied the refugee once he entered British territory.”204 Britishness, in other words, became an interpretive authority used to shape the court’s approach to the legal issues of asylum. But the defence also relied on the idea that political asylum was a principle which transcended British territory and British law. They contended that it was a recognized duty of states to offer shelter to political refugees. That is, they made both an abstract argument about justice and liberty and one which suggested that the application of those principles had been accepted by civilized countries such as Britain and the United States in practice. In fact, the defence praised America’s stance on the issue and its role in promoting human freedom by accepting and

Miller_5200_114.indd 147

16/08/2016 4:00:00 PM

148  Borderline Crime

applying the principle of political asylum. “None have more strongly and ably advocated, or more liberally construed the great principles of individual liberty, the freedom of the soil, and inviolability of the asylum offered by them to every individual,” said Laflamme.205 Such conceptual underpinnings also evidenced how the exemption of political offenders was observed by civilized states the world over. As a result, if Canada surrendered the raiders, Abbott argued, it “would be revolting to the sense of justice of the civilized world.”206 Even the Crown, which had intervened in support of extradition, admitted the legitimacy of the exemption. According to Johnson, “The doctrine of affording an asylum to political refugees is admitted to the fullest extent,” though he argued that the raiders were not legitimate refugees worthy of asylum because they had abused the principle – not seeking sanctuary, but abusing neutral territory by using it as a base to continue hostile operations.207 Justice Smith agreed with the idea of a transnational duty of civilized states to offer political asylum. But as had the defence, Smith did not ground his belief in abstract arguments about justice and freedom, and instead cast himself as a positivist, saying that he was guided by what was recognized as law around what he called the civilized world, though he only explicitly invoked American and British examples.208 He wrote that all civilized states differentiated between common crime and offences that were “incident to political convulsions” – certainly a broader definition of political crime than Chief Justice Mathers would use in 1910 – and that the perpetrators of the latter had always been exempted from extradition. According to Smith, “No nation of any recognized position has been found base enough to surrender, under any circumstances, political offenders, who have taken refuge within her territories.”209 Civilization, then, transcended Britishness, and it imposed certain definitional requirements on domestic justice. Yet Smith did not create political asylum for the raiders in the sense of designating them as refugees in a different legal category from common criminals. Rather, he grounded the substance of his decision in the idea that the raiders had no criminal culpability for military acts. But he also cast the civilized state tradition of political asylum as an interpretive tool for deciding other legal questions. That is, the tradition of asylum created a burden of scrutiny that Smith felt judges had to meet in deciding legal questions in cases where fugitives claimed that they were political refugees, and in this case that burden shaped his approach to the determinative question of criminal culpability and the laws of war. In other words, Smith saw the juridical aspect of political asylum as a

Miller_5200_114.indd 148

16/08/2016 4:00:00 PM

The Non-Law of Refugees in British North America  149

legal by-product, something that resulted from carefully adjudicating different legal questions. Even political refuge, where asylum-seekers had their greatest claim on recognized law, proved an amorphous and sometimes menacing concept in colonial court. As a result, the critics who claimed in 1910 that Chief Justice Mathers had abandoned ageold legal principles of political asylum were as wrong as they were in remembering the firm protection of slaves by colonial law. Conclusion In the 1910 Fedorenko case, those who protested his possible surrender to Russia drew on an imagined history of asylum. Clearly, their view had some grounding in the century prior to Fedorenko’s arrest in Manitoba. Both the terminology and the ideology of civilized states providing refuge from injustice were prominent throughout the EuroAmerican world in the nineteenth century. Yet while the Fedorenko protestors and some recent scholars recalled a mid-century golden age in which asylum was delineated by clear principles and, in Britain and the empire at least, safeguarded by a lack of legal power to send asylum-seekers home, the reality in British North America was otherwise. In the colonies, notions of asylum were bound up with concepts of freedom and justice as well as natural and international legal order. But despite these conceptual roots there remained no clear and binding law of asylum and no defined and enforceable legal category of refugee. Moreover, there were enough extradition treaties, statutory provisions, and pro-extradition officials in the colonies to make asylum profoundly tenuous for both fugitive slaves and foreign combatants. Although many jurists tried to reify the amorphous notions of British justice, natural rights, and international law, little by way of a coherent law of asylum had emerged by the end of the American Civil War and the onset of the Confederation period. Only when it came to combatants, whose claims drew on an entrenched and developed area of international law, could asylum-seekers ground their claims in recognized legal principles. Yet, as the surrender of Bennet Burley showed, because international law was like ideas of British justice and natural rights in being more rhetorically than doctrinally powerful, the meaning of asylum was the same – conceptually sweeping but uncertain in both law and practice. Many if not most jurists and policymakers were unwilling to deepen the challenge of the border by creating classes of fugitives immune from the transnational reach of criminal law.

Miller_5200_114.indd 149

16/08/2016 4:00:00 PM

This page intentionally left blank

Part THREE Law Formation in the Treaty Era

Miller_5200_151.indd 151

12/08/2016 2:06:14 PM

This page intentionally left blank

6 Civilization on the Continent: Law Reform and Imperial Power

In the years following the US Civil War, extradition law in Canada was widely perceived to be fundamentally defective. From the bench, judges charged with its administration criticized the small number of crimes that were extraditable under the Anglo-American treaty and the way that this short list limited the reach of criminal law all along the northern North American boundary. “The present law,” wrote Ontario judge John Hawkins Hagarty in an 1868 decision, “is unfortunately powerless to reach the class of felonies most common in occurrence.”1 His colleague Justice John Wilson agreed, writing, “I have but to express a hope that the time will soon come when other offences may safely come within the provisions of a more liberal treaty.”2 Beyond the courts, newspapers and professional journals continually highlighted how powerless the law was to address the challenge of the border by allowing the extradition of fugitive criminals.3 When in February of 1865 an American Express agent in Canada West embezzled $10,000 – an offence not listed in the treaty – and fled into the United States, one newspaper described graphically the way that the boundary stymied the power of domestic criminal law. “He may live within sight of Canada, and laugh at the officers across the border without fear of being arrested,” it told readers.4 Meanwhile, reports of foreign criminals hiding unpunished in Canada because of the narrow treaty excited concerns that the province was, as one Montreal newspaper put it, “a den of thieves.”5 Likewise, in 1868 the Hamilton Evening Times told its

Miller_5200_151.indd 153

12/08/2016 2:06:14 PM

154  Borderline Crime

readers that Canada was “the refuge of the vilest and most desperate characters from all parts of the United States.”6 Moreover, even several high-profile cases in which fugitives were abducted by police officers and returned to the United States outside of the treaty only fed frustration at the limits of the law by highlighting the short list of offences for which extradition could be achieved lawfully.7 In another case, the Globe declared that “if anyone had previously any doubt about the imperfection of our Extradition Treaty with the States, that doubt must now be removed.”8 These controversies helped drive an increasingly powerful consensus in British North America/Canada that easy extradition with the United States was essential to confronting the challenge that territorial sovereignty posed to the rule of law in northern North America. North of the boundary, the end of the US Civil War simplified this issue. It ended the possibility of sympathetic Confederate soldiers being surrendered to northern vengeance, or of runaway slaves being returned to bondage. As these threats receded, there seemed no reason why the colonies and the post-1867 dominion should not have a wider and more efficient extradition relationship with the United States. Indeed, policymakers and jurists often argued in this period that Canada and the United States shared a common civilization and a common sense of the rule of law, and that as a result the transnational reach of that law was entirely desirable. Those officials launched a decades-long campaign to liberalize Canadian extradition law – that is, to reduce the domestic barriers to international cooperation – and in so doing applied the enduring British North American version of supranational justice to treaties, statutes, and jurisprudence. For these officials, the everyday threat of the boundary demanded substantive changes to Canadian law and the sweeping expansion of international efforts against crime. However, this liberalizing campaign did not succeed in generating the kind of statutory or treaty regime for which its proponents hoped. This was in large part because Britain retained key power over Canadian law in this period, and was especially interested in regulating Canadian law on issues that spanned international boundaries and involved foreign governments and foreign legal systems. On extradition, British attitudes to extradition were more complicated than those in its North American colonies because British official opinion long prioritized the idea of the country as an asylum state for refugees from European tyranny, and to many in Britain extradition was a menace to that sanctuary. These different perspectives resulted in years of intra-

Miller_5200_151.indd 154

12/08/2016 2:06:14 PM

Civilization on the Continent: Law Reform and Imperial Power  155

imperial conflict and negotiation. While Canadian officials attempted to widen and simplify extradition relations with the United States using new legislation, the imperial government systematically delayed and reshaped these efforts, in large part to implant specific and binding protections for refugees into law as that law was reworked and expanded in the latter half of the nineteenth century. This chapter examines both that process of law formation and the tensions that it sparked between British and Canadian authorities. In so doing, it highlights the continuing reality of imperial power in postConfederation Canada and the links between imperial governance and emerging regimes of international law. As recent scholars have shown, the British empire was profoundly influential in nineteenth-century Canada. On issues ranging from gender and race to the drafting of legislation and the formulation of legal thought, British examples and ideologies were pervasive.9 But it is also important to remember that Canadian self-government remained subject to imperial sovereignty and that British power over Canadian affairs remained potent. Besides the judicial power of the Privy Council (which made little substantive contribution to Canadian extradition law), Britain had three main types of political authority over its colonies – legislative, executive, and diplomatic – and all three were brought to bear on Canadian extradition law during this period.10 Britain exercised its role as the supreme parliament of the empire in passing an imperial extradition statute in 1870, and wielded its executive power to reserve and block Canadian attempts to reform the law. Moreover, Britain had a monopoly over treaty making between the colonies and foreign countries. This latter control led Canadian officials like the Liberal MPs Edward Blake and David Mills to seek other means of liberalizing Canadian extradition law once it became clear that British diplomats were incapable of obtaining a new Anglo-American treaty. Refugees and British Views of Extradition Extradition was a divisive issue in Britain during this period. Many British liberals fundamentally distrusted extradition because it seemed to promise the end of the country’s role as a haven for those fleeing European tyranny.11 In fact, until the late 1860s concern for political refugees stunted the growth of Britain’s extradition treaty system and even comparatively minor amendments to existing statute law on the subject sparked protracted and bitter debates. Not everyone found this attitude

Miller_5200_151.indd 155

12/08/2016 2:06:15 PM

156  Borderline Crime

compelling, however. Edward Clarke, author of the first British legal treatise on extradition, rebuked his country for failing to perform what he described as a key duty incumbent upon civilized states.12 Likewise, the British official and high court judge Sir James Fitzjames Stephen, who also found the British attitude backward, said that it sprang from “the extreme, and, in my opinion, ill-founded jealousy entertained by English sentiment as to the administration of justice in foreign countries.”13 The intensity of this suspicion and hostility began to diminish during the 1860s, both because of international pressure and because the emergence of specific statutory and treaty-based protections for political refugees in European international law assuaged liberal concerns. Statistics on British extradition practice illustrate the country’s hesitance to surrender foreign criminals. These statistics on extradition requests by the United States for the period 1843 to 1876 are problematic, since in almost a third of cases the Home Office had no record of the result (which may suggest that the application failed). But they do show that only forty-three of eighty-five American requests for extradition were known to have been successful.14 More importantly, and perhaps more tellingly of British attitudes, was the fact that as of 1870 Britain had extradition treaties with only three countries – the United States (1842), France (1843), and Denmark (1862) – while France had agreements with more than fifty nations.15 The chief reason for Britain’s comparatively meagre treaty regime was that many British policymakers were uncomfortable with surrendering fugitives to their European neighbours: to many it seemed to promise the end of political asylum. In fact, Parliament rejected treaties made by the government with France in 1852 and Prussia in 1864, in large part out of concern for political refugees and distrust of European governments.16 Moreover, the statutes passed to implement the French and American agreements were considered ineffectual. In particular, the requirement that both a secretary of state and a magistrate examine the requesting country’s evidence before issuing an arrest warrant was widely derided for causing needless delay and for allowing the fugitive more time to elude capture. Additionally, Britain required prima facie evidence of criminality to remand a prisoner, while the French required only proof that a charge had been laid.17 The result was that during the first decade of the treaty’s operation, the French government reportedly made eighteen requests but was granted just one surrender.18 That ineffectiveness profoundly frustrated Britain’s treaty partners, and in

Miller_5200_151.indd 156

12/08/2016 2:06:15 PM

Civilization on the Continent: Law Reform and Imperial Power  157

December 1865, after two decades of such frustration, the French government served notice that they would withdraw from the 1843 treaty effective the following June.19 The decision echoed a similar threat the previous year and followed swiftly on the English court decision in R. v. Windsor which enforced the common law definition of forgery on an American extradition request and discharged the prisoner because of the incompatibility of English and US state law.20 The French view was that if American and English law were not similar enough to satisfy the English courts, it was hopeless to expect French law to satisfy those requirements. After the French announcement, the British foreign secretary quickly began negotiations with French authorities and convinced them to delay withdrawing from the treaty until December 1866, in order to allow Parliament time to enact a more flexible extradition law.21 The French foreign minister argued that the British prima facie standard was too high, and suggested that a French arrest warrant should be sufficient for a grant of extradition. But since a similar clause had helped doom the 1852 treaty, the British government likely felt that Parliament would still reject any such measure. Instead, they offered a minor amendment to the 1843 act which simplified the process of authenticating evidence.22 This seemingly innocuous bill sparked intense controversy in Parliament, highlighting the deep concern about extradition in Britain, and in particular how that concern focused on political asylum. While it passed the House of Lords with little debate, in the Commons it encountered profound resistance.23 The foreign secretary introduced the amending act by pre-emptively dismissing concerns about the vulnerability of political offenders and stressing its minor effect.24 But opposition Liberals were unwilling to accept the insignificance of the change. In a long, impassioned speech, William McCullagh Torrens said the bill “involved a question of national policy and one of [Britain’s] oldest and most cherished traditions” – political asylum.25 Torrens argued that any new extradition arrangements would lead to treaties with oppressive states such as Prussia, Russia, and Austria, and then to the decline of political asylum altogether.26 Compromising with France to keep that country happy, he argued, might seem innocuous, “but national subserviency was a fathomless pit; look over its brink and you lost the cool sense of vision; go three or four steps down, and you know not how far you may fall,” he argued.27 Likewise, John Stuart Mill, who spoke to the issue several times, attacked French criminal procedure and contended that any evidence it produced could not be trusted by English

Miller_5200_151.indd 157

12/08/2016 2:06:15 PM

158  Borderline Crime

courts. He said that French law made it easy to lay a false charge and that such abuses were much more likely to occur in the case of political offenders.28 Ultimately, the measure was passed, but with an amendment proposed by Mill which limited its effect to twelve months.29 Mill later grandly claimed in his autobiography that this stumbling block had saved Britain from becoming “an accomplice in the vengeance of foreign despotisms.”30 Dissatisfaction with the law continued, both in Britain and among its treaty partners. Although the amending statute was successfully renewed in each of the next several years, it was only a fragmentary patch, and Britain’s treaty partners still found the narrow list of treaty crimes and the details of British procedure impractical.31 Meanwhile, British Liberals worried over the lack of any specific protection for political refugees. The London Examiner said the law “naturally filled the minds of many earnest friends of international freedom with misgivings.”32 In 1868, Benjamin Disraeli’s first government decided to address the problem and convened a select committee of the House of Commons to examine the treaty situation and arrive at a uniform policy for Britain and the empire.33 The committee was clearly intended to incorporate the competing viewpoints on extradition. Alongside Conservative officials the committee included prominent extradition sceptics such as Mill and Torrens. As the committee prepared to begin hearings, Mill confided to a friend that he was now “quite in favour of extradition of real criminals,” but that explicit legal safeguards were crucial to prevent the surrender of political offenders.34 This quickly became the new consensus among British public officials. Many witnesses who testified urged fundamental reform. The committee heard testimony as to both the inadequacy of the present list of treaty crimes with France and the sanctity of exempting political offenders from extradition. Under examination by Mill and others, Foreign Office head Edmund Hammond testified that he would rather allow a criminal to live in freedom than to risk their being extradited and then prosecuted for a political crime. Hammond also testified that rules on the subject were already so strict that if a Fenian guilty of murder escaped to France, Britain could not – and would not – ask for their surrender.35 Hammond, along with Bow Street chief magistrate Sir Thomas Henry and a lawyer from the Bankers Association also testified as to the inadequacy of the British treaties in areas such as theft, fraud, and embezzlement. The Bankers Association counsel in particular claimed that for British business interests, the present treaties were “all

Miller_5200_151.indd 158

12/08/2016 2:06:15 PM

Civilization on the Continent: Law Reform and Imperial Power  159

but inoperative” and urged the necessity of broadening the schedule of treaty crimes to encompass embezzlement, receiving stolen goods, obtaining goods and money under false pretences, and other financial crimes related to bailees, factors, bankers, trustees, and directors.36 The lawyer said that seven or eight such cases, often involving thousands of pounds, went unpunished every year because the offenders fled to France or Belgium.37 These ideas proved crucial in shaping the law. In the end, the committee emerged almost unanimously in favour of cautious but much more expansive extradition arrangements. On the assumption that Britain would benefit from wider treaty relationships, the committee recommended expanding the list of extraditable crimes and simplifying the process for ratifying treaties. The committee also supported adopting European safeguards, including a provision explicitly exempting political offenders and another that implanted what is now known as the specialty doctrine (under which surrendered prisoners could only be tried on the offences for which they were surrendered – a mechanism intended to prevent governments from requesting a refugee on some charge of common crime then trying them for political offences).38 These suggestions soon became law in 1870, after a debate in which the government carefully stressed the new safeguards for refugees. Attorney General Sir Robert Collier tabled the legislation and began with a speech both extolling the necessity of wider extradition arrangements and elaborately detailing the bill’s many safeguards against the surrender of political offenders.39 The bill passed with little controversy or debate. Even Mill, who had left Parliament in 1868, said of the legislation that “the cause of European freedom has thus been saved from a serious misfortune, and our own country from a great iniquity.”40 The 1870 act incorporated ideas intended to protect political refugees as well as liberalizing provisions intended to make extradition more efficient. It embodied the safeguards for which Mill and other liberals had long argued, allowing the magistrate, the habeas corpus judge, and the home secretary to discharge the prisoner if a case was made to them that the charge was of a political character.41 It also prohibited surrender unless the requesting state abided by the doctrine of specialty, and extended the period allowed to the prisoner to obtain habeas corpus to fifteen days.42 The act pointedly also retained the prima facie standard, flouting the French desire to allow surrender merely on proof that a charge had been laid.43 But alongside these protections, the act was also crafted to make the surrender of fugitives easier. To save time,

Miller_5200_151.indd 159

12/08/2016 2:06:15 PM

160  Borderline Crime

it allowed for an arrest warrant to issue from a local magistrate before a request was filed with the government in London – a provision which had been part of Canadian law for decades.44 The legislation also streamlined the process of implementing extradition treaties. For the first time, Parliament also drew up a schedule of crimes which could be included by the executive in treaties. Here the government deferred to the testimony of the Bankers Association and other businessmen and law enforcement officials, and included an extensive list of crimes related to forgery, fraud by an employee, embezzlement, and larceny, as well as violent crimes such as rape and kidnapping.45 Arguably the most important innovation of the act, however, was that it changed the legislative process for extradition policy. The handful of previous British acts were ad hoc measures designed only to implement specific treaties negotiated by the Crown. The 1870 act repealed those laws and bypassed the necessity of future fractious parliamentary debates in which the Parliament could block extradition treaties, as had happened in 1852 and 1864, and which many officials argued inhibited countries from even seeking treaties with Britain.46 In future, the executive could bring all agreements into force through an order in council.47 This had the desired effect, and spurred a wave of new imperial extradition treaties. In the first decade of the act’s operation alone the British signed seventeen new conventions, a trend which continued for decades.48 While the focus of debate was on British policy, this was also an imperial statute with implications for Britain’s many colonies. The act addressed the intersection of imperial and colonial extradition laws, and in repealing the previous British laws, it also replaced them in any colonies in which they were still in force. But the act contained at least two provisions which seemed to minimize its impact on self-governing colonies like Canada. It first allowed the British government to suspend the operation of the imperial act outright in favour of a colonial measure.49 That is, where a colony wanted to design its own procedure in keeping with the parameters of the imperial law, Britain would allow it to do so by suspending the imperial act. This had long been a feature of imperial extradition law. The 1843 act which implemented the AngloAmerican treaty, for example, contained a provision which allowed colonies to do just that, and indeed Canada had brought in such legislation beginning in 1849. It also authorized an existing colonial statute to remain in force “as if it were part of this Act” – an uncertain phrase that led to considerable confusion in Canadian courts, as judges divided

Miller_5200_151.indd 160

12/08/2016 2:06:15 PM

Civilization on the Continent: Law Reform and Imperial Power  161

over whether the imperial or Canadian statutes applied in extradition cases.50 In the short term, however, what Britain did in 1870 was to enunciate a new balance between the intensifying desire in Britain, its colonies, and abroad to liberalize extradition with the powerful and widespread desire to provide safe haven for refugees in British territory. In this sense and many others, the 1870 legislation was a crucial turning point of British law formation. “A Free Trade in Criminals”: Canadian Approaches to Extradition Law Formation In the decade after the passage of the imperial act extradition law liberalization became an increasing priority for Canadian governments. Alongside judges and newspaper editorialists, government policymakers increasingly found both the statutory regime and the broader Anglo-American treaty in need of fundamental reform. Edward Blake’s extradition bill, drafted in 1876 and passed by Parliament in 1877, during his tenure as minister of justice, was a response to these pressures. The statute had a long life, and remained in force with only a few amendments until 1999. But its origins and the process through which it became law reveal much about imperial power in post-Confederation Canada. While there is a well-founded consensus among legal scholars that the measure was modelled on the imperial statute of 1870, suggesting that this is another aspect of the late-Victorian Canadian deference to British ideas, the resemblance was not because of any slavish colonial sentimentality or desire for imperial uniformity on Blake’s part.51 Rather, as originally drafted in 1876, it was a bold repudiation of British policy and an expression of the widespread Canadian desire to achieve what one judge endorsed as “the free trade in criminals”: it undermined the imperial treaty system, modified the specialty protection, and appropriated sweeping discretionary powers to the Canadian cabinet and minister of justice.52 It would have been a milestone of both law reform and Canadian constitutional autonomy. But in the years between his original draft and its final ratification by Britain, Blake’s bill was stripped of its most controversial aspects by the imperial government and brought back into line with imperial policy. Extradition law liberalization, then, was done at the pace of the imperial government and not that of Canadian officials. Blake’s efforts at law reform were grounded in an increasing consensus in Canada that easy extradition was a necessity in northern North

Miller_5200_151.indd 161

12/08/2016 2:06:15 PM

162  Borderline Crime

America. In this, the context of the post–Civil War period was key. In Canada, extradition was part of a broader national security consensus especially prominent since the start of the US Civil War. During the war, ensuring that Confederate operatives did not use British territory to plan attacks on the north became an existential matter for the colonies, and part of the Canadian solution was to set up a border police force and a network of spies.53 As Gregory Kealey and Andrew Parnaby have shown, there was little opposition to this secret police force at a time when such a thing was still considered unacceptably illiberal in England.54 After the war the border remained a security threat, with the growing spectre of Fenianism. As a result, as David Wilson has argued, there was little resistance to the wholesale suspension of habeas corpus in 1866 and 1867 while the Fenian threat persisted.55 Similarly, Sir John A. Macdonald raised the spectre of lawless, armed Americans, against which Canadians might need to defend themselves when he refused to support an 1869 bill restricting the carrying of revolvers.56 The extradition issue, then, fit well within the ideas of security and law enforcement which were widely accepted throughout the 1860s. This consensus was apparent in parliamentary debates over extradition in the late 1860s and early 1870s. Throughout this period MPs regularly lamented that the treaty allowed for surrender on only seven crimes – murder, assault with intent to commit murder, forgery, uttering forged paper, arson, robbery, and piracy. For all other crimes extradition was not an option, a state of affairs which seemed increasingly out of touch with the challenge of the Canadian-American border in a period of such cross-border insecurity. This was evident in 1868, when the government tabled legislation that would simply extend the terms of the existing pre-Confederation Canadian statute to Nova Scotia and New Brunswick, which had never passed their own extradition laws and so were still operating under the older imperial legislation, which was widely held to be clumsy and inefficient.57 In debating this minor measure, then-opposition MP Edward Blake argued that the present law was clearly “defective” and proposed extending the list of extradition crimes to cover the vast array of offences not included in the treaty – a move which would have transferred power over defining the limits of extradition from the imperial treaty to Canadian law.58 This frustration with the law and the way that it intensified a transnational threat to the rule of law was widely shared, as Timothy Warren Anglin reflected when he contended that the presence of American criminals deeply endangered Canadian order.59

Miller_5200_151.indd 162

12/08/2016 2:06:15 PM

Civilization on the Continent: Law Reform and Imperial Power  163

Moreover, Blake was not the first to attempt a radical reform of the extradition system. In the late 1860s and early 1870s, Liberal MP David Mills repeatedly introduced private member’s bills into the House of Commons which would have given the federal executive the same kind of domestic power to surrender fugitive criminals as had the 1833 Upper Canadian Fugitive Offenders Act. Mills’s speeches on the issue illustrate both the widespread frustration with the status quo of Canadian-American extradition as well as the keen awareness that many in Canada had of the complex domestic, imperial, and international law considerations at play in the debate. When Mills first introduced his bill in 1869, he said it was “in the interest of civilization on this continent” and argued that extradition should not be a difficult or delicate matter – fugitives should simply be tried where their alleged crimes were committed.60 His bill did not compel the executive to surrender, he argued, but it highlighted the universal moral obligation which governments were under to extradite foreign criminals, and allowed the government to do so as a matter of comity.61 Mills thus used the ideas of supranational justice that were so key to the debates over northern North American extradition in the pre-treaty period, though he was arguing for a moral duty grounded in comity rather than a binding international law obligation. When he re-introduced the measure in 1871 he made it clear that he did not believe that there was an international law duty to extradite, but he nonetheless argued that “it ought never to be forgotten that although a matter of comity, [extradition] is a power that should be exercised as readily and as promptly in the interests of justice and good neighbourhood, as if it were a matter of obligation.”62 Although Mills saw the debate in terms of comity not law, he believed in broader duties of member states within international society. In this, however, he echoed the views of other international law reformers in this period, including the American codifier David Dudley Field, who noted in his 1872 Draft Outlines of an International Code that extradition “rests upon the principle, that the common interests of all nations require the punishment of great criminals.”63 Mills’s bill would have given the Canadian federal executive branch power to fulfil this moral obligation independent, and in many ways far beyond the parameters, of the Webster-Ashburton Treaty and imperial law. His emphasis was on correcting what he saw as the defective state of the law, under which, he said, many criminals well knew which offences were and were not extraditable, and so which crimes they could commit with impunity so long as they could escape across

Miller_5200_151.indd 163

12/08/2016 2:06:16 PM

164  Borderline Crime

the border.64 Indeed, Mills’s focus on borderless law also led him to propose other sweeping departures from imperial policy. Most importantly, he included no specific acknowledgment of the political offence exception. While Mills claimed to believe in protecting political asylum, he argued that the duty of protection was already so well entrenched in Western civilization, and it was so dishonourable to give such people up, that there was no reason to fear that the federal executive would use the power he proposed in any such way, though without a judicial process to determine who qualified as a refugee Mills’s bill would leave politicians alone to make that determination.65 Moreover, Mills actively rejected the British version of specialty, arguing that once a prisoner was returned to the foreign government, they could be tried for any extraditable offence. Indeed, he dismissed the British position on this point, saying that a “more narrow and less rational basis can serve no other purpose than to occasionally defeat the ends of justice.”66 It is not clear how provocative these provisions were among Canadian policymakers. At the time, the 1868 Canadian statute contained no mention of either political offences or specialty, though there was some small criticism of Mills’s positions in the debates.67 The more important concern was over Canada’s constitutional power as a self-governing dominion to pass such a measure. When Mills first presented his bill in 1869, Sir John A. Macdonald simply said that Britain would block any extradition act not based on an imperial treaty.68 During the more substantial debate in 1871, similar points were raised about Canada’s authority to subvert the imperial treaty system by allowing non-treaty surrender, and there was considerable scepticism about whether the bill was constitutional. As the Conservative Jean Langlois put it, even under the peace, order, and good government clause of the British North America Act, “we could have no jurisdiction in matters of international law.”69 Likewise, John Hillyard Cameron contended that the power to surrender British subjects was strictly an imperial one.70 There were some who believed the proposed authority was constitutional, such as lawyer and future Ontario chief justice Robert A. Harrison, who saw it as a “mere police power,” and there was much sympathy for Mills’s general aim of fostering more cross-border law enforcement.71 But in the end, the prevailing idea was that Canada had no power to pass such a bill, and it was ultimately dropped. Although Macdonald’s government soon took up extradition reform, it was in a much more cautious and much less comprehensive way, by seeking to end the operation of the imperial law in 1872. Deputy

Miller_5200_151.indd 164

12/08/2016 2:06:16 PM

Civilization on the Continent: Law Reform and Imperial Power  165

Minister of Justice Hewitt Bernard urged that Canada should pass its own statute to implement future treaties largely for the sake of convenience and clarity, a move the Colonial Office initially backed.72 After the Canadian parliament passed such a bill in 1873 to implement future treaties while leaving the 1860 act for Canadian-American extradition in place, it went to London, where Sir Thomas Henry among others reviewed the legislation, and found it satisfactory in most respects. Henry identified one minor clause in need of change but called it “a trifling exception” which could be fixed later.73 The imperial authorities appeared ready to bring the bill into force, but when the Liberal government was replaced by Benjamin Disraeli’s Tories in 1874, the Colonial Office took a harder line. Colonial Secretary Lord Carnarvon demanded a series of changes and refused to ratify the bill until they were made.74 The Liberal government that succeeded Macdonald’s Tories in 1873 was more focused on fundamentally reforming extradition law. In 1875 the government sent a formal protest to London about the limits of the Webster-Ashburton Treaty and requested that the imperial government take whatever steps were necessary to conclude a new arrangement.75 The impetus for doing so probably came from recently appointed justice minister Edward Blake, who, like Mill, had a keen interest in extradition law and a growing dissatisfaction with imperial interference in Canadian affairs.76 Blake pressed the issue on cabinet, writing a report detailing the recent rise of the British treaty system, and pointing out how narrow and ineffectual the 1842 Anglo-American arrangement was in comparison.77 Blake used the daily challenge of the border to build his case for law reform. “Cases are of very frequent occurrence in which persons guilty of serious crimes pass from one country into the other,” he reported to cabinet, “and almost within sight of their victims and of the country whose laws they have offended, find a secure refuge for themselves and there [sic] ill-gotten gain.”78 Anglo-American diplomatic negotiations on the subject had been going on for years, and at various points a new agreement seemed imminent. In March 1874, for example, Canadian Justice Department officials advised on the inclusion of larceny and embezzlement in the apparently approaching treaty.79 Yet, as imperial officials soon admitted in response to the Canadian protest, the negotiations fell apart. Foreign Office official T.V. Lister noted that they had been abandoned in May 1874 over the political offence exception. The reason was that the imperial government was bound by the terms of the 1870 statute to ne-

Miller_5200_151.indd 165

12/08/2016 2:06:16 PM

166  Borderline Crime

gotiate a treaty allowing judges, as well as a secretary of state, to weigh a fugitive’s claim for political exception, but the American government declared that only the secretary of state should have such authority – making it an entirely political decision – and when they refused to concede the point, Foreign Secretary Lord Derby called off the discussions. Owing to an 1875 controversy over an Anglo-American case involving the specialty doctrine, Derby revived talks with the State Department, only to find American opinion unchanged. As a result, Lister wrote that there was little hope for a new treaty at any point soon.80 This announcement pushed Blake to consider more radical liberalizing approaches, and he singled out Mills’s idea for unilateral non-treaty extradition. In a report to cabinet, he argued that if Anglo-American negotiations had not produced the reasonable prospect of a new and wider treaty by the next session of Parliament, the Canadian government should provide by legislation “some remedy for so much of the evil resulting from the present state of affairs as accrues from Canada being made a refuge for the criminals of the United States.”81 This was the first time Blake formally announced his view that Canada possessed the domestic authority to surrender fugitive criminals outside of an imperial treaty.82 This also marked the point at which extradition became one of a collection of divisive issues simmering between the Canadian and imperial governments. During this period the Liberal government found itself increasingly at odds with Carnarvon and Governor General Lord Dufferin over the Supreme Court Act, the prerogative of pardon, and the British Columbia railway question, among other issues.83 There was also a concurrent sense of dissatisfaction within the government at the confines of imperial diplomacy and a feeling that Canadian interests had been routinely sacrificed to appease the United States.84 Prime Minister Alexander Mackenzie memorably remarked at the time that Canadians “are all but ruined from first to last by English diplomacy and treaty-making and we would have no more of it at any price.”85 Clearly, Anglo-Canadian relations on this subject were already irritated when, in the summer of 1876, Britain made them even worse by causing a complete shutdown of extradition between the empire and the United States. This was caused by a Foreign Office reversal on whether specialty, entrenched first in the 1870 act, could be applied to older treaties. The dispute began in 1875 when Foreign Secretary Lord Derby protested the rumoured American indictment of a prisoner surrendered by Britain for a crime besides that on which extradition was granted – a clear deviation from the specialty doctrine. The Foreign Of-

Miller_5200_151.indd 166

12/08/2016 2:06:16 PM

Civilization on the Continent: Law Reform and Imperial Power  167

fice argued, with little apparent backing, that the indictment violated a long-standing tacit understanding between the two governments on specialty.86 The Americans resisted this interpretation, and the controversy continued until the summer of 1876, when the United States requested the surrender of Ezra Dyer Winslow, remanded in England for extradition on forgery charges. Derby demanded a guarantee that Winslow would face only those charges, saying that it was a principle of international law (“the embodiment of what was the general opinion of all countries”), and that there was “no country in the world which claims the right now put forward by the United States Government,” to violate specialty.87 The question was twofold: whether there was a bilateral understanding between Britain and the United States, and whether specialty had crystallized into a binding principle of international law which was applicable to the 1842 treaty whether or not it was included there explicitly. The United States argued that no tacit understanding had ever existed, and Secretary of State Hamilton Fish pointed first to the simple absence of specialty from the 1842 treaty, and to the testimony of Foreign Office officials before the 1868 parliamentary committee that specialty was unenforceable on older treaties.88 Likewise, he used the opinion of the attorney general given in the British parliament in 1866 that legislation after the fact could not alter the meaning of a ratified treaty.89 But British and Canadian court cases also worked against the Foreign Office position. Fish relied heavily on the arguments of another attorney general before the English Queen’s Bench in 1872 to the effect that new statutory provisions inconsistent with old treaties could not be imposed on them.90 Fish also cited the decisions of Canadian courts in 1854 and 1866 where judges declined to enforce specialty and invoked an 1874 Quebec decision where the judge had declared, “I cannot see how a new provision of the Act of 1870 could be consistent” with the older treaties, and observed that if specialty were mandated by international law, Britain would not have had to include it in the new legislation.91 Fish argued that these opinions were recent and “neither international law nor international courtesy have changed the principles on which they were then recognized as resting.”92 As a result, the United States refused to issue the guarantee that American authorities would abide by specialty, and when Winslow was released from jail, President Ulysses S. Grant sent a message to Congress saying that the British action had abrogated the treaty.93 Extradition between the British Empire and the United States was at an end.

Miller_5200_151.indd 167

12/08/2016 2:06:16 PM

168  Borderline Crime

Blake was then in London on his famous “Mission to England” to save the Supreme Court Act, shear back the governor general’s power, and secure imperial permission for a new extradition statute. After Grant announced the abrogation of the treaty, Blake began pressing on the Colonial Office the threat posed to Canada by the end of CanadianAmerican extradition. “The state of things even under the Ashburton Treaty was deplorable,” he wrote, “but the condition of affairs would, in the absence of any arrangement, be intolerable.”94 In a series of letters and meetings over the next two months, Blake forwarded reports of cross-border crime purportedly encouraged by the abrogation. Sending one set of newspaper clippings, he told Carnarvon, “I fear the carnival of crime is beginning on our border.”95 Colonial Secretary Lord Carnarvon did not need convincing, on either the practical or the legal grounds. He privately told the governor general that he thought the Foreign Office stance was mistaken, and he was far from alone in that opinion. In fact, Derby’s position was widely regarded as weak and he was attacked for it in the British press.96 The criticism also continued in Parliament, where an array of prominent peers rose to challenge Derby, including former foreign and colonial secretaries, and Lord (Edmund) Hammond, head of the Foreign Office for twenty years. Hammond in particular damningly dismissed Derby’s insistence of an unstated, pre-existing Anglo-American understanding on specialty. “I never heard of its existence,” he said, “which I could not have failed to do.”97 Against this backlash, Derby meekly reasserted his position and promised to seek out a new treaty and to find a modus vivendi in the interim.98 Nonetheless, extradition was not re-established with the United States until Derby backed down from his demands for guarantees of specialty and agreed to the surrender of a fugitive in December, by which time the treaty had been inoperative for six months.99 The imperial confusion over extradition was a key part of Blake’s mandate in England, and a focus of his dissatisfaction with the imperial government. Shortly after arriving, he began pressing on the Colonial Office the necessity of a new Anglo-American treaty and of a Canadian extradition statute. Blake laid out the government’s hopes for the treaty. “The circumstances of Canada and the United States imperatively require that their extradition arrangements should be of a most liberal character,” he wrote.100 Accordingly, his requests were straightforward: any new treaty should include as many extradition offences as possible, allow for colonial governments to design the hearing process, and provide for a simple and direct channel for making requisitions.101 Blake

Miller_5200_151.indd 168

12/08/2016 2:06:16 PM

Civilization on the Continent: Law Reform and Imperial Power  169

also urged the imperial authorities to continue to allow the extradition of nationals, though it was in contrast to Britain’s recent wave of European treaties.102 Blake rejected the imperial focus on protecting political offenders at all costs. For him, as for Mills, political offences were not a serious concern in the context of the Canadian–American relationship, a position rooted in an understanding of Canada and the United States as similarly civilized societies. He told Carnarvon that such cases were very rare, but that property and financial crimes were constantly increasing and that most were not included in the present treaty.103 He also took a very pragmatic approach to the specialty issue that was at the root of the diplomatic rupture. He suggested that in lieu of a straightforward specialty clause, any new Anglo-American treaty should simply prohibit surrender if the fugitive could show that he was liable to be prosecuted for a political offence after being surrendered for a common crime, unless the requesting government pledged not to make such a charge.104 If the imperial government wanted to maintain the protection against other, non-political charges after surrender, Blake suggested simply limiting it to offences not included in the treaty.105 Implicit here was the idea that the two countries shared common legal and political values and a common sense of the rule of law, so that no reason existed to curb cross-border cooperation against crime. Blake also lobbied for a single Canadian statute, believing that simplifying the legal instruments of extradition was key to the broader project of liberalization. In fact, he arrived in England with a draft statute already in mind, telling the colonial secretary that the new law “should be very plain and simple and suited to the circumstances of the locality.”106 Blake wanted the imperial statute suspended in Canada, so that the confusion over competing legislation would cease. For the same reason, he wanted the act to apply to every treaty, avoiding the pitfalls of different regulations governing different extradition relationships.107 However, he was also anxious to re-establish extradition with the United States as soon as possible, and he declared that unless a new treaty or temporary convention could be negotiated quickly, Canada would legislate for the surrender of fugitives outside of any formal diplomatic arrangement.108 Interestingly, although the question of Canadian constitutional authority in this respect had been a main focus of the debate over Mills’s bills, the imperial government initially agreed that Canada did in fact have such a power, at least in the context of the abrogation. Foreign Office adviser George E. March, who replied to Blake’s memoranda, argued that if the Anglo-American treaty re-

Miller_5200_151.indd 169

12/08/2016 2:06:16 PM

170  Borderline Crime

mained inoperative, Canada would indeed have the domestic authority to assume such a power.109 After a month of this lobbying, the Colonial Office asked Blake for a draft bill.110 The resulting text laid the groundwork for the measure passed by the Canadian parliament in 1877, which remained in force until 1999. As legal scholars of extradition have observed, that act was largely modelled on the imperial statute of 1870.111 Indeed, one such scholar notes that the act was close enough that British decisions could continue to apply in Canada.112 This legislative modelling might appear redolent of the slavish imitation of British legislative and judicial precedent which is a familiar element of Canadian legal history.113 But such motives played little role in the construction of the Canadian extradition bill. On extradition, despite Blake’s seeming progress in London in 1876, Canada had little choice but to legislate in line with British policy. Simply put, Blake followed the imperial model because anything else would be voided by Britain, which retained the power to overrule and reshape Canadian law. As a result, the imperial framework was the guiding legislation for Blake’s draft. Understanding some of the specific premises of the bill helps illustrate the array of influences brought to bear on the legislation. Aside from its basic premise as a general measure implementing all extradition treaties, his draft bill followed the imperial law in several key ways, especially in mingling the adoption of protections for political refugees with measures designed to make the surrender of prisoners easier generally. First, it included a specific political offence exception.114 Second, it allowed any properly certified foreign depositions to be admitted as evidence; the 1868 Canadian act only allowed those on which the foreign warrant was granted.115 Third, it lengthened the time granted to fugitives to apply for habeas corpus to fifteen days.116 Fourth, the bill granted some specialty protection to fugitives surrendered to Canada.117 The bill also retained both the historic British prima facie evidence requirement and the stipulation that a prisoner could be released if no requisition was made within two months.118 But there was a Canadian influence as well. The bill embodied the time-saving provision that a judge could issue an arrest warrant before obtaining executive permission, which had been a feature of Canadian law since 1849.119 Despite these ties to the imperial statute and older Canadian law, Blake’s draft was very provocative. It was an attempt to patriate power to Canadian officials, to circumscribe protections for political refugees which Blake felt were unnecessary, and to circumvent the imperial

Miller_5200_151.indd 170

12/08/2016 2:06:16 PM

Civilization on the Continent: Law Reform and Imperial Power  171

treaty system – all in order to render Canadian-American extradition easier for governments and to extend the reach of domestic criminal law over the northern North American boundary. The bill appropriated extradition authority entirely to the minister of justice and Canadian cabinet, including discretionary power to refuse extradition.120 Moreover, it broke with imperial precedent on both the political offence and specialty provisions. Although it acknowledged the exemption of political offenders from extradition, it allowed their surrender for common crimes if the requesting government agreed not to prosecute for a political crime.121 In other words, Blake would allow the surrender of political refugees if they were guilty of apolitical offences as well. (It is worth noting that Blake was far from alone in rethinking such protections. In 1880, the Institut de Droit International endorsed limiting the political designation to offences that did not include normal crimes as well.)122 His bill also limited the specialty protection afforded to fugitives surrendered to Canada. Under it, the Canadian government could not charge such a prisoner with political offences, but could indict on charges other than those for which surrender was granted, provided the surrendering government gave permission.123 Most importantly, it dispensed with the necessity for an imperial treaty by allowing surrender to nations with which there was no treaty, or if an agreement had been suspended or abrogated. It also circumvented narrow arrangements like the Webster-Ashburton terms by allowing surrender on all the crimes listed in the bill, even if they were not mentioned in the treaty.124 This was a clear expression of Blake’s frustration with the imperial standoff over specialty and the limited scope of the AngloAmerican treaty. It also expressed both a desire to liberalize cross-border law enforcement and an implicit trust that political refugees would not become an issue between Canada and the United States. This last provision, for non-treaty surrender, and the way it revived the ideas and arguments of David Mills from a few years before, is telling. Both Blake and Mills were Liberals who thought that Canadian self-government should be absolute on questions of domestic policy, and both were irritated by imperial involvement in domestic affairs. Indeed, during Blake’s short tenure as justice minister (1875–7) he fought the imperial government on several major issues and notably rewrote the governor general’s royal instructions to shear back viceregal power on pardons and the reservation of federal bills, a change which has loomed large in nationalist historiography as a benchmark of Canadian autonomy.125 In this, Blake, like Mills, was an exponent

Miller_5200_151.indd 171

12/08/2016 2:06:16 PM

172  Borderline Crime

of legal liberalism – believing that constitutional practices should be clear, codified, and subject to the rule of law. Both disliked Sir John A. Macdonald’s vision of what Robert Vipond has called “political federalism,” in which provincial autonomy was subject to the political judgments of a supreme federal government, just as colonial autonomy was subject to imperial decree.126 In most ways Blake’s extradition bill is a clear manifestation of this idea: it formally appropriated the governor’s discretion to the cabinet, and mapped out the entire procedure in extradition cases, laying out even the forms that judges should use in issuing arrest warrants and remanding prisoners. But the power that Blake’s bill, like Mills’s before it, gave to the executive to surrender prisoners even in the absence of a treaty represented the kind of sweeping and discretionary executive authority that both found problematic in other areas of the law. Here, then, their mutual inclination towards continentalism – towards a liberalism that eroded unnecessary national barriers to international cooperation – helped override any rule-of-law worries about executive power. With Blake’s 1876 draft, that liberal ideology combined with years of frustration at imperial diplomatic ineptitude and what Blake saw as the British government’s unnecessary fixation with political asylum and political refugees. In his view, political asylum was indeed a worthy and established tradition – but only to a point and only in some contexts. Moreover, he found the manner in which Britain had modified its own law as well as the imperial government’s tactics in trying to export those norms to both Canada and the United States unsuitable to North American conditions, and he believed that they would only exacerbate the challenge of the border by frustrating the reach and power of Canadian and American law. The 1876 abrogation was the last straw, and prompted Blake to take up the cause of extradition reform in a fairly radical, though not unprecedented, way. As a result, what appears at first to have been another symbol of Canada’s late-Victorian legislative deference to British ideas and models actually represented a significant rebellion against those imperial influences and a substantive attempt to liberalize Canadian-American extradition. However, imperial power remained potent enough to win Canadian compliance and to stifle the most important aspects of the bill. Imperial Power and the Extradition Bill Edward Blake’s draft bill was provocative. On top of modifying the specialty protections embedded in the imperial law, it did away with

Miller_5200_151.indd 172

12/08/2016 2:06:17 PM

Civilization on the Continent: Law Reform and Imperial Power  173

the necessity for an imperial treaty at all by allowing the federal executive to surrender prisoners as a matter of domestic law and motivated by international comity. Not surprisingly, then, it proved controversial among imperial authorities. At stake for the officials in London was not simply their control over Canadian law, but their role in ushering the colonies into emerging norms of international law and in ensuring a common and uniform imperial foreign policy that safeguarded political offenders. For Canada, extradition was primarily a practical and domestic concern focused on minimizing the menace of the boundary and returning foreign criminals to a trusted and civilized neighbour. In this context, imperial officials decided to exercise Britain’s continuing power over Canadian law by delaying, blocking, and ultimately rewriting Blake’s original bill. As a result, in the few years after its drafting in 1876, the bill was systematically stripped of its most contentious clauses and brought back into line with imperial policy. Only then was it allowed to become law. As a result, the extradition debate highlights the continuing imperial authority that Britain had over Canada after 1867, particularly its executive and legislative powers. While the outright disallowance of colonial legislation – voiding an act that had already received royal assent – declined steeply from the late 1840s, this decline did not mean that the empire abdicated all control over colonial law. Published statistics are incomplete, but it appears that from the grant of responsible government in each of the eastern British North American colonies until Confederation, the imperial government continued regularly to reserve and occasionally to block British North American laws.127 The reservation power was potent because a reserved bill would expire if not expressly approved within two years, giving the imperial authorities leverage to demand amendments during that time.128 After Confederation, the disallowance of acts continued to decline and was likely used only once. But reservation continued and the imperial government continued to be able to demand changes to Canadian laws using the spectre of expiration. This practice became extremely rare after the revision of the governor general’s royal instructions in 1878, when the clause instructing him to reserve certain classes of bills was dropped. But in the decade after 1867, at least twelve Canadian bills were reserved and reviewed in London, and assent was withheld from at least six of these.129 The reserved bills touched on issues such as copyright, merchant shipping, marine telegraph cables, and extradition – areas where foreign relations, international law, or extraterritorial powers were involved.

Miller_5200_151.indd 173

12/08/2016 2:06:17 PM

174  Borderline Crime

These were also the areas in which London exercised the second facet of its power: its role as supreme parliament of the empire. During this period, London usually did not legislate for its colonies without extensive consultations in which the imperial authorities often circulated draft bills, solicited colonial opinions, and exempted any unwilling colonies. But the imperial government did continue to legislate for the empire on issues where a uniform imperial policy was thought important. It remains unclear how often this occurred, though one Victorian writer on the Canadian constitution compiled what he suggested was a partial list of new imperial acts applying to Canada between 1867 and 1887, and it cites twenty-seven pieces of legislation.130 The issues are similar to those on which Canadian legislation was reserved: submarine telegraphs, merchant shipping, copyright, naturalization, and extradition, among others. These were significant policy areas as international law and the international system generally expanded in the latter half of the nineteenth century. While the constitutional power to block Canadian law remained potent, imperial policymakers well knew that such authority must be used carefully. Indeed, the British government’s first response to Blake’s 1876 draft was simply to stall. Foreign Office legal adviser George E. March agreed that Canada had the domestic power to provide for surrender without a treaty, but urged the federal government to postpone the measure until it was known whether a new Anglo-American agreement could be reached.131 Later, March called the bill “excellent in most respects,” but also alluded to an apparently pending amendment to the imperial statute’s specialty provision, apparently necessary to secure a new treaty with the United States.132 He noted this would also keep the specialty provision in Blake’s bill consistent with British law.133 The Canadian government, he implied, should wait for this change, and for the new treaty, before tabling the legislation. A few weeks later, the foreign secretary also declared that the Canadian bill would “hamper, if not altogether impede the negotiation,” since it would grant the United States unconditional access to its fugitives without the necessity of a treaty.134 In the short term, however, the Canadian government seems to have received no news about the progress of the treaty negotiations, and no decision from the imperial government on whether it would ratify the Canadian bill if it were passed by Parliament. For this reason, Blake held off introducing it in the House of Commons. These demands for delay pushed Blake to begin refashioning the bill, and excising its most important reforms. This process of imperial

Miller_5200_151.indd 174

12/08/2016 2:06:17 PM

Civilization on the Continent: Law Reform and Imperial Power  175

revision began in January 1877, when the colonial secretary repeated his request that Ottawa should delay its extradition legislation, since negotiations with the United States were ongoing and Canada’s provision for non-treaty surrender would damage them.135 A frustrated Blake replied that the government could not delay the legislation any further, particularly since treaty negotiations seemed to be progressing quickly. (His point was that if a new treaty were signed, Canada’s 1868 law, which related only to the specific 1842 treaty, would be entirely inoperative, so he wanted replacement legislation already in place if that occurred.) Instead, he agreed to cut the non-treaty surrender clause out of the bill, fundamentally altering its purpose, and sent it off to London for final approval.136 A month later, with no further advice from the Colonial Office, Blake was furious. “It is extremely vexatious,” he told the prime minister, “that we should have been unable in the course of six or eight months to obtain the consideration of the draft by the Foreign Office.”137 The Colonial Office eventually assented to most of the bill, but requested three further cuts. Lord Carnarvon now wanted the political offence exception removed entirely, as well as the specialty guarantee to fugitives surrendered to Canada. He also requested removal of the discretion given to the Canadian cabinet about whether to apply imperial treaties. These, he said, “involve questions of principle under the discussion of the Foreign Office and foreign governments, and should therefore be left out.”138 Blake was puzzled by the shift in imperial policy towards political offences, which probably reflected the lingering amendment Britain was considering to its statute and which seemed necessary to achieve a new Anglo-American arrangement. Making this change would transfer all authority over political offence and specialty provisions to imperial treaties, and thus to the imperial government, but Blake very reluctantly agreed to edit the bill again, in order to get it through Parliament before the end of the session and before any new Anglo-American treaty.139 However, he refused to submit the bill to Parliament without any political offence protection at all, and suggested scrapping only the most contentious aspect, which allowed political offenders to be surrendered but tried only for non-political crimes.140 Although he thought his provision an improvement on the imperial section, he reported unhappily to cabinet that Canada should, as he put it, “submit to its elimination.”141 While Carnarvon’s demands had excised most of the measure’s controversial clauses, the act was still substantially the same as Blake’s

Miller_5200_151.indd 175

12/08/2016 2:06:17 PM

176  Borderline Crime

1876 draft. Bereft of its provision for surrender without treaty, the act’s key purpose was now to simplify and standardize procedure and to end a raft of continuing legal controversies.142 In his parliamentary speeches on the bill this was one of Blake chief arguments – that the bill would clarify the confused state of Canadian extradition law.143 He likewise told Lord Carnarvon in 1876 that the bill would be used rarely, largely by junior judges, and sometimes under intense international pressure.144 For these reasons, the bill laid out procedural and technical steps in great detail and provided standardized forms for judges to use in extradition cases.145 Blake’s aim in all this was to create a statute clear and complete in itself, with little reference to other procedural laws – in effect, an extradition code.146 Moreover, stripped of the most controversial clauses, the bill encountered no substantive opposition in Parliament, and resolutions urging the imperial government to allow it into force passed unanimously with support from the opposition Conservatives.147 Nonetheless, the process of imperial revision continued. The Colonial Office reply to Blake’s changes to the draft was not received until after the act was passed by Parliament, though it was reassuring. The Colonial Secretary simply thanked the government for complying with his suggestions and hoped the measure would prove useful in Canada.148 But a few days later another despatch arrived from London. “Upon one minor point doubt has occurred to me,” Carnarvon wrote.149 He now believed the act’s provision for Canadian authorities to deliver a prisoner into the territory of a foreign state was ultra vires of the federal Parliament. He did not demand a change, but simply asked the government to examine the clause and consider an amendment.150 Nonetheless, Blake was furious. In a letter forwarded to Carnarvon, he complained that the draft bill had been submitted the previous August and that imperial opinion had been continually sought after that and until the introduction of the bill to Parliament.151 Moreover, Blake argued, the Canadian Parliament had the authority to deal with extradition as well as the specific right to do so under the BNA Act. The government, he said, might consider an amendment later, but in the meantime he wanted the imperial law suspended as soon as possible.152 Carnarvon quickly backed down, saying that the point was minor and “certainly not one which ought to stand in the way of the progress of the measure.”153 For the moment, it seemed as if the Canadian law would actually come into force. After the hints from Lord Carnarvon in 1877 that the British government would suspend the imperial act in Canada, nothing further was

Miller_5200_151.indd 176

12/08/2016 2:06:17 PM

Civilization on the Continent: Law Reform and Imperial Power  177

heard from London. In January 1878, by way of reminding the Colonial Office that the issue was pressing and consequential, the Canadian cabinet sent a recent Ontario court decision in Re Williams that illustrated continuing judicial confusion over whether an imperial or Canadian statute governed extradition. In the case, the former MP Chief Justice Robert A. Harrison was forced to release an extradition prisoner after finding that the committing judge relied solely on the Canadian act of 1877, which Harrison found had no legal force.154 In reply, newly appointed colonial secretary Sir Michael Hicks-Beach simply served notice that the imperial government would delay any decision on the legislation until after a recently named royal commission on extradition issued its final report.155 It was only the first in another series of delays. The eventual report from the commission proposed no changes to the system of authorizing colonial extradition laws in place of the imperial statute. However, after its publication in May 1878 there was no further word from London about the fate of the Canadian statute. For almost two years the imperial authorities withheld their decision. Ottawa did not press the issue again until March 1880, when Blake (now in opposition) announced that he would table a petition to the imperial government in the House of Commons. As the governor general told Hicks-Beach, the cabinet was anxious to have some kind of answer for Blake.156 The Colonial Office’s reply repeated the worries about Canadian power to transport fugitives inside the jurisdiction of foreign states and added an additional demand for revisions.157 The imperial government now believed that the discretionary powers given to the minister of justice to refuse surrender were too large, and if exercised might result in the violation of an imperial treaty.158 The offending section laid out the specific grounds on which the minister could refuse to surrender a fugitive committed for extradition. Its chief purpose was to give the minister statutory discretion in political offence cases, but one subsection allowed the minister to release a prisoner if “for any other reason he ought not to be surrendered.”159 Although the Colonial Office singled it out as dangerous, the clause was actually an adaptation of one contained in the 1868 Canadian statute, which had been ratified by imperial government. This entitled the governor to release a prisoner if, for any reason, he thought surrender improper.160 While such power was acceptable in the hands of an imperial official, it was apparently deemed too threatening to be used by a Canadian minister. The reply had barely been received when Blake tabled his motion in Parliament. Beginning a long, detailed speech, Blake read out in full the unanimous joint address of 1877 calling on the British government

Miller_5200_151.indd 177

12/08/2016 2:06:17 PM

178  Borderline Crime

to suspend the operation of the imperial act. That had not been done, he said, and now the law in Canada was in what he called a “very unsatisfactory state.”161 Blake alluded to the “grievous difficulties” of the Williams case, quoted a Quebec judge’s description of how courts must reconcile the imperial and Canadian statutes, remarking that “that is the very involved operation which is to be performed in each case,” and challenged the government to explain its tardiness in taking action to suspend the imperial act.162 The matter rested there for almost two more years. In January 1882, Justice Minister Sir Alexander Campbell revived the issue and decided to petition the imperial government. Campbell offered no amending statute or revision to the powers of the minister, but simply asked for the suspension of the imperial act in Canada.163 Not surprisingly, the imperial reply was terse, and Colonial Secretary Lord Kimberley noted that the imperial government maintained its objections to the minister’s discretionary power and no suspending order would issue until it was abandoned.164 Campbell quickly agreed to the change and drew up a short amending bill.165 Introducing it in the Senate, Campbell read out Kimberley’s despatch as justification. It was important, he said, to bring the 1877 act into force in order to simplify and clarify Canadian extradition law.166 Three weeks after its introduction to the Senate, the bill was signed into law and the minister’s discretionary power was sheared back. But while the imperial act still operated in Canada, the change had no practical meaning. Despite Kimberley’s promise, nothing happened quickly, and no word came from London regarding the suspension of the imperial act. Finally, on 28 December 1882, Queen Victoria signed the suspension order.167 After a decade of negotiation and legislation, the law in Canada had changed and a Canadian statute regulated all extradition cases. But, as if for a final demonstration of imperial confusion, no one informed the Canadian government. Almost two months after the order, Blake raised the issue in the House of Commons, noting newspaper reports of an imperial order which he said no one in Canada could confirm.168 “Considerable interest,” he said, “exists upon the subject of what the state of the law now is.”169 Macdonald was apparently unaware also, and asked Campbell to look into the issue.170 Within a few weeks the Canadian government was notified of the order and the extradition act of 1877 took force in practice.171 This ended the movement to supplant the imperial extradition statute in Canada. These efforts led to a long series of delays, compromises,

Miller_5200_151.indd 178

12/08/2016 2:06:17 PM

Civilization on the Continent: Law Reform and Imperial Power  179

and revisions. In the end, the policy originally envisioned by Blake in 1876 as comprehensive reform was sheared back according to the dictates of the Colonial Office and other imperial authorities. At issue was not simply Canadian law and imperial relations. Rather, as imperial authority over Canadian domestic affairs had declined throughout the nineteenth century, Britain’s role as the authority over foreign relations for the entire empire had in many ways increased. As nations were drawn into new kinds of legal and diplomatic networks and norms, Britain saw itself as ensuring that its colonies abided by the developing systems of international law. In doing so, however, the British government was able to use the lingering tools of traditional imperial authority. As a result, this process of law reform highlights both the extent to which imperial power was still manifest in post-Confederation Canada, and the ways in which the imperial relationship was shaped by the norms and concepts of international law. Liberalizing efforts to address the challenge of the border, in other words, were refracted through these broader legal regimes of imperial and international law. Conclusion By the time Britain suspended the operation of its statute, extradition had been a pressing political issue in Canada for more than a decade. This long debate over surrendering criminals highlighted the different approaches taken by the Canadian and imperial governments. In Canada, extradition was a largely uncontroversial issue and there was a powerful consensus that Canadian law needed to be adapted to the everyday reality of migrating crime and criminals. With no fear of having to give up slaves or southern soldiers after 1865, extradition became a simple issue of maintaining law and order. Liberals such as David Mills and Edward Blake, and the larger liberal ideology of eroding domestic barriers to greater international cooperation, drove a movement to widen extradition arrangements with the United States and to engage in a more concerted cross-border campaign against crime. The officials who led this movement, and the commentators and judges who supported it, saw the United States as a trusted and civilized neighbour with a common sense of the rule of law, and believed that refusing to surrender criminals to such a country risked transforming Canada into a haven for foreign criminals. As a result, extradition law reform became a top priority, and in 1876 Blake proposed a sweeping bill which would liberalize extradition law and undermine imperial power.

Miller_5200_151.indd 179

12/08/2016 2:06:17 PM

180  Borderline Crime

These efforts did not succeed. Until 1883 extradition reform remained beyond the power of the Canadian government. Throughout the 1870s and early 1880s, imperial authorities suppressed, delayed, and rewrote federal legislation to bring it into line with British policy. Their decision to do so, however, stemmed from long-standing British concern that extradition would be used to surrender political refugees and so would undermine political asylum as a principle and allow Britain’s European neighbours to stifle liberal dissent. During the 1850s and 1860s this concern made even minor amendments to Britain’s underdeveloped body of extradition law difficult. But as Britain moved to adopt legal safeguards for political offenders which had been circulating in European international law for decades, this concern eased, and the imperial government began the process of implanting these concepts into the legal regimes of its colonies. In this context, the imperial government saw Blake’s 1876 draft and 1877 act as a challenge not only to imperial authority but to desirable norms of international law. The resulting tension – between imperial and Canadian law, and between North American continentalism and European internationalism – led to years of intra-imperial disputes. These disputes only ended once Blake’s bill was stripped of its most contentious innovations and imperial power won out. In other words, Canadian law formation was in many ways a fundamentally imperial endeavour.

Miller_5200_151.indd 180

12/08/2016 2:06:18 PM

7 Law Formation in the Common Law World

In January 1865 Upper Canadian judge John Hawkins Hagarty laid out an interpretive approach that would guide decades of Canadian extradition jurisprudence. Hagarty’s opinion came in the Civil War case of Bennet Burley, who helped take over an American steamship on Lake Erie in 1864 and had been arrested in Upper Canada on an extradition warrant to face robbery charges in the United States stemming from the hijacking. But after Burley claimed that he was acting as a Confederate combatant at the time and was immune from individual criminal liability under the laws of war, the case became much more legally complex and politically freighted. Unlike in the St Alban’s Raid case, heard at nearly the same time in Montreal, where another group of purported Confederate operatives made similar arguments, and in which Justice James Smith ultimately decided to release the prisoners, Hagarty and the three other Upper Canadian judges who heard the prisoner’s habeas corpus motion decided to allow Burley’s extradition. They roundly rejected his legal arguments, doubted the legitimacy of his commission from Jefferson Davis, and declared that by violating Canadian neutrality he had lost any protection of the laws of war and forfeited asylum in the colony. Critics of the decision since 1865 have alleged that it was shaped by political and diplomatic necessity – a judicial attempt to spare Canada the wrath of a threatened, infuriated, and militarily mobilized United States.1

Miller_5200_181.indd 181

12/08/2016 2:15:08 PM

182  Borderline Crime

But Burley outlived the context of the Civil War and its importance vastly transcended the particular issues of the case. In fact, Burley became a doctrinal cornerstone of Canadian extradition law, shaping judicial decision making on a sweeping array of questions for decades after its publication. This influence stemmed from a few paragraphs in Hagarty’s opinion in which he described what he saw as the role of courts in facilitating the transnational rule of law through extradition. In the single most influential passage of any extradition decision in this period, he wrote that he was bound to construe extradition treaties between the queen and one of her ally states in what he called “a liberal and just spirit, not laboring with eager astuteness to find doubtful meanings in its words.”2 He continued, writing that in interpreting extradition treaties and statutes judges were to remember the purpose of extradition – bringing criminal offenders to trial – and he waved off questions about whether Burley would receive a fair trial by saying that he must assume that the prisoner would, because the treaty was based on a spirit of mutual trust between states in one another’s legal systems.3 Burley quickly became an emblem of legal liberalization in Canada. Judges who espoused the liberalizing approach sought to erode the significance of national borders as barriers to the rule of law. Their jurisprudence embodied a vision of law in which fairness and justice almost always meant fairness and justice between governments and not individual rights or legal procedure. Like early-nineteenth-century jurists James Kent and James Reid, they believed that extradition flowed from a transnational consensus between civilized states to punish crimes, but unlike with those earlier judges who tried to convert notions of supranational justice into binding law, the spread of this later case law was unburdened by conceptual doubt. Indeed, with clear legal instruments to work with in the form of statutes and treaties, late-nineteenth and early-twentieth-century liberalizing judges created a purposive jurisprudence designed to fulfil the intents and purposes of those instruments, as Hagarty advised. Like Hagarty, they saw technicalities and procedural objections as attempts to sidestep a legal process that was demanded by broader notions of legal civilization and essential to meeting the challenge of sovereignty in northern North America. The liberalizing approach came to dominate extradition law formation in many common law countries during a crucial period. At the time that Burley was decided there was only a handful of reported cases in British North America, meaning that Hagarty was writing on a virtu-

Miller_5200_181.indd 182

12/08/2016 2:15:08 PM

Law Formation in the Common Law World  183

ally blank doctrinal slate and that in its wake Canadian courts looking for guidance turned to the case by necessity. In the five decades after its publication, jurists across Canada argued its principles and judges cited its endorsement of a liberal and just interpretive spirit in deciding a huge array of issues.4 Even those few judges who disliked the liberalizing approach acknowledged its force and authority in Canadian law and deferred to Hagarty’s wariness about legal technicalities being used to frustrate the ends of justice.5 However, liberal law formation was not just a Canadian phenomenon. In the United States, as well as in Britain and its New Zealand, Australian, and African colonies, many courts grappling for the first time with the emerging network of treaties and statutes also formed jurisprudences that distinctly echoed that of Hagarty. They read down technicalities, prized purpose, and often applied what they saw as the requirements of justice and good faith between nations in deciding legal questions. In this way, the earlier ethos of supranational justice played a key role in the development of liberalizing legal doctrine. Examining law formation across the common law world illustrates much about that process of liberalization. Since legal instruments, practices, and officials circulated widely within the British Empire and the post-1783 United States, looking beyond national and colonial borders situates domestic developments in a context that clearly mattered a great deal.6 This context can pull apart the tight relationship scholars often presuppose between law and politics. Understood in the broader common law world context, for example, Burley appears less as a reflection of exigent circumstances than as an emblem of a near-global doctrinal shift. Likewise, the common law world model also helps to decentre Britain in imperial histories, pushing scholarship beyond a bilateral British-colonial model that may illuminate some issues (such as the development of legislation, where Britain often supervised its colonies and wielded real power) while obscuring others (for example, by assuming the global reach of British ideas during the imperial juridical heyday). While jurists outside of Britain did cite English courts, the common law world functioned much more as a series of disconnected jurisprudential zones and sub-circuits in which jurists borrowed across some national and colonial borders but not others, and in which English models were often not very influential let alone determinative. Mapping the flow of jurisprudential ideas within the common law world shows much going on beyond the articulation of English approaches by colonial courts.

Miller_5200_181.indd 183

12/08/2016 2:15:08 PM

184  Borderline Crime

Using the common law world model also shows how the liberalizing approach was not the only juridical response to the challenge that human mobility and territorial sovereignty posed to the rule of law around the world in this period of legal genesis. In the late nineteenth and early twentieth centuries jurists and policymakers were developing and broadening these new legal and diplomatic networks to cooperate across borders against crime, and as many judges were crafting broad and purposive jurisprudences around the globe, others resisted this shift. In contrast to the liberalizers, many jurists in New Zealand, Australia, and southern Africa articulated profoundly different views, creating case laws that construed treaties and statutes more strictly. Fearful of prisoners being detained for long periods and moved huge distances, these strict constructionists prized legal technicalities as guarantors of individual liberty and saw justice and fairness as primarily applying against governments rather than between them. While strict constructionists did not see themselves as offering asylum to criminals, they did believe that state power should be carefully contained as it increasingly reached across borders. “We are dealing with a highly civilized people”: Legal Liberalization in Canada In the 1906 Harsha case, decided forty years after the Burley decision laid out a vision of extradition law liberalization, an Ontario appeal judge demonstrated how powerful that interpretive methodology remained. Writing in the case of an American fugitive from Illinois, Justice R.M. Meredith typified the liberalizing approach, revealing how jurisprudence embodied beliefs not simply about law, but also about culture, race, and the enduring challenge of the border. For Meredith, as for many liberal extradition judges across the period, Canada and the United States were part of a common Anglo-Saxon civilization. While the two countries shared a long border, their ties ran deeper, he wrote. They “spring from the same stock,” he wrote, shared the same language, had “like ways and habits of life,” and shared a legal lineage to the common law of England.7 In his view, this commonality should shape extradition law and should compel judges to resist the kinds of legal technicalities employed by defence lawyers to defeat the ends of justice within an international community as united as North America, and which in this case were being marshalled to keep an accused forger from being put on trial for his crimes.8 This opinion highlights much

Miller_5200_181.indd 184

12/08/2016 2:15:08 PM

Law Formation in the Common Law World  185

about the jurisprudence that emerged in Canada in the half-century after Burley, most importantly the way that notions about international good faith and transnational civilization actively shaped judicial decision making. The most important intellectual underpinning of the Canadian liberal approach was the idea that the United States was a fellow civilized state. As with policymakers like Edward Blake and David Mills, liberal extradition judges like R.M. Meredith thought about extradition principally as a form of connection between fundamentally similar societies and polities. As a result, the jurisprudence that emerged was built on social, cultural, and racial assumptions, as well as legal doctrines. Certainly Canadian courts occasionally took up the rhetoric of extradition as a tool of civilized states generally – an Ontario county judge in 1890 wrote that extradition judges acted “in the interests of promoting civilization” – but they far more often described civilization in a more targeted, continentalist way, rooted in a shared Anglo-American or Anglo-Saxon North American identity, as Meredith did in the Harsha case.9 This was not a particularly nuanced concept for the judges, and they never explored the meanings or limits of civilization in any significant way. It largely appears to have been a concept based on the kind of radical essentialization of law, culture, and race in both Canada and the United States laid out in Harsha. This belief in American civilization was premised on an admiration of American law and justice. The idea that American legal institutions were fair and impartial made it not simply desirable but also safe to surrender fugitives to the United States. In fact, many judges argued that the United States was friendlier to prisoners’ rights than Canada, a point they often made to dismiss any concern for the prisoner as deeply misguided and ill informed. Justice John Wilson, who was on the bench alongside Hagarty in the Burley case, wrote just three years after the final abolition of American slavery that he had never hesitated to commit prisoners for surrender to the United States for fear that their legal rights would be abused or compromised. “We are not to overlook or forget for an instant,” he wrote, “that we are dealing with a highly civilized people, most tenacious of their liberty, whose laws are similar to our own, but administered with more of the Common Law technicality than we have thought expedient to retain” – technicalities which gave prisoners chances to escape punishment.10 This view lingered, and even grew over the subsequent decades. As a Manitoba judge wrote in quashing a writ of habeas corpus in 1889, the United States was a

Miller_5200_181.indd 185

12/08/2016 2:15:08 PM

186  Borderline Crime

civilized country where a fair trial was assured and where courts and procedural codes allowed prisoners to make endless objections on technical grounds.11 As a result, he wrote, “the policy of the law and of the court should be in favour of surrendering the criminal refugees.”12 Indeed, in 1902 a Quebec judge declared that he had no sympathy for the prisoners he was discharging on habeas corpus, and that the United States, “which always gives beautiful examples of justice,” would not be prosecuting them without reason.13 These notions of international trust and the admiration of American justice were powerful. In many ways the United States became more trustworthy as a jurisdiction over the late nineteenth century, and the result was that the links that had existed for some jurists between extradition and the erosion of asylum were almost entirely severed. First and foremost, the end of the war meant the end of slavery. As one judge wrote in 1868, the “terribly dense cloud” of slavery had been swept away, and it was now safe to set up extradition arrangements involving a much larger range of offences without needing to exclude those which slaves might commit in fleeing the American south.14 After slavery and the end of the possibility of Civil War combatants seeking refuge came the resolution of the debate over specialty in the 1880s, which had complicated the Anglo-American extradition relationship for more than a decade. Disagreement over whether the doctrine of specialty applied to the Anglo-American treaty had led to a shutdown of extradition relations between England and the United States in 1876, and even when the abrogation ended, the issue was not finally resolved. Instead, Britain agreed not to enforce the principle on the older Anglo-American treaty, while not changing its view on the place of specialty in international law. As a result, the issue was occasionally raised by defendants in Canadian courts. It emerged in the 1886 Cadby case in New Brunswick, for example, where Justice W.H. Tuck noted conflicting American precedents on whether the country was bound by international law to enforce specialty, and where he was forced to evaluate whether the issue should affect judicial consideration of extradition cases.15 Yet that conflict in the United States was soon resolved with the Supreme Court’s 1886 decision in U.S. v. Rauscher, which held that specialty was binding.16 At a stroke, the issue was gone and the dispute between the United States and Britain was over. Thereafter, Canadian courts simply brushed aside defence objections grounded in specialty, as a Quebec judge did in 1902, saying that it was now “generally admitted” as a principal rule of extradition that no state had a

Miller_5200_181.indd 186

12/08/2016 2:15:08 PM

Law Formation in the Common Law World  187

right to try extradited prisoners on anything other than the crime of surrender.17 But the liberal approach went far beyond judicial rhetoric and beliefs about foreign civilization and justice. It fundamentally prioritized a purposive and consequencialist view of the law, shaping the jurisprudence to achieve an end that was widely thought to be legally and morally just rather than taking a detached view of the judge’s role. As Hagarty wrote in 1868, the common civilization shared by Canada and the United States straddled a vast boundary, which, as one BC judge observed in 1905, gave “unexampled opportunities” for the escape of fugitive criminals.18 Judges had a role in staunching that flow of fugitives through their development of an extradition law that made it as simple as possible for these fundamentally aligned jurisdictions to cooperate against crime. As a result, the liberal approach manifested a keen desire to shape the practicalities of the law in response to the menace of the northern North American boundary. In an 1882 decision, the Ontario judge J.D. Armour laid out this view, writing that judges should use “a fair and liberal spirit … so as to advance as much as possible the remedy” of Canadian-American extradition.19 In Quebec, district magistrate G.E. Rioux espoused using what he also called a “liberal spirit” to extend the “usefulness” of the Anglo-American treaty.20 Judges applied these ideas of purpose and consequence in practice, thereby imprinting on the law notions of justice and fairness that favoured state power over individual rights. In the Harsha case in 1906, Ontario chancellor Sir John Boyd decided that the prisoner’s rearrest after a discharge did not violate the principles of the centuries-old English Habeas Corpus Act, in part because of the consequences of deciding otherwise. The Habeas Corpus Act was a cornerstone of English liberty, and protected individuals from rearrests that were vexatious and therefore unjust, but when it came to extradition it was in the interests of justice and international goodwill to allow the new arrest, Boyd wrote.21 Likewise, in 1905 when a prisoner in Quebec challenged the jurisdiction of the extradition commissioner who committed him, the province’s chief justice refused to intervene, writing that doing so would only “trammel justice.”22 In other words, broader notions of justice and the transnational rule of law did shape the everyday adjudication of legal questions in extradition courts. Judges also used this purposive approach to diminish the use of legal technicalities by defendants. In doing so, Hagarty’s decision in Burley was key, with its injunction against judges “laboring with eager astute-

Miller_5200_181.indd 187

12/08/2016 2:15:08 PM

188  Borderline Crime

ness to find flaws or doubtful meanings” in the text of the treaty or statute.23 Versions of that idea were repeated for decades at all levels of Canadian courts in response to the continued efforts of defence lawyers. Hagarty himself wrote in 1882 that he marvelled at the astuteness used to defeat the design and intent of the treaty through legal technicalities, and that judges should adhere to what he called “plain intelligible principles” in handling the cases.24 That view was reiterated by judges around the country for decades. In 1905 a BC county judge wrote that technicalities of criminal procedure should not “smother … this vastly salutary agreement,” while in 1912 a county judge in Nova Scotia took the same view, warning against paying too much attention to the “ordinary technicalities” of criminal procedure.25 Indeed, in Harsha, Chancellor Boyd wrote that legal technicalities were discreditable enough in ordinary criminal law without being imported into extradition.26 By the early twentieth century, that position was a central tenet of Canadian extradition jurisprudence. From a few reported cases in 1865 when John Hawkins Hagarty wrote his opinion in Burley, this body of law had vastly expanded by 1914. By then the case law included detailed disquisitions on issues ranging from legal procedure and the requirements of charging documents to the interpretation of international treaties. In those decades, Hagarty’s declaration that judges should shape the law with what he described as a liberal spirit imprinted itself on countless Canadian decisions. In other words, the process of extradition law formation in Canada was inextricably linked to the process of liberalization. In this way, judges echoed politicians and policymakers in trying to use law to meet the threat of territorial sovereignty. Liberalization and Law Formation in the Common Law World Burley may have been decided in the heightened diplomatic circumstances of the US Civil War, but its emphasis on legal liberalization echoed and presaged that of courts and jurists across the common law world in the latter half of the nineteenth century and the first years of the twentieth. The approaches of these liberalizers were remarkably similar across time and place – a rhetorical belief in transnational civilization and its campaign against crime, coupled with a focus on purposive reason and a hostility to legal technicalities that had substantive decisional power in practice. In some jurisdictions, such as the United States and Britain, liberalization represented a doctrinal shift from the first few fragmentary reported cases, while in others it was the founda-

Miller_5200_181.indd 188

12/08/2016 2:15:09 PM

Law Formation in the Common Law World  189

tional interpretive approach used in the first few decades of extradition law formation. In the United States, the small mid-century jurisprudence reflected a deeply ambivalent view of allowing criminal law to cross national borders through extradition.27 These concerns were typified by the work of Supreme Court justice Samuel Nelson. In the 1852–3 case of Thomas Kaine, an Irish farmer requested by the British government on murder charges, and who fought his case through all levels of the federal courts, Nelson warned against America cooperating too closely with other countries against crime. Nelson heard the case three times – on his own as a circuit judge, as a member of the Supreme Court when it came before the full bench, and again in chambers when he discharged Kaine on habeas corpus. In that final stage, Nelson’s concern about extradition as a potential erosion of liberty became apparent. It was not that Nelson believed in asylum at all costs, but rather that, like many in Britain and Canada at the same moment, he feared that easy and efficient extradition would be used against legitimate refugees, especially political dissidents. As a result, Nelson saw extradition as a balancing act in a way that most subsequent Canadian and American judges did not. “It is a delicate power of Government,” he wrote, “which should be limited, and guarded with great care, to prevent abuses, and be exercised with the utmost deliberation and caution.”28 Also unlike most of the key judges who followed him, Nelson thought of civilization as a brake upon extradition and not a force which compelled it. He argued that while enlightened states should clearly not surrender fugitives to barbarous ones, even among enlightened states extradition had been carefully limited to a few crimes, while asylum had been preserved for most other offences, a cautious approach that he wrote should guide judges in developing the law.29 These limits were descriptively true when Nelson wrote in 1853. But over the next sixty years, as treaty regimes expanded, American judicial views changed. Nelson’s beliefs about the cautiousness of purportedly civilized and enlightened states like England and the United States and of the balancing act embedded in the law as a result were supplanted by a near-universal pro-extradition consensus. By 1886, in the habeas case of a Canadian fugitive, a circuit judge in Minnesota called extradition a “just policy … that has gradually become recognized all over the civilized world.”30 The most important issues in that case were whether a fugitive could be rearrested after a previous discharge, a question that had emerged in Canada and elsewhere in the common law world, and

Miller_5200_181.indd 189

12/08/2016 2:15:09 PM

190  Borderline Crime

one where the power of broader notions of international good faith was often especially clear. The judge decided that forbidding such an arrest would be an “outrage upon justice … a violation of the spirit, if not the letter, of the treaty.”31 According to the judge, it was “for the interest of every nation, and of every individual, that no criminal shall anywhere find an escape from the pursuing hands of justice.”32 Opinions like that were soon reinforced by the US Supreme Court. In the 1902 Grin v. Shine decision, the court noted the broad and transnational shift in legal attitudes towards extradition. Justice Henry Billings Brown declared that because criminals could now escape national jurisdictions easier than ever before, most civilized states had signed extradition treaties and those treaties must be “faithfully observed, and interpreted with a view to fulfill our just obligations” – in particular by minimizing the power of legal technicalities to defeat the purpose of the treaties and the ends of justice.33 These decisions epitomized the dominant themes of American extradition jurisprudence by the late nineteenth century: that extradition flowed from a transnational consensus among civilized powers to punish crime and to be just and fair to one another, that legal technicalities should be read down by judges, and that courts should interpret the law purposively to fulfil the intent of the treaty. By and large the balancing act of international order and individual rights espoused by Justice Nelson in Kaine was gone. Just as in Canada, the view that legal technicalities should not be allowed to block or even delay extradition was an especially powerful component of this consensus. Again and again from the 1840s into the second decade of the twentieth century defence lawyers challenged the formalities and sufficiency of prosecution documents and arrest warrants on the ground that they did not, for example, describe the alleged offence as clearly as they would have to in a case involving domestic criminal law. And just as in Canada, the courts responded by prioritizing substance over form, and by minimizing the amount of detail necessary to make a complaint or a judge’s warrant acceptable. As a federal judge in New York wrote in 1867, charging documents needed simply a “substantial and material” description of the offence rather than what he called the “formal precision and nicety” of indictments in domestic criminal cases.34 But judges also noted how the law had changed in this respect – that what one federal judge called “the old doctrine … of extreme technicality” had been thankfully and wisely abandoned.35 “The extreme technicality with which these proceedings were formerly conducted has given place to a

Miller_5200_181.indd 190

12/08/2016 2:15:09 PM

Law Formation in the Common Law World  191

more liberal practice,” another noted in 1896, “the object being to reach a correct decision upon the main question – is there reasonable cause to believe that a crime has been committed?”36 Also like liberalizing Canadian jurists, many American judges embraced purposive and consequencialist approaches, interpreting the law to fulfil the objective of the treaty and to live up to the broader ethos of transnational law enforcement and international good faith. This emerged as early as the 1840s in some of the first extradition cases decided by the federal courts under America’s new treaties with France and Britain. As a federal judge in New York wrote in 1847, where the meaning of the treaty was ambiguous it should be interpreted according to the “understanding and intent” of the treaty partners.37 Over the subsequent decades courts brought that approach to bear on a sweeping array of legal questions. When another New York federal court in 1883 was considering the right of a prisoner to a delay in their hearing to gather evidence, the judge reasoned in part from the potential consequences of allowing it, as well as the treaty’s purpose. He found that granting that request and allowing the prisoner time to stage so active a defence would essentially force the foreign government to try their case in the United States, which was contrary to that government’s rights under the treaty, and would contravene the intent of extradition treaties generally, which existed to bring offenders back to the original jurisdiction for trial.38 Similarly, in 1912 a judge in Wisconsin declared that defence arguments that a magistrate lacked power to grant delays to the prosecution would “well-nigh frustrate the purposes of the extradition act,” and quashed the prisoner’s habeas corpus case.39 While Canadian and American jurists largely thought about extradition the same way, using similar rhetoric and largely the same liberalizing interpretive approaches, the English jurisprudence was different. As in the United States, many English judges were ambivalent about extradition, though that concern was more prominent and longer-lasting in England. In the 1860s, the English Court of Queen’s Bench had deeply frustrated Britain’s treaty partners by enforcing the common law definition of crimes on foreign extradition cases, while in 1873 the Judicial Committee of the Privy Council was openly horrified at the prospect of extradition being used to surrender Hong Kong prisoners to China for acts that western states did not treat as criminal.40 However, as in the United States, English judges increasingly came to liberal conclusions about the law in the late nineteenth and early twentieth centuries. But they largely did not engage in the sort of expansive and

Miller_5200_181.indd 191

12/08/2016 2:15:09 PM

192  Borderline Crime

rhetorical purposive discussions about civilization and international good faith and justice that were at the core of judicial visions of extradition in North America. Nor, by and large, did their legal reasoning involve much attention to the consequences of any one interpretation or the purposes or intents of extradition treaties. There were exceptions, though, such as in a pair of opinions stemming from a single 1895–6 case, in which Lord Chief Justice Lord Russell of Killowen invoked concepts very similar to the North Americans. Russell wrote that extradition was founded on the twinned principles that it was in the interest of civilized countries to punish crimes and that treaties ought to receive a liberal interpretation (which he said meant nothing more than giving them what he called their “true construction” according to their intent and object).41 Yet these comments stand out as exceptions to the much more muted and technical patterns of discussion and reasoning that typified the English jurisprudence. Although on questions of individual rights involving habeas corpus or bail the English courts often came to the same conclusions as Canadian and American judges, their methodologies did not largely draw on any notions of civilization, transnational law enforcement, or justice between nations.42 In this respect many jurists in Britain’s Australian, New Zealand, and southern African colonies were much more like North Americans. While none of the southern colonies produced anywhere near the size or depth of the jurisprudence that emerged in North America or England during this period, making it difficult to map effectively the extent or reach of any one doctrine or interpretive method, liberalization as it was conceived of in North America was present and sometimes powerful, and among liberalizing judges the rhetoric of extradition as a tool of civilization was both. In the Cape Colony judges in the early twentieth century who dealt with fugitives from German Southwest Africa highlighted the supposed civilization of the neighbouring jurisdiction. In a 1906 case the judge’s belief that the German colony was civilized shaped how he dealt with the defence’s chief argument, that the prisoners who were charged as cattle thieves had simply taken the animals in lieu of salaries that had been withheld. The judge refused to give that idea any weight, writing, “We are not dealing with Barbarians … German South West Africa is a civilized state,” and so he said he must assume that there was a valid reason for denying the prisoners their pay, and he wrote that it was “just and proper” that the prisoners face trial, language reminiscent of the North American case law.43 The

Miller_5200_181.indd 192

12/08/2016 2:15:09 PM

Law Formation in the Common Law World  193

Cape court followed this up three years later when a group of Khoi fought their extradition on murder charges by claiming, in the midst of a bloody conflict in which German and colonial forces routinely massacred black Africans, to be legitimate rebels against German rule. The court again relied on shared notions of transnational civilization to deny them that status, but the case also illustrates better than any from North America or England how racialized were jurisprudential visions of civilization. One judge wrote that he must assume as comity “between civilized powers” that the prisoners would be properly tried on the extradition charges only, but singled out how difficult he found it to apply European-derived ideas such as the political offence exception to African natives.44 According to him, it was “very difficult to apply the conventions of civilised people to the conduct and methods of people of this class.”45 While courts in England and North America had long expressed deep concern about political asylum, the Cape judge’s declaration that black Africans might be entirely ineligible for the protections of belligerent status pitted race against civilization in a way that none of the previous decisions had. The British Empire also had a special status as a kind of amalgamated and civilized single jurisdiction among some jurists.46 In several cases involving intra-imperial extradition judges especially endorsed the surrender of fugitives. In 1883 the chief justice of Natal discharged a prisoner because the warrant used against him had not been authenticated, but he declared both that if proper documents arrived there was nothing to prevent the prisoner’s rearrest and that the extradition of offenders served a laudable purpose. According to the chief justice, the imperial Fugitive Offenders Act served to “to weld together in respect of the apprehension of supposed criminals, the various parts of the Empire into one whole.”47 Likewise, in 1902 the chief justice of New Zealand declared that only in an exceptional case should an offender not be sent within the empire for trial, while a Cape judge in 1910 breezily brushed aside claims that removing the prisoner from that colony into the “neighbouring district” of Transvaal within the recently created South African union would be at all oppressive, ideas that echoed cases like Burley and judges like John Hawkins Hagarty.48 Around the common law world, these liberalizing judges were working to erode the national and colonial barriers to extradition, seeing in this project the advancement of supranational justice, international fairness, and the transnational reach of the rule of law.

Miller_5200_181.indd 193

12/08/2016 2:15:09 PM

194  Borderline Crime

Strict Constructionism, Law Formation, and Liberty While the liberalizing interpretive approach spread across the common law world, it was not the only way in which judges approached extradition law formation. Unlike in Canada after Burley, the United States after Kaine, and, increasingly, England during the late nineteenth century, pro-extradition views were not dominant in the southern colonies. Instead, extradition law formation in South Africa, Australia, and New Zealand was marked by much more cautious attitudes to both international and intra-imperial extradition, and a much keener focus on individual rights. Just as liberalization became the dominant framework for much of the common law world, many southern colonial jurists espoused a strict construction of extradition laws and treaties, reading legal instruments narrowly, resolving doubtful questions on the side of prisoners, and not granting the state any power over fugitives that was not clearly laid out in positive law. This strict constructionist framework decisively shaped judicial decision making on legal issues grounded in questions of liberty, especially on issues involving habeas corpus review, where many judges in the southern colonies sometimes took much more expansive views of the scope of review than did most English, American, or Canadian courts. However, just as North American judges used liberalization as a framework to address seemingly non-ideological technical legal questions, judicial concern about extradition also shaped the way that courts handled an array of other legal questions which on their face were not rights-based issues. As in North America, the earliest extradition cases in these colonies reflect a sort of balancing act view of extradition. In 1860 in the first reported Queensland case, the judge praised the British intra-imperial extradition law for allowing the arrest of offenders while at the same time protecting the liberty of the subject.49 Unlike in North America, though, liberty concerns did not fade away from the jurisprudential mainstream. In fact, some southern colonial courts developed strict construction into the dominant interpretive approach, paralleling the power of North American liberalization, though it was less frequently articulated and less well developed, largely because far fewer cases were reported in the colonies. Judges who espoused this view saw extradition as a balancing act, not believing that asylum was an imperative in all cases, but rather expressing serious concern about allowing people to be detained and removed from the jurisdiction, sometimes across huge distances. In 1901, when Cape Colony chief justice Sir John

Miller_5200_181.indd 194

12/08/2016 2:15:09 PM

Law Formation in the Common Law World  195

de Villiers heard a case that turned on whether the imperial Fugitive Offenders Act applied where the requesting territory (Transvaal) had not been part of the empire at the time of the offence, he discharged the prisoner. According to de Villiers, “This is a question where the liberty of the applicant is concerned, and the Court should give the words of the section a strict and reasonable interpretation.”50 Likewise, in 1906 the chief justice of Natal decided that magistrates there did not have jurisdiction under the imperial act at all, discharged the prisoner, and wrote it was “necessary that the Act, which is penal in its character, should be construed strictly.”51 The South Australian politician and judge James Boucaut was one of the chief and earliest judicial proponents of strict constructionism in extradition law formation. As Boucaut self-consciously crafted the beginnings of a jurisprudence for the colony, and wrote all but two of the earliest reported extradition decisions, he expounded a view of the law that prioritized what he saw as individual rights. In 1887 he wrote a decision discharging a prisoner and declaring that the section of the Fugitive Offenders Act that allowed magistrates to issue arrest warrants was “highly penal … and must be construed strictly and fairly,” a version of fairness that was in stark contrast to the North American focus on good faith between nations.52 Indeed, on the question of scrutinizing warrants and other documents used to arrest and hold prisoners, Boucaut noted that the English courts had been, as he put it, “more liberal than I have been hitherto in favour of arrest and as against a prisoner,” but he was not prepared to change his views, and in fact his decision in the case discharged two prisoners requested back by the British government.53 Strict constructionist opinions reflected both a general concern for individual rights as well as, on at least several occasions, explicit worry for the rights of the particular prisoner contesting their surrender, for whom judges sometimes expressed open sympathy. Both of these were almost entirely absent from Canadian, American, and English reported cases. But Boucaut, for example, wrote in an 1887 decision concerning the validity of a warrant that although documents which affected the liberty of the subject should be prepared with care, there was a growing laxity among officials that threatened individual rights. When a subject was being removed from the colony, he wrote, they had a right to know why with certainty.54 Likewise, in 1900, the chief justice of New Zealand wrote that although appeals to his court did not exist in extradition cases, they should and he wished that they did, because such cases involved important questions of liberty.55

Miller_5200_181.indd 195

12/08/2016 2:15:09 PM

196  Borderline Crime

Judges sometimes also singled out the prisoner in front of them for open concern, which North American courts rarely if ever did. In the 1887 Radcliffe case, Boucaut first discharged the prisoner, then, upon his rearrest, granted him bail, both times noting the hardship that the prisoner was suffering.56 Likewise, in an 1884 Natal case, two of the three judges who voted to release the prisoner noted the hardship of his months of incarceration, while in an 1879 New Zealand decision which released the prisoner, having found that the colony’s extradition law was ultra vires of the colonial legislature, a judge declared that the prisoner was entitled to a speedy judgment, this being a matter of his liberty.57 Part of this concern for liberty, at least in the Australian courts, centred on geography, marking a jurisprudential appreciation of space that was precisely the opposite of the North American liberalizing jurisprudence. Taking a prisoner between South Australia and England, for example, might mean many months in jail between the arrest, the hearing, the sea voyage, and the ultimate trial. In the same way that the close proximity and massive land border between Canada and the United States prompted some Canadian judges to see extradition as a paramount necessity, the distances involved in surrendering a prisoner from Australia raised deep concern for some judges there, especially Boucaut. In one case he wrote that while there was a presumption of correctness in reviewing lower court proceedings, he was also bound to see that the queen’s subjects were not taken in custody across the seas without a clear legal reason, while in another he was even more blunt, writing, “I cannot sit here and have these men remanded and taken away 16,000 miles by the force of arms, with nothing definite before me to act on.”58 Such worries clearly continued, and in 1909 the chief justice of Australia incredulously asked a prosecution lawyer if he could seriously contend that no more than prima facie evidence was necessary to “justify sending a man to the other side of the earth.”59 Given the stakes involved for the prisoners, judges sometimes even invoked the power of the 1679 English Habeas Corpus Act that allowed a magistrate to be fined if they violated an individual’s rights under the statute. Boucaut threatened this in 1887, saying that he would deal severely with any magistrate who defied the Habeas Corpus Act, while in 1894 a New South Wales judge actually levied costs from a magistrate who, the judge wrote, “did the prisoner a positive injustice.”60 The differences between the liberal North American case law and the often strict constructionist southern colonial jurisprudence were

Miller_5200_181.indd 196

12/08/2016 2:15:10 PM

Law Formation in the Common Law World  197

partly rooted in the legal instruments involved. That is, there were key differences between imperial and colonial extradition acts governing extradition between British jurisdictions and foreign countries and the imperial Fugitive Offenders Act, which covered intra-imperial extradition. The intra-imperial statute allowed judges more scope to refuse to allow a prisoner’s surrender, inviting them to consider whether removing a prisoner might be unjust or oppressive.61 While there were only a few Fugitive Offenders Act cases in Canada, intra-imperial cases were far more common in the southern colonies, and judges there took up the power of deciding on questions of oppression and injustice, demonstrating a cautious approach to surrendering prisoners.62 A New South Wales court decided in 1901 that a request for surrender from Victoria had not been made in good faith, but was instead being used to enforce a private debt, which the judge held was unjust and oppressive.63 Another NSW judge invoked the clause in 1887 in deciding not to surrender a man to New Zealand on charges of having abandoned his wife, a case in which the judge stressed his own power to “deal out justice between the parties and the Crown, without putting the appellant to the inconvenience – and it may be oppression” – of sending him home.64 According to the judge, the court could give relief to the prisoner while doing justice to the prisoner’s wife by enforcing an order for spousal support.65 That cautious approach, which typified strict constructionism, emphasized concern about the prisoner’s rights alongside the obligations of international or intra-imperial good faith. This version of the law was part of the southern colonial jurisprudence to a degree that it simply was not in North America or England, where jurists were focused more intensely on a project of legal liberalization. Mapping the Law: Transnational and Trans-colonial Legal Thought In early 1886 the New Brunswick Supreme Court heard the case of John H.W. Cadby, a prominent entrepreneur who owned a string of music stores and who reportedly fled New York State after forging promissory notes for nearly $80,000.66 As with many extradition defendants, Cadby’s wealth allowed him to fight extradition vigorously, and the prominent lawyers he hired laid out a long list of complex challenges to his surrender, with which the prosecutors had to grapple and which the judges largely rejected in deciding that he could be given up. The way that Cadby was argued and decided highlights a key part of ex-

Miller_5200_181.indd 197

12/08/2016 2:15:10 PM

198  Borderline Crime

tradition law formation around the common law world: the central role of the transnational and trans-colonial borrowing of ideas. When Cadby’s lawyers made arguments about the doctrine of specialty, the court debated American state court decisions and US treatises on extradition and international law.67 Likewise, when the defence argued that Cadby’s common law rights were violated by inadequacies in the committal warrant, they turned to American books and to US federal court case law.68 Meanwhile the prosecution made arguments about procedure under the extradition treaty using some of the same US literature and an influential American federal case.69 Most revealingly, though, some of the judges manifested not simply a willingness to consider and apply foreign and imperial legal ideas, but to do so as part of liberalizing the law. In particular, Justice W.H. Tuck limited the power of defendants to challenge their detention through habeas corpus – a key part of streamlining extradition procedure around the common law world. In doing so, he cited the liberalizing Ontario judge John Hawkins Hagarty, but also turned to the increasingly liberal views of the English courts, and to leading English and American authors on extradition, whose works drew from the increasingly solid liberal consensus among judges in both countries.70 In New Brunswick, as elsewhere in the common law world, the formation of extradition jurisprudence involved flows and exchanges of legal ideas between countries and colonies. But as the examples from Cadby illustrate, these flows and exchanges were highly structured. Jurists in the case reached out from New Brunswick to other provinces, and to the United States and Britain, but not further. In this and other Canadian cases, not only was there no reference to non–common law world law, but none to cases, sources, or authorities from any other colony. Meanwhile, southern colonial jurists operated within their own jurisprudential zone, almost entirely ignoring the work of North American jurists, despite extradition law being much more developed in Canada and the United States. As with North American liberalizers, southern colonial strict constructionists, too, borrowed in aid of their project of doctrinal development. Examining these flows, then, reveals both these cross-jurisdictional exchanges but also that the common law world in many respects functioned as a series of detached sub-circuits of legal knowledge. Canadian extradition jurisprudence reflected both these flows and their structured limits. In particular, Canadian liberalizing jurists often borrowed from and openly admired American case law. As early as

Miller_5200_181.indd 198

12/08/2016 2:15:10 PM

Law Formation in the Common Law World  199

the 1868 Morton and Thompson decision, which became a seminal case in Canadian law, Ontario judges Hagarty and Wilson expressed their willingness to apply elements of US jurisprudence as part of a more general project of liberalization. Wilson in particular linked Canadian and American liberal approaches in rejecting defence arguments that would have expanded the evidentiary burden on the prosecution and given habeas judges more scope to critique the prosecution’s case. “We are bound to carry into effect the Treaty in its most liberal spirit,” he wrote, echoing Hagarty’s Burley opinion, “and I must say that the American cases are much more to be followed than some others,” presumably referring to English cases, some of which continued, in the 1860s and 1870s, to be much more cautious about extradition.71 That use of American legal ideas in the Canadian liberalizing project continued for decades. Not only did American ideas help frame the way Canadian jurists thought about the meaning and purpose of international extradition, but they were used routinely to solve difficult legal problems. Indeed, this use of American sources on technical questions illustrates the real power of these sources and the willingness of Canadian jurists to think about American law. Three decades after Morton, for example, BC judge Lyman Duff used US Supreme Court decisions in his important 1905 decision Re Collins, which helped end the enduring confusion over double criminality caused by the English decision in Windsor in the 1860s. Not only did Duff use the American rejection of the English case law, but he drew on the US courts’ liberalizing attack on technicalities. Duff quoted passages from a US Supreme Court decision which decried technicalities and endorsed fairness between nations and purposism as the key principles of treaty interpretation. “That,” Duff wrote after the quotation, “is the principle which I apply here.”72 Even on much more technical procedural questions, Canadian lawyers and judges often drew on American judicial reasoning, as they did in the 1906 Harsha case in Ontario, where lawyers and judges in the case cited American, English, and, unusually, Australian cases. One of the defence arguments was that the initial complaint made before an Ontario judge was inadequate, a point he backed with citations to both Canadian and American cases.73 Chancellor Boyd rejected that argument, cited Morton, and invoked the idea that the United States could be trusted as an extradition partner because of its high regard for legal rights – a point he reinforced by citing a US federal case to show that even in jurisdictions like the United States, which he said prized legal

Miller_5200_181.indd 199

12/08/2016 2:15:10 PM

200  Borderline Crime

procedure as a guarantee of individual rights, the rules on complaint documents were being relaxed.74 Moreover, the case he cited was itself an emblem of liberalization in which the judge rejected defence arguments against the surrender of an accused Canadian murderer and wrote that the older, and in his view unwarranted, focus on technicalities was being relaxed as courts focused on the substantive question of evidence for guilt.75 American ideas also shaped the way Canadian jurists thought about the operation of the Anglo-American treaty. In some cases, Canadian jurists reached out to shared transnational visions of the extradition treaty, using American sources as they wrestled with issues involving its interpretation. When the Quebec commissioner G.E. Rioux was considering a defence objection that would seemingly raise the evidentiary burden on the prosecution, he deferred to what he called the joint Anglo-Canadian-American interpretation of this aspect of the treaty, saying that he saw no reason to put a “less liberal construction on it in the present case.”76 In other cases, jurists consulted and often applied American ideas on difficult questions of treaty interpretation. In the 1904 Dickey case in Nova Scotia, for example, the prosecution answered a defence objection that the information leading to the prisoner’s arrest had not been sworn by a US government official by using only US federal case law.77 But these borrowings were not unstructured. That is, the Canadian use of foreign and extra-jurisdictional sources largely meant using American and English case law and treatises. There were almost no references to continental European sources, except for the occasional use of international law writers like Vattel or Grotius, long part of the Western legal canon. Although France had been hugely influential in the general development of extradition, and although Englishlanguage legal literature included extensive discussions of French law, there were almost no references to French sources of any kind, even by francophone judges. This might well be attributable to the internal dynamics of the common law system which shaped how extradition was litigated, since habeas corpus formed the core of reported cases in almost all of these jurisdictions. But Canadian jurists also almost never cited the developing jurisprudence of other British colonies – and even when they did, the citations were to Australia exclusively. While Canadian jurists borrowed extensively from US jurisprudence, this does not mean that Canadian law formation was simply derivative of American law. Canadian approaches, especially liberal

Miller_5200_181.indd 200

12/08/2016 2:15:10 PM

Law Formation in the Common Law World  201

approaches, can best be seen as coincident with American approaches, partly because they were obviously rooted in decades-old British North American feelings about international law and supranational justice, and partly because American jurists also turned to foreign and international legal sources. In fact, American judges sometimes used Canadian jurisprudence in a kind of reciprocal exchange of liberal interpretations. In 1912, for example, federal judge F.A. Geiger in Wisconsin heard the case of an accused German forger who had already been committed and discharged for both extradition and deportation. When he was again arrested for extradition, the defence lawyers argued that his detention violated the 1679 Habeas Corpus Act principle that protected people from being continually rearrested on the same facts. Taking a purposive and consequencialist approach that echoed that of Canadian judges, he rejected that claim and decided that the rearrest was legal and that governments had a duty to allow a fugitive’s arrest as many times as it took to win their extradition unless it violated some provision of domestic law.78 Geiger pointed not simply to American case law, but to the Ontario decision in Harsha, which also involved rearrest, where the Canadian lawyers and judges used English, American, and even Australian cases, which themselves limited the scope of habeas corpus and expounded the role of extradition as an aspect of global civilization.79 In Harsha Chancellor Boyd also ruled against the defence arguments about the second arrest being illegal. “I find that the United States courts entertain like views,” Boyd wrote, “and it is well that both countries should agree in facilitating legal reciprocity.”80 In Wisconsin, Geiger used the Ontario case both to bolster his view about rearrest, but also to point towards the few limits the law placed on state power in this respect.81 Liberalization of domestic extradition law, in other words, often depended upon the reciprocal and transnational circulation of legal ideas. Additionally, American jurists often turned to foreign sources on fundamental legal questions of international law, treaty interpretation, or political asylum. As early as 1847, a federal judge in New York, in one of the first reported American extradition cases, used foreign and international law to decide whether American courts had extradition jurisdiction. The court heard arguments about whether the US government needed to pass an extradition act laying out procedure and empowering judges to issue arrest warrants and conduct hearings, which it had not yet done, or whether American courts could act simply on the basis of the treaty. The judge cited international law writers like

Miller_5200_181.indd 201

12/08/2016 2:15:10 PM

202  Borderline Crime

James Kent and Joseph Story, but also turned to international law jurisprudence, including the 1827 Fisher decision written by Montreal chief justice James Reid, to conclude that he could proceed without a federal statute.82 Likewise, in the 1890s, when a federal judge in California authored a hugely important decision on political asylum, he turned to an array of diplomatic materials from the United States and Central America, and to a recent English decision on asylum called Castioni. In fact, Judge William W. Morrow dealt in detail with Castioni, reviewed and cited the same sources that the English judges had, and declared that he was “applying, by analogy, the action of the English court in that case.”83 Likewise, jurists in New Zealand, Australia, and South Africa readily borrowed ideas and engaged with doctrinal concepts from beyond their own borders. Even by 1914 most of these colonies still had little by way of reported extradition case law, and nothing by way of published treatises on the subject, meaning that lawyers and judges by necessity turned to English and American books and to colonial and especially English cases as they developed colonial law. On questions of criminal procedure or the definition of offences, English cases continued to routinely serve as guiding authorities. But examining the way that these colonies treated colonial, English, and foreign sources reveals a nuanced approach both to the use of these sources and to the legal liberalization which increasingly typified English, as well as Canadian and American, jurisprudence. Clearly, many southern colonial jurists were deeply concerned by the intensification of international and intraimperial extradition, and their focus on strict constructionism was in part a backlash against what they saw as the potential degradation of individual liberty. But tracing the lineage of this view is difficult – there were no single extradition cases in the colonies with the kind of resonance that Burley had for decades in Canada, for example. When jurists declared, as the chief justice of the Cape Colony did in 1901, that “this is a matter where the liberty of the applicant is concerned, and the Court should give the words of the section a strict and reasonable interpretation,” they rarely cited an authority for that view in colonial, English, or foreign law.84 The strict constructionist jurisprudence of South Australia judge James Boucaut illustrates both the quasi-objective meaning of notions like liberty to these jurists and the way that these conceptions of justice were drawn from what they believed to be traditional British justice. In his 1887 decision declaring that the section of the act allowing

Miller_5200_181.indd 202

12/08/2016 2:15:10 PM

Law Formation in the Common Law World  203

magistrates to issue arrest warrants was “highly penal … and must be construed strictly and fairly,” he did not bolster his assertion with authority, though the concept and even the precise phrasing had been used for decades in English jurisprudence.85 Another part of Boucaut’s strict construction approach was a focus on legal technicalities. Unlike many liberal jurists in North America and increasingly in England, Boucaut viewed such technicalities as pillars of domestic law and order rather than barriers to it, and he attacked what he saw as the “growing looseness” in colonial legal documents such as warrants for arresting or committing a prisoner.86 A key part of this laxness, according to Boucaut, was that officials in South Australia and even in Britain, were not living up to what he saw as the traditional standards and liberties embedded in the British constitution. While liberalizing judges were adapting law to an increasingly mobile world, Boucaut focused on the risks in expanding the law, and argued for what he saw as traditional British freedoms. In the 1882 Harjes case, for example, he both excoriated the violation of the prisoner’s rights and defended his own power to liberate the prisoner by reference to the English Habeas Corpus Act of 1679, one of the few times he cited a specific authority. “The intention of such writs in England is to conserve personal liberty,” he wrote.87 Likewise, in his 1887 decision to grant bail so that a prisoner wanted by New Zealand could travel to England on personal business, Boucaut attacked how the arresting authorities had violated the prisoner’s rights. “The facts of this case are a startling illustration of the wisdom of the maxim Stare super antiques vias [stand upon old ways],” he wrote, “and show how prudent it is for Magistrates as well as police officers to … have some reference to the advised practice of the past.”88 Boucaut’s version of strict constructionism was also a reaction against more recent elements of English law which he saw as diminishing a traditional English spirit of legal liberty. He was particularly resistant to what he called the increasing liberalization of criminal procedure and extradition. In 1883 he wrote a habeas corpus decision that discharged two fugitives wanted in England because of flaws in the committal warrant. As with his previous decisions, English sources carried great weight, and he looked to the famous Burns’ Justice, a manual for English justices of the peace first published in the seventeenth century, and to an English decision on warrants from the early 1840s, both of which espoused rigorous standards for the documents.89 Yet Boucaut also noted that the English case law had shifted on these points, writing that it was tempting in light of English doctrinal development to be

Miller_5200_181.indd 203

12/08/2016 2:15:10 PM

204  Borderline Crime

more liberal than he had been in earlier extradition cases where he had freed prisoners because of technicalities.90 But Boucaut got around this shift in English jurisprudence easily, saying that although the English cases might make him less willing to discharge prisoners on technical objections, attention must be paid to proper form, and that this particular warrant failed to meet basic standards.91 “It appears that some of the authorities in England think that anything will do for South Australia,” he wrote, “but they must be told that such will not do.”92 Southern colonial jurists also used English case law to expand the scope of habeas corpus, adopting selectively un-liberal cases to achieve liberty-based ends. What prisoners could argue and what judges could consider in habeas cases was a crucial issue in debates over individual rights in the context of extradition. Most importantly, jurists around the common law world debated in the late nineteenth and early twentieth centuries whether habeas judges in extradition cases could decide if a committing judge had rightly found enough evidence to hold the prisoner. In other words, they debated whether or not prisoners could challenge their detention on the basis of there being insufficient evidence. Far from being a legal technicality, this was a question that went directly to the meaning of habeas as a tool of individual rights in the British Empire and the United States. Opinion on this fluctuated, but the way southern colonial jurists handled it highlights the nuanced relationship they had with English and colonial jurisprudence, particularly in the wake of the hugely important English decision in Castioni, mentioned above, which involved a Swiss political dissident committed for extradition who challenged his detention in the high court on the basis of the political offence exception. Among the many issues raised in that case was whether the facts that the magistrate had collected and deemed sufficient to support extradition could be reviewed on habeas, and whether the habeas court could discharge the prisoner if they felt that the magistrate had made the wrong decision on the evidence. The judges ultimately freed the prisoner, finding that he was a political offender and that they had the power to, as one judge wrote, “go into the whole matter” of evidence on habeas, a decision which seemingly reversed previous high court decisions.93 Castioni was read and cited around the common law world. But it had differential effects on national and colonial extradition jurisprudence, partly because it occurred when those case laws were at different stages of development. In the southern colonies, there were often few reported extradition cases, and Castioni had a much larger impact

Miller_5200_181.indd 204

12/08/2016 2:15:10 PM

Law Formation in the Common Law World  205

than it did in Canada. In Queensland, for example, it helped change the courts’ approach to habeas corpus. In an 1881 case involving an escaped convict from the French prison colony of New Caledonia, a judge decided that he had limited power to review the committing magistrate’s decision.94 A decade later the court revisited the issue, this time in the wake of Castioni. Justice George Rogers Harding referred the case to the full court because, as he wrote, he felt himself “hampered” by the previous decision.95 Although the Crown lawyer attempted to restrict the court’s habeas power using that previous case, Harding overrode the decision and relied instead on Castioni. In fact, much of the printed decision was simply a long reprinted quotation from Castioni, nearly concluding with one of the English judges’ declarations that “though we pay respect to the magistrate’s view, we are not bound to follow it at the expense of the criminal.”96 “I have no doubt that that is good law,” Harding added.97 However, in some colonies Castioni also reinforced rather than reshaped colonial habeas corpus law. In 1901, for example, a Victoria judge noted the decision, but said that there was no need to rely upon it for authority for the wider view of habeas corpus because a court there had already sided with that view several years prior to Castioni.98 While there was a clear bilateral link between colonial and English courts, this was not the only key doctrinal circuit that was influential in the southern colonies. In addition to integrating English ideas, jurists in Australia, New Zealand, and South Africa also borrowed extensively from one another’s case law. While England took little or nothing from its colonies’ extradition jurisprudence, and Canadian jurists cited only a few Australian cases, lawyers and judges in the southern colonies often read, cited, and applied legal ideas from their colonial neighbours, even across vast distances. Moreover, just as Canadian jurists often cited American courts in developing a liberal extradition case law, jurists in the southern colonies sometimes reached beyond colonial borders for more cautious or strict constructionist perspectives. In 1909, for example, the New South Wales Supreme Court reviewed the evidence on which a South African fugitive had been committed, found it insufficient, and discharged him on habeas corpus – adopting the more expansive view of habeas corpus. When the prosecution appealed to the federal high court, the defence supported the state court’s view of habeas using a New Zealand decision, as well as Castioni; the chief justice of Australia agreed, writing that the state court was, in fact, bound to examine the evidence.99 Likewise, judges sometimes used case law

Miller_5200_181.indd 205

12/08/2016 2:15:11 PM

206  Borderline Crime

from other colonies to bolster a contentious decision against extradition and to seemingly neutralize potential inter-colonial controversy about siding with a prisoner. In the 1906 case of the disgraced Australian politician W.N. Willis, for example, the chief justice of Natal discharged the prisoner because he decided that the committing magistrate lacked jurisdiction under the imperial Fugitive Offenders Act. Having declared that the act “should be construed strictly,” the chief justice went on to specify that his view on the jurisdiction question was the same as that which a Victoria court had articulated when they discharged a prisoner wanted by the Cape Colony.100 Southern colonial jurists who rejected strict constructionism also reached out to legal ideas from other colonies to argue for more liberal approaches. In fact, some judges used the case law of other colonies to build shared and reciprocal legal understandings and to establish the kind of trans-jurisdictional good faith so important in Canadian jurisprudence. These liberalizing southern colonial jurists borrowed concepts from one another in ways that starkly echoed Canadian and American courts, especially their deference to foreign juries as the proper fact-finding bodies and a resulting resistance to making extradition courts a venue for a prisoner to dispute the evidence against them. In this, ideas of reciprocal colonial good faith could be key. In 1891, for example, a New Zealand court refused to use habeas corpus to review a committing magistrate’s evidentiary decision in a case involving a fugitive from Victoria. The judge’s short decision began by endorsing the imperial Fugitive Offenders Act generally as a “most valuable act,” but then moved on to note a case where the Victoria courts had declined to discharge a New Zealand fugitive because they saw the New Zealand court as the only place where the defendant’s guilt could be fully decided.101 As he wrote, the Victorian court had “declined to try the case,” and he decided the same, deferring to the Victorian criminal justice system in the way that it had deferred to New Zealand’s.102 Yet even liberalizing colonial jurists rarely looked to North American legal ideas. While lawyers and judges throughout the southern colonies drew on English treatises which contained chapters on both American and Canadian law, they almost never referred even to hugely important American books or to the sections on North American law in the English monographs.103 Lawyers did on several occasions cite Canadian law, including during a protracted debate over the effect of Australian federation on the administration of the Fugitive Offenders Act, but it was never determinative or even particularly important, and it was not

Miller_5200_181.indd 206

12/08/2016 2:15:11 PM

Law Formation in the Common Law World  207

at all influential in developing interpretative approaches to extradition.104 Meanwhile, American case law was not much more influential, and it was largely only used in the same cases where lawyers also cited Canadian sources.105 The difference, however, is that American cases were sometimes used on interpretive questions where notions of a liberal or a strict construction were brought to bear on the law. In 1901, for example, Victoria prosecutors drew on several US sources in arguing that a habeas corpus discharge did not protect a prisoner from being rearrested.106 These included the 1886 decision of the federal circuit court in Minnesota noted above, which was widely used in Canada as well, where the judge laid out a classic liberal vision of extradition as essential to global civilization, and declared that using a habeas discharge to bar another arrest would be an “outrage upon justice.”107 But the Victoria case also highlights how the few ties between Canada and the other colonies could sometimes be powerful: a few years later the chancellor of Ontario used and endorsed it in Harsha in limiting the applicability of the Habeas Corpus Act in extradition cases, meaning that a Canadian court was drawing on an Australian precedent to curb the power of one of the oft-cited cornerstones of British freedom in the empire.108 In stark contrast to jurists in Canada, the United States, and the southern colonies, English courts almost never explicitly looked beyond their own country for ideas about extradition. They occasionally drew from international law treatises, as they did in the 1860s in a Civil War combatants case where international law was an issue and where one judge used American case law in addressing a question of treaty interpretation.109 But this was an exception, and the limits of jurisprudential borrowing were clear in the English extradition case law, as were the ways in which imperial power dynamics structured these flows of legal ideas: lawyers almost never referred to Canadian cases, and they were rarely if ever used in the judges’ opinions.110 Moreover, there were few if any references to any decisions from elsewhere in the empire, and scant use even of the emerging legal literature of extradition. In this respect, the English jurisprudence appears more insular than that of the rest of the common law world. Yet, by the beginning of the twentieth century English courts were applying the same interpretive approaches that characterized the rise of liberal jurisprudence in North America, so that while the English case law may appear detached from wider trends, it loosely kept up with their pace and direction of doctrinal development.

Miller_5200_181.indd 207

12/08/2016 2:15:11 PM

208  Borderline Crime

This semi-detachment of English law illustrates how the common law world functioned far more as a series of detached jurisprudential zones and sub-circuits than as a coherent juridical entity. In these circuits, ideas flowed freely across national and colonial borders, from England to its colonies and between those colonies, often to reinforce the interpretive visions that emerged in this era of extradition law formation. But these zones were bordered in their own right and the divisions between them were often starker than the international boundaries of their constituent jurisdictions. The meagre trans-colonial influence between Canada and the southern colonies, and the negligible borrowing by English jurists of colonial or North American ideas, highlights that the common law world was characterized by flows of legal knowledge, but also by their limitation. Legal Literature and Law Formation Case law was not the only way that ideas about extradition spread around the common law world. Jurists throughout these countries and colonies drew frequently from a wave of legal treatises that emerged during the late nineteenth and early twentieth centuries. These works reprinted statutes and treaties, digested case law, and provided guidance on the huge array of technical legal issues involved in extradition. But many of them did much more than simply organize authorities. Many, such as the works by the English writer Sir Edward Clarke and the US official John Bassett Moore became authorities in their own right. These works frequently embodied the kind of emerging liberalizing ideas about extradition espoused by jurists such as John Hawkins Hagarty in cases like Burley, and their visions of the law actually helped drive the solidification of the liberalizing consensus in jurisdictions like Canada and the United States. In Britain, published writing on extradition appeared as early as the 1840s. The London barrister Charles Egan published a pamphlet on the subject in 1846, largely just reprinting the few British statutes and treaties on the subject, and summarizing the debate over whether there was an international law obligation. The object of the work, he declared in the introduction, was simply to explain the basics of the law for general readers.111 But Egan also used the pamphlet to lobby for an expansion of international extradition as a response to what he saw as social upheaval. Like earlier writers from Hugo Grotius to James Kent, Egan saw extradition as a tool of international civilization, but unlike these

Miller_5200_181.indd 208

12/08/2016 2:15:11 PM

Law Formation in the Common Law World  209

earlier writers his belief in the necessity of extradition was primarily about social context and not legal doctrine. Egan pointed to the particular social shifts accompanying industrialization in Britain, Europe, and North America as evidence for the necessity of law reform rather than focusing on universal or timeless visions of civilization, and he pointed to allegedly-rising crime rates in what he called “the principal states” – namely mid-century Britain and France – which he said sprang from the rapid growth of those countries and from new technologies of transportation which offered increased means of escape for criminals.112 Moreover, as part of this agenda of legal modernization, Egan was an early advocate for targeting the kind of financial crimes like embezzlement and fraudulent bankruptcy which he said increasingly troubled banks and corporations, key cornerstones of modern economies.113 In this, Egan anticipated by two decades the reformist liberalizing arguments made by officials and corporate lobbyists in England and Canada, which proved so key to law formation in both countries. Subsequent writers echoed these links between industrialization, transportation, capitalism, and the necessity for extradition reform. In 1859 the MP Sir George Cornewall Lewis published a pamphlet reiterating the reformist arguments, and pointing to the increasing tension between national sovereignty and international order when it came to the enforcement of criminal law. Lewis argued that increasing travel by railway and steamship, as well as the spread of literacy which made more people literate in more languages and so able to move easily between countries, amounted to what he called a “complete revolution in travelling,” which posed new challenges to legal order.114 In this modern context, Lewis wrote, a strict adherence to the principles of territorial sovereignty, which resisted extraterritorial criminal laws and which had helped to stifle the idea of an international law obligation to extradite criminals, was untenable, and at odds with the responsibilities of international society, an idea that resurrected at least the notion of a moral if not legal obligation to surrender criminals.115 “No nation, whatever its geographical position, can in this age of steamers, and railways, and electric telegraphs, maintain an isolated policy,” Lewis wrote.116 Unlike Egan, though, Lewis also worried deeply about compromising political asylum, reflecting an ambivalence about extradition that would be increasingly erased in the latter half of the century. Like many Victorian British officials, Lewis took the basic idea that Britain was a haven for refugees for granted. As desirable as it was for states to

Miller_5200_181.indd 209

12/08/2016 2:15:11 PM

210  Borderline Crime

cooperate against crime, in what he called “the existing state of civilization,” “free countries” like Britain could not assist in the enforcement of foreign law through extradition when it came to charges against political offenders.117 Nonetheless, states still had obligations to one another as members of an international society to prevent these refugees from continuing their activities against the foreign government in their asylum state – to prevent, as Lewis wrote, their “converting the sanctuary into a battery.”118 These were not abstract questions for Lewis, or for the British government, which faced continual complaints in the midnineteenth century from France and other European countries over its alleged incapacity to control the activities of refugee dissidents in London, controversies which reinforced the diplomatic consequences of holding out Britain as an asylum state. But they also did not disrupt the central premise of Lewis’s work: that crime had to be combated on a transnational level and that doing so was one of the duties of civilization and supranational justice. Later Anglo-American writers took up these arguments about industrialization and civilization while also digesting the wave of case law that emerged from late-Victorian English and American courts. In these later works, ideas about law reform and legal liberalization decisively shaped technical discussions of specific points of law. The first of these books was published in 1867 by the London barrister Edward Clarke. An MP for many years, Clarke also served as solicitor general and is chiefly remembered now for his role as Oscar Wilde’s lawyer during the infamous 1895 libel and sodomy trials which caused Wilde’s downfall. Clarke’s extradition treatise was hugely important and influential around the common law world, expanded and updated for decades, and going through several editions into the early twentieth century. In the United States, the State Department lawyer, Columbia law professor, and later International Court of Justice judge John Bassett Moore published his own hugely important work dealing with intra-American and international extradition in 1891. As an assistant secretary of state, Moore had presided over the US government’s handling of many extradition cases, writing reports on the subject which were eventually folded into his treatise.119 While books on extradition emerged from legal intellectuals, lawyers, and judges around the common law world, the works of Clarke and Moore were the two most widely used and influential books published in this period.120 Although the two books were designed to be lawyerly tools, they still manifested key aspects of Anglo-American legal theory and liberaliza-

Miller_5200_181.indd 210

12/08/2016 2:15:11 PM

Law Formation in the Common Law World  211

tion thought. Both approached the subject as comparativists, examining English, American, and French law, and both included lengthy chapters on Canadian law as well. Each writer implicitly assumed that ideas about extradition could and should flow between countries. They also approached the issue through legal theory – each began their books by examining the debate over the obligation to extradite, and each drew on law of nations writers and state practice going back centuries, and though neither declared that nations were bound by any clear tenet of international law to surrender fugitives, both believed in a powerful transnational moral obligation that almost amounted to international law.121 In this both men resurrected the language and ideas that had been used by pro-extradition jurists since Grotius, with Moore describing the common interest that all nations had in repressing crime, while Clarke argued that refusing extradition might not be grounds for war, but that it would be a “serious violation of the moral obligations which exist between civilized communities.”122 Moreover, just as earlier writers like Egan and Lewis had done, Clarke and Moore argued that the moral duty of extradition was increasingly important as countries were drawn more closely together in the modernizing world. Both wrote that as networks of transportation and global finance grew denser in the late nineteenth century, their own countries were not doing enough to meet the challenges that these developments posed to the rule of law. In the 1867 first edition of his book, published before the law reforms of 1868–70 that led to a radical expansion of British and imperial extradition, Clarke reproached Britain as “the least ready of all the nations of the world to perform her duty in this matter as a member of the family of civilized communities,” a reticence that Moore described in 1891 as a thankfully declining “prejudice against surrender.”123 The idea that corporate and financial crime were both on the rise and increasingly damaging to the modern world was central to these books. Like the banking and business interests that drove the British reforms, Moore also singled out the increasingly important moral duty of combating financial crime. Writing during his tenure as an assistant secretary of state, Moore declared that in omitting or refusing to include crimes like fraud in extradition treaties, the US government had failed to recognize the changes wrought by capitalist development and the way that these had transformed the threats of crime. “As civilization is developed and refinement of manners is cultivated, crimes of fraud take the place of crimes of violence,” he wrote, arguing that these

Miller_5200_181.indd 211

12/08/2016 2:15:11 PM

212  Borderline Crime

offences involving money were “more dangerous to social order and security than simpler crimes which, though accompanied with violence, are more readily detected and more easily repressed.”124 In other words, the ideological underpinnings of this emerging legal literature were largely the same as those which drove the liberalization of extradition in courts around the common law world, and especially in North America. The literature and the jurisprudence of extradition did not develop in isolation. Jurists around the world turned to these books, making them key to the transmission of legal knowledge and the development of jurisprudential approaches. Particularly in Canada and the southern colonies, lawyers and judges drew especially from Clarke’s treatise for decades, on a huge range of issues, and indeed often used it as an authority alongside reported court decisions. In 1914, for example, a justice of the peace in Natal used Clarke’s views to deny the doctrinal force of an English court decision. In the Natal case, a prosecutor had raised a specific point of law, relying on an English high court decision, but the justice turned to Clarke’s treatise and found that Clarke regarded the decision as “wholly erroneous” and in need of reversing. Partly on that basis, the JP rejected the prosecution argument, denied the force of the English case as precedent, and released the prisoner.125 American legal literature also played an important role in doctrinal development. This was especially true in Canada, where jurists turned far more to US books than did jurists in Britain or the other colonies. Indeed, American works were cited more and more frequently over the late nineteenth and early twentieth centuries.126 Canadian jurists turned consistently to Moore and other US writers on extradition on issues ranging from general principles of international law and treaty interpretation, to habeas corpus, to questions of evidence and procedure.127 Southern colony jurists used Moore much less frequently than Clarke, though the American writer still proved influential in some cases.128 The legal literature also served to transmit Canadian jurisprudential ideas. In particular, the attention that Moore, Clarke, and other legal scholars paid to Canadian law supplied jurists with information not simply about the leading decisions in US and English law, but also about Canadian jurisprudence during a period in which Canadian law reports were often scarce elsewhere in the common law world. In 1873, when the New Zealand courts were debating the question of which officials could request extradition, lawyers and judges turned to

Miller_5200_181.indd 212

12/08/2016 2:15:11 PM

Law Formation in the Common Law World  213

an 1866 Quebec decision which they may not have had in its officially published form, but which Clarke reprinted in full as an appendix to his book.129 Likewise, in 1905, when the Australian High Court heard arguments about the Canadian practice of intra-imperial extradition, lawyers drew primarily from Moore’s chapter on Canadian law.130 This dispersion of Canadian ideas also sometimes served liberalizing ends, as it did in an 1874 District of Massachusetts decision, where the judge examined a long-running debate over whether a foreign government had to make an official request to the president before an extradition court could take any action. This had been an interpretive question for decades, and one that divided liberal judges from more cautious, liberty-focused jurists, since an older decision which imposed the preliminary request requirement had relied heavily on the idea that it was a protection for political asylum-seekers.131 When the question came up in the 1874 case, the judge juxtaposed British law – which at that point still required such a request for extradition from Britain, and which the judge called “clumsy and imperfect” – with Canadian law, which did not.132 The judge looked to the chapter on Canadian law in Clarke’s book, found that the general language on procedure in the Canadian act was “almost identical with that in our treaties and statute,” and that it dispensed with a preliminary request requirement and so prevented what he called “unnecessary and dangerous delays.” That liberalizing sense of consequence, coupled with the Canadian practice supplied by Clarke, swayed the judge, who decided against the prisoner on this point.133 These texts, in other words, actively participated in the process of law formation occurring throughout the common law world. Mostly authored by proponents of liberalization, they dispersed that interpretive approach as well as the technical knowledge necessary to apply it in practice. Conclusion In 1865, when Justice John Hawkins Hagarty wrote his opinion in Burley extolling legal liberalization, there were few other reported extradition cases. Burley appeared at a crucial moment in the process of Canadian extradition law formation, and in the decades that followed Hagarty’s vision of purposive interpretation and rejection of legal technicalities became the interpretive core of Canadian extradition jurisprudence. Like earlier jurists going back centuries to Grotius and decades to James Kent and James Reid, liberalizing judges saw extradition as both essen-

Miller_5200_181.indd 213

12/08/2016 2:15:11 PM

214  Borderline Crime

tial to order in a world where sovereign borders threatened state power and mandated by the requirements of supranational justice and the dictates of civilization. But unlike those earlier jurists, late-Victorian liberalizers had clear legal instruments in the form of treaties with which to work, and they saw themselves as upholding the declared will of their governments, meaning that their case law was unburdened by the kind of conceptual doubt that plagued the obligation to extradite from the 1820s to the 1840s. Unlike that idea of an obligation, the liberalizing approach only gained momentum as time passed. The Canadian jurisprudence was not unique in developing from almost nothing in the latter half of the nineteenth century. Rather, around the common law world jurists were confronted by the same types of legal questions and by the same challenge that sovereignty and mobility posed to the rule of law. Many jurists, especially in the United States, actively took up the project of liberalization, and in terms starkly similar to Hagarty, and many reached out to ideas and sources from beyond their own country or colony in so doing. But examining extradition jurisprudence across the common law world also shows that this approach did not become orthodoxy everywhere and that those flows of legal knowledge were not limitless. Rather, in jurisdictions throughout the southern British colonies, jurists saw extradition in very different ways – fearing its effect on individual rights and seeing civilization, fairness, and justice as threatened by liberalized extradition rather than fulfilled by it. In response to the genesis of liberal extradition law, these jurists elaborated a strict constructionist vision which gave their states no more power over fugitives than was explicitly laid out by positive law. Like liberalizers, strict constructionists also borrowed across colonial borders, illustrating how the common law world must be understood as a composite in many respects of isolated circuits of legal thought.

Miller_5200_181.indd 214

12/08/2016 2:15:12 PM

8 Conclusion

In September 1885 British Columbia chief justice Sir Matthew Begbie discovered what he believed to be a defect in the Anglo-American extradition treaty. Begbie had just heard the case of a Washington Territory fugitive named Frank Angelo who had been convicted there of assault with intent to murder and sentenced to seven years in prison before escaping and fleeing into BC. At the extradition hearing, Begbie discovered that the treaty seemed only to apply to fugitives who would be surrendered to face trial, and no provision seemed to be made for extraditing convicts whose trial had occurred already but who had escaped custody. In Begbie’s mind this was a potentially disastrous gap in the law, and one that might leave him without any power to hold Angelo in custody or allow his return to the United States. Yet, he sided with the prosecution and committed Angelo for surrender, telling the Justice Department that he did so primarily to protect the community from a violent foreign criminal. “I was of course fully satisfied that the prisoner is a dangerous man to be at large. It is believed that there are many U.S. criminals in this part of the Province,” he wrote. “And the construction of the treaty [which] is most favorable to them is by no means the most favorable to the peaceable + industrious portion of the population. A committing magistrate is bound to consider the safety of the public at least as much as convenience of the prisoner.”1 Begbie was not sure that his decision was sound law. In fact, he told the department that it was clearly doubtful whether Angelo’s case was

Miller_5200_215.indd 215

16/08/2016 4:04:42 PM

216  Borderline Crime

covered by the treaty, and that if it was not, the prisoner should be released. In fact, Begbie asked the department to support a habeas corpus hearing in which the full provincial Supreme Court could hear the issue and decide on the legality of detaining Angelo, though to convene such a hearing the government would need to pay for a defence lawyer, since the prisoner had no money.2 The department rejected that idea and decided against testing the legal question about convicts. Justice lawyer Augustus Power’s reply to Begbie did not contain any mention of the law – he pointedly did not say that the department did not share the chief justice’s doubts. Instead, he explained the minister’s decision in terms of public policy and legal values. “As a matter of public policy he conceives it to be his duty to adhere to the liberal construction of the Treaty upon which both countries have acted in the past in analogous cases,” he told Begbie, “and to continue to act upon such interpretation so long as no decision adverse thereto has been rend[ered] by a competent Court.”3 In many ways the Angelo case is an emblem for the broader process of law formation by which British North American/Canadian officials and communities confronted the challenge that the international boundary posed to the rule of law. Begbie’s assertion that British Columbia had become a refuge for dangerous American criminals echoed the fears of newspapers, policymakers, judges, and communities across British North America/Canada and throughout the near-century this book has examined. Across the continent and period the boundary and the separate sovereignties which it delineated created well-known sanctuaries for international fugitives able to get across. In other words, territorial sovereignty, the essential building block of modern states, both empowered and perpetually limited the reach of state power. That limit imposed by the increasingly orthodox version of sovereignty was not distant, remote, or theoretical. It was an everyday challenge in northern North America. The nineteenth and early twentieth centuries saw a period of intense law formation in response to that challenge. Extradition regimes were established and jurisprudences were crafted from nearly nothing, legal literatures emerged, flows of legal knowledge connected jurists and policymakers in disparate parts of the world, and communities in the northern North American border zone developed their own methods of extending the reach of domestic law across the boundary. Yet, as the Angelo case illustrates, these legal regimes were widely and consistently critiqued as deeply flawed and uncertain. Far from nimble

Miller_5200_215.indd 216

16/08/2016 4:04:43 PM

Conclusion  217

enough to target suspicious populations, formal extradition treaties like that between Britain and the United States often included very few extraditable offences – the initial Anglo-American treaty of 1842 covered only seven crimes – while statutes sometimes imposed a legal process in order to win an extradition that many governments found cumbersome. Even the abduction system, through which officials often worked together with little or no legal process, was vulnerable. If a case became too controversial, the extent to which the kidnappings operated outside and in fact in defiance of formal law could lead to the release of the prisoner or even, in rare instances, to the punishment of the kidnappers. However, the Angelo case also illustrates the dominant perspectives which drove British North American/Canadian responses to the challenge of the border. Begbie’s purposive and consequencialist focus in adjudicating the case, and his belief in supranational justice – that his role as a judge was to do justice between nations as well as to ensure order at home – typifies the overwhelmingly dominant juridical methodology in fugitive cases. Likewise, the Justice Department’s endorsement of what Power called the “liberal” construction of the law explicitly echoed the foundational cases in Canadian extradition jurisprudence, decisions which saw extradition exclusively in terms of international justice and which marginalized any concern for individual rights and civil liberties. These were the key legal values which drove colonial and Canadian efforts to respond to the challenge that territorial sovereignty posed to the rule of law. They show that the border, which existed on the literal margins of British North America/Canada, should be relocated by historians to its legal and political centre.

Miller_5200_215.indd 217

16/08/2016 4:04:43 PM

This page intentionally left blank

Notes

1  Introduction   1 F.C. Wade to minister of justice, 20 September 1898, Library and Archives Canada [LAC] RG 13, A-2, vol. 109, 1898-896.   2 On the development of extradition and other aspects of transnational criminal justice in this period, see Katherine Unterman, Uncle Sam’s Policemen: The Pursuit of Fugitives across Borders (Cambridge, MA: Harvard University Press, 2015); Daniel Margolies, Spaces of Law in American Foreign Relations: Extradition and Extraterritoriality in the Borderlands and Beyond, 1877–1898 (Athens: University of Georgia Press, 2011); Christopher H. Pyle, Extradition, Politics, and Human Rights (Philadelphia: Temple University Press, 2001); Mark Lewis, The Birth of the New Justice: The Internationalization of Crime and Punishment, 1919–1950 (Oxford: Oxford University Press, 2014); Peter Andreas and Ethan Nadelmann, Policing the Globe: Criminalization and Crime Control in International Relations (Oxford: Oxford University Press, 2006).   3 P.G. McHugh, Aboriginal Societies and the Common Law: A History of Sovereignty, Status, and Self-Determination (Oxford: Oxford University Press, 2004), 133; Jordan Branch, The Cartographic State: Maps, Territory, and the Origins of Sovereignty (Cambridge: Cambridge University Press, 2014).   4 Branch, Cartographic State, 1–35; Lauren Benton, A Search for Sovereignty: Law and Geography in European Empires, 1400–1900 (Cambridge: Cambridge University Press, 2010), xii, 2.

Miller_5200_219.indd 219

16/08/2016 4:08:35 PM

220  Notes to pages 5–9   5 Branch, Cartographic State, 7. See also James T. Sheehan, “The Problem of Sovereignty in European History,” American Historical Review 111(1) (2006), 1–15; Lisa Ford, Settler Sovereignty: Jurisdiction and Indigenous People in America and Australia, 1788–1836 (Cambridge, MA: Harvard University Press, 2010), 29.   6 Antony Anghie, Imperialism, Sovereignty, and the Making of International Law (Cambridge: Cambridge University Press, 2004), 6.   7 Shaunnagh Dorsett, “Sworn on the Dirt of Graves: Sovereignty, Jurisdiction and the Judicial Abrogation of ‘Barbarous’ Customs in New Zealand in the 1840’s,” Journal of Legal History 30(2) (2009), 175–97; Ford, Settler Sovereignty.   8 Ford, Settler Sovereignty, 2.   9 See, for examples, Nayan Shah, Stranger Intimacy: Contesting Race, Sexuality, and the Law in the North American West (Berkeley: University of California Press, 2010); Barrington Walker, Race on Trial: Black Defendants in Ontario’s Criminal Courts, 1858–1958 (Toronto: Osgoode Society and University of Toronto Press, 2010); Michael Boudreau, City of Order: Crime and Society in Halifax, 1918–1935 (Montreal: McGill-Queen’s University Press, 2013). 10 Reginald Whitaker, Gregory Kealey, and Andrew Parnaby, Secret Service: Political Policing in Canada from the Fenians to Fortress America (Toronto: University of Toronto Press, 2012); Allan Greer, “The Birth of the Police in Canada,” in Allan Greer and Ian Radforth, eds, Colonial Leviathan: State Formation in Mid-Nineteenth Century Canada (Toronto: University of Toronto Press, 1992), 17–49; Bruce Curtis, The Politics of Population: State Formation, Statistics, and the Census of Canada, 1840–1875 (Toronto: University of Toronto Press, 2001); Susan E. Houston and Alison Prentice, Schooling and Scholars in Nineteenth-Century Ontario (Toronto: University of Toronto Press, 1988). 11 Re Parker, Ontario Practice Reports, 1882, IX, 335. 12 In the Matter of Bennet G. Burley, Upper Canada Law Journal (N.S.), vol. 1, 1865, 50. 13 On high and low law, see especially Paul Craven, Petty Justice: Low Law and the Sessions System in Charlotte County, New Brunswick, 1785–1867 (Toronto: Osgoode Society and University of Toronto Press, 2014). 14 On the emergence of the new legal history, see Philip Girard, “Who’s Afraid of Canadian Legal History?” University of Toronto Law Journal 57 (2007), 727–53; Jim Phillips, “Recent Publications in Canadian Legal History,” Canadian Historical Review 78(2) (1997), 236–57. 15 On the model of a zonal border, see Peter Sahlins, Boundaries: The Making of France and Spain in the Pyrenees (Berkeley and Los Angeles: University

Miller_5200_219.indd 220

16/08/2016 4:08:35 PM

Notes to pages 10–19  221

16 17 18

19

20

21

of California Press, 1989), 4. On transnational regions in northern North America, see John J. Bukowczyk et al., eds, Permeable Border: The Great Lakes Basin as Transnational Region, 1650–1990 (Pittsburgh: University of Pittsburgh Press, 2005). On American extradition policy and the unilateralism/imperialism thesis, see Unterman, Uncle Sam’s Policemen. Unterman, Uncle Sam’s Policemen, esp. 47–74; Margolies, Spaces of Law in American Foreign Relations. Isabel Hull, A Scrap of Paper: Breaking and Making International Law during the Great War (Ithaca: Cornell University Press, 2014). On the rise of positivism, see Stephen C. Neff, Justice among Nations: A History of International Law (Cambridge, MA: Harvard University Press, 2014), 221–59. For a view questioning the familiar naturalism-to-positivism shift, see Milos Vec, “From the Congress of Vienna to the Paris Peace Treaties of 1919,” in Bardo Fassbender and Anne Peters, eds, The Oxford Handbook of the History of International Law (Oxford: Oxford University Press, 2012), 654–78. On the links between Canadian and British legal thought, see especially Philip Girard, “British Justice, English Law, and Canadian Legal Culture,” in Phillip Buckner, ed., Canada and the British Empire (Oxford: Oxford University Press, 2008), 259–77; G. Blaine Baker, “The Reconstitution of Upper Canadian Legal Thought in the Late-Victorian Empire,” Law and History Review 3 (1985), 219–92. See, for examples, Phillip Buckner and R. Douglas Francis, eds, Canada and the British World: Culture, Migration, and Identity (Vancouver: UBC Press, 2006); Adele Perry, On the Edge of Empire: Gender, Race, and the Making of British Columbia, 1849–1871 (Toronto: University of Toronto Press, 2001); Katie Pickles, Female Imperialism and National Identity: Imperial Order Daughters of the Empire (Manchester: Manchester University Press, 2002); Ian Radforth, Royal Spectacle: The 1860 Visit of the Prince of Wales to Canada and the United States (Toronto: University of Toronto Press, 2004). On this, see especially Lauren Benton and Lisa Ford, “Magistrates in Empire: Convicts, Slaves, and the Remaking of the Plural Legal Order in the British Empire,” in L. Benton and Richard Ross, eds, Legal Pluralism and Empires, 1550–1850 (New York: NYU Press, 2013), 173–98; McHugh, Aboriginal Societies. 2  The Everyday Challenge of Sovereignty

  1 On the Madawaska controversy and the broader Northeastern Boundary Dispute, see Roger Paradis, “John Baker and the Republic of Madawaska,”

Miller_5200_219.indd 221

16/08/2016 4:08:36 PM

222  Notes to pages 19–21

  2

  3   4   5   6

  7

  8

  9

10

Dalhousie Review 52(1) (1972), 78–95; Daniel Doan, Indian Stream Republic: Settling a New England Frontier, 1785–1842 (Hanover: University Press of New England, 1997); Robert Tsai, America’s Forgotten Constitutions: Defiant Visions of Power and Community (Cambridge, MA: Harvard University Press, 2014), 18–48. On the boundary dispute generally, see Francis M. Carroll, A Good and Wise Measure: The Search for the Canadian-American Boundary, 1783–1842 (Toronto: University of Toronto Press, 2001). The King against Baker, New Brunswick Reports, vol. 1, 211–16; Report of the Trial of Barnabas Hannawell, Jesse Wheelock, and Daniel Savage, before the Supreme Court of the Province of New-Brunswick, in Remarks upon the Disputed Points of Boundary under the Fifth Article of the Treaty of Ghent, 2nd ed. (Saint John: D.A. Cameron at the Observer Office, 1839), appendix 3, xvii–xxvii. King against Baker, 216. Report of the Trial of Barnabas Hannawell, xxvi. Ford, Settler Sovereignty. On the variety of legal regimes surrounding migration in this period, see Andreas Fahrmeir et al., eds, Migration Control in the North Atlantic World: The Evolution of State Practices in Europe and the U.S. from the French Revolution to the Inter-War Period (New York: Berghahn Books, 2003). See Shah, Stranger Intimacy; Constance Backhouse, Colour-Coded: A Legal History of Racism in Canada, 1900–1950 (Toronto: University of Toronto Press and the Osgoode Society, 1999); Donald Avery, Reluctant Host: Canada’s Response to Immigrant Workers, 1896–1994 (Toronto: McClelland & Stewart, 1995); Mariana Valverde, The Age of Light, Soap and Water: Moral Reform in English Canada, 1885–1925 (Toronto: McClelland & Stewart, 1991); Patricia Roy, A White Man’s Province: British Columbia Politicians and Chinese and Japanese Immigrants, 1858–1914 (Vancouver: UBC Press, 1989). See also Franca Iacovetta, Gatekeepers: Reshaping Immigrant Lives in Cold War Canada (Toronto: Between the Lines, 2006). Kornel Chang, “Enforcing Transnational White Solidarity: Asian Migration and the Formation of the U.S.-Canadian Boundary,” American Quarterly 60(3) (2008), 685. See Ford, Settler Sovereignty; David Kennedy, “International Law and the Nineteenth Century: History of an Illusion,” Quinnipiac Law Review 17 (1997–8), 99–138; Charles S. Maier, “Consigning the Twentieth Century to History: Alternative Narratives for the Modern Era,” American Historical Review 105(3) (2000), 807–31. Report of the Trial of John Baker at the Bar of the Supreme Court on

Miller_5200_219.indd 222

16/08/2016 4:08:36 PM

Notes to pages 21–4  223

11 12 13

14 15

16

17

18

19

20 21

22 23 24

Thursday the 8th May 1828 for Conspiracy, Diplomatic Correspondence of the United States: Canadian Relations, 1784–1860 [DCUS], vol. 2 (Washington: Carnegie Endowment, 1940–5), 721. Sir Howard Douglas to Charles R. Vaughan, 12 May 1828, ibid., 715; Report of the Trial of John Baker, 717, 719, 720. Henry Clay to W.B. Lawrence, 31 March 1828, DCUS, vol. 2, 172–3. Sir Herbert Jenner to Lord Aberdeen, 3 June 1828, Law Officers’ Opinions to the Foreign Office, 1793–1860 [LOFO], vol. 3, ed. Clive Parry (Westmead: Gregg International Publishers, 1970), 302–3. Jenner, Wetherell, and Tindal to Aberdeen, 11 August 1828, ibid., 305. See Howard Jones, “Anglophobia and the Aroostook War,” New England Quarterly 48(4) (1975), 519–39; W.E. Campbell, The Aroostook War of 1839 (Fredericton: Goose Lane Editions, 2013). Minutes of the Trial of R. v. Howland Hastings, assault, January sessions 1839, Colonial Office Fonds [CO] 42, reel B-360, vol. 465, 217–18; John McDonnell to S.T. Mason, 21 February 1839, ibid., 220–1. Though he was held, temporarily, on the charge of threatening Prince. Mason to McDonnell, 19 February 1839, ibid., 219; Henry Fox to John Forsyth, 29 January 1839, DCUS, vol. 3, 475; Lord Palmerston to Andrew Stevenson, 14 February 1840, DCUS, vol. 3, 556. On the raid, see Ruth Swan and Edward A. Jerome, “Unequal Justice: The Metis in O’Donoghue’s Raid of 1871,” Manitoba History 39 (2000), 24–38. See Taylor to Hale, 23 March 1872, and Taché to Taylor, 1 February 1872, National Archives and Records Administration of the United States [NARA], RG 59, Consuls Despatches – Winnipeg, roll 2, vol. 2. See affidavits of Louis Jerome, 11 March 1872, and Patrick Breland, 2 April 1872, ibid. The Queen v. John Kinsman, Nova Scotia Reports, vol. 1, 62–3. On this case, see David Sutherland, “Violence, Sex, and Politics in Mid-Victorian Halifax: The Winchester Affair of 1853,” Journal of the Royal Nova Scotia Historical Society 5 (2002), 94–105. The Queen v. John Kinsman, 66–7. Ibid., 68–9. “Wanted – An Extradition Law,” Boston Herald, 1 December 1884, 1. See also “A Queer Assumption,” The Daily Astorian, 21 December 1884, 1; “American Prisoners Released,” Victoria Daily Colonist, 5 December 1884, 3; “Prisoners Released,” Sacramento Daily Record, 5 December 1884, 2; “Pacific Coast News,” San Francisco Daily Evening Bulletin, 5 December 1884, 1. See

Miller_5200_219.indd 223

16/08/2016 4:08:36 PM

224  Notes to pages 24–7

25

26 27 28 29

30 31

32 33

34

35

36 37 38 39

also Robert J. Stevens to Davis, 23 December 1884, Consuls Despatches – Victoria, roll 6, vol. 6. See, for example, James Taylor to John Cadwalader, 8 March 1877, Taylor to F.W. Seward, 24 July 1877, 4 September 1877, 8 September 1877, 4 April 1878, Consuls Despatches – Winnipeg, roll 5, vol. 5. W.H. Graham to David J. Hill, 27 February 1901, Consuls Despatches – Winnipeg, roll 8, vol. 8. Myers to Canadian secretary of state, 10 January 1894, LAC, RG 6, A-1, vol. 85, 295. Report of Executive Council of BC, approved 18 January 1894, ibid. On this period, see Bradley Miller, “The Law of Nations in the Borderlands: Sovereignty and Self-Defence in the Rebellion Period, 1837–1842,” in Blaine Baker and Donald Fyson, eds, Essays in the History of Canadian Law, vol. 11 (Toronto: University of Toronto Press and the Osgoode Society, 2013), 235–77. Bagot to Lord Stanley, 17 July 1842, CO 42, reel B-377, vol. 494. See, for example, Elgin to Lord Grey, 16 August 1848, and Moore to Elgin, 26 December 1848, in Sir Arthur Doughty, ed., The Elgin-Grey Papers, 1846– 1852, vol. I (Ottawa: King’s Printer, 1937), 223–4, 281. Elgin to Grey, 6 December 1848, ibid., 268. On this period, see Allen P. Stouffer, “Canadian–American Relations in the Shadow of the Civil War,” Dalhousie Review 57(2) (1977), 332–46; Robin Winks, The Civil War Years: Canada and the United States, 4th ed. (Montreal and Kingston: McGill-Queen’s University Press, 1998). See Archives of Ontario [AO], RG 1, E1, reel C-121, vol. A.B., 533. On the formation and activities of the police, see Jeff Keshen, “Cloak and Dagger: Canada West’s Secret Police, 1864–1867,” Ontario History 79(4) (December 1987), 353–81. See the work of J.I. Little, State and Society in Transition: The Politics of Institutional Reform in the Eastern Townships, 1838–1852 (Montreal and Kingston: McGill-Queen’s University Press, 1997); Little, Loyalties in Conflict: A Canadian Borderland War and Rebellion, 1812–1840 (Toronto: University of Toronto Press, 2008). Crawford to Davis, 24 August 1883, Consuls Despatches – Coaticook, roll 2, vol. 2. Report of Lewis T. Drummond, 21 September 1854, DCUS, vol. 4, 598. David Browne to George Morehouse, 2 March 1866, Consuls Despatches – St John’s, Quebec, roll 1, vol. 1. Memo of R.T. Whitehouse, 1 March 1910, LAC, RG 25, A-3-a, vol. 1101, 1910-120.

Miller_5200_219.indd 224

16/08/2016 4:08:36 PM

Notes to pages 27–9  225 40 William F. Jenks to George Wickersham, 3 March 1910, ibid. 41 Ibid. 42 Taylor to Davis, 19 June 1874, Consuls Despatches – Winnipeg, roll 4, vol. 4. 43 Thomas Hotchkiss to Wharton, 22 June 1889, Consuls Despatches – Ottawa, roll 4, vol. 4. 44 Hotchkiss to Edgar Dewdney, 26 April 1889, ibid. 45 Abraham Smith to Herbert Peirce, Consuls Despatches – Victoria, roll 16, vol. 15. Many Indigenous people also claimed rights of cross-border movement under the Jay Treaty. See Gerald F. Reid, “Illegal Alien? The Immigration Case of Mohawk Ironworker Paul K. Diabo,” Proceedings of the American Philosophical Society 151(1) (2007), 61–78. 46 The New York Times covered the Caldwell saga extensively in 1869 and 1870. See “The Drawback Frauds: Caldwell in American Custody at Last,” New York Times, 2 April 1870, 8; “The Caldwell Case in Canada,” New York Times, 16 December 1869, 4; “The Drawback Frauds Again,” New York Times, 28 December 1869, 2. For his escape from the Montreal court house, see “The Escape of Caldwell,” Boston Daily Advertiser, 14 January 1870, and “The Case of Caldwell,” New York Times, 9 January 1870. 47 Unterman, Uncle Sam’s Policemen, 14–46. 48 William A. Dart to Hamilton Fish, 10 January 1870, Consuls Despatches – Montreal, roll 10, vol. 10. 49 Ibid. 50 See Barbara Roberts, “Shovelling Out the ‘Mutinous’: Political Deportation from Canada before 1936,” Labour/Le Travail 18 (1986), 77–110; Dennis Molinaro, “‘A Species of Treason?’: Deportation and Nation-Building in the Case of Tomo 2aôiñ, 1931–1934,” Canadian Historical Review 91(1) (2010), 61–85. On slave extradition, see David Murray, Colonial Justice: Justice, Morality and Crime in the Niagara District, 1791–1849 (Toronto: University of Toronto Press for the Osgoode Society, 2002), 196–216; Alexander L. Murray, “The Extradition of Fugitive Slaves from Canada: A Re-evaluation,” Canadian Historical Review 43 (1962), 298–314; J. Mackenzie Leask, “Jesse Happy, A Fugitive Slave from Kentucky,” Ontario History 54(2) (1962), 87–98. 51 Fox to Aaron Vail, 3 November 1838, in Charles R. Sanderson, ed., The Arthur Papers: Being the Canadian Papers Mainly Confidential, Private, and Demi-Official of Sir George Arthur, K.C.H., Last Lieutenant-Governor of Upper Canada, vol. 1 (Toronto: Toronto Public Libraries and University of Toronto Press, 1957), 344. 52 See below, chapter 5; Winks, Civil War Years; Dennis K. Wilson, Justice

Miller_5200_219.indd 225

16/08/2016 4:08:36 PM

226  Notes to pages 30–2

53

54 55

56

57 58

59 60 61 62

63 64 65 66

67

under Pressure: The Saint Albans Raid and Its Aftermath (Lanham, MD: University Press of America, 1992). On desertion from British forces in North America, see Peter Burroughs, “Tackling Army Desertion in British North America,” Canadian Historical Review 61(1) (1980), 28–68. Stratford Canning to John Quincy Adams, 9 January 1821, DCUS, vol. 2, 299. Edwin Dudley to Robert Bacond, 28 October 1905, Consuls Despatches – Vancouver, roll 5, vol. 5; Stevens to James D. Porter, 4 August 1886, Consuls Despatches – Victoria, roll 7, vol. 7. On bounty jumping, see Michael Smith, “The Most Desperate Scoundrels Unhung: Bounty Jumpers and Recruitment Fraud in the Civil War North,” American Nineteenth Century History 6(2) (2005), 149–72. John F. Potter to W.H. Seward, 13 September 1864, Consuls Despatches – Montreal, roll 5, vol. 5. On the movement of the Sioux, see David McCrady, Living with Strangers: The Nineteenth-Century Sioux and the Canadian-American Borderlands (Lincoln: University of Nebraska Press, 2006); Mark Felton, “The Sioux Hegira in Canada, 1876–81: The Layering and Framing of Aboriginal Identity,” British Journal of Canadian Studies 19(1) (2006), 47–60. E.A.C. Hatch to A.G. Dallas, 4 March 1864, “Sioux Indians,” Parliamentary Papers [U.K.], 1864, 41, 13–14. Taylor to Cadwalader, 8 March 1877, Consuls Despatches – Winnipeg, roll 5, vol. 5. Taylor to F.W. Seward, 24 July 1877, ibid. See Tony Freyer and Lyndsay M. Campbell, eds, Freedom’s Conditions in the U.S.-Canadian Borderlands in the Age of Emancipation (Durham, NC: Carolina Academic Press, 2011). James Barbour to Henry Clay, 2 October 1828, NARA, M-30, roll 32, vol. 36, 30–2. See chapter 5. W. Brown to John Tyler, 6 September 1843, NARA, M-179, roll 102. Emphases in original. Thomas G. James to Lewis Cass, 13 October 1857, NARA, M-179, roll 159. While most extradition cases involved government officials filing extradition requests, the US secretary of state appeared to endorse the standing of a private individual to make such a claim: Cass to Lord Napier, 10 November 1857, NARA, M-99, vol. 8, reel 37, 58. See, for example, “Police Court,” Globe, 11 February 1870, 4; “The Caldwell

Miller_5200_219.indd 226

16/08/2016 4:08:37 PM

Notes to pages 32–4  227

68 69

70 71 72

73 74

75 76 77 78

79

Extradition Case,” Globe, 28 January 1870, 1; “The Caldwell Case in Canada,” New York Times, 16 December 1869; “The Escape of Caldwell,” Boston Daily Advertiser, 14 January 1870. “The Police Court,” Globe, 12 March 1870, 1. See “The Caldwell Case,” Daily Cleveland Herald, 6 January 1870; “The Extradition Case in Canada,” San Francisco Daily Evening Bulletin, 7 January 1870; “Miscellaneous Items,” Boston Daily Advertiser, 31 March 1870; “The Case of Caldwell,” New York Times, 9 January 1870. Karen Dubinsky, Improper Advances: Rape and Heterosexual Conflict in Ontario, 1880–1929 (Chicago: University of Chicago Press, 1993), 35. “Hall Showing Fight: Newark’s Ex-Chief Clerk Determined to Resist Extradition from Canada,” New York Herald, 28 May 1882. On Browne see United States v. Browne # 1, Canadian Criminal Cases, vol. 11, 161–7; United States v. Browne # 2, Canadian Criminal Cases, vol. 11, 167–80; “C.C. Browne Caught: Customs Appraiser Who Jumped His Bail Arrested in Montreal,” New York Times, 4 February 1906; “Chief Wilkie Tells of Silk Fraud Hunt,” New York Times, 7 March 1904; “Big Customs House Frauds Discovered; Silks Imported for Certain Houses Greatly Undervalued,” New York Times, 14 August 1901. On Jarrard see Re Jarrard, Ontario Reports, vol. 4, 265–79; press coverage was very wide, but see “Jarrard’s Whole Story,” Trenton Evening Times, 24 August 1883; on his background and influence see “Trepidation in New Brunswick,” Trenton Evening Times, 30 August 1883. For the amount of the fraud see Re Gaynor and Greene # 11, Canadian Criminal Cases, vol. 10, 158. On Phipps see Re Ellis P. Phipps, Ontario Reports, vol. I, 586–618; In Re Phipps, Ontario Appeal Reports, vol. 8, 77–121; “Arrest of Major Phipps,” Boston Daily Journal, 19 September 1882; “Phipps’ Plight,” Philadelphia Inquirer, 20 September 1882; Daily Globe [St Paul], 25 October 1882; Idaho Avalanche, 23 September 1882, col. B. North American, 14 April 1883, 1. See Unterman, Uncle Sam’s Policemen, 20–2; Dawn Hutchins Bobryk, “The Defalcation of John Chester Eno,” MA diss. (Trinity College, 2006). Unterman, Uncle Sam’s Policemen, 20. See Re John C. Eno, Rapports judiciaires de Québec/Quebec Law Reports, vol. 10, 194–221; “John C. Eno Comes Back,” New York Times, 21 February 1893; “John C. Eno Set at Liberty,” New York Times, 13 July 1884. See 32–33 Vic., c. 21, s. 112 [Canada]; Miller, “The Law of Nations in the Borderlands.”

Miller_5200_219.indd 227

16/08/2016 4:08:37 PM

228  Notes to pages 34–8 80 Edward Everett to Lord Aberdeen, 30 January 1845, NARA, M-30, roll 50, vol. 54. 81 Dart to Fish, 10 January 1870, Consuls Despatches – Montreal, roll 10, vol. 10. 82 See below, chapter 6. 83 See Murray, Colonial Justice, 196–216; Patrick Brode, The Odyssey of John Anderson (Toronto: University of Toronto Press and the Osgoode Society, 99–105. On Upper Canadian abolitionism and its intersections with the threat of slave extradition, see Allen P. Stouffer, The Light of Nature and the Law of God: Anti-Slavery in Ontario, 1833–1877 (Montreal and Kingston: McGill-Queen’s University Press, 1992). 84 Sir Edmund Head to Lord Napier, 2 December 1857, NARA, M-50, roll 35, vol. 35. 85 Stevens to Porter, 29 July 1885, Consuls Despatches – Victoria, roll 6, vol. 6. 86 Potter to W.H. Seward, 30 March 1865, Consuls Despatches – Montreal, roll 6, vol. 6. 87 C.H. Powers to Seward, 7 June 1865, Consuls Despatches – Montreal, roll 7, vol. 7. 88 Hotchkiss to Porter, 12 January 1887, Consuls Despatches – Ottawa, roll 2, vol. 2. 89 Hotchkiss to Porter, 19 January 1887, ibid. 90 Hotchkiss to Douglas, Douglas, and Walker, 23 November 1887, Consuls Despatches – Ottawa, roll 3, vol. 3. 91 Stevens to Porter, 20 June 1885 and 29 July 1885, Consuls Despatches – Victoria, roll 6, vol. 6. 92 Stevens to Thomas F. Bayard, 15 July 1885, Consuls Despatches – Victoria, roll 6, vol. 6. 93 Crease to minister of justice, 21 January 1893, LAC, RG 13, A-5, 988, 18921348. 94 Stevens to Porter, 29 July 1885 and 7 September 1885, Consuls Despatches – Victoria, roll 6, vol. 6. 95 Stevens to Porter, 7 September 1885, Consuls Despatches – Victoria, roll 6, vol. 6. 96 Stevens to Porter, 3 September 1885, Consuls Despatches – Victoria, roll 6, vol. 6. 97 Thomas F. Wilson to Dart, 8 January 1870, Consuls Despatches – Victoria, roll 6, vol. 6. 98 Ibid.

Miller_5200_219.indd 228

16/08/2016 4:08:37 PM

Notes to pages 39–43  229   99 Myers to Wharton, 11 June 1890, Consuls Despatches – Victoria, roll 9, vol. 9. 100 Myers to Wharton, 6 June 1890, ibid. 101 Solomon J. Davis and George W. Beardsley to W.H. Seward, 30 April 1862, NARA, M-179, Roll 190. 102 Ibid. 103 See Report of Albert Roberts, 28 September 1886, Consuls Despatches – Hamilton, roll 5, vol. 5. 104 J.C. Harvey to W.L. Sewell, 28 June 1989, Consuls Despatches – Toronto, roll 8, vol. 8. 105 J.A. Ritchie to Sewell, 18 June 1898, J.R. Ginge to Anthony Comstock, 4 March 1898, William Beind to A.P. Sherwood, 15 March 1898, and Pinkerton’s National Detective Agency to Sherwood, 21 March 1898, Consuls Despatches – Toronto, roll 8, vol. 8. 106 See Stephen Mihm, A Nation of Counterfeiters: Capitalists, Con Men, and the Making of the United States (Cambridge, MA: Harvard University Press, 2007). 107 See Little, Loyalties in Conflict; Little, “American Sinner/Canadian Saint? The Further Adventures of the Notorious Stephen Burroughs, 1799– 1840,” Journal of the Early Republic 27(2) (2007), 203–31. 108 Emory Washburn to Franklin Pierce, 21 August 1854, DCUS, vol. 4, 100. 109 Report of Lewis T. Drummond, 21 September 1854, ibid., 598. 110 Browne to Morehouse, 2 March 1866, Consuls Despatches – St John’s, Quebec, roll 1, vol. 1. 111 Alexander Grant to Sir Archibald Campbell, 31 October 1833, DCUS, vol. 2, 939; John Roy to Donald Bethune, 28 November 1843, DCUS, vol. 3, 851. 112 Stevens to Seward, 4 April 1867, Consuls Despatches – Windsor, roll 1, vol. 1; Stevens to Porter, 12 August 1887, Consuls Despatches – Victoria, roll 8, vol. 8; Stevens to Wharton, 3 October 1889, Consuls Despatches – Victoria, roll 9, vol. 9; Report of Executive Council of B.C., approved 4 January 1895, LAC, RG 20, A-1, vol. 1111, 2203. 113 Grant to Campbell, 31 October 1833, DCUS, vol. 2, 939; see also Myers to John W. Foster, 31 October 1892, Consuls Despatches – Victoria, roll 11, vol. 11. 114 Report of the Executive Council of B.C., approved 4 January 1895, LAC, RG 20, A-1, vol. 1111, 2203; Shurtleff to Irvine, 9 November 1883, LAC, RG 18, B-1, vol. 1010, 653. 115 See Felix Johnson to Thomas W. Cridler, 8 June 1901, Consuls Despatches

Miller_5200_219.indd 229

16/08/2016 4:08:37 PM

230  Notes to pages 43–4 – Stanbridge Station, roll 1, vol. 1; Thomas Fitnam to F.W. Seward, 27 February 1866, Consuls Despatches – Goderich, roll 1, vol. 1; Richard Lay to Wharton, 24 August 1892, Consuls Despatches – Ottawa, roll 6, vol. 6. 116 For a reassessment of the meaning of the state, see Donald Fyson, Magistrates, Police, and People: Everyday Criminal Justice in Quebec and Lower Canada, 1764–1837 (Toronto: University of Toronto Press and the Osgoode Society, 2006). 117 Hugh C. Morris to Herbert H.D. Peirce, 15 April 1903, Consuls Despatches – Windsor, roll 4, vol. 4. 118 See F.A. Routh to David Thurston, n.d. (ca. 5 July 1865), 10 July 1865, n.d. (ca. 21 July 1865), 31 July 1865, 7 August 1865, 26 August 1865, 31 August 1865, Consuls Despatches – Toronto, roll 1, vol. 1. 119 See, for example, Myers to Wharton, 16 May 1890 and 6 June 1890, Consuls Despatches – Victoria, roll 9, vol. 9. 120 Myers to Wharton, 7 June 1892 and 18 July 1892, Consuls Despatches – Victoria, roll 10, vol. 10. 121 Constable King to J. Heffernan, 9 December 1908, LAC, RG 18, A-1, vol. 362, 608-08. 122 Johnson to Cridler, 2 November 1900, Consuls Despatches – Stanbridge Station, roll 1, vol. 1. 123 Routh to Thurston, 26 August 1865, Consuls Despatches – Toronto, roll 1, vol. 1. 124 Thurston to Howard Spalding, 27 June 1865, Consuls Despatches – Toronto, roll 1, vol. 1. 125 Thurston to Seward, 25 August 1865, Consuls Despatches – Toronto, roll 1, vol. 1; Ryder to Wharton, 19 November 1890, Consuls Despatches – Quebec City, roll 6, vol. 6. 126 Routh to Thurston, 31 July 1865 and n.d. (ca. 5 July 1865), and Thurston to Spalding, 27 June 1865, Consuls Despatches – Toronto, roll 1, vol. 1. 127 Routh to Thurston, 31 August 1865, Consuls Despatches – Toronto, roll 1, vol. 1. 128 Fitnam to Seward, 27 February 1866, Consuls Despatches – Goderich, roll 1, vol. 1; Morehouse to Secretary of State, 24 October 1865, Consuls Despatches – St John’s Quebec, roll 1, vol. 1. 129 Myers to Wharton, 21 May 1891, 7 June 1892, Consuls Despatches – Victoria, roll 10, vol. 10. 130 Robert Stevens to Wharton, 3 October 1889, Consuls Despatches – Victoria, roll 9, vol. 9.

Miller_5200_219.indd 230

16/08/2016 4:08:37 PM

Notes to pages 45–8  231 131 Thurston to Spalding, 27 June 1865, Consuls Despatches – Toronto, roll 1, vol. 1; Routh to Thurston, n.d. (ca. 21 July 1865), Consuls Despatches – Toronto, roll 1, vol. 1. 132 Hugh C. Morris to Herbert H.D. Peirce, 15 April 1903, Consuls Despatches – Windsor, roll 4, vol. 4. 133 Myers to Wharton, 21 May 1891, Consuls Despatches – Victoria, roll 10, vol. 10; Myers to John W. Foster, 31 October 1892, roll 11, vol. 11. 134 Myers to John W. Foster, 31 October 1892, roll 11, vol. 11. 135 See Sarah M. Griffith, “Border Crossings: Race, Class, and Smuggling in Pacific Coast Chinese Immigrant Society,” Western Historical Quarterly 35(4) (2004), 473–92. 136 Ibid., 480. 137 See testimony of Myers, 23 May 1893, included with Myers to Josiah Quincy, 27 December 1893, Consuls Despatches – Victoria, roll 11, vol. 11. 138 Morehouse to Secretary of State, 24 October 1865, Consuls Despatches – St John’s, Quebec, roll 1, vol. 1. Emphasis in original. 139 King to Heffernan, 9 December 1908, LAC, RG 18, A-1, vol. 362, 608-08; see also Albert Shurtleff to A.G. Irvine, 9 November 1883, LAC, RG 18, B-1, vol. 1010, 653. 140 Report of Executive Council of B.C., approved 18 January 1894, LAC, RG 6, A-1, vol. 85, 295. 141 See “Denies It” attached to Myers to Wharton, 6 June 1890, Consuls Despatches – Victoria, roll 9, vol. 9; also “Inspector Young Explains,” Victoria Daily Colonist, 6 June 1890, 5. 142 Morris to Peirce, 15 April 1903, Consuls Despatches – Windsor, roll 4, vol. 4. 143 Frederick Ryder to Wharton, 19 November 1890, Consuls Despatches – Quebec City, roll 6, vol. 6. 144 Griffith, “Border Crossings.” 145 Myers to Quincy, 27 December 1893, Consuls Despatches – Victoria, roll 11, vol. 11. 146 See, for example, Fitnam to Seward, 27 February 1866, Consuls Despatches – Goderich, roll 1, vol. 1. 147 Myers to Wharton, 11 June 1890, Consuls Despatches – Victoria, roll 9, vol. 9. 148 Sarah Kelly’s statement is in the affidavit of Edward Bragg, the agent who allegedly kidnapped her husband, but Kelly’s own affidavit says she warned William not to go over the border. See their affidavits at LAC, RG 25, A-3-a, vol. 1101, 1910-120.

Miller_5200_219.indd 231

16/08/2016 4:08:37 PM

232  Notes to pages 49–51 3  The Low and High Laws of Abduction in the Border Zone   1 See affidavit of Thomas H. Bevans, 28 March 1876, Consuls Despatches – Winnipeg, roll 5, vol. 5.   2 See affidavit of Eugene S. Shinkle, 6 April 1876, ibid.   3 Affidavit of Thomas H. Bevans.   4 Ibid.   5 Ibid.   6 N.E. Nelson to Taylor, 31 March 1876, and Taylor to Cadwalader, 1 April 1876, ibid.   7 Taylor to Cadwalader, 14 April 1876, ibid.   8 Taylor to Cadwalader, 29 April 1876 and 1 April 1876, ibid.   9 On low law, see Craven, Petty Justice; Douglas Hay, “Legislation, Magistrates and Judges: High Law and Low Law in England the Empire,” in David Lemmings, ed., The British and Their Laws in the Eighteenth Century (London: Boydell and Brewer, 2005), 59–79; Douglas Hay and Paul Craven, “Introduction,” in Masters, Servants and Magistrates in Britain and the Empire, 1562–1955 (Chapel Hill: University of North Carolina Press, 2004); Fyson, Magistrates, Police and People, esp. 3–14; Peter Karsten, Between Law and Custom: “High” and “Low” Legal Cultures in the Lands of the British Diaspora – the United States, Canada, Australia, and New Zealand, 1600–1900 (Cambridge: Cambridge University Press, 2002). Laura Edwards uses different terminology to describe a similar subject: The People and Their Peace: Legal Culture and the Transformation of Inequality in the Post-Revolutionary South (Chapel Hill: University of North Carolina Press, 2009). 10 On this see, Michael Pfeifer, Rough Justice: Lynching and American Society, 1874–1947 (Urbana and Chicago: University of Illinois Press, 2004) and The Roots of Rough Justice: Origins of American Lynching (Urbana, Chicago, and Springfield: University of Illinois Press, 2011); Jim Phillips and Rosemary Gartner, Murdering Holiness: The Trials of Franz Creffield and George Mitchell (Vancouver: UBC Press, 2003), 121–40, 158–91. Also, Kimberly Harper, White Man’s Heaven: The Lynching and Expulsion of Blacks in the Southern Ozarks, 1894–1909 (Fayetteville: University of Arkansas Press, 2010); Christopher Waldrep, The Many Faces of Judge Lynch: Extralegal Violence and Punishment in America (New York: Palgrave Macmillan, 2002), 85–101; Richard Maxwell Brown, Strain of Violence: Historical Studies of American Violence and Vigilantism (New York: Oxford University Press, 1975), esp. 95–133. For an examination of lynching rooted more in race and social control, see W. Fitzhugh Brundage, Lynching in the New South: Georgia and Virginia, 1880–1930 (Chicago: University of Illinois Press, 1993); Stewart E. Tolnay

Miller_5200_219.indd 232

16/08/2016 4:08:37 PM

Notes to pages 51–6  233

11 12 13

14 15

16 17 18 19

20 21 22 23 24 25 26

27

28

and E.M. Beck, A Festival of Violence: An Analysis of Southern Lynchings, 1882–1930 (Chicago: University of Illinois Press, 1995). See Unterman, Uncle Sam’s Policemen, 47–74. Sahlins, Boundaries, 4. See, for an example of the role of custom in the nineteenth-century law of nations, Henry Wheaton, The Elements of International Law (Philadelphia: Carey, Lea & Blanchard, 1836), 38. Affidavit of Thomas H. Bevans. M.E. Jesseph and Joseph McDonald to Edwin Dudley, n.d., and deposition of Martin Everett, 2 December 1899, Consuls Despatches – Vancouver, vol. 2, roll 2. Martin Everett to Edwin L. Dudley, March 1901, Consuls Despatches – Vancouver, roll 3, vol. 3. Quoted in Dudley to David J. Hill, 7 December 1899, Consuls Despatches – Vancouver, vol. 2, roll 2. Constable Dinsmore to H.A. Maclean, 12 April 1900, LAC, RG2, series A1-a, vol. 802, reel C-3780. Edward Russell to Charles M. Conrad, 26 February 1851, DCUS, vol. 4 (Washington: Carnegie Endowment, 1945), 374; James W. Taylor to John L. Cadwalader, 1 April 1876, Consuls Despatches – Winnipeg, vol. 5, roll 5. Affidavit of T.H. Bevans, n.d. (ca. April 1876), ibid. Clipping from the Winnipeg Free Press enclosed as attachment to Taylor to Cadwalader, 7 April 1876, ibid. Edward Russell to Charles M. Conrad, 26 February 1851, DCUS, vol. 4, 374. Affidavit of George McCarron, 15 January 1885, LAC, RG 2, series A-1-a, vol. 463, reel C-3372. 8 October 1842, Debates of the Legislative Assembly of United Canada, vol. 2, 362. George Renolds to L. Edwin Dudley, May 1900, Consuls Despatches – Vancouver, B.C., vol. 3, roll 3. Newspaper clipping sent as attachment by David F. Reynolds, superintendent of the Niagara Frontier Police, Buffalo, to Freeman Norton Blake, 8 February 1869, Consuls Despatches – Fort Erie, vol. 1, roll 1. Monck to Lord Lyons, 2 May 1864, Foreign Relations of the United States [FRUS], vol. 2 (Washington: Government Printing Office, 1861–), 604. Taylor to Cadwalader, 14 April 1876, Consuls Despatches – Winnipeg, vol. 5, roll 5.

Miller_5200_219.indd 233

16/08/2016 4:08:38 PM

234  Notes to pages 56–60 29 F.C. Wade to David Mills, 20 September 1898, LAC, RG 13, A-2, vol. 109, 1898-896. 30 On Bratton, see Lou Falkner Williams, The Great South Carolina Ku Klux Klan Trials, 1871–1872 (Athens: University of Georgia Press, 1996), 76–84, 105–6; Fred Landon, “The Kidnapping of Rufus Bratton,” Journal of Negro History, 10(3) (1925), 330–3. 31 See testimony of Robert T. Bates, R. v. Cornwall, 13 June 1872, LAC, RG 6, a-1, vol. 11, 1170. 32 Affidavit of George Bayley/Bailey, 13 August 1864, LAC, RG 7, G 6, vol. 13, reel C-15628, 224. 33 Sworn statement of Warren D. Walker, 20 January 1893, Consuls Despatches – Moncton, vol. 1, roll 1. 34 Affidavits of Victor E. Peters, 3 March 1910, and Edward K. Bragg, 1 March 1910, LAC, RG 25, A-3-a, vol. 1101, 1910-120. 35 See the affidavits of the alleged smuggler and the customs officer: Affidavit of Albert Edward Tolton, 16 December 1907, and George E. Foulkes, 6 January 1908, LAC, RG 6, A-1, vol. 130, 2940. 36 See chapter 4. 37 Charles Eliot to Lt. Col. Rowan, 29 November 1832, AO, RG 5, A-1, vol. 123, reel C-6877, 68185. 38 Eliot to Rowan, 14 January 1833, AO, RG 5, A-1, vol. 125, reel C-6877, 69014–15. 39 Clipping from Buffalo Express, 24 February 1869, included as attachment with Blake to F.W. Seward, 24 February 1869, Consuls Despatches – Fort Erie, vol. 1, roll 1. 40 “A Supposed Sand-Bagger,” Daily Colonist, 6 May 1892. 41 Dudley to Hill, 7 December 1899, Consuls Despatches – Vancouver, vol. 2, roll 2. 42 William C. Allen to Macdonald, 23 April 1868, LAC, RG 13, A-2, vol. 19, 1868-448. 43 Ibid. 44 Statement of Lieutenant Gates, n.d., but probably April 1876, Consuls Despatches – Winnipeg, vol. 5, roll 5. 45 Taylor to Cadwalader, 1 April 1876, ibid. 46 Clipping from the Winnipeg Free Press enclosed as attachment to James W. Taylor to John L. Cadwalader, 7 April 1876, Consuls Despatches – Winnipeg, vol. 5, roll 5. 47 Arthur to Normanby, 27 July 1839, CO 42, vol. 461, reel B-357, 372–3. Capt. William Sandom to Sir John Colborne, 31 May 1839, “Correspondence Relative to the Affairs of Canada, Part I,” Parliamentary Papers, 21.1, 1840, 98.

Miller_5200_219.indd 234

16/08/2016 4:08:38 PM

Notes to pages 60–8  235 48 Lord Lyons to William Seward, 25 July 1863, FRUS, vol. 1, 1863, 610–11; E.A.C. Hatch to A.G. Dallas, 4 March 1864, “Sioux Indians,” Parliamentary Papers, 1864, 41, 13–14. 49 Notes from Cornwall Assizes, 30 September 1891, sent with W.P.R. Street to deputy minister of justice, 19 February 1892, LAC, RG 2, A-1-a, vol. 597, reel C-3424, O.C. no. 1891–5 H. 50 See affidavit of Harry Gale, 17 October 1892, LAC, RG 13, A-5, vol. 988, 1892-1280. The circumstances of Gale’s arrest can be gleaned from the affidavit of a local US constable who decided not to participate: see affidavit of John C. Carr, ca. October 1892, in the same file. 51 Statement of magistrate Robert Thompson, quoted in affidavit of John C. Carr, n.d. (ca. 17 October 1892), LAC, RG 13, A-5, vol. 988, 1892-1280. 52 In 10 per cent of the 77 cases the offence alleged was not known. 53 See arrest warrant for Archy Lanton and related papers, Journal of the Legislative Council of the Province of Canada, 1857, appendix no. 64, 7. 54 Jacob Kluir to A. Shurtleff, 20 August 1883, RG 18, B-1, vol. 1008, 502. 55 J.H. Seeley to Fred White, 7 December 1900, LAC, RG 2, series A-1-a, vol. 814. 56 W.H. Griffin to R.A. Tucker, 14 May 1839, “Correspondence Relative to the Affairs of Canada,” 367. 57 William Woods Averell to William Seward, 6 June 1867, and Deposition of Thomas Hazeltine, 4 June 1867, Consuls Despatches – Montreal, vol. 8, roll 8. 58 See the documents on the case of Rufus Bratton, LAC, RG 13, A-2, vol. 27, 1872-810; LAC, RG 6, A-1, vol. 11, 1170. 59 See, for examples, affidavit of Pierre Fleurimont, 2 August 1850, DCUS, vol. 4, 27–8; also Astley P. Cooper to Lt. Col. Young, 18 June 1850, ibid., 371; Russell to Conrad, ibid., 373–5. 60 Henry S. Culver to John Bassett Moore, 21 October 1898, Consuls Despatches – London, vol. 2, roll 2. 61 Affidavit of George Bayley/Bailey, 13 August 1864, LAC, RG 7, G-6, vol. 13, reel C-15628, 224. 62 Report of Deputy Minister of Justice Zebulon Lash, 19 August 1879, LAC, RG2, series A-1-a, vol. 383, reel C-3327. 63 Adams to Stratford Canning, 30 January 1821, and 1 November 1821, DCUS, vol. 2, 3, 5. 64 Canning to Adams, 1 February 1821 and 2 November 1821, ibid., 300. 65 Sir Peregrine Maitland to Canning, 11 February 1822, ibid., 315; Canning to Adams, 18 April 1821, ibid., 301. 66 Seward to Lyons, 15 April 1863, FRUS, vol. 1, 1863, 568.

Miller_5200_219.indd 235

16/08/2016 4:08:38 PM

236  Notes to pages 68–73 67 Report of Cabinet, 31 January 1910, LAC, RG 2, A-1-a, vol. 987. 68 For an example of these offers, see Monck to Lyons, 2 May 1864, FRUS, vol. 2, 1863, 603. 69 See the summary of this scholarship in Jonathan A, Gluck, “The Customary International Law of State-Sponsored International Abduction and United States Court,” Duke Law Journal 44 (1994–5), 614–16. See also Paul O’Higgins, “Unlawful Seizure and Irregular Extradition,” British Yearbook of International Law 3 (1960), 279–320. 70 See, for example, Seward to Burnley, 23 September 1864, LAC, RG 7, G-6, vol. 13, reel C-15628, 218. 71 Lord Napier to Sir Edmund Head, 9 December 1858, and Napier to Lewis Cass, 9 December 1858, Return of correspondence in the case of William H. Tyler, Journals of the Legislative Assembly of the Province of Canada, vol. 17, appendix 5. 72 J.S. Black to Cass, 28 July 1859, DCUS, vol. 4, 183. 73 Henry S. Culver to John Bassett Moore, 21 October 1898, Consuls Despatches – London, vol. 2, roll 2. 74 Ibid. 75 Ibid. 76 Ibid. 77 W.L.P. to Alvey A. Adee, n.d., ibid. 78 Memo of Augustus Power, 6 May 1899, RG2, Privy Council Office, series A-1-a, vol. 778, reel C-3770. 79 Seward to Monck, 6 June 1863, LAC, RG 7, G-6, vol. 11, reel C-15628, 172. 80 Ibid. 81 Thornton to Seward, 20 February 1868, Congressional Serial Set, 6 March 1868, Executive document no. 39, 21. 82 Seward to Monck, 6 June 1863, LAC, RG 7, G-6, vol. 11, reel C-15628, 172; Seward to Thornton, 17 February 1868, Congressional Serial Set, 6 March 1868, Executive document no. 39, 20. 83 Lord Palmerston to Abbott Lawrence, 1 November 1850, DCUS, vol. 4, 370–1. 84 Monck to Lyons, 7 May 1864, LAC, RG 7, G-6, vol. 12, reel C-15628. 85 Thornton to Sir Hastings Doyle, 27 June 1872, and J.D. Coleridge and George Jessel to Lord Kimberley, 1 July 1872, LAC, RG 6, A-1, vol. 2, 1170. 86 Coleridge and Jessel to Kimberley, 16 July 1872, ibid. 87 Report of Deputy Minister of Justice Zebulon Lash, 19 August 1879, LAC, RG2, series A-1-a, vol. 383, reel C-3327. 88 Ibid.

Miller_5200_219.indd 236

16/08/2016 4:08:38 PM

Notes to pages 73–6  237   89 Petition to Sir Edmund Head, 6 December 1856, Charges against J.A. Wilkinson & T. Woodbridge, Journal of the Legislative Council of the Province of Canada, 1857, no. 3.   90 Alexander L. Murray, “Canada and the Anglo-American Anti-Slavery Movement,” PhD diss. (University of Pennsylvania, 1960), 533–4.   91 William Seward to Lord Lyons, 15 May 1863, FRUS, vol. 1, 1863, 604–5; Seward to Lyons, 3 January 1863, ibid., 483–4.   92 Cornwall v. The Queen, Reports of Cases Decided in the Court of Queen’s Bench [Ontario], vol. 33, 106–28.   93 See “The Kidnapping Case,” Manitoba Free Press, 20 September 1873. On Gordon, see John A. Bovey, “Lord Gordon Gordon,” Dictionary of Canadian Biography, vol. 10.   94 J.D. Coleridge and G. Jessel to Lord Kimberley, 16 July 1872, LAC, RG 6, A-1, vol. 2, 1170.   95 Archibald to Dufferin, 7 August 1873, LAC, MG 26A, reel C-1514, 30835– 9.   96 Newspaper report of the Court of Queen’s Bench, attached to James W. Taylor to J.C.B. Davis, 14 October 1873, Consuls Despatches – Winnipeg, vol. 3, roll 3.   97 See The People v. Tyler, Michigan Reports, vol. 3, 170.   98 L. Edwin Dudley to David J. Hill, 24 February 1900, Consuls Despatches – Vancouver, vol. 2, roll 2.   99 Bryce to Lord Grey, 14 April 1910, LAC, RG 25, A-3-a, vol. 1101, 1910-120. 100 “Proposal for Procedure in Alleged Abduction Cases,” 13 April 1910, ibid. 101 On the IJC, see John Herd Thompson and Stephen J. Randall, Canada and the United States: Ambivalent Allies, 3rd ed. (Montreal and Kingston: McGill-Queen’s University Press, 2002), 72–9. 102 “Proposal for Procedure in Alleged Abduction Cases.” 103 Ibid. 104 On the court of arbitration, see International Bureau of the Permanent Court of Arbitration, ed., International Alternative Dispute Resolution: Past, Present, and Future. The Permanent Court of Arbitration Centennial Papers (The Hague: Kluwer, 2000). 105 Louis Mallet to Colonial Office, 5 May 1910, in Further Correspondence Respecting Settlement of Questions between the United States and Canada (London: Foreign Office, 1910), 65. 106 For a summary of the case, see Unterman, Uncle Sam’s Policemen, 47–74. 107 Ker v. Illinois, U.S. Reports, vol. 119, 436–45. 108 Pyle, Extradition, Politics, and Human Rights, 264.

Miller_5200_219.indd 237

16/08/2016 4:08:38 PM

238  Notes to pages 76–80 109 Margolies, Spaces of Law in American Foreign Relations, 323, 330. 110 Unterman, Uncle Sam’s Policemen, 62. 111 Ex parte Susannah Scott, Barnewall and Cresswell’s King’s Bench Cases, vol. 9, 447. 112 Ibid., 448. 113 See the arguments of the solicitor general in R. v. Christian Sattler, English Reports, vol. 169, 1113. 114 State v. Oliver B. Brewster, Vermont Reports, vol. 7, 120. 115 Ibid., 121–2. 116 People v. William G. Rowe, Parker’s New York Reports, vol. 4, 254. 117 Ex parte Brown, Federal Reporter, August–December 1886, 653–6. There is no indication in the court reports that either American or Canadian officials intervened in these cases to express any view on the propriety of trying the prisoners. 118 H.B. Beard to John A. Macdonald, 8 May 1866, LAC, RG 13, A-2, vol. 15, 1866-520. 119 Record of The Queen v. Peter Martin, Return on B.C.-Alaska Border, Sessional Papers, 1878, no. 125, vol. 11, 107–8, 112. 120 Ibid., 117. 121 W.P.R. Street to the deputy minister of justice, 19 February 1892, RG 2, series A-1-a, vol. 597, reel C-3424. 122 Hugh MacMahon to R.W. Scott, 13 April 1899, RG 2, series A-1-a, vol. 778, reel C-3770. 123 The King v. Walton, Canadian Criminal Cases, vol. 9, 269–70. 124 Ibid., 275. 125 See, for example, protests in the Archy Lanton case: Petition of Henry Garrett to the governor general, 29 January 1856, Charges against J.A. Wilkinson & T. Woodbridge, 3. Also, see the report of Vancouver consul Edwin Dudley, who argued that the liberty of Americans all along the international boundary was imperilled by abductions: Dudley to Hill, 29 May and 6 October 1900, Consuls Despatches – Vancouver, roll 3, vol. 3. 126 Lord Gosford to Charles Bankhead, 6 February 1836, DCUS, vol. 3, 364. 127 Taylor to Hale, 27 December 1872, Consuls Despatches – Winnipeg, vol. 2, roll 2. 128 Extract of a letter from William J. Sutherland to Sir Edward Thornton, 2 July 1872, LAC, RG 13, A-2, vol. 28, 1872-968; Samuel Joy to J. Barker, 15 April 1873, Consuls Despatches – Saint John, vol. 8, roll 6. 129 See FRUS, vol. 2, 1865, 55–6. 130 See, for examples, D.B. Warner to the assistant secretary of state, 12 June 1873, Consuls Despatches – Saint John, vol. 8, roll 6; Memorandum of

Miller_5200_219.indd 238

16/08/2016 4:08:38 PM

Notes to pages 80–7  239 David Mills, 7 December 1898, in Correspondence Respecting the Proceedings of the Joint Commission (London: Foreign Office, 1899), 145; A.B. Aylesworth to governor general in council, 18 January 1910, LAC, RG 25, A-3-a, vol. 1101, 1910-120. 131 Extract of a letter from William J. Sutherland to Sir Edward Thornton, 2 July 1872, LAC, RG 13, A-2, vol. 28, 1872-968. 132 Charles Smith to Theodore Davie, 26 March 1892, “Board of Aldermen,” Victoria Daily Colonist, 14 April 1892. 133 Report of Deputy Minister of Justice Zebulon Lash, 19 August 1879, LAC, RG 2, series A-1-a, vol. 383, reel C-3327. 134 F. Rogers to the attorney general of the United States, 7 November 1884, LAC, RG 2, series A-1-a, vol. 458, reel C-3353. 135 Affidavit of Wallace, Dougherty, Goldsbury, and Asselin, 7 November 1884, ibid. 136 Statement of Peter J. Needham, 13 February 1864, LAC, RG 7, G-6, vol. 12, reel C-15628, 82. 137 Affidavit of Emannuel Stockett, 16 April 1864, ibid., 213. 138 Monck to Lyons, 7 May 1864, ibid., 261. 4  International Law and Supranational Justice in Northern North America    1 Ex parte Dos Santos, Federal Cases, vol. 7, 949.    2 On the role of the concept of civilization in international law, see Andrew Fitzmaurice, “Liberalism and Empire in Nineteenth-Century International Law,” American Historical Review 117(1) (2012), 122–40; Jennifer Pitts, “Empire and Legal Universalisms in the Eighteenth Century,” American Historical Review 117(1) (2012), 92–121; Brett Bowden, The Empire of Civilization: The Evolution of an Imperial Idea (Chicago and London: University of Chicago Press, 2009); Gerrit W. Gong, The Standard of “Civilization” in International Society (Oxford: Clarendon Press, 1984).    3 Ex parte Dos Santos, 951–2.    4 Ibid., 952.    5 Ibid., 950–1.    6 Ibid., 956.    7 On the challenge of Austinian positivism to English international law, see Michael Lobban, “English Approaches to International Law in the Nineteenth Century,” in Matthew Craven, Malgosia Fitzmaurice, and Maria Vogiatzi, eds, Time, History and International Law (Leiden, Boston: Martinus Nijhoff, 2007), 65–90.

Miller_5200_219.indd 239

16/08/2016 4:08:38 PM

240  Notes to pages 87–90   8 The historiography of international law in nineteenth-century British North America is exceptionally slim. See Rainer Baehre, “Diplomacy, International Law, and Foreign Fishing in Newfoundland, 1814–30,” in Jim Phillips et al., eds, Essays in the History of Canadian Law, vol. 10 (Toronto: University of Toronto Press and the Osgoode Society, 2008), 353–87; Miller, “The Law of Nations in the Borderlands.”   9 For assessments of Grotius’s influence, see Edward Keene, Beyond the Anarchical Society: Grotius, Colonialism and Order in World Politics (Cambridge: Cambridge University Press, 2002); Hedley Bull, Benedict Kingsbury, and Adam Roberts, eds, Hugo Grotius and International Relations (Oxford: Clarendon, 1990). For a critical view of the Eurocentrism underpinning the “father of international law” moniker, see Onuma Yasuaki, “When Was the Law of International Society Born? – An Inquiry of the History of International Law from an Intercivilizational Perspective,” Journal of the History of International Law 2 (2000), 1–66. 10 Grotius, The Rights of War and Peace, trans. A.C. Campbell (Washington: Dunne, 1901), book 2, chap. 21, sec. 3, 258. 11 Ibid., 258. 12 Harold Hongju Koh, “Why Do Nations Obey International Law?” Yale Law Journal 106 (2007), 2606–7; Benedict Kingsbury and Adam Roberts, “Grotian Thought in International Relations,” in Hugo Grotius and International Relations, 1–64. 13 Thomas Rutherforth, Institutes of Natural Law (Cambridge: J. Bentham, 1754), vol. 2, chap. 9, 517. 14 Edward Wynne, Eunomus (London: NP, 1768), vol. 3, 301–2. 15 Ibid., 303. 16 Grotius, The Rights of War and Peace, 257–8. 17 Robert Ward, An Enquiry into the Foundation and History of the Law of Nations in Europe, from the Times of Greeks and Romans to the Age of Grotius, vol. 2 (London: J. Butterworth, 1795), 319. 18 Rutherforth, Institutes of Natural Law, vol. 2, 493–6; Wynne, Eunomus, vol. 3, 210. 19 Colonel Lundy’s Case, Ventris’ King’s Bench Reports, vol. 2, 314; R. v. Kimberley, Strange’s King’s Bench Reports, vol. 2, 848. 20 East India Company v. Campbell, Vesey Senior’s Chancery Reports, vol. 1, 247. 21 Mure v. Kaye and Another, Taunton’s Common Pleas Reports, vol. 4, 44. 22 Ibid., 43. 23 Joseph Chitty, A Practical Treatise on the Criminal Law, vol. 1 (London: A.J. Valpy, 1816), 16.

Miller_5200_219.indd 240

16/08/2016 4:08:39 PM

Notes to pages 90–3  241 24 Chitty, A Practical Treatise on the Criminal Law, vol. 1 (Philadelphia: William Earle, 1819), 11; also in (Brookfield: Merriam, 1832), 15 and (Springfield: Merriam, 1836). Sir William Blackstone, in Joseph Chitty, ed., Commentaries on the Laws of England, vol. 4 (London: Walker, 1826), 292(a) n. 12. 25 In the Matter of Daniel Washburn, Johnson’s Chancery Reports, vol. 4, 107. 26 Ibid., 108. 27 Ibid. 28 Ibid., 110. 29 Ibid., 113. 30 Daniel J. Hulsebosch, Constituting Empire: New York and the Transformation of Constitutionalism in the Atlantic World, 1664–1830 (Chapel Hill: University of North Carolina Press, 2005), 282. 31 James Kent, Commentaries on American Law, vol. 1 (New York: Halsted, 1826), 15. 32 Ibid., 1, 16. 33 Ibid., 1, 18–19. 34 In the Case of Joseph Fisher, Reports of Cases Argued and Determined in the Courts of King’s Bench and in the Provincial Court of Appeals of Lower Canada, 245–8. 35 Ibid., 249–50. 36 Ibid., 250. 37 Ibid., 250–1. 38 Ibid., 251. Emphasis in original. 39 Ibid., 252. 40 Ibid., 255. 41 Ibid., 251. 42 Beamish Murdoch, Epitome of the Laws of Nova Scotia, vol. 1 (Halifax: Joseph Howe, 1832), 15–16. 43 Ibid., 16. 44 Nicolas-Benjamin Doucet, Fundamental Principles of the Laws of Canada, as they existed under the natives, as they were changed under the French kings, and as they were modified and altered under the domination of England, vol. 1 (Montreal: John Lovell, 1841–3), 10. 45 Ibid., 11. 46 Ibid. 47 Eric Reiter, “Imported Books, Imported Ideas: Reading European Jurisprudence in Mid-Nineteenth Century Quebec,” Law and History Review 22(3) (2004), 445–92; G. Blaine Baker, “The Reconstitution of Upper Canadian Legal Thought in the Late-Victorian Empire,” Law and History Review 3 (1985), 219–92.

Miller_5200_219.indd 241

16/08/2016 4:08:39 PM

242  Notes to pages 94–8 48 Montreal Courant, 24 November 1821; repr. in New York Evening Post, 1 December 1821, 2. 49 Montreal Herald, 24 November 1821; repr. in Providence Patriot, 26 December 1821, 2. 50 Addington to Stephen, 18 June 1842, CO 42, vol. 499, reel B-379. 51 Pencil note on Addington to Stephen, 18 June 1842, CO 42, vol. 488, reel B-379; Bagot to Lord Stanley, 9 September 1842, CO 42, vol. 495, reel B-377. 52 Colborne to S.H. Jenison, 12 February 1839, DCUS, vol. 3, 487; Colborne to Jenison, 1 January 1839, ibid., 476–7. 53 Fox to Forsyth, 15 February 1839, ibid., 482; Fox to Forsyth, 18 March 1839, ibid., 488. 54 Colborne to Jenison, 1 January 1839, ibid., 476. 55 Report of the executive council, 15 August 1829, DCUS, vol. 2, 815. Emphasis in original. 56 Sydenham to Seward, 14 May 1841, NARA, RG 59, M-179, roll 93. 57 Colborne to Jenison, 23 March 1839, “Correspondence Relative to the Affairs of Canada,” 90. 58 Ex parte Dos Santos, 951. 59 Adams to John M. Forbes, 5 June 1818, Piracy and Murder, Congressional Serial Set, 12 May 1840, Doc. no. 199, 45. 60 Forbes to Count Dohna, 27 March 1818, Piracy and Murder, 29. 61 G. Hyde de Neuville to Richard Rush, 20 March 1817, NARA, RG 59, M53, vol. 4, roll 3. 62 Gong, The Standard of “Civilization,” 6. 63 Ibid., 14–21. 64 Kent, Commentaries, vol. 1, 1. 65 Henry Wheaton, Elements of International Law (Philadelphia: Carey, Lea & Blanchard, 1836), 36; Gong, Standard of “Civilization,” 54–64. 66 Fox to Forsyth, 15 February 1839, DCUS, vol. 3, 482; Colborne to Jenison, 12 February 1839, ibid., 488; Sydenham to Seward, 19 August 1841, NARA, RG 59, M-179, roll 95. 67 Colborne to Jenison, 23 March 1839, “Correspondence Relative to the Affairs of Canada,” 90. 68 Colborne to Jenison, 1 January 1839, DCUS, vol. 3, 476. 69 Murray, Colonial Justice, 182–3. 70 “Mr Justice Macaulay’s minutes on the examination of the persons arrested at Sandwich for an offence committed in Michigan,” 29 December 1832, LAC, RG 5, A-1, vol. 124, reel C-6877, 68621. 71 Ibid., 68624–6.

Miller_5200_219.indd 242

16/08/2016 4:08:39 PM

Notes to pages 98–102  243 72 73 74 75 76

77

78 79 80 81 82

83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98

Ibid. 3 Will. IV, c. 7 [U.C.]. Hagerman to Harrison, 23 July 1839, CO 42, vol. 461, reel B-356, 270. Marshall to Rupert George, 7 September 1826, NARA, RG 59, M-50, roll 15. Kempt to Vaughan, 11 November 1826, ibid. For a report of the trial and conviction in federal court, see “Trial for Murder and Piracy,” Salem Gazette, 19 December 1826, 1–2. Extradition warrant, 4 June 1839, Public Archives of New Brunswick [PANB], RS344/J/2, Harvey papers. I am grateful to Professor Paul Craven for showing me this document. Marshall to George, 7 September 1826, NARA, RG 59, M-50, roll 15. Kempt to Vaughan, 10 October 1826, ibid. Thomas Chandler Haliburton, An Historical and Statistical Account of Nova Scotia (Halifax: Joseph Howe, 1829), 311. Extradition warrant, 4 June 1839. Leonard Pierce to Harvey, 14 September 1838, PANB, RS344/C/2, Harvey correspondence. I am grateful to Professor Paul Craven for showing me this document. Murray, Colonial Justice, 184; Jenison to Colborne, 23 March 1839, “Correspondence Relative to the Affairs of Canada,” 90. “Speech of the Governor at the Opening of the Present Session of the Legislature,” The National Advocate, 8 January 1822. Ibid. 1822 New York Laws, chapter 148, 139, 5 April 1822. Commonwealth v. Deacon, Reports of Criminal Law Cases Decided at the Cityhall of the City of New-York [Wheeler’s Criminal Cases], vol. 2, 16. Ibid., 4. Ibid., 11–12. Ibid., 11. William Rawle, A View of the Constitution of the United States of America (Philadelphia: H.C. Carey & I. Lea, 1825), 96. Joseph Story, Commentaries on the Conflict of Laws, Foreign and Domestic (Boston: Hilliard, Grey, 1834), 516. Ibid., 520. Wheaton, Elements of International Law, 111. Wirt to Monroe, 20 November 1821, Piracy and Murder, 60. Wirt to Adams, 22 November 1817, ibid., 55. Ibid. Wirt to Monroe, 20 November 1821, ibid., 64.

Miller_5200_219.indd 243

16/08/2016 4:08:39 PM

244  Notes to pages 103–7   99 Ibid., 63. Italics in original. 100 Wirt to Adams, 22 November 1817, ibid., 53. 101 Ibid., 57. 102 Ibid., 57. 103 Wirt to Monroe, 20 November 1821, ibid., 66. 104 Forsyth to Vaughan, 7 July 1834, NARA, RG 59, M-99, vol. 6, reel 351-2; Vail to Spencer, 20 June 1839, NARA, RG 59, M-40, vol. 30, reel 28, 272. 105 Sir Christopher Robinson to Viscount Castlereagh, 10 February 1818, LOFO, vol. 2, 335–7; Robinson to Castlereagh, 29 January 1820, International Law Opinions, vol. 2: Peace, ed. Lord McNair (Cambridge: Cambridge University Press, 1956), 44; Robinson to Castlereagh, 26 July 1819, LOFO, vol. 2, 374–80; Robinson, Gifford, Sir John Singleton Copley to Secretary Manning, 28 October 1823, LOFO, vol. 2, 447–8. 106 Sir John Campbell and Sir R.M. Rolfe to Lord Glenelg, 15 September 1836, Cases and Opinions on Constitutional Law, and various points of English Jurisprudence, Collected and Digested from Official Documents and other sources; with notes, ed. William Forsyth (London: Stevens and Haynes, 1869), 341. 107 Sir J. Dodson to Viscount Palmerston, 30 December 1839, LOFO, vol. 4, 81. 108 G.F. de Martens, Summary of the Law of Nations, Founded on the Treaties and Customs of the Modern Nations of Europe, trans. William Cobbett (Philadelphia: T. Bradford, 1795), 107–8. 109 Sir Edward Coke, Institutes of the Laws of England, vol. 3 (London: W. Rawlins for Thomas Baset, 1680), 180. 110 Samuel von Pufendorf, The Whole Duty of Man according to the Law of Nature [1691], trans. Andrew Tooke (Indianapolis: Liberty Fund, 2005), book 2, chapter 16, title 9, 241. Emphasis in original. 111 Wirt to Monroe, 20 November 1821, Piracy and Murder, 59. 112 Van Buren to Vaughan, 21 July 1829, DCUS, vol. 2, 214. 113 Henry Clay to William Lawrence, 23 November 1827, NARA, RG 59, M-77, vol. 12, reel 7, 44. 114 Colborne to Jenison, 1 January 1839, DCUS, vol. 3, 476. 115 Jenison to Colborne, 10 January 1839, ibid., 477. 116 Colborne to Jenison, 12 February 1839, ibid., 488. 117 Jenison to Colborne, 16 April 1839, “Correspondence Relative to the Affairs of Canada,” 90. 118 Jenison to Colborne, 17 April 1839, ibid., 90–1. 119 The King v. Bird and Walker, 10. 120 Re Fisher, 251. 121 Ex parte Dos Santos, 949. 122 Samuel Livermore, Dissertations on the Questions Which Arise from the Con-

Miller_5200_219.indd 244

16/08/2016 4:08:39 PM

Notes to pages 107–10  245 trariety of the Positive Law of Different States and Nations. Quoted in Joel R. Paul, “Comity in International Law,” Harvard International Law Journal 32(1) (1991), 20–1. 123 Paul, “Comity in International Law,” 22–3. 124 31 Car. II, c. 2, s. 12 [England]. 125 J.D. Woodward, district attorney of Clinton County, to John Forsyth, 9 February 1837, NARA, S.D., M-179, Miscellaneous Letters, reel 83. 126 Eliot to Rowan, 14 January 1833, AO, RG 5, A-1, vol. 125, reel C-6877, 69014. 127 Holmes v. Jenison, U.S. Reports, vol. 39, 554–5. 128 Forsyth to H.L. Stevens, 14 February 1840, NARA, RG 59, M-179, M-40, vol. 30, reel 28, 481. 129 Fox to Fletcher Webster, 12 May 1841, AO, RG 7, G-6, vol. 7, reel C-15627, 374. 130 This debate echoes the arguments for codification in domestic law and the somewhat later arguments for a formal code of international law. On domestic criminal law in Britain and British North America, see G. Blaine Baker, “Strategic Benthamism: Rehabilitating United Canada’s Bar through Criminal Law Codification, 1847–1854,” in Jim Phillips, Roy McMurtry, and John T. Saywell, eds, Essays in the History of Canadian Law, vol. 10 (Toronto: University of Toronto Press and the Osgoode Society, 2008), 257–319; Lindsay Farmer, “Reconstructing the English Codification Debate: The Criminal Law Commissioners, 1833–45,” Law and History Review 18(2) (2000), 397–25. On international law in this period, see Mark Weston Janis, America and the Law of Nations, 1776–1939 (Oxford: Oxford University Press, 2010), esp. 116–30. 131 Re Washburn, 106. 132 Correspondence cited in Holmes v. Jenison, U.S.R., 541–2. 133 “Fugitives from Justice,” Law Intelligencer and Review 3(11) (November 1831), 391–411. 134 John Spencer to Forsyth, 10 June 1839, NARA, RG 59, M-179, roll 89. 135 Aaron Vail to Spencer, 20 June 1839, NARA, RG 59, M-40, roll 28, vol. 30, 272. 136 Spencer to Forsyth, 11 July 1839, NARA, RG 59, M-179, roll 89. 137 “Mr Van Ness’s Argument,” American Jurist and Law Magazine 22 (January 1840), 347. 138 Ibid., 330–52. 139 Holmes v. Jenison, U.S.R., 547–51. 140 Ibid., 569, 573.

Miller_5200_219.indd 245

16/08/2016 4:08:39 PM

246  Notes to pages 110–14 141 Ibid., 569. 142 Ibid., 583. 143 Ibid., 593–4. 144 Ibid., appendix, 614. 145 Ibid., 596–8. 146 Ex parte George Holmes, Reports of Cases Argued and Determined in the Supreme Court of the State of Vermont, vol. 12, 632–3. 147 Ibid., 640–2. 148 For the dissent, see ibid., 642–7. 149 Seward to John Tyler, 4 June 1842, NARA, RG 59, M-179, roll 98. 150 Daniel Webster to Seward, 16 September 1841, NARA, RG 59, M-40, vol. 32, roll 30, 41. 151 H.S. Legare to Daniel Webster, Official Opinions of the Attorneys General of the United States, vol. 3 (Washington: Robert Farnham, 1852), 661. 152 Sydenham to Seward, re Charles F. Mitchell, 14 May 1841, NARA, RG 59, M-179, roll 93; Report of Executive Council re Patrick McGinnis, 8 February 1842, AO, RG 1, E-1, UC Executive Council State Minute Books, vol. A, reel C-110, 246. 153 Sir Charles Bagot to Archibald Yell, 19 January 1842, “Copies of a Despatch from the Governor-General of Canada to the Secretary of State for the Colonies, of the 20th January last, relative to the surrender of Nelson Hackett,” Parliamentary Papers, 1842, C. 495, 9. 154 Bagot to Seward, 27 May 1842, NARA, RG 59, M-179, roll 98. 155 Ashburton to Lord Aberdeen, 25 April 1842, British Documents on Foreign Affairs [BDFA], ed. Kenneth Bourne, series C, part 1, vol. 1 (Bethesda: University Publications of America, 1986), 274. 156 Ibid. 157 Howard Jones, To the Webster-Ashburton Treaty: A Study in Anglo-American Relations (Chapel Hill: University of North Carolina Press, 1977); Wilbur Devereux Jones, The American Problem in British Diplomacy (London: Macmillan, 1974). 5  The Non-Law of Refugees in British North America    1 On the Fedorenko case, see Dale Brawn, The Court of Queen’s Bench of Manitoba, 1870–1950: A Biographical History (Toronto: Osgoode Society and University of Toronto Press), 189–90.    2 Re Fedorenko (no. 1), Manitoba Reports, vol. 20, 221–4.    3 John Laidlaw to Laurier, 30 November 1910, LAC, MG-26-G, vol. 653, reel C-896, 177611.

Miller_5200_219.indd 246

16/08/2016 4:08:39 PM

Notes to pages 114–18  247   4 “Canadian Freedom,” Fort William Times Journal, 12 November 1910, included in Phillips Thompson to Laurier, 21 November 1910, LAC, MG26-G, vol. 652, reel C-896, 177133–7.   5 Resolutions adopted at meeting of the Fedorenko Defence League, Hamilton, Ontario, 11 December 1910, LAC, MG-26-G, vol. 655, reel C-897, 178012.   6 “Protect Federenko,” Toronto Star, 17 November 1910, included in Thompson to Laurier, 21 November 1910, 177136.   7 See Matthew E. Price, Rethinking Asylum: History, Purpose, and Limits (Cambridge: Cambridge University Press, 2009), 24–6.   8 Ibid., 24–35.   9 See Phil Orchard, A Right to Flee: Refugees, States, and the Construction of International Cooperation (Cambridge: Cambridge University Press, 2014), 45–70. 10 See Frank Caestecker, Alien Policy in Belgium, 1840–1940: The Creation of Guest Workers, Refugees and Illegal Aliens (New York: Berghahn Books, 2000), 7, 17, 49; Greg Burgess, Refuge in the Land of Liberty: France and Its Refugees, from the Revolution to the End of Asylum, 1787–1939 (Basingstoke: Palgrave Macmillan, 2008), 7–35. 11 See chapter 6. 12 Bernard Porter, The Refugee Question in Mid-Victorian Politics (Cambridge: Cambridge University Press, 1979). 13 See Karl Härter, “Security and Cross-Border Political Crime: The Formation of Transnational Security Regimes in 18th and 19th Century Europe,” Historical Social Research 38(1) (2013), 96–106 and “Legal Responses to Violent Political Crimes in 19th Century Central Europe,” in Härter et al., eds, Vom Majestätsverbrechen zum Terrorismus: Politische Kriminalität, Recht, Justiz und Polizei zwischen Früher Neuzeit und 20. Jahrhundert (Frankfurt: M. Klostermann, 2012), 161–78. On anarchism, see especially the recent work of Richard Bach Jensen, The Battle against International Terrorism: An International History, 1878–1934 (Cambridge: Cambridge University Press, 2014). 14 Re Fedorenko (no. 1), 223–4. 15 On the slave cases, see Karolyn Smardz Frost, I’ve Got a Home in Glory Land: A Lost Tale of the Underground Railroad (Toronto: Thomas Allen, 2007); Murray, Colonial Justice, 196–216; Jason H. Silverman, Unwelcome Guests: Canada West’s Response to American Fugitive Slaves, 1800–1865 (Millwood, NY: Associated Faculty Press, 1985), 36–43; Murray, “The Extradition of Fugitive Slaves”; Alexander L. Murray, “Canada and the Anglo-American Anti-Slavery Movement,” PhD diss. (University of Pennsylvania, 1960);

Miller_5200_219.indd 247

16/08/2016 4:08:39 PM

248  Notes to pages 118–20

16 17 18 19 20 21 22 23 24

25 26 27 28 29

30 31 32 33

34

Roman J. Zorn, “Criminal Extradition Menaces the Canadian Haven for Fugitive Slaves, 1841–1861,” Canadian Historical Review 38 (1957), 284–94; Leask, “Jesse Happy.” Frost, Glory Land. Leask, “Jesse Happy.” Murray, Colonial Justice, 196–216. Elizabeth Abbott Namphy, “Nelson Hackett,” Dictionary of Canadian Biography, vol. 7. Petition for Jesse Happy to Sir Francis Bond Head, signed by Peter Banyoner and 98 others, 1837, CO 42, vol. 439, reel B-342, 187. Petition for Happy to Head, ibid., 185. Harvey Amani Whitfield, “The Development of Black Refugee Identity in Nova Scotia, 1813–1850,” Left History 10(2) (2005), 9–31. Ibid., 20. Carol Wilton, Popular Politics and Political Culture in Upper Canada, 1800– 1850 (Montreal and Kingston: McGill-Queen’s University Press, 2000), esp. 194–220. On this topic, see Radforth, Royal Spectacle. Memorial to the Queen, first presented to Lord Durham 11 May 1839, CO 42, vol. 459, reel B-355, 444. Ibid. Rieko Karatani, Defining British Citizenship: Empire, Commonwealth and Modern Britain (London: Frank Cass, 2003), 45–6. 31 Car. II, c. 2, s. 12. On habeas corpus in Britain and the empire, see Paul Halliday, Habeas Corpus: From England to Empire (Cambridge, MA: Belknap Press for Harvard University, 2010). On the use of the citizenship limitation under the Habeas Corpus Act, see Murray, Colonial Justice, 182–3; Gary Botting, Extradition between Canada and the United States (Ardsley: Transnational, 2005), 56–7. For an example of a judge expressly declaring that a fugitive was not a subject, see Re Joseph Fisher, 246–7. Petition for Happy to Head, 186, 188. Petition for Solomon Moseby to Head from the Inhabitants of the Town of Niagara, CO 42, vol. 439, reel B-342, 196. Memorial to the Queen, 446. See R. Blake Brown, A Trying Question: The Jury in Nineteenth-Century Canada (Toronto: University of Toronto Press and the Osgoode Society, 2009), 17–56. Petition for Happy to Head, 186.

Miller_5200_219.indd 248

16/08/2016 4:08:40 PM

Notes to pages 121–4  249 35 See Thomas D. Morris, Free Men All: The Personal Liberty Laws of the North, 1780–1861 (Baltimore: Johns Hopkins University Press, 1974). 36 Memorial to the Queen, 447. 37 Sir George Cornewall Lewis, On Foreign Jurisdiction and the Extradition of Criminals (London: John W. Parker and Son, 1859), 18–20. 38 Memorial to the Queen, 444. 39 Proceedings of a Meeting of Toronto Blacks, 13 January 1838, in C. Peter Ripley, ed., The Black Abolitionist Papers, vol. 2, Canada, 1830–1865 (Chapel Hill and London: University of North Carolina Press, 1987), 69. 40 Robin Winks, The Blacks in Canada: A History (Montreal: McGill-Queen’s University Press, 1972),151; Ernest Green, “Upper Canada’s Black Defenders,” Ontario History 27 (1931), 365–91. 41 Rolph to Col. Yorke, 23 August 1839, CO 42, vol. 468, reel B-361, 205. 42 Rolph to Lord John Russell, 24 September 1839, CO 42, vol. 468, reel B-361, 229. 43 See J.R. Oldfield, Chords of Freedom: Commemoration, Ritual and British Transatlantic Slavery (Manchester: Manchester University Press, 2007); Natasha L. Henry, Emancipation Day: Celebrating Freedom in Canada (Toronto: Natural Heritage Books, 2010); Colin McFarquhar, “A Difference of Perspective: Blacks, Whites, and Emancipation Day Celebrations in Ontario, 1865–1919,” Ontario History 92(2) (2000), 147–60. 44 For Holt’s comment, see Smith v. Brown and Cooper, 2 Salk 666; for Hawes, see 11 August 1843, Debates of the Parliament of the United Kingdom [U.K. Debates], 3rd series, vol. 71, 580. Holt’s declaration was also echoed by Attorney General Sir Frederick Pollock, ibid., 566, and by Sir Robert Peel, 21 March 1843, ibid., vol. 67, 1224. 45 Hackett to Sydenham, 18 September 1841, “Copies of a Despatch from the Governor-General of Canada to the Secretary of State for the Colonies, of the 20th January last, relative to the surrender of Nelson Hackett,” Parliamentary Papers, vol. 28, 1842, 7. 46 8 October 1842, Debates of the Legislative Assembly of United Canada, vol. 2, 362. 47 Head to Glenelg, 8 October 1837, CO 42, vol. 439, reel B-342, 172. 48 Bagot to Stanley, 20 January 1842, “Copies of a Despatch from the Governor-General of Canada to the Secretary of State for the Colonies, of the 20th January last, relative to the surrender of Nelson Hackett,” 1. 49 11 August 1843, U.K. Debates, 3rd series, vol. 71, 580, 566. 50 Ashburton to Daniel Webster, 7 August 1842, BDFA, part 1, series C, vol. 1, 355.

Miller_5200_219.indd 249

16/08/2016 4:08:40 PM

250  Notes to pages 124–8 51 Judges’ Report on the Blackburn Case, 27 September 1833, reprinted in Riddell, “Slave in Upper Canada,” 276; Opinion of Mr Chief Justice Robinson on the case of Jesse Happy, CO 42, vol. 439, reel B-342, 202. 52 Note from Head, n.d., CO 42, vol. 439, reel B-342, 197. 53 Ibid. 54 Colonial secretary to Arthur, 2 August 1839, CO 42, vol. 455, reel B-352, 441. 55 Ibid. 56 Ibid. 57 Colonial Office to Rolph, 19 March, 1840, CO 42, vol. 474, reel B-365, 349. 58 Bagot to Stanley, 20 January 1842, 1. 59 Opinion of Mr Chief Justice Robinson on the case of Jesse Happy, CO 42, vol. 439, reel B-342, 202. 60 Ibid. 61 Ibid., 201. 62 Ibid., 202. 63 Ibid., 203. 64 Judges’ Report on the Blackburn Case, 27 September 1833, repr. in Riddell, “Slave in Upper Canada,” 276. 65 11 August 1843, U.K. Debates, 3rd series, vol. 71, 566. 66 Murray, “Canada and the Anglo-American Anti-Slavery Movement,” 159–71. 67 11 August 1843, U.K. Debates, 3rd series, vol. 71, 571; 30 June 1843, U.K. Debates, 3rd series, vol. 70, 475, 478. 68 30 June 1843, U.K. Debates, 3rd series, vol. 70, 474. 69 Ibid. 70 Dodson, Pollock, and Follett to Aberdeen, 27 March 1843, LOFO, vol. 4, 183–7. 71 11 August 1843, U.K. Debates, 3rd series, vol. 71, 565. 72 Ibid., 566–7. 73 “Protect Federenko,” 177136. 74 On the Anderson case, see Paul Finkelman, “The Anderson Case and Rights in Canada and England,” in Louis A. Knafla and Susan W.S. Binnie, eds, Law, Society, and the State: Essays in Modern Legal History (Toronto: University of Toronto Press, 1995), 37–72; Patrick Brode, The Odyssey of John Anderson (Toronto: University of Toronto Press and the Osgoode Society, 1989); H.R.S. Ryan, “Ex Parte John Anderson,” Queen’s Law Journal 6 (1981), 382–8; Robert C. Reinders, “The John Anderson Case, 1860–1: A Study in Anglo-Canadian Imperial Relations,” Canadian Historical Review 56 (1975), 393–415; Robert C. Reinders, “Anglo-Canadian Abolitionism:

Miller_5200_219.indd 250

16/08/2016 4:08:40 PM

Notes to pages 129–32  251

75 76 77

78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96

The John Anderson Case, 1860–61,” Renaissance and Modern Studies 19 (1975), 72–97; William Renwick Riddell, “The Anderson Fugitive Case,” Journal of Negro History 7 (1922), 233–42. In Re John Anderson, Reports of Cases Decided in the Court of Common Pleas of Upper Canada, vol. 11, 21, 31, 38, 40. In the Matter of John Anderson, Report of Cases Decided in the Court of Queen’s Bench, vol. 20, 139. On natural rights in British and American rights talk, see Michael P. Zuckert, Natural Rights and the New Republicanism (Princeton: Princeton University Press, 1994), esp. 1–25. See also Morton J. Horwitz, “Natural Law and Natural Rights,” in Austin Sarat and Thomas R. Kearns, eds, Legal Rights: Historical and Philosophical Perspectives (Ann Arbor: University of Michigan Press, 1996), 39–52; Knud Haakonssen, Natural Law and Moral Philosophy: From Grotius to the Enlightenment (Cambridge: Cambridge University Press, 1996). On the history of natural law and natural rights generally, see Stephen Buckle, Natural Law and the Theory of Property: Grotius to Hume (Oxford: Clarendon Press, 1991); Michael Bertram Crowe, The Changing Profile of the Natural Law (The Hague: Martinus Nijhoff, 1977). Anderson Papers, Sessional Papers, no. 22, 1861. Anderson, QB, 138. Anderson, UCCP, 35. Anderson, QB, 138–9, UCCP, 34–5. Anderson, UCCP, 20, citing Blackstone, Commentaries, vol. 1, 121. Emphasis in original. Anderson, QB, 135. Anderson, UCCP, 23. Anderson, QB, 135; UCCP, 26. Anderson, UCCP, 24. Anderson, QB, 140. See the remarks of Harrison in Anderson, UCCP, 46–8, and the opinion of Chief Justice John Beverley Robinson, QB, 173. Anderson, UCCP, 29. Ibid., 38. See Brode, Odyssey, 18–19, 43–4. Ibid., 27–39. See R.H. Helmholz, “Natural Law and Human Rights in English Law: From Bracton to Blackstone,” Ave Maria Law Review 3(1) (2005), 18–20. Anderson, UCCP, 63. Ibid., 35. Brode, Odyssey, 18–19, 43–4.

Miller_5200_219.indd 251

16/08/2016 4:08:40 PM

252  Notes to pages 132–4   97 For the role of natural law in eighteenth-century English political thought, see H.T. Dickinson, The Politics of the People in Eighteenth-Century Britain (New York: St Martin’s Press, 1995), 161–70. Also, Dickinson, Liberty and Property: Political Ideology in Eighteenth-Century Britain (New York: Holmes and Meier, 1977).   98 William Blackstone, Commentaries on the Laws of England, vol. 1 (Oxford: Clarendon, 1765), 117, 121.   99 Ibid., 120–1. 100 Ibid., 125–36. 101 Ibid., 130. 102 Ibid., 123. 103 Anderson, UCCP, 20. 104 7 April 1843, U.K. Debates, 3rd series, vol. 68, 674. 105 11 August 1843, U.K. Debates, 3rd series, vol. 71, 569. 106 Ibid., 572. 107 Ibid., 573. 108 8 October 1842, Debates of the Legislative Assembly of United Canada, vol. 2, 363. 109 Ibid. 110 2 February 1849, ibid., 440. 111 Ibid., 441. 112 E.A. Heaman, “Rights Talk and the Liberal Order Framework,” in JeanFrançois Constant and Michel Ducharme, eds, Liberalism and Hegemony: Debating the Canadian Liberal Revolution (Toronto: University of Toronto Press, 2009), 147–75; R.C.B. Risk, “Rights Talk in Canada in the LateNineteenth Century: ‘The Good Sense and Right Feeling of the People,’” in G. Blaine Baker and Jim Phillips, eds, A History of Canadian Legal Thought (Toronto: University of Toronto Press and the Osgoode Society, 2006), 94–129; Risk, “Blake and Liberty,” ibid., 130–51. 113 Nicolas-Benjamin Doucet, Fundamental Principles of the Laws of Canada, as they existed under the natives, as they were changed under the French kings, and as they were modified and altered under the domination of England, vol. 1 (Montreal: John Lovell, 1841–3), 8, 10. 114 Beamish Murdoch, Epitome of the Laws of Nova Scotia, vol. 1 (Halifax: Joseph Howe, 1832), 16. 115 Petition of fishermen, merchants and traders of Nova Scotia, 20 January 1852, appendix 5, Journal and Proceedings of Her Majesty’s Legislative Council of the Province of Nova Scotia, 1852; Report of the Executive Council of New Brunswick, 11 December 1852, Papers Relative to the Fisheries of British North America (London: Harrison, 1854), 71; Petition to the Queen, 18

Miller_5200_219.indd 252

16/08/2016 4:08:40 PM

Notes to pages 134–5  253 April 1849, Journal of the House of Assembly of Newfoundland: anno duodecimo Victoriae Reginae … first session of the fourth House of Assembly (St John’s: E.D. Shea, 1848), 257. 116 Upper Canada Law Journal 2, November 1856, 217. Italics in original. 117 Upper Canada Law Journal 4, September 1858, 195. 118 E. Ryerson, “Annual Report of the Normal, Modern, and Common Schools in Upper Canada for the Year 1850,” Appendix to the tenth volume of the journals of the Legislative Assembly of the Province of Canada … 20th day of May to the 30th day of August … fourteenth & fifteenth years of the reign of … Queen Victoria: being the 4th session of the 3rd Provincial Parliament of Canada (Quebec: R. Campbell, 1851), KK 41; Ryerson, “Address to the Inhabitants of Upper Canada, on the System of Free Schools,” Appendix to the eighth volume of the journals of the Legislative Assembly of the Province of Canada, from the 18th day of January to the 30th day of May, both days inclusive, and in the twelfth year of the reign of Our Sovereign Lady Queen Victoria, being the second Session of the third provincial Parliament of Canada, Session 1849 (Montreal: R. Campbell, 1849), ZZZZ 36. 119 “Report of the Legislative Council, 29 April 1857,” Journals of the Legislative Council of the Province of Canada … being the third session of the fifth provincial Parliament, 1857 (Toronto: The “Leader” & “Patriot” Office, 1857), 222. 120 See Pommett v. Mapp, Barbados Law Reports, 1894–1903, 84; Krefft v. Hill, New South Wales Reports, vol. 13, 294; Ferry v. Bonnin, South Australia Law Reports, vol. 22, 69. 121 See Reynolds v. Laidlaw (1832), Scottish Jurist 4(1), 553; Stuart v. Court (1848), Scottish Jurist 20(1), 467; O’Doherty v. M’Iver (1859), Scottish Jurist 31(1), 621; Reid v. Moir (1866), Scottish Jurist 38(1), 551–3. 122 R. v. Roberts, A Selection of Supreme Court Cases in New South Wales, 1825– 1862, 563. 123 Ibid., 564. 124 Ibid., 569. 125 Ibid., 572. 126 Ex parte The Rev. Geo. King, ibid., 1313. 127 The literature on this is large. See, for example, William M. Wiecek, “Somerset: Lord Mansfield and the Legitimacy of Slavery in the AngloAmerican World,” University of Chicago Law Review 42(1) (1974), 86–146; D.G. Bell, “Slavery and the Judges of Loyalist New Brunswick,” U.N.B. Law Journal 31 (1982), 9–42. 128 Somerset v. Stewart, English Reports, vol. 98, 499–510. The literature on Somerset is massive. For a summary of the case, see Steven M. Wise,

Miller_5200_219.indd 253

16/08/2016 4:08:40 PM

254  Notes to pages 135–7 Though the Heavens May Fall: The Landmark Trial That Led to the End of Human Slavery (Cambridge, MA: Da Capo Press, 2005). 129 Somerset v. Stewart, 502. 130 Ibid. 131 Ibid., 508. 132 Ibid., 510. 133 Anderson, UCCP, 35. 134 I have relied on the record of argument provided in The Decisions of the Court of Session … by William Maxwell Morison, 33–4 [Morison’s Law Dictionary] (Edinburgh: Archibald Constable and Co., 1811), 14547. 135 Ibid., 14547–8. 136 Ibid., 14549. 137 Knight v. Wedderburn, Decisions of the Lords of Council and Session, from 1766 to 1791 … Selected from the original Mss. by M.P. Brown, vol. 2 (Edinburgh: William Tait, 1826), 776–80. This report lacks a record of the arguments of counsel. 138 Ibid., 777, 778. 139 Ibid., 778. Emphasis in original. This point echoed key principles in private international law. On slavery litigation and conflict of laws, see George Van Cleve, “Somerset’s Case and Its Antecedents in Imperial Perspective,” Law and History Review 24(3) (2006), 601–46. 140 Ibid., 779. 141 Other cases involving slavery and natural law include Chamberline against Harvey, Modern Reports, vol. 5 187; Smith v. Gould, Salkeld’s King’s Bench Reports, 666; Shanley v. Harvey, Eden’s Chancery Reports, vol. 2, 126. 142 Bell, “Slavery,” 11. 143 See D.G. Bell, J. Barry Cahill, and Harvey Amani Whitfield, “Slavery and Slave Law in the Maritimes,” in Barrington Walker, ed., The AfricanCanadian Legal Odyssey (Toronto: University of Toronto Press and the Osgoode Society), 363–420. 144 Chipman to Sampson Salter Blowers, 15 December 1799, repr. in D.A. Jack, “The Loyalists and Slavery in New Brunswick,” Proceedings of the Royal Society of Canada, series 2, vol. 4 (1898), 148. 145 The brief is reproduced ibid., 155–84. 146 Ibid., 166, 183. 147 Anderson, QB, 174–88. 148 Ibid. 149 Ibid., 184–5. 150 On this, see Stouffer, The Light of Nature. 151 Anderson, QB, 188.

Miller_5200_219.indd 254

16/08/2016 4:08:40 PM

Notes to pages 137–43  255 152 Ibid. 153 Anderson, QB, 149. 154 Ibid., 173. 155 See the observation of Chief Justice W.H. Draper that whatever his views on the “more general grounds” urged by Freeman, the result would be the same; Anderson, UCCP, 59. 156 Ibid., 59–60, 71. 157 Anderson, UCCP, 59. 158 Ibid., 60. 159 Ibid. 160 Ibid., 71. 161 Ibid. 162 Ibid. 163 On the Civil War cases, see Dennis K. Wilson, Justice under Pressure: The Saint Albans Raid and Its Aftermath (Lanham, MD: University Press of America, 1992); Greg Marquis, In Armageddon’s Shadow: The Civil War and Canada’s Maritime Provinces (Montreal and Kingston: McGill-Queen’s University Press, 1998), 145–93; Robin Winks, Canada and the United States: The Civil War Years, 4th ed (Montreal and Kingston: McGill-Queen’s University Press, 1998), 287–94. 164 Marquis, In Armageddon’s Shadow, 134–210. 165 Winks, Canada and the United States, 287–94. 166 Wilson, Justice under Pressure. 167 “‘The Chesapeake.’ The Case of David Collins, et al. … (Saint John: I & A McMillan, 1864), 39–52. 168 Re Burley, 34–51. 169 The St. Alban’s Raid; or, Investigation into the Charges against Lieut. Bennett H. Young and Command … Compiled by L.N. Benjamin, D.C.L. (Montreal: Lovell, 1865), 447–71. 170 See, for example, Chesapeake, 31–4. 171 Ibid., 34. 172 St. Alban’s Raid, 265. 173 Ibid., 308. 174 Ibid. 175 Chesapeake, 46. 176 St. Alban’s Raid, 459. 177 For examples, see Chesapeake, 23; St. Alban’s Raid, 399–431. 178 St. Alban’s Raid, 241. 179 Ibid., 338. 180 Re Burley, 49.

Miller_5200_219.indd 255

16/08/2016 4:08:41 PM

256  Notes to pages 144–5 181 Christopher L. Blakesley, “The Practice of Extradition from Antiquity to Modern France and the United States: A Brief History,” Boston College International and Comparative Law Review 4 (1981), 51; Frank Kopelman, “Extradition and Rendition: History, Law, Recommendations,” Boston University Law Review 14 (1934), 604. Sir Leon Radzinowicz notes that the political-offender doctrine gained wide acceptance across Europe from the 1820s. See A History English Criminal Law and Its Administration, vol. 5 (London: Stevens, 1986), 401. 182 Lora Deere, “Political Offenses in the Law and Practice of Extradition,” American Journal of International Law 27(2) (1933), 193, 250. 183 Ibid., 252. 184 Ibid., 251. 185 Porter, Refugee Question, 1–11. 186 1 March 1815, U.K. Debates, vol. 29, 1138. His remarks occurred during a series of heated debates over the surrender of political dissidents to the Spanish authorities by the British governor of Gibraltar. For the debates and records presented to Parliament, see ibid., 22 November 1814, 437–48; 29 November 1814, 597–600; 14 February 1815, 740–7; 20 February 1815, 843–6; 1 March 1815, 1126–66. 187 Palmerston to Lord Bloomfield, 6 October 1849, “Correspondence Respecting the Affairs of Hungary,” Parliamentary Papers, 1851, no. 1324, 31. 188 Ibid. For the quotation in court, see St. Alban’s Raid, 248. 189 Charles Murray to Lord John Russell, 4 January 1861, “Papers Relating to the Arrest and Extradition of Count Teleki,” Parliamentary Papers, 1861, no. 2782, 2. 190 For the French treaty debates, see 8 June 1852, U.K. Debates, 3rd series, vol. 122, 192–214; 11 June 1852, ibid., 498–508; 14 June 1852, ibid., 561–2; 25 June 1852, ibid., 1278–84. For the Prussia treaty debate, see 25 July 1864, U.K. Debates, 3rd series, vol. 176, 2056–67. 191 Theodore Dwight Woolsey, Introduction to the Study of International Law, 2nd ed. (New York: Scribener, 1864), 130. 192 Henry Wheaton, Elements of International Law, 2nd annotated edition by William Beach Lawrence [Lawrence’s Wheaton] (London: Sampson Low, Son and Co., 1863), 236. See also John Norton Pomeroy, Lectures on International Law in Time of Peace, ed. Theodore Salisbury Woolsey (Boston and New York: Houghton, Mifflin, 1886). Although the book was published in the 1880s, the lectures it contains were written in the 1860s. 193 Robert Phillimore, Commentaries upon International Law, vol. 1 (London: William G. Benning, 1854), 413.

Miller_5200_219.indd 256

16/08/2016 4:08:41 PM

Notes to pages 145–54  257 194 Lewis, On Foreign Jurisdiction, 44. 195 Re Fisher, 250. 196 Commonwealth v. Deacon, 10. Political offences were also invoked in the 1835 Virginia case of Dos Santos, where the prosecution observed that while asylum was always given for them, it should not be afforded to common criminals. Also, District Judge Barbour disagreed with the idea of an obligation to extradite in part because it could lead to the surrender of political refugees. See Ex parte Dos Santos, 952, 955. 197 Pyle, Extradition, Politics, and Human Rights, 68–9. 198 Samuel Beardsley to W.L. Marcy, 23 December 1837, NARA, RG 59, M-179, reel 84. 199 Rolph to Russell, 10 December 1839, CO 42, vol. 468, reel B-361, 244; Rolph to Russell, 19 January 1840, CO 42, vol. 474, reel B-365, 340. Emphasis in original. 200 Rolph to Russell, 10 December 1839, CO 42, vol. 469, reel B-361, 244–5. 201 Re Burley (Recorder’s Court), Upper Canada Law Journal, vol. 1, January 1865, 21. 202 St. Alban’s Raid, 247. 203 Ibid., 171. 204 Ibid., 109, 114. See also the comments of both men at 243, 244. 205 Ibid., 245. 206 Ibid., 196. 207 Ibid., 346–7. 208 Ibid., 471. 209 Ibid., 470. 6  Civilization on the Continent: Law Reform and Imperial Power    1 R. v. Isaac Morton and Charles E. Thompson, Reports of Cases Decided in the Court of Common Pleas of Upper Canada, vol. 19, 54.    2 Ibid., 73.    3 For examples see Halifax Citizen, 20 September 1864; Montreal Herald, 2 January 1867; Morning Freeman, 24 January 1867; Hamilton Evening Times, 12 April 1867.    4 Hamilton Evening Times, 12 February 1865.    5 See Montreal Herald, 2 January 1867. See also Morning Freeman, 24 January 1867, Hamilton Evening Times, 12 April 1867.    6 Hamilton Evening Times, 12 June 1868.    7 See Ottawa Times, 16 October 1867; Morning Freeman, 24 October 1867.

Miller_5200_219.indd 257

16/08/2016 4:08:41 PM

258  Notes to pages 154–7   8 Globe, 2 October 1868 and 26 September 1868; Morning Freeman, 3 October 1868; Toronto Leader, repr. in Canadian News, 29 October 1868.   9 See, for example, Buckner and Francis, eds, Canada and the British World; Perry, On the Edge of Empire; Pickles, Female Imperialism; Radforth, Royal Spectacle. On legal and political issues, see Girard, “British Justice, English Law, and Canadian Legal Culture”; Peter C. Oliver, The Constitution of Independence: The Development of Constitutional Theory in Australia, Canada, and New Zealand (Oxford: Oxford University Press, 2005); Baker, “The Reconstitution of Upper Canadian Legal Thought”; William Lahey, “Confederation, Adjudicative Culture, and the Law of the Constitution: The Late Nineteenth-Century Persistence of Local Autonomy in the Nova Scotia Supreme Court,” in Philip Girard et al., eds, The Supreme Court of Nova Scotia, 1754–2004: From Imperial Bastion to Provincial Oracle (Toronto: University of Toronto Press, 2004), 329–448; Hibbitts, “Progress and Principle,” 460. 10 See, on this, D.B. Swinfen, Imperial Control of Colonial Legislation (Oxford: Clarendon, 1970); David M.L. Farr, The Colonial Office and Canada, 1867– 1887 (Toronto: University of Toronto Press, 1955). 11 On this, see Porter, The Refugee; Porter, Britain, Europe and the World, 1850– 1982: Delusions of Grandeur (London: Allen & Unwin, 1983), 23; Deere, “Political Offenses in the Law and Practice of Extradition,” 250–1. 12 Edward Clarke, A Treatise upon the Law of Extradition (London: Stevens and Haynes, 1867), 111. 13 Sir James Stephen, A History of the Criminal Law of England, vol. 2 (London: Macmillan, 1883), 71. 14 “Return of Cases of Extradition under Treaty between Great Britain and the United States,” Parliamentary Papers, 1876, C. 1557, 1–2. 15 Anne Warner LaForest, LaForest’s Extradition to and from Canada, 3rd ed. (Aurora: Canada Law Book, 1991), 7. 16 Clarke, Extradition, 75–6, 88. 17 Stephen, History, 68. 18 Kopelman, “Extradition and Rendition,” 595. Clarke suggests that no French request was successful: Clarke, Extradition, 77. 19 Law Times, 16 December 1865. 20 Globe, 13 January 1865; Clarke, Extradition, 147–50. 21 U.K. Debates, 19 July 1866, 1054. 22 For criticism of the bill, see U.K. Debates, 3 August 1866, 2010. 23 U.K. Debates, 19 July 1866, 1054–9; 20 July 1866, 1160–1; 24 July 1866, 1366– 8. 24 U.K. Debates, 3 August 1866, 2004–7.

Miller_5200_219.indd 258

16/08/2016 4:08:41 PM

Notes to pages 157–61  259 25 26 27 28 29 30 31 32 33 34

35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50

51

52

Ibid., 2009. Ibid., 2015. Ibid., 2013. Ibid., 2023–4. A common fear: see Porter, Britain, Europe and the World, 52. U.K. Debates, 6 August 1866, 2122–4; U.K. Debates, 10 August 1866, 2153–4. See UK 29 & 30 Vic., c. 121. John Stuart Mill, Autobiography (New York: Columbia University Press, 1924), 210. U.K. Debates, 19 July 1866, 1056. London Examiner, repr. in Montreal Herald, 20 August 1867. U.K. Debates, 20 March 1868, 1954. Mill to William Dougal Christie, 20 April 1868, in John Stuart Mill, Public and Parliamentary Speeches, vol. 3 (Toronto: University of Toronto Press, 1988), 1387. Report of the Select Committee on Extradition, Parliamentary Papers, 1867−8, 393, evidence, 12−14. Ibid., 58. Ibid., 58–9. Report of the Committee on Extradition, iii–iv. U.K. Debates, 16 June 1870, 301–2. Mill, Autobiography, 211. [UK] 33 & 34 Vic., c. 52, s. 3(1). Porter, The Refugee Question, 207. [UK] 33 & 34 Vic., c. 52, ss. 3(3) and 3(4). Ibid., ss. 10 and 15. Ibid., s. 8(2). Ibid., first schedule. U.K. Debates, 16 June 1870, 301–2. [UK] 33 & 34 Vic., c. 52, s. 2. See Clarke, A Treatise upon the Law of Extradition (1888), xxxi. [UK] 33 & 34 Vic., c. 52, s. 18. Ibid. On this protracted debate, see Bradley Miller, “‘A Carnival of Crime on Our Border’: International Law, Imperial Power, and Extradition in Canada, 1865–1883,” Canadian Historical Review 90(4) (December 2009), 656–60. See LaForest, LaForest’s Extradition, 6; Botting, Extradition between Canada and the United States, 97; William H. Corbett, “The 125 year history of Canada’s Extradition Statutes and Treaties,” Commonwealth Law Bulletin 28(1) (2002), 497; Elaine F. Krivel et al., A Practical Guide to Canadian Extradition (Toronto: Carswell, 2002), 7. Free trade in criminals: comment by Mr Justice Featherston Osler, Re Parker, Ontario Practice Reports, 1882, 9, para. 24.

Miller_5200_219.indd 259

16/08/2016 4:08:41 PM

260  Notes to pages 162–5 53 See chapter 2. On Canadian–American relations in this period, see Allen P. Stouffer, “Canadian–American Relations in the Shadow of the Civil War,” Dalhousie Review 57(2) (1977), 332–6. 54 Gregory Kealy, “The Empire Strikes Back: The Nineteenth Century Origins of the Canadian Secret Service,” Journal of the Canadian Historical Association 10 (1999), 3−18; Andrew Parnaby and Gregory Kealy, “The Origins of Political Policing in Canada: Class, Law, and the Burden of Empire,” Osgoode Hall Law Journal 41 (2003), 211−40. See also Keshen, “Cloak and Dagger.” 55 David A. Wilson, “The D’Arcy McGee Affair and the Suspension of Habeas Corpus,” in Barry Wright and Susan Binnie, eds, Canadian State Trials, vol. 3 (Toronto: University of Toronto Press and the Osgoode Society, 2009), 85–120. 56 R. Blake Brown, “‘Pistol Fever’: Regulating Revolvers in Late-NineteenthCentury Canada,” Journal of the Canadian Historical Association 20(1) (2009), 122–3. 57 For the act, see 31 Vic., c. 94. 58 Commons Debates, 17 March 1868, 357. 59 Commons Debates, 8 March 1871, 352. 60 Commons Debates, 3 May 1869, 164. 61 Ibid., 165. 62 Commons Debates, 8 March 1871, 347. 63 David Dudley Field, Draft Outlines of an International Code (New York: Baker, Voorhis & Co., 1872), 91. See Mark Weston Janis, America and the Law of Nations, 1776–1939 (Oxford: Oxford University Press, 2010), 116–30. 64 Commons Debates, 8 March 1871, 346. 65 Ibid., 342–4. 66 Ibid., 347. 67 See the comments of John Hillyard Cameron, ibid., 349. 68 Commons Debates, 3 May 1869, 165. 69 Commons Debates, 8 March 1871, 354. 70 Ibid., 348. 71 Ibid., 350. 72 Report of Bernard, 3 December 1872, in Order in Council no. 1872-1104 B, LAC, RG 2, PCO, A-1-a, vol. 304, reel C-3302; despatch from Lord Kimberley, 8 February 1873, AO, Blake Papers, MU 285, envelope 2, 123. 73 Report of Sir Thomas Henry, 18 July 1873, AO, Blake Papers, MU 285, envelope 2, 155. 74 Carnarvon to Dufferin, 18 May 1874, LAC, RG 13, A-2, vol. 2139, 1873-1591. 75 Report of the Privy Council, 8 December 1875. Sessional Papers, 1876, no. 49, 1.

Miller_5200_219.indd 260

16/08/2016 4:08:41 PM

Notes to pages 165–8  261 76 Joseph Schull, Edward Blake: The Man of the Other Way (Toronto: Macmillan, 1975), 151–7. 77 Report of Blake, 2 December 1875, Sessional Papers, 1876, no. 49, 2. 78 Ibid., 3. 79 Memo for Dorion, 19 March 1874, AO, Blake Papers, MU 186, box 48, envelope 6. 80 T.V. Lister to the Colonial Office, 29 January 1876, Sessional Papers, 1876, no. 49, 4–5. The imperial obligations are laid out in [UK] 33 & 34 Vic., c. 52, s. 3. 81 Report of Blake, 23 February 1876. Order in Council 26 February 1876, no. 1876-0384 D, LAC, RG 2, PCO, A-1-a, vol. 342, reel C-3315. 82 Blake to Carnarvon, 27 June 1876, Sessional Papers, 1877, no. 13, 11–12. 83 On these issues see Barbara J. Messamore, “‘The line over which he must not pass’: Defining the Office of the Governor General, 1878,” Canadian Historical Review 86(3) (2005), 453–83. 84 Barbara J. Messamore, “Democracy or Duplicity? Lord Lisgar, John A. Macdonald, and the Treaty of Washington, 1871,” Journal of Imperial and Commonwealth History, 2004, 32(2), 29. 85 Mackenzie to Alexander Galt, 15 July 1875, quoted in O.D. Skelton, The Life and Times of Sir Alexander Tilloch Galt (Toronto: Oxford University Press, 1920), 502–3. 86 Thornton to Derby, 13 December 1875, in British and Foreign State Papers [BFSP], 1875–6, vol. 67, 799. 87 Derby to Colonel Hoffman, 4 May 1876, ibid., 833, 837. 88 For a summary of the American position, see Fish to Hoffman, 31 March 1876, ibid., 818–29. 89 U.K. Debates, 6 August 1866, 2122; Fish to Hoffman, 22 May 1876, BFSP, 1875–6, vol. 67, 861. 90 Ex parte Bouvier, Cox’s Criminal Cases, 12, 1875, 307. 91 See Fish to Hoffman, 31 March 1876, BFSP, 1875–6, vol. 77, 823; Re Rosenbaum, 11 February 1874, Lower Canada Jurist 27, 202. See Memo of Hamilton Fish to Sir Edward Thornton, April 1876, BFSP, 1875–6, vol. 67, 840. Fish also relied on Chief Justice A.A. Dorion’s decision in Re Worms, where the judge noted that the 1870 act applied to the older treaties except when inconsistent with them. See Re Worms, Lower Canada Jurist 22, 111. 92 Fish to Hoffman, 22 May 1876, BFSP, 1875–6, vol. 67, 862. 93 Message of Grant to Congress, 20 June 1876, in Francis Wharton, ed., A Digest of the International Law of the United States, vol. 2 (Washington: Government Printing Office, 1886), 788. 94 Blake to Carnarvon, 27 June 1876, Sessional Papers, 1877, no. 13, 18.

Miller_5200_219.indd 261

16/08/2016 4:08:42 PM

262  Notes to pages 168–70   95 Blake to Carnarvon, 9 August 1876, ibid., 22.   96 See, for example, Pall Mall Gazette, repr. in American Law Review, 1876(11), 189; Daily News, repr. in Globe, 21 June 1876.   97 U.K. Debates, 24 July 1876, 1802–3.   98 Carnarvon to Lord Dufferin, 16 July 1876, in C.W. de Kiewiet and F.H. Underhill, eds, Dufferin-Carnarvon Correspondence, 1874–1878 (Toronto: Champlain Society, 1955), 246; Jacques Semmelman, “The Doctrine of Specialty in the Federal Courts: Making Sense of United States v. Rauscher,” Virginia Journal of International Law 34 (1993−4), 126−7; U.K. Debates, 1876, 1773−805.   99 Message of Grant, 23 December 1876, in Wharton, International Law, 792– 4. 100 Blake to Carnarvon, 27 June 1876, Sessional Papers, 1877, no. 3, 17. 101 Ibid. 102 Ibid. 103 Blake to Carnarvon, 7 August 1876, Sessional Papers, 1877, no. 3, 21. 104 Ibid. 105 Ibid., 2. 106 Blake to Carnarvon, 27 June 1876, Sessional Papers, 1877, no. 3, 16. 107 Ibid. 108 Ibid., 18. 109 Memo of March, 18 July 1876, in LAC, RG 2, PCO, series A-1-a, vol. 348, reel C-3317. 110 Blake to Carnarvon, 4 August 1876, AO, F2, MU 258, box 120, envelope 44. 111 LaForest, Extradition, 6. 112 Gary Botting, “Executive and Judicial Discretion in Extradition between Canada and the United States,” PhD diss. (University of British Columbia, 2004), 70. 113 For examples related to criminal law and extradition, see Desmond Brown, The Genesis of the Canadian Criminal Code of 1892 (Toronto: University of Toronto Press and the Osgoode Society, 1989), 96. See also Graham Parker, “The Origins of the Canadian Criminal Code,” in David H. Flaherty, ed., Essays in the History of Canadian Law, vol. 2 (Toronto: University of Toronto Press and the Osgoode Society, 1981), 259. Patrick Brode’s account of the John Anderson extradition case includes the following: “With a servility that smacked of colonial times, Canadian judges looked to England for guidance.” See Brode, The Odyssey of John Anderson, 112. 114 Extradition Bill, 1876, s. 7, AO, F2, MU 258, box 120, envelope 44. 115 Ibid., s. 10. 116 Ibid., s. 18.

Miller_5200_219.indd 262

16/08/2016 4:08:42 PM

Notes to pages 170–4  263 117 Ibid., s. 23. 118 Ibid., ss. 14 and 19. 119 Ibid., s. 12. 120 Ibid., ss. 16, 17, and 19. 121 Ibid., s. 7(3). 122 Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law, 1870–1960 (Cambridge: Cambridge University Press, 2001), 69. 123 Ibid., s. 23. The imperial act made no provision for a second charge or obtaining permission from the surrendering government. See [UK] 33 and 34 Vic., c. 52, s. 19. 124 Ibid., s. 5. 125 See Farr, Colonial Office and Canada, 54; R. Macgregor Dawson, The Government of Canada (Toronto: University of Toronto Press, 1954), 53; J.M.S. Careless, Canada: A Story of Challenge (Toronto: Macmillan, 1963), 268; Chester Martin, The Foundations of Canadian Nationhood (Toronto: University of Toronto Press, 1971), 497. 126 Vipond, Liberty and Community, 24–5, 113–43. 127 Swinfen, Imperial Control of Colonial Legislation, 31–45, 85; Colonial Office Return of Reserved Bills (London: HMSO, 1864), 8–11; Colonial Office Return of Reserved Bills from Which Assent Was Withheld (London: Eyre and Spottiswoode, 1894), 3–7. 128 Swinfen, Imperial Control, 35–41. 129 Both imperial reservation and disallowance were included in the British North America Act: see sections 55 and 57, and 56; Messamore, “‘The line over which he must not pass’”; W.E. Hodgins, Correspondence, Reports of the Ministers of Justice, and Orders in Council upon the Subject of Dominion and Provincial Legislation, 1867–1895 (Ottawa: Government Printing Bureau, 1896), 6–58d. This number does not include ten further bills for divorce which were also reserved. See pp. 5–60. 130 Farr, The Colonial Office and Canada, 302; J.E.C. Munro, The Constitution of Canada (Cambridge: Cambridge University Press, 1889), 268. 131 Memo of March, 18 July 1876, in LAC, RG 2, PCO, series A-1-a, vol. 348, reel C-3317. 132 Memo of March, 1 September 1876, AO, F2, MS 20, reel 2. 133 The draft treaty reached by the United States and the United Kingdom in August 1876 was silent on the issue of specialty. AO, F2, MS 20, reel 2, p. 88. The American government wanted the right to try a surrendered prisoner for any offence listed in the treaty, not simply the crime of surrender – precisely the solution proposed by Blake. See Sir Edward Thornton to Lord Derby, 14 September 1876, AO, F2, MS 20, reel 2. It appears from

Miller_5200_219.indd 263

16/08/2016 4:08:42 PM

264  Notes to pages 174–8 March’s comments that there was some movement in the British government to concede this point and make the necessary amendment to the imperial law. 134 Julian Pauncefote to Robert Herbert, 14 September 1876, AO, F2, MS 20, reel 2. 135 In report of Blake, 19 January 1877, O.C. no. 1877-0058, LAC, RG 2, PCO, A-1-a, vol. 352, reel C-3318. 136 Ibid. 137 Blake to Mackenzie, 20 February 1877, LAC, Mackenzie Papers, reel M-198, 1336. 138 Telegram of Carnarvon, 3 March 1877, O.C. no. 1877-0189, LAC, RG 2, PCO, A-1-a, vol. 354, reel C-3319. 139 Report of Blake, 5 March 1877, ibid. 140 Extradition Bill, 1876, s. 7(3). 141 Report of Blake, 5 March 1877, O.C. no. 1877-0189, LAC, RG 2, PCO, A-1-a, vol. 354, reel C-3319. 142 See Miller, “‘Carnival of Crime,’” 656–60. 143 Debates, 14 March 1877, 710–11. 144 Blake to Carnarvon, 27 June 1876, Sessional Papers 1877, no. 13, 16. 145 For the act, see 40 Vic., c. 25. 146 Blake to Carnarvon, 27 June 1876, Sessional Papers 1877, no. 13, 16. 147 Debates, 10 April 1877, 1316–17; Dufferin to Carnarvon, 11 April 1877, in Dufferin–Carnarvon Correspondence, 44. 148 Carnarvon to Dufferin, 29 March 1877, O.C. no. 1882-0120, LAC, RG 2, PCO, A-1-a, vol. 410, reel C-3337. 149 Carnarvon to Dufferin, 5 April 1877, ibid. 150 Ibid. 151 Blake to Mackenzie, 27 April 1877, ibid. 152 Ibid. 153 Carnarvon to Dufferin, 1 June 1877, ibid. 154 Re Williams, Common Law Chambers, 7, 1879, 283. 155 Hicks-Beach to Dufferin, 5 February 1878, O.C. no. 1882-0120, LAC, RG 2, PCO, A-1-a, vol. 410, reel C-3337. 156 Lord Lorne to Hicks-Beach, 2 March 1880, ibid. 157 Hicks-Beach to Lorne, 13 March 1880, ibid. 158 Ibid. 159 40 Vic., c. 25, s. 16(3). 160 31 Vic., c. 94, s. 4. 161 Debates, 24 March 1880, 875. 162 Ibid., 875–6.

Miller_5200_219.indd 264

16/08/2016 4:08:42 PM

Notes to pages 178–86  265 163 Report of Campbell, 21 January 1882, O.C. no. 1882-0120, RG 2, PCO, A-1-a, vol. 410, reel C-3337. 164 Kimberley to Lorne, 2 February 1882, O.C. no. 1882-0840 E, RG 2, PCO, A-1-a, vol. 413, reel C-3337. 165 Report of Campbell, 3 March 1883, ibid. 166 Senate Debates, 26 April 1882, 434. 167 British and Foreign State Papers, 1881–2, vol. 73, 156–7. 168 The Globe published notice of the British order on 6 January 1883. 169 Debates, 19 February 1883, 42. 170 Macdonald to Campbell, 20 February 1883, AO, F23, MU 475. 171 Sessional Papers, 1885, no. 130, 1–3. 7  Law Formation in the Common Law World    1 See Dale Gibson, “Free Trade in Criminals: Canadian-American Extradition before 1890,” in William Kaplan and Donald McRae, eds, Law, Policy, and International Justice: Essays in Honour of Maxwell Cohen (Montreal and Kingston: McGill-Queen’s University Press, 1993), 157–61; Dale and Lee Gibson, “Railroading the Train Robbers: Extradition in the Shadow of Annexation,” Manitoba Law Journal 20(1) (1991), 73, 79–80.    2 Re Burley, 50.    3 Ibid.    4 See, for examples, R. v. Isaac Morton and Charles E. Thompson, UCCP, vol. 19, 73; United States v. Debaun, La Revue Légale, vol. 16, 634–5.    5 For the rarer, doubtful view of liberalization, see Re Moore, Manitoba Reports, vol. 20, 49.    6 See John McLaren, A.R. Buck, and Nancy E. Wright, eds, Despotic Dominion: Property Rights in British Settler Societies (Vancouver: UBC Press, 2004); Hamar Foster, A.R. Buck, and Benjamin Berger, eds, The Grand Experiment: Law and Legal Culture in British Settler Societies (Vancouver: UBC Press and the Osgoode Society, 2008); John McLaren, Dewigged, Bothered, and Bewildered: British Colonial Judges on Trial, 1800–1900 (Toronto: University of Toronto Press and the Osgoode Society, 2011).     7 Re Harsha, Canadian Criminal Cases, vol. 10, 444, 449.    8 Ibid., 455.    9 See, for example, In re Parker, Canadian Law Times, vol. 10, 376.   10 R. v. Morton, 25.   11 R. v. Burke, Manitoba Reports, vol. 6, 138.   12 Ibid.

Miller_5200_219.indd 265

16/08/2016 4:08:42 PM

266  Notes to pages 186–92 13 “The Gaynor and Greene Extradition Proceedings,” Canadian Law Review 1 (1901–2), 547. 14 R. v. Morton, 25. 15 Ex Parte Cadby, 466–8. The Kentucky Court of Appeals decided in 1878 that specialty was binding. See Commonwealth v. Hawes, Albany Law Journal, vol. 17, 1878, 325–9. 16 See Semmelman, “The Doctrine of Specialty.” 17 “The Gaynor and Greene Extradition Proceedings,” 546. The Ontario courts took a similar position: Re Garbutt, Ontario Reports, vol. 21, 466, 475. 18 See Re George D. Collins # 3, British Columbia Reports, vol. 11, 454. 19 Re Ellis P. Phipps, Ontario Reports, vol. 1, 608. 20 United States v. Debaun, 638. 21 Re Harsha # 2, Canadian Criminal Cases, vol. 11, 68. 22 Re Gaynor and Greene # 6, Canadian Criminal Cases, vol. 9, 492. 23 Re Bennet G. Burley, 49–50. 24 Re Ellis P. Phipps, 606. 25 United States v. Webber # 1, Canadian Criminal Cases, vol. 2, 4. 26 Re Harsha # 2, Canadian Criminal Cases, vol. 11, 67. 27 On this, see Pyle, Extradition, Politics, and Human Rights, 1–104. 28 Ex Parte Thomas Kaine, Blatchford’s Circuit Court Reports, vol. 1, 7. 29 Ibid., 7–10. 30 In re Kelly, Federal Reports, vol. 26, 853. 31 Ibid., 854. 32 Ibid., 853. 33 Grin v. Shine, U.S. Reports, vol. 187, 184. 34 In re Heinrich, Federal Cases, vol. 11, 1148. 35 In re Breen, Federal Reports, vol. 73, 458. 36 Ex parte Sternamen, Federal Reports, vol. 77, 596. 37 In re Metzger, Federal Cases, vol. 17, 238. 38 In re Extradition of Wadge, Federal Reports, vol. 15, 866. 39 Ex parte Schorer, Federal Reports, vol. 195, 338. 40 In re Windsor, English Reports, 122, 1288; A.G. of Hong Kong v. Kwok-a-Sing, Cox’s Criminal Cases, 12, 569. 41 See In re Arton # 1, Queen’s Bench, 111; In re Arton # 2, Queen’s Bench, 517. 42 See, for examples, Ex parte Huguet, Law Times (new series), vol. 29, 41; The Queen v. Wilson, Queen’s Bench Division, vol. 3, 42; Ex parte Terraz, Exchequer Division, vol. 4, 63; The Queen v. Maurer, Queen’s Bench Division, vol. 10, 513; In re Siletti, Law Journal Reports King’s Bench, vol. 71, 935; Ex parte Thompson, Cox’s Criminal Cases, vol. 22, 494.

Miller_5200_219.indd 266

16/08/2016 4:08:43 PM

Notes to pages 192–7  267 43 Ex Parte Van Staden and Another, Cape Times Reports, vol. 16, 9. 44 Ex Parte Rolff and Others, Decisions of the Supreme Court of the Cape of Good Hope, vol. 26, 441. 45 Ibid. 46 On the continuing importance of imperial citizenship as a category in Canadian law, see Philip Girard, “‘If two ride a horse, one must ride in front’: Married Women’s Nationality and the Law in Canada, 1880–1950,” Canadian Historical Review 94(1) (2013), 28–54. 47 Joseph Jacobs v. Resident Magistrate of Durban, Natal Law Reports, vol. 4, 130. 48 In re Coutts, New Zealand Law Reports, vol. 22, 206; R. v. Liepschitz, Cape Provincial Division Reports, vol. 1, 358. 49 R. v. King, Ex parte King, Queensland Supreme Court Reports, vol. 1, 7. 50 R. v. Cohen, Cape Times Reports, vol. 11, 9. 51 W.N. Willis v. R., Natal Law Reports, vol. 27, 105. 52 In re Radcliffe, South Australian Law Reports, vol. 21, 103. 53 In the matter of James Ley and George Ley, South Australian Law Reports, vol. 17, 107. 54 In re Radcliffe [#2], South Australian Law Reports, vol. 21, 109. 55 Ex parte Bouvy # 3, New Zealand Law Reports, vol. 18, 615. 56 See In re Radcliffe and In re Radcliffe [#2], South Australian Law Reports, vol. 21, 99–103, 104–14. 57 In re Jacobs, Natal Law Reports, vol. 5, 52–5; In re Gleich, Olliver, Bell, & Fitzgerald’s Supreme Court Reports, 42. In the New Zealand case, the judges decided that the colonial statute’s provision allowing detention on the high seas between colonies was ultra vires of the colonial legislature. 58 Re Simon Peter Harjes, South Australian Law Reports, vol. 16, 76; In re James Ley and George Ley [#2], South Australian Law Reports, vol. 17, 108. 59 Collis v. Smith, Commonwealth Law Reports, vol. 9, 494. 60 In re Radcliffe, 102; R. v. Smith, New South Wales Weekly Notes, vol. 10, 172. 61 Fugitive Offenders Act, 1881, 44 & 45 Vic., c. 69, ss. 10, 19. 62 For an example of a Canadian F.O.A. case in which the judge did endorse the power of protecting liberty, see R. v. John Delisle, Canadian Criminal Cases, vol. 5, 210. 63 Ex parte Watson, New South Wales Weekly Notes, vol. 17, 249. 64 Ex parte Counsel, New South Wales Law Reports, vol. 8, 320. 65 Ibid., 319. 66 “Arrested in Canada: A Forger Traced by the Movements of His Lover,” New York Times, 10 March 1886.

Miller_5200_219.indd 267

16/08/2016 4:08:43 PM

268  Notes to pages 198–206   67 Ex Parte Cadby, New Brunswick Reports, vol. 26, 456–7, 462, 467–8.   68 Ibid., 458.   69 Ibid., 461.   70 Ibid., 470–1.   71 Ibid., 25.   72 Re George D. Collins # 3, British Columbia Reports, vol. 11, 445.   73 Re Harsha # 2, Canadian Criminal Cases, vol. 11, 63.   74 Ibid., 69.   75 Ex parte Sternaman, Federal Reporter, vol. 77, 596.   76 United States v. Debaun, Revue Légale, 634.   77 Re Walter A. Dickey, Canadian Criminal Cases, vol. 8, 324.   78 Ex parte Schorer, Federal Reporter, vol. 195, 338.   79 See, for example, Re Kelly, Federal Reporter, vol. 26, 853–4.   80 Re Harsha # 2, 67.   81 Ex parte Schorer, 338.   82 In re Metzger, Federal Cases, vol. 17, 233.   83 In re Ezeta, Federal Reporter, vol. 62, 999.   84 R. v. Cohen, Cape Times Law Reports, vol. 11, 9.   85 In re Radcliffe, South Australian Law Reports, vol. 21, 103. See, for examples of the phrase, Ex Parte Thompson, Cases in Bankruptcy, vol. 1, 308; Myers v. Baker, English Reports, vol. 157, 695.   86 In re Radcliffe [#2], South Australian Law Reports, vol. 21, 109.   87 Re Simon Peter Harjes, South Australian Law Reports, vol. 16, 74, 77.   88 In re Radcliffe [#2], 110–11.   89 In the matter of James Ley and George Ley, 107.   90 Ibid.   91 Ibid., 107–8.   92 Ibid., 108.   93 In re Castioni, Queen’s Bench, vol. 1, 157.   94 R. v. Louis Hustin, Queensland Law Journal Reports, vol. 1, 16.   95 Re Carlo Pedro, Queensland Law Journal Reports, vol. 5, 22.   96 In re Castioni, quoted ibid., 26.   97 Ibid.   98 In re Edward Metham Marshall, Victorian Law Reports, vol. 26, 819.   99 Collis v. Smith, Commonwealth Law Reports, vol. 9, 493, 495. 100 W.N. Willis v. Rex, Natal Law Reports, vol. 27, 107–8. 101 See In re Patrick Ryan, Bridget Leonora Ryan, and Mary Ryan, Victorian Law Reports, vol. 8, 330. 102 Kurtz v. Aicken, New Zealand Law Reports, vol. 9, 677. 103 For exceptions to this non-use of American literature, see In re Frederic

Miller_5200_219.indd 268

16/08/2016 4:08:43 PM

Notes to pages 207–12  269 Gerhard (No. 3), Victorian Law Reports, vol. 27, 660; McKelvey v. Meagher, Commonwealth Law Reports, vol. 4, part 1, 272–3. 104 For exceptions to the non-use of Canadian law (albeit in minor and technical ways), see McKelvey v. Meagher, 272, 275; The “William Tapscott” Case, New Zealand Jurist, vol. 1, 86, 89. 105 See Gerhard (No. 3) and McKelvey v. Meagher. 106 Gerhard (No. 3), 660. 107 In re Kelly, Federal Reporter, vol. 26, 854. 108 Re Harsha # 2, 63. 109 Re Ternan and Others, Cox’s Criminal Cases, vol. 9, 536–7. 110 For the cases, see Re Windsor, English Reports, vol. 122, 1289, and In re Bellencontre, Queen’s Bench Reports, vol. 2, 135. 111 Charles Egan, The Law of Extradition (London: W.W. Robinson, 1846), viii. 112 Ibid., 13–14. 113 Ibid., 58–61. 114 Lewis, On Foreign Jurisdiction, 5. 115 Ibid., 32. 116 Ibid., 75. 117 Ibid., 58, 44. 118 Ibid., 68. 119 On Moore’s place in American extradition history, see Unterman, Uncle Sam’s Policemen; Margolies, Spaces of Law. 120 See Clarke, Extradition; John Bassett Moore, A Treatise upon Extradition and Interstate Rendition, vol. 1 (Boston: Boston Book Company, 1891). 121 Clarke, Extradition, 106–7; Moore, Extradition, 19, 114. 122 Clarke, Extradition, 12; Moore, Extradition, 5. 123 Clarke, Extradition, 11; Moore, Extradition, 12. 124 Moore, Extradition, 111. 125 Buckman v. R., Natal Law Reports, vol. 35, 119. For Clarke’s commentary, see Clarke, A Treatise upon the Law of Extradition, 4th ed. (London: Stevens and Haynes, 1903), 262–3. 126 On the use of foreign legal thought in nineteenth-century Canada, see Reiter, “Imported Books”; Baker, “The Reconstitution of Upper Canadian Legal Thought.” 127 The work of the American writer Joel Prentiss Bishop was also important, particularly his Commentaries on the Law of Criminal Procedure (Boston: Little Brown, 1866); for examples of its use, see Re John F. Hoke, La Revue Légale, vol. 15, 103–6. The New York writer and clergyman Samuel Spear’s book on extradition was also influential; for examples of its use

Miller_5200_219.indd 269

16/08/2016 4:08:43 PM

270  Notes to pages 212–16 in Canada, see Re John C. Eno, The Legal News, vol. 7, 202; Ex Parte Cadby, 456–70; Re Cornelius Murphy, Ontario Appeal Reports, vol. 22, 392. For Spear, see The Law of Extradition, International and Inter-State (Albany: Weed, Parsons & Co., 1879); The Law of Extradition, 3rd ed. (Albany: Weed, Parsons & Co., 1885). 128 For an example, see the use of Moore alongside American cases by prosecution lawyers; In re Frederic Gerhard # 3, Victorian Law Reports, vol. 27, 600. 129 The “William Tapscott” Case, New Zealand Jurist, vol. 1, 86. 130 McKelvey v. Meagher, Commonwealth Law Reports, vol. 4, pt. 1, 272–3. 131 See Ex Parte Thomas Kaine, Blatchford’s Circuit Court Reports, vol. 3, 9–10. 132 See In re Kelley, Federal Cases, vol. 14, 235. 133 Ibid. 8  Conclusion    1 Begbie to the minister of justice, ca. 30 September 1885, LAC, RG 13, A-5, vol. 988, 1885-1026.    2 Ibid.    3 Augustus Power to Begbie, 22 October 1885, ibid.

Miller_5200_219.indd 270

16/08/2016 4:08:43 PM

Index

abduction: characteristic of, 51; citizenship and, 81; as common practice in border zone, 55–6; customary law and, 51–2, 54, 75–6; diplomatic reaction to, 66–9, 79–80; individual rights and, 76–8; international law and, 52, 54, 59; local communities and, 52, 58–9, 63–4; low law and, 50, 62; obligation of reciprocity and, 57, 58; as preservation of law, 60; scholarship on, 51, 68; state-province cooperation, 62–3; statistics, 62–3; territorial sovereignty and, 52–3, 56–7, 67–8; vulnerability of system of, 217. See also kidnapping abduction cases: of deserters, 55; Eugene Shinkle, 49–50, 51, 52–3, 54–5, 81–2; Frederick Ker, 76–7, 79; Harry Gale, 60–1, 81–2; James Cahill, 72–3; “Lord Gordon,” 73–4; Marion Brown, 70–1; Martin Everett, 54–5, 74, 81–2; most prominent,

Miller_5200_271_(Index).indd 271

81–2; Peter Needham, 81; Rufus Bratton, 56–7, 72; during Sault Ste Marie riot, 80; Susannah Scott, 77, 79 Aberdeen, 4th Earl of (George Hamilton-Gordon), 126 Adams, John Quincy, 66, 96, 103 American slaves, 117–18 amorphousness. See legal amorphousness Anderson, John, 35, 127–8, 135 Angelo, Frank, 215, 216 Anghie, Antony, 5 Anglin, Timothy Warren, 162 Anglo-American extradition treaty. See Webster-Ashburton Treaty Archibald, Adams, 73 Armour, J.D., 187 Ashburton, 1st Baron (Alexander Baring), 112, 113, 123 asylum: for American slaves, 118, 123–4; in British North America, 14; characteristic of concept of, 115;

12/08/2016 5:02:02 PM

272  Index history of, 115–17; law of nature and, 127–8; transnational security regimes and, 116–17. See also political asylum Auchinleck, Lord (Alexander Boswell), 136 Australia: approach to extradition, 134, 194, 195, 196, 203; law formation in, 205; strict constructionist jurisprudence, 202–3 Bagot, Charles, 25, 94, 123, 124 Baker, John, 21 Baldwin, Henry, 110 Barbour, Philip Pendleton, 85, 86, 87, 102, 110 Batchelder, Richard, 98 Beardsley, Samuel, 146 Beccaria, Cesare, 86 Begbie, Matthew, 215, 216 Bell, David, 136 Benton, Lauren, 5 Bernard, Hewitt, 165 Bevans, Thomas, 49, 50, 52–3, 54, 55 Blackburn, Thornton, 118 black refugees: claim of citizenship, 119–20; debates on asylum for, 123–4; petitions to protect, 121; service to British Empire, 121–2 Blackstone, William, 90 Blake, Edward: draft of extradition bill, 161, 170–1, 172, 263n133; efforts to change extradition law, 165–6, 168–9, 175; as justice minister, 171; legal liberalism of, 155, 171–2, 179; “mission to England,” 168; view of political asylum, 172 Bliss, William Blowers, 23 borders: challenge of, 8, 12, 15 border zone: criminal cases, 26, 27;

Miller_5200_271_(Index).indd 272

customary regimes, 4; Indigenous migration, 24–5; law enforcement, 24, 27; liquor smuggling, 24–5; military deserters in, 30; sovereignty in, 60 Boucaut, James, 195, 202, 204 Boulton, H.J., 133 Boyd, John, 187 Branch, Jordan, 5 Bratton, Rufus, 56, 65, 72, 73 British colonies: extradition jurisprudence, 192–3, 198, 205–6, 214; law formation, 202; protection of liberty, 194–5; rejection of strict constructionism, 206; sources for legal ideas, 205–7; use of English case law in, 204 British Empire: anti-slavery policy, 122–3; debates on extradition bill, 126–7, 132–3; emancipation act, 122; evolution of jurisprudence, 203–4; exemption of citizens from extradition, 107; extradition act of 1870, 159–60; extradition agreement with France, 156–8; extradition practice, 103–4, 155–6, 167, 191, 207; law formation, 161, 207; political asylum, 116, 144–5, 147–8, 149, 158; relations with US, 87, 167; revision of Canadian bills, 173, 174–5, 176–7, 180 British North America/Canada: adherence to racial equality, 124; American asylum seekers, 10–11, 117–18; anti-smuggling operations, 46; asylum practices, 6, 14, 107, 115, 149; border patrol, 25–6; British legal authority over, 155, 170, 173–4, 179, 180; culture of equality, 137; extradition act of 1877, 170,

12/08/2016 5:02:02 PM

Index  273 178; extradition jurisprudence, 100, 105, 188, 196, 198–200, 213–14, 217; impact of American legal ideas, 199–200, 205, 207; law formation, 4, 11–12, 155, 161–72, 200–1, 216; liberalization of extradition law, 154–5, 161, 164–6, 168–9, 179, 180; parliamentary debates on extradition bill, 160–1, 162, 163–4, 170–1; refugee status, 117, 119–21, 122; support of fugitive slaves, 35; supranational justice, 8; territorial sovereignty, 217; ties with southern colonies, 207; transnationality of law, 9–12. See also Lower Canada Brode, Patrick, 131, 132 Brown, Henry Billings, 190 Brown, Marion “Peg Leg,” 70, 78 Browne, Charles C., 33 Bryce, James, 74, 75 Burlamaqui, Jean-Jacques, 86, 91, 92 Burley, Bennet, 140, 149, 181 Cadby, John H.W., 197 Cahill, James, 65, 72–3 Caldwell, Richard Baker, 28–9, 32, 225n46 Cameron, John Hillyard, 164 Campbell, Alexander, 178 Campbell, Lord, 126 Canada. See British North America/ Canada Canada extradition bill: Blake’s speeches in Parliament, 176, 177–8; Britain’s revision of, 173, 174–5, 176–7, 180; debates on, 163–4; introduction to Senate, 178; political offence exception, 164, 175; suspension of imperial act, 178

Miller_5200_271_(Index).indd 273

Carnarvon, 4th Earl of (Henry Howard Molyneux Herbert), 165, 168, 175, 176 Catron, John, 111 Chang, Kornel, 20 Chipman, Ward, 19, 22, 136 Chitty, Joseph, 90 citizenship: abduction and, 81; individual rights and, 79–80 Clarke, Edward, 156, 208, 210, 211 Clay, Henry, 105 Clinton, DeWitt, 94, 99 Coke, Edward, 104, 147 Colborne, John, 95, 105, 111 collective rights, 134 Collier, Robert, 159 Commentaries on American Law (Kent), 90 Commentaries on the Conflict of Laws (Story), 101–2 Commentaries on the Laws of England (Blackstone), 58, 90, 92, 132 common law world: characteristic of, 12; cooperation against crime, 184; doctrinal divisions within, 15; extradition practice, 214; impact of Castioni case, 204–5; jurisprudential zones, 183, 208; law formation, 183, 188–93, 194 Commonwealth v. Deacon, 100 counterfeiters, 41 Crease, Henry Pellew, 37, 78 criminal elites, 33–4 criminal jurisdiction, 20, 21–3, 62, 70, 74 criminal law, 3–4, 13, 20, 22–3, 121 cross-border migration, 39–40, 41, 48, 225n45 Dakota War of 1862, 30

12/08/2016 5:02:02 PM

274  Index Dalhousie, 9th Earl of (George Ramsay), 92 Davis, Jefferson, 141, 181 Derby, Lord, 165, 166, 168 deserters, 55, 59 Devlin, Bernard, 142 DeWitt, John, 111 Dickinson, J.N., 135 Disraeli, Benjamin, 158, 165 Dorsett, Shaunnagh, 5 Dos Santos, Jose Ferreira, 85, 86, 87 Doucet, Nicolas-Benjamin, 93 Draft Outlines of an International Code (Field), 163 Draper, W.H., 133, 138 Dudley, Edwin, 238n125 Duff, Lyman, 199 Dufferin, 1st Marquess of (Frederick Hamilton-Temple-Blackwood), 166 Dunlop, William “Tiger,” 55 Egan, Charles, 208–9 Elgin, 8th Earl of (James Bruce), 25 Eliot, Charles, 57–8 Eno, John C., 34 Epitome of the Laws of Nova Scotia (Murdoch), 93, 133–4 Everett, Martin, 53, 57, 81 extradition: British view of, 155–61; categories of crime and, 33–4, 162; comity doctrine and, 106–7; in comparative perspective, 156–7; as component of supranational justice, 88; as duty of civilized states, 97; French Revolution and political, 144; geographic factor, 196; Grotius on, 88–9; imperial vs. colonial, 197; international law and, 4, 6, 85–6, 107–8; jurists’ inter-

Miller_5200_271_(Index).indd 274

pretation of, 191–2; law of nature and, 128–9, 135, 136–7; legal literature on, 208–12, 213; legal technicalities, 190; national security and, 162; natural rights and, 130, 131–2; political perspective, 36, 145–6, 179; positive law of, 14; protection of liberty and, 194; public opinion and, 36, 38; reciprocal practice, 108–9; regimes, 14, 217; scholarship on, 9, 29, 76–7, 88; statistics, 156; strict constitutionalism and, 195; supranational justice and, 9, 87, 89; surrender of fugitives, 89–90; treaties, 191–2. See also nonobligation to extradite; obligation to extradite extradition cases: of American slaves, 118–19; Arthur Perry, 3–4; Bennet Burley, 181–2, 213; in British colonies, 192–3, 196; Chesapeake steamer, 140, 141; Daniel Washburn, 90, 100; diplomacy and, 37–8; Ellis Phipps, 33–4; Ezra Winslow, 167; Frank Angelo, 215–17; George Holmes, 106, 109–11; Isaac Hibbs, 37–8; Jacob Smith, 94; James Grogan, 105–6; James Somerset, 135; Jesse Happy, 118–19, 120–1, 125–6; John Anderson, 127–30, 137–8, 139, 147; John Cadby, 197–8; Jose Dos Santos, 85–7, 96, 110–11; Joseph Fisher, 92, 94, 97, 145; between Lower Canada and Vermont, 105–6; media attention to, 32, 127–8; murder at schooner Fairy, 98–9; Nelson Hackett, 118–19, 123, 124–5; procedural requirements, 37; In re Castioni, 202, 204–5; Re Harsha, 184, 185, 187, 199, 201; In

12/08/2016 5:02:02 PM

Index  275 re Radcliffe, 196; Richard Caldwell, 28–9, 32–3, 35; Savva Fedorenko, 114–15; seizure of ship Creole, 133; Solomon Moseby, 118–19, 121–2, 124; St Alban’s Raid, 147; territorial sovereignty and, 23–4; Thomas Kaine, 189; Thornton and Lucie Blackburn, 118, 124, 126 Fedorenko, Savva, 114, 115, 139, 140 Fenian invasion of Manitoba, 22–3 Field, David Dudley, 163 Fish, Hamilton, 167 Fisher, Joseph, 92 Ford, Lisa, 5, 6, 20 Fort William Times Journal, 114 Fox, H.S., 95, 97 France: development of extradition law, 200; extradition agreements, 156–8 Freeman, S.B., 129, 131, 132 Fugitive Offenders Act, 62, 98, 118, 125 Fugitive Offenders Act (Upper Canada), 163 fugitives, 13, 117–18, 122, 133, 146 Fundamental Principles of the Laws of Canada (Doucet), 93, 133 Gale, Harry, 60–1, 62, 78, 81, 235n50 Gates (US Army officer), 49, 50, 52–3 Gaynor, John, 33 Geiger, F.A., 201 Gong, Gerrit, 96, 97 Gould, Jay, 73 Grant, Ulysses S., 167 Gray, J.H., 142 Greene, Benjamin, 33 Grey, Edward, 75

Miller_5200_271_(Index).indd 275

Griffith, Sarah, 47 Grin v. Shine, 190 Grogan, James, 105 Grotius, Hugo, 86, 88, 89, 90–1, 92, 101, 109 Habeas Corpus Act (1679), 107, 120, 129, 187, 196, 201 Hackett, Nelson, 112, 118, 123, 124, 133 Hagarty, John Hawkins: on acts of war vs. criminal acts, 143; on American and Canadian legal liberalization, 199; on exempting slaves from extradition, 138–9; on extradition law, 153; opinion in Burley case, 181, 183, 187–8, 213 Hagerman, Christopher, 98 Hague Peace Conference (1899), 75 Haliburton, Thomas Chandler, 99 Hammond, Edmund, 158, 168 Happy, Jesse, 118, 119 Harding, George Rogers, 205 Harrison, Robert, 130, 137, 164, 177 Harvey, John, 40–1, 98, 99 Hastings, Howland, 22, 223n17 Hawes, Benjamin, 123 Head, Francis Bond, 123, 124 Heath, John, 90 Heineccius, Johann Gottlieb, 91, 92 Henry, Thomas, 158, 165 Hibbs, Isaac, 36 Hicks-Beach, Michael, 177 Historical and Statistical Account of Nova Scotia (Haliburton), 99 Hobbes, Thomas, 5 Holmes, George, 109 Holt, Justice, 122, 132 imperial reservation, 263n129

12/08/2016 5:02:03 PM

276  Index Indigenous people, 24–5, 30–1, 60, 225n45 individual rights, 76–8, 79–80, 134 Institutes of the Laws of England (Coke), 104 International Joint Commission, 74 international law: abduction and, 52, 54, 59; definition of, 97; development of, 91; English common law and, 92; extradition and, 4, 6, 85–6, 107–8; interpretations of, 101; in Lower Canada, ideas of, 95–6; role and power of, 10–11; sovereign rights and, 87; treatises on, 93; US Civil War and, 139 James, Thomas, 32, 35 Jarrard, Levi D., 33 Jay Treaty, 225n45 Jefferson, Thomas, 102 Jenison, Silas, 95, 106, 107, 109 Johnson, F.G., 143, 148 Kaine, Thomas, 189 Kames, Lord, 136 Kant, Immanuel, 91 Kealey, Gregory, 162 Kelly, William, 26, 27, 48, 57 Kempt, James, 98, 99 Kent, James: approach to law formation, 108; authority of, 86, 92, 143; on civilized nations and international law, 96; Commentaries on American Law, 90; on extradition as duty of civilized states, 4, 9, 182; leading role in extradition debate, 99 Ker, Frederick, 76 Kerr, W.H., 143, 147 Ker v. Illinois, 81

Miller_5200_271_(Index).indd 276

kidnapping: community support of, 74; criminal offences in cases of, 63; diplomatic complaints about, 71–2, 73; institutional infrastructure and, 65; involvement of government officials, 64, 69–70; police tactics, 65; practice of official apology for, 67–8, 71, 75; prosecution of kidnappers, 67, 73–4; rewards offered for, 64–5; supranational justice and, 61; tactics and practices, 65–6; views of officials on, 60, 67–8. See also abduction Kimberley, Lord, 178 Knight, Joseph, 136 Knight v. Wedderburn, 136 Laflamme, T.A.R., 142, 147, 148 Langlois, Jean, 164 Lanton, Archy, 63, 64, 73 Laurier, Wilfrid, 114 law formation: in Australia, 205; in British Empire, 161, 207; in Canada, 4, 11–12, 155, 161–72, 200–1, 216; in common law world, 183, 188–93, 194; legal literature and, 208–13; liberalization and, 188; in North America vs. southern colonies, 198; studies of, 7, 8–9; territorial sovereignty and, 216–17; in United States, 188–9, 201–2 law of nations. See international law law of nature, 127–8, 133–5 law of war, 140, 142, 143–4 legal amorphousness, 111, 112, 117, 140 legal liberalization, 7–8, 184–5, 187–8 legal pluralism, 5–6, 11–12 legal positivism, 10, 87, 113 Legare, Hugh, 111

12/08/2016 5:02:03 PM

Index  277 L’Etendre, Louis, 22–3, 79 Lett, Benjamin, 104, 109 Lewis, George Cornewall, 121, 145, 209, 210 liberal case law: vs. strict constitutionalism, 196–7 Lister, T.V., 165, 166 Little, Jack, 41 Little Bighorn, Battle of, 31 Lower Canada: extradition practice, 95, 103, 106–7, 111–12; idea of international law in, 95, 97; legal notion of extradition, 94. See also British North America/Canada low law, 49, 50–3, 62 Macaulay, James Buchanan, 97, 98, 106, 132 Macaulay, Thomas Babington, 126 Maccomb, Alexander, 60 Macdonald, John A., 59, 162, 164, 172 Mackenzie, Alexander, 166 Mackenzie, William Lyon, 146 Mackintosh, James, 144, 256n186 Madawaska territory, 19–20, 21 Mansfield, 1st Earl of (William Murray), 135 March, George E., 169, 174 Marshall, John G., 98, 99 Martens, G.F., 104 Mathers, T.G., 114, 117, 139, 140, 144, 148, 149 McDonald, Josephine, 61 McHugh, P.G., 5 McLean, Archibald, 137 Meredith, R.M., 184, 185 migration, 20, 24–5 Mill, Stuart, 157, 158, 159, 163, 164 Mills, David, 14, 155, 171, 179

Miller_5200_271_(Index).indd 277

Monck, 4th Viscount (Charles Stanley), 55, 81 Monroe, James, 102 Montesquieu, Charles de Secondat, baron de, 136 Moore, John Bassett, 208, 210, 211 Morison, William Maxwell, 136 Morrow, William W., 202 Moseby, Solomon, 118, 121 Murdoch, Beamish, 93 Myers, Levi, 39, 43, 45, 46, 48 natural law. See law of nature natural rights, 130–2, 133, 134 Needham, Peter, 81 Nelson, Samuel, 189, 190 New Brunswick: criminal law in, 20; extradition practice, 197–8; fugitives in, 98–9; smuggling in border zone, 26–7 New Zealand extradition cases, 194, 195, 196, 197, 206, 267n57 non-obligation to extradite, 101–2, 103 Northeastern Boundary Dispute, 22 northern North America: crossborder criminal migration, 39–40; extradition regime, 100; fragility of law, 9–10; military deserters in border zone, 30; practice of abduction, 62, 81–2; supranational justice, 93, 163–4 Nova Scotia: fugitives in, 98–9 obligation to extradite, 90, 91, 100–3, 104–5, 107–8, 143 Ogden, C.R., 94 On the Law of War and Peace (Grotius), 88 Osler, Featherston, 79

12/08/2016 5:02:03 PM

278  Index Palmerston, 3rd Viscount (Henry John Temple), 123, 133, 144 Parnaby, Andrew, 162 Paul, Joel, 107 Permanent Court of Arbitration, 75 Perry, Arthur, 3, 4, 56 personal liberty, 132 Phillimore, Robert, 145 Phipps, Ellis, 33–4 piracy, 96 police operations, 43–4, 48 political asylum, 140, 144–5, 147–9, 257n196 Pollock, Frederick, 123, 126, 127 Porter, Bernard, 116, 144 Potter, John F., 36 Power, Augustus, 216 Practical Treatise on Criminal Law (Chitty), 90 Prince, John, 22 Pufendorf, Samuel von, 104, 109 Ramsay, T.K., 38 Rawle, William, 101 Rebellion Losses Bill, 25 reciprocity principle, 53, 54, 57, 58, 107 refugees: categories, 32; debates over protection of, 117; political, 155–6, 158, 159; status of, 28–9; US Civil War and, 29. See also black refugees Reid, James: authority of, 143; decision in Joseph Fisher case, 92, 94, 106, 202; legal ideas of, 92–3, 108; on political offences vs. common crime, 145–6; view of extradition, 10, 86, 182 Renolds, George, 55

Miller_5200_271_(Index).indd 278

Richards, William Buell, 131 Riker, Richard, 108 Rioux, G.E., 187, 200 Ritchie, William Johnstone, 141, 142 Robinson, John Beverley, 125, 138 Rolph, John, 122, 124, 126, 146 Routh, F.A., 43, 44 Rush-Bagot Treaty, 26 Russell, Thomas, 99 Russell of Killowen, Baron (Charles Arthur), 192 Rutherforth, Thomas, 88, 89 R. v. Jones, 136–7 R. v. Walton, 78–9 R. v. Windsor, 157 Ryerson, Egerton, 134 Sahlins, Peter, 51 Scott, Susannah, 77 Seeley, J.H., 64 Seward, William, 70, 71, 109, 111 Sherwood, Henry, 133 Shinkle, Eugene, 49, 81 slaves: community support of, 35; political support for escaped, 133; problem of extradition of, 31–2, 35–6, 125–7, 137–9 Smith, Jacob, 94, 99 Smith, James, 141, 142, 148, 181 smuggling operations: in central Canadian border zone, 42; Chinese merchants and, 47; community support of, 45–6; corruption of customs officers, 45; in Great Lakes area, 42; limits of state power to prevent, 42–3; of liquor, 24–5; local elites and, 46–8; on Pacific Coast, 39, 42, 45; police officials and, 45; Portland trial, 47; practice of international, 41–2; in Quebec, 26, 46;

12/08/2016 5:02:03 PM

Index  279 tactics and networks, 44. See also transnational crime Somerset, James, 135 South Africa: extradition cases, 192, 193–5, 196, 206, 212 sovereignty: affirmation of, 66–7; criminal jurisdiction and, 21–3; criminal law and, 20, 22–3, 48; erosion of, 5, 19; Hobbes on, 5; individual rights and, 79; local communities and, 59; low law and, 53; orthodox vision of, 21; scholarship on, 5–6. See also territorial sovereignty St Alban’s Raiders, 36 statecraft: in colonies, impact of Habeas Corpus Act on, 107; legal thought and, 100; supranational justice and, 93 state power, 13 Stephen, James Fitzjames, 156 Stevens, Robert, 36, 37, 44 Story, Joseph, 101, 102, 107, 110, 202 strict constructionism, 194, 196–7, 202–3 supranational justice, 7–8, 33, 61, 87–9, 96 Sydenham, 1st Baron (Charles Poulett Thomson), 95, 123 Taché, Alexandre, 23 Taney, Roger, 110 Taylor, James, 23, 31 Teleki, Ladislaus, 145 territorial sovereignty, 22–3, 24, 56–7, 216–17 Thompson, John, 37 Thompson, Smith, 110 Thornton, Lucie, 118 Tilghman, William, 100, 101, 102, 146

Miller_5200_271_(Index).indd 279

Toronto Star, 115 Torrens, William McCullagh, 157, 158 transnational civilization, 184–5 transnational crime, 40–2, 48, 57, 59– 60. See also smuggling operations transnational law, 13–14, 125 Tuck, W.H., 186, 198 United States: anti-smuggling operations, 43, 46; development of extradition system, 34–5; extradition practice, 99–100, 103, 105, 190, 226n66; extradition treaties, 191; influence of legal ideas, 199–200, 205, 207, 212; law formation, 188–9, 201–2; political refugees in, 145; problem of slave extradition, 31–2; relations with Great Britain, 87, 167; reputation of legal institutions, 185–6 universal offence: idea of, 95–6 Unterman, Katherine, 34 Upper Canada: extradition practice, 104, 111–12, 118–19; racial equality, 124; rebellion of 1837, 146 Upper Canada Law Journal, 134 US Civil War, 29, 139, 140–3, 186 US Constitution, 108–9 U.S. v. Rauscher, 186 Van Buren, Martin, 105 Van Ness, Cornelius, 108, 109, 110 Vattel, Emer de, 92, 109, 143 Victoria, Queen of England, 119 Viger, Denis-Benjamin, 123 Villiers, John de, 194–5 Vipond, Robert, 172 Wade, F.C., 3, 4, 6

12/08/2016 5:02:03 PM

280  Index Ward, Robert, 89 Washburn, Daniel, 90 Webster, Daniel, 111 Webster-Ashburton Treaty (1842), 6, 63, 112–13, 122, 126, 128, 217 West, George “Kid,” 64 Westhall, Lord (David Dalrymple), 136 Wheaton, Henry, 96, 102, 143, 145 Wilde, Oscar, 210 Williams, Charles, 111

Miller_5200_271_(Index).indd 280

Willis, W.N., 206 Wilson, David, 162, 199 Wilson, John, 153, 185 Wilson, Thomas F., 38 Winnipeg Free Press, 55 Winslow, Ezra Dyer, 167 Wirt, William, 102, 105, 107 Woolsey, Theodore Dwight, 145 Wynne, Edward, 89, 91 Young, Bennett, 147

12/08/2016 5:02:03 PM

publications of the osgoode society for canadian legal history 2016 Lori Chambers, A Legal History of Adoption in Ontario, 1921−2015 Bradley Miller, Borderline Crime: Fugitive Criminals and the Challenge of the Border, 1819−1914 James Muir, Law, Debt, and Merchant Power: The Civil Courts of Eighteenth-Century Halifax 2015 Barry Wright, Eric Tucker, and Susan Binnie, eds., Canadian State Trials, Volume IV: Security, Dissent, and the Limits of Toleration in War and Peace, 1914–1939 David Fraser, “Honorary Protestants”: The Jewish School Question in Montreal, 1867–1997 C. Ian Kyer, A Thirty Years War: The Failed Public/Private Partnership that Spurred the Creation of the Toronto Transit Commission, 1891–1921 Dale Gibson, Law, Life, and Government at Red River: Settlement and Governance, 1812–1872 2014 Christopher Moore, The Court of Appeal for Ontario: Defining the Right of Appeal, 1792–2013 Paul Craven, Petty Justice: Low Law and the Sessions System in Charlotte County, New Brunswick, 1785–1867 Thomas GW Telfer, Ruin and Redemption: The Struggle for a Canadian Bankruptcy Law, 1867–1919 Dominique Clément, Equality Deferred: Sex Discrimination and British Columbia’s Human Rights State, 1953–1984 2013 Roy McMurtry, Memoirs and Reflections Charlotte Gray, The Massey Murder: A Maid, Her Master, and the Trial that Shocked a Nation C. Ian Kyer, Lawyers, Families, and Businesses: The Shaping of a Bay Street Law Firm, Faskens 1863‒1963 G. Blaine Baker and Donald Fyson, eds., Essays in the History of Canadian Law, Volume XI: Quebec and the Canadas 2012 R. Blake Brown, Arming and Disarming: A History of Gun Control in Canada Eric Tucker, James Muir, and Bruce Ziff, eds., Property on Trial: Canadian Cases in Context Shelley Gavigan, Hunger, Horses, and Government Men: Criminal Law on the Aboriginal Plains, 1870–1905 Barrington Walker, ed., The African Canadian Legal Odyssey: Historical Essays 2011 Robert J. Sharpe, The Lazier Murder: Prince Edward County, 1884

Miller_5200_281_(Series List).indd 281

12/08/2016 5:02:58 PM

2010 2009 2008 2007 2006

Philip Girard, Lawyers and Legal Culture in British North America: Beamish Murdoch of Halifax John McLaren, Dewigged, Bothered, and Bewildered: British Colonial Judges on Trial, 1800–1900 Lesley Erickson, Westward Bound: Sex, Violence, the Law, and the Making of a Settler Society Judy Fudge and Eric Tucker, eds., Work on Trial: Canadian Labour Law Struggles Christopher Moore, The British Columbia Court of Appeal: The First Hundred Years Frederick Vaughan, Viscount Haldane: ‘The Wicked Step-father of the Canadian Constitution’ Barrington Walker, Race on Trial: Black Defendants in Ontario’s Criminal Courts, 1858–1958 William Kaplan, Canadian Maverick: The Life and Times of Ivan C. Rand R. Blake Brown, A Trying Question: The Jury in Nineteenth-Century Canada Barry Wright and Susan Binnie, eds., Canadian State Trials, Volume III: Political Trials and Security Measures, 1840–1914 Robert J. Sharpe, The Last Day, the Last Hour: The Currie Libel Trial (paperback edition with a new preface) Constance Backhouse, Carnal Crimes: Sexual Assault Law in Canada, 1900–1975 Jim Phillips, R. Roy McMurtry, and John T. Saywell, eds., Essays in the History of Canadian Law, Volume X: A Tribute to Peter N. Oliver Greg Taylor, The Law of the Land: The Advent of the Torrens System in Canada Hamar Foster, Benjamin Berger, and A.R. Buck, eds., The Grand Experiment: Law and Legal Culture in British Settler Societies Robert Sharpe and Patricia McMahon, The Persons Case: The Origins and Legacy of the Fight for Legal Personhood Lori Chambers, Misconceptions: Unmarried Motherhood and the Ontario Children of Unmarried Parents Act, 1921–1969 Jonathan Swainger, ed., A History of the Supreme Court of Alberta Martin Friedland, My Life in Crime and Other Academic Adventures Donald Fyson, Magistrates, Police, and People: Everyday Criminal Justice in Quebec and Lower Canada, 1764–1837 Dale Brawn, The Court of Queen’s Bench of Manitoba, 1870–1950: A Biographical History R.C.B. Risk, A History of Canadian Legal Thought: Collected Essays, edited and introduced by G. Blaine Baker and Jim Phillips

Miller_5200_281_(Series List).indd 282

12/08/2016 5:02:58 PM

2005 Philip Girard, Bora Laskin: Bringing Law to Life Christopher English, ed., Essays in the History of Canadian Law: Volume IX – Two Islands: Newfoundland and Prince Edward Island Fred Kaufman, Searching for Justice: An Autobiography 2004 Philip Girard, Jim Phillips, and Barry Cahill, eds., The Supreme Court of Nova Scotia, 1754–2004: From Imperial Bastion to Provincial Oracle Frederick Vaughan, Aggressive in Pursuit: The Life of Justice Emmett Hall John D. Honsberger, Osgoode Hall: An Illustrated History Constance Backhouse and Nancy Backhouse, The Heiress versus the Establishment: Mrs Campbell’s Campaign for Legal Justice 2003 Robert Sharpe and Kent Roach, Brian Dickson: A Judge’s Journey Jerry Bannister, The Rule of the Admirals: Law, Custom, and Naval Government in Newfoundland, 1699–1832 George Finlayson, John J. Robinette, Peerless Mentor: An Appreciation Peter Oliver, The Conventional Man: The Diaries of Ontario Chief Justice Robert A. Harrison, 1856–1878 2002 John T. Saywell, The Lawmakers: Judicial Power and the Shaping of Canadian Federalism Patrick Brode, Courted and Abandoned: Seduction in Canadian Law David Murray, Colonial Justice: Justice, Morality, and Crime in the Niagara District, 1791–1849 F. Murray Greenwood and Barry Wright, eds., Canadian State Trials, Volume II: Rebellion and Invasion in the Canadas, 1837–1839 2001 Ellen Anderson, Judging Bertha Wilson: Law as Large as Life Judy Fudge and Eric Tucker, Labour before the Law: The Regulation of Workers’ Collective Action in Canada, 1900–1948 Laurel Sefton MacDowell, Renegade Lawyer: The Life of J.L. Cohen 2000 Barry Cahill, ‘The Thousandth Man’: A Biography of James McGregor Stewart A.B. McKillop, The Spinster and the Prophet: Florence Deeks, H.G. Wells, and the Mystery of the Purloined Past Beverley Boissery and F. Murray Greenwood, Uncertain Justice: Canadian Women and Capital Punishment Bruce Ziff, Unforeseen Legacies: Reuben Wells Leonard and the Leonard Foundation Trust 1999 Constance Backhouse, Colour-Coded: A Legal History of Racism in Canada, 1900–1950 G. Blaine Baker and Jim Phillips, eds., Essays in the History of Canadian Law: Volume VIII – In Honour of R.C.B. Risk Richard W. Pound, Chief Justice W.R. Jackett: By the Law of the Land David Vanek, Fulfilment: Memoirs of a Criminal Court Judge

Miller_5200_281_(Series List).indd 283

12/08/2016 5:02:58 PM

1998 Sidney Harring, White Man’s Law: Native People in Nineteenth-Century Canadian Jurisprudence Peter Oliver, ‘Terror to Evil-Doers’: Prisons and Punishments in Nineteenth-Century Ontario 1997 James W.St.G. Walker, ‘Race,’ Rights and the Law in the Supreme Court of Canada: Historical Case Studies Lori Chambers, Married Women and Property Law in Victorian Ontario Patrick Brode, Casual Slaughters and Accidental Judgments: Canadian War Crimes and Prosecutions, 1944–1948 Ian Bushnell, The Federal Court of Canada: A History, 1875–1992 1996 Carol Wilton, ed., Essays in the History of Canadian Law: Volume VII – Inside the Law: Canadian Law Firms in Historical Perspective William Kaplan, Bad Judgment: The Case of Mr Justice Leo A. Landreville Murray Greenwood and Barry Wright, eds., Canadian State Trials: Volume I – Law, Politics, and Security Measures, 1608–1837 1995 David Williams, Just Lawyers: Seven Portraits Hamar Foster and John McLaren, eds., Essays in the History of Canadian Law: Volume VI – British Columbia and the Yukon W.H. Morrow, ed., Northern Justice: The Memoirs of Mr Justice William G. Morrow Beverley Boissery, A Deep Sense of Wrong: The Treason, Trials, and Transportation to New South Wales of Lower Canadian Rebels after the 1838 Rebellion 1994 Patrick Boyer, A Passion for Justice: The Legacy of James Chalmers McRuer Charles Pullen, The Life and Times of Arthur Maloney: The Last of the Tribunes Jim Phillips, Tina Loo, and Susan Lewthwaite, eds., Essays in the History of Canadian Law: Volume V – Crime and Criminal Justice Brian Young, The Politics of Codification: The Lower Canadian Civil Code of 1866 1993 Greg Marquis, Policing Canada’s Century: A History of the Canadian Association of Chiefs of Police Murray Greenwood, Legacies of Fear: Law and Politics in Quebec in the Era of the French Revolution 1992 Brendan O’Brien, Speedy Justice: The Tragic Last Voyage of His Majesty’s Vessel Speedy Robert Fraser, ed., Provincial Justice: Upper Canadian Legal Portraits from the Dictionary of Canadian Biography 1991 Constance Backhouse, Petticoats and Prejudice: Women and Law in Nineteenth-Century Canada

Miller_5200_281_(Series List).indd 284

12/08/2016 5:02:59 PM

1990 Philip Girard and Jim Phillips, eds., Essays in the History of Canadian Law: Volume III – Nova Scotia Carol Wilton, ed., Essays in the History of Canadian Law: Volume IV – Beyond the Law: Lawyers and Business in Canada, 1830–1930 1989 Desmond Brown, The Genesis of the Canadian Criminal Code of 1892 Patrick Brode, The Odyssey of John Anderson 1988 Robert Sharpe, The Last Day, the Last Hour: The Currie Libel Trial John D. Arnup, Middleton: The Beloved Judge 1987 C. Ian Kyer and Jerome Bickenbach, The Fiercest Debate: Cecil A. Wright, the Benchers, and Legal Education in Ontario, 1923–1957 1986 Paul Romney, Mr Attorney: The Attorney General for Ontario in Court, Cabinet, and Legislature, 1791–1899 Martin Friedland, The Case of Valentine Shortis: A True Story of Crime and Politics in Canada 1985 James Snell and Frederick Vaughan, The Supreme Court of Canada: History of the Institution 1984 Patrick Brode, Sir John Beverley Robinson: Bone and Sinew of the Compact David Williams, Duff: A Life in the Law 1983 David H. Flaherty, ed., Essays in the History of Canadian Law: Volume II 1982 Marion MacRae and Anthony Adamson, Cornerstones of Order: Courthouses and Town Halls of Ontario, 1784–1914 1981 David H. Flaherty, ed., Essays in the History of Canadian Law: Volume I

Miller_5200_281_(Series List).indd 285

12/08/2016 5:02:59 PM