BORDERLINE CRIME
Fugitive Criminals and the Challenge of the Border,
1819−1914
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.
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
© Osgoode Society for Canadian Legal History 2016
www.utppublishing.com
www.osgoodesociety.ca
Printed in the U.S.A.
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
[forthcoming]
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
Contents
fo rew ord
vi i
ac kno w led gme n ts
1 Introduction
ix
3
Part One: Sovereign Borders and Criminal Law in
Northern North America
2 The Everyday Challenge of Sovereignty 000
3 The Low and High Laws of Abduction in the Border Zone 000
Part Two: Uncertainty, Amorphousness, and Non-Law
4 International Law and Supranational Justice in Northern
North America 000
5 The Non-Law of Refugees in British North America 000
Part Three: Law Formation in the Treaty Era
6 Civilization on the Continent: Law Reform and
Imperial Power 000
7 Law Formation in the Common Law World 000
8 Conclusion 000
notes
000
inde x
000
Foreword
THE OSGOODE SOCIETY
FOR CANADIAN LEGAL HISTORY
[-----To Come-----]
viii
Foreword
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
x
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. Fellowships from the U of
T history department, SSHRC, and the Osgoode Society for Canadian
Legal History 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-
Acknowledgments xi
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 Len Husband, though he has long been a
friend.
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.
xii 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.
BORDERLINE CRIME
Fugitive Criminals and the Challenge of the Border,
1819−1914
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
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.
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 a 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
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.
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 fulfill 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-
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
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 deeplyrooted 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
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
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-
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. Even
in the era of the self-governing dominion, in other words, 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.
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, from 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 white-collar 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-
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
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.
PART ONE
Sovereign Borders and Criminal Law in
Northern North America
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
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.
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 sovereignty 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 jurisdiction 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
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-
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,
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
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-
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 for 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 (while
denying the actual kidnapping) as an effort aimed at restoring fragile
state control over the region. 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-
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
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-
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.
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
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-
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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
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
34
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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
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
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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
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-
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
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
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
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-
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
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
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
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
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
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
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 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.
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
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
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
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
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. The border, in other words, might have been zonal
and permeable, but it was still 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-
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
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
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
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
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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
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 done so. 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 lieutenant 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 lieutenant’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
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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
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 uncle, a farmer and deputy reeve in Ontario. The uncle
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
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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 both relationships. The next most significant relationship
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 uncle 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
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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
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
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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
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
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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-
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
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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
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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
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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 the standard international law remedy.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 vagrancy prosecution threat – 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
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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
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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-
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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-
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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
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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
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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
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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 generally 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
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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
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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
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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.
PART TWO
Uncertainty, Amorphousness,
and Non-Law
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
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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
they 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,
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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
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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, and 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
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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
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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
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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
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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
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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-
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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
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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 they 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-
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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
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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-
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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
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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,”
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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
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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-
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-
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
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
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-
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
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
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,
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,
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-
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
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
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.
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 Savaa 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,
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
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
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 Savaa 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
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-
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-
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
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
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-
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
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 Canadian 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 supra-national 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
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
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 reenslavement or fallacious charges, writing that courtesy toward 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
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
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
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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-
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
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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
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-
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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
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
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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
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 “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
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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
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
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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 Savaa
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
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
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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 Johnston 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
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-
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
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
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
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
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
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
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.
PART THREE
Law Formation in the Treaty Era
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
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-
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
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
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
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
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,
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
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
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
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 his1872 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
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
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-
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-
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.
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
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-
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 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
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 that 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
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
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.
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
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
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
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
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,
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.
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. Canadian law formation, in other words, was in many ways a
fundamentally imperial endeavour.
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
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-
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.
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
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
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
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-
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-
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
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
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
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
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.
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
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
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
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-
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, 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
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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
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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
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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
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
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
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
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
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
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.
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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
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 idea 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
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-
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
international 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
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
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 law.
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-
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 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.
8
Conclusion
In September of 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
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
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.
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.
220
Notes to pages 000–000
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; Lisa Ford, Settler Sovereignty: Jurisdiction and Indigenous People in America and Australia,
1788–1836 (Cambridge, MA: Harvard University Press, 2010).
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
Notes to pages 000–000
16
17
18
19
20
21
221
of France and Spain in the Pyrenees (Berkeley and Los Angeles: University
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 4specially 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,”
222
2
3
4
5
6
7
8
9
Notes to pages 000–000
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 Nayan Shah, Stranger Intimacy: Contesting Race, Sexuality, and the Law
in the North American West (Berkeley: University of California Press, 2010);
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.
Notes to pages 000–000
223
10 Report of the Trial of John Baker at the Bar of the Supreme Court on
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.
11 Sir Howard Douglas to Charles R. Vaughan, 12 May 1828, ibid., 715; Report of the Trial of John Baker, 717, 719, 720.
12 Henry Clay to W.B. Lawrence, 31 March 1828, DCUS, vol. 2, 172–3.
13 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.
14 Jenner, Wetherell, and Tindal to Aberdeen, 11 August 1828, ibid., 305.
15 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).
16 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.
17 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.
18 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.
19 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.
20 See affidavits of Louis Jerome, 11 March 1872, and Patrick Breland, 2 April
1872, ibid.
21 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.
22 The Queen v. John Kinsman, 66–7.
23 Ibid., 68–9.
24 “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
224
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
Notes to pages 000–000
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.
Notes to pages 000–000
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
226
53
54
55
56
57
58
59
60
61
62
63
64
65
66
67
Notes to pages 000–000
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
Notes to pages 000–000
68
69
70
71
72
73
74
75
76
77
78
79
227
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,” M.A. 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.”
228
Notes to pages 000–000
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.
Notes to pages 000–000
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
230
116
117
118
119
120
121
122
123
124
125
126
127
128
129
130
Notes to pages 000–000
– 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.
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).
Hugh C. Morris to Herbert H.D. Peirce, 15 April 1903, Consuls Despatches – Windsor, roll 4, vol. 4.
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.
See for example, Myers to Wharton, 16 May 1890 and 6 June 1890, Consuls Despatches – Victoria, roll 9, vol. 9.
Myers to Wharton, 7 June 1892 and 18 July 1892, Consuls Despatches –
Victoria, roll 10, vol. 10.
Constable King to J. Heffernan, 9 December 1908, LAC, RG 18, A-1, vol.
362, 608-08.
Johnson to Cridler, 2 November 1900, Consuls Despatches – Stanbridge
Station, roll 1, vol. 1.
Routh to Thurston, 26 August 1865, Consuls Despatches – Toronto, roll 1,
vol. 1.
Thurston to Howard Spalding, 27 June 1865, Consuls Despatches – Toronto, roll 1, vol. 1.
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.
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.
Routh to Thurston, 31 August 1865, Consuls Despatches – Toronto, roll 1,
vol. 1.
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.
Myers to Wharton, 21 May 1891, 7 June 1892, Consuls Despatches – Victoria, roll 10, vol. 10.
Robert Stevens to Wharton, 3 October 1889, Consuls Despatches – Victoria, roll 9, vol. 9.
Notes to pages 000–000
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.
232
Notes to pages 000–000
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
Notes to pages 000–000
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
233
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.
Peter Sahlins, Boundaries: The Making of France and Spain in the Pyrenees
(Berkeley and Los Angeles: University of California Press, 1989), 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 April1900, 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.
234
Notes to pages 000–000
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.
Notes to pages 000–000
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.
236
Notes to pages 000–000
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.
Notes to pages 000–000
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 dissertation (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.
238
Notes to pages 000–000
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
Notes to pages 000–000
131
132
133
134
135
136
137
138
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.
Extract of a letter from William J. Sutherland to Sir Edward Thornton, 2
July 1872, LAC, RG 13, A-2, vol. 28, 1872-968.
Charles Smith to Theodore Davie, 26 March 1892, “Board of Aldermen,”
Victoria Daily Colonist, 14 April 1892.
Report of Deputy Minister of Justice Zebulon Lash, 19 August 1879, LAC,
RG 2, series A-1-a, vol. 383, reel C-3327.
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.
Affidavit of Wallace, Dougherty, Goldsbury, and Asselin, 7 November
1884, ibid.
Statement of Peter J. Needham, 13 February 1864, LAC, RG 7, G-6, vol. 12,
reel C-15628, 82.
Affidavit of Emannuel Stockett, 16 April 1864, ibid., 213.
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.
240
Notes to pages 000–000
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; Bradley Miller, “The Law of Nations in the Borderlands: Sovereignty and SelfDefence in the Rebellion Period, 1837–1842,” in Donald Fyson and Blaine
Baker, eds, Essays in the History of Canadian Law, vol. 11 (Toronto: University of Toronto Press and the Osgoode Society, 2013), 235–77.
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.
Notes to pages 000–000
241
23 Joseph Chitty, A Practical Treatise on the Criminal Law, vol. 1 (London: A.J.
Valpy, 1816), 16.
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
242
48
49
50
51
52
53
54
55
56
57
58
59
60
61
62
63
64
65
66
67
68
69
70
Notes to pages 000–000
Legal Thought in the Late-Victorian Empire,” Law and History Review 3
(1985), 219–92.
Montreal Courant, 24 November 1821; repr. in New York Evening Post, 1 December 1821, 2.
Montreal Herald, 24 November 1821, repr. in Providence Patriot, 26 December 1821, 2.
Addington to Stephen, 18 June 1842, CO 42, vol. 499, reel B-379.
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.
Colborne to S.H. Jenison, 12 February 1839, DCUS, vol. 3, 487; Colborne to
Jenison, 1 January 1839, ibid., 476–7.
Fox to Forsyth, 15 February 1839, ibid., 482; Fox to Forsyth, 18 March 1839,
ibid., 488.
Colborne to Jenison, 1 January 1839, ibid., 476.
Report of the executive council, 15 August 1829, DCUS, vol. 2, 815. Emphasis in original.
Sydenham to Seward, 14 May 1841, NARA, RG 59, M-179, roll 93.
Colborne to Jenison, 23 March 1839, “Correspondence Relative to the Affairs of Canada,” 90.
Ex parte Dos Santos, 951.
Adams to John M. Forbes, 5 June 1818, Piracy and Murder, Congressional
Serial Set, 12 May 1840, Doc. no. 199, 45.
Forbes to Count Dohna, 27 March 1818, Piracy and Murder, 29.
G. Hyde de Neuville to Richard Rush, 20 March 1817, NARA, RG 59, M53,
vol. 4, roll 3.
Gong, The Standard of “Civilization,” 6.
Ibid., 14–21.
Kent, Commentaries, vol. 1, 1.
Henry Wheaton, Elements of International Law (Philadelphia: Carey, Lea &
Blanchard, 1836), 36; Gong, Standard of “Civilization,” 54–64.
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.
Colborne to Jenison, 23 March 1839, “Correspondence Relative to the Affairs of Canada,” 90.
Colborne to Jenison, 1 January 1839, DCUS, vol. 3, 476.
Murray, Colonial Justice, 182–3.
“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.
Notes to pages 000–000
71
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
243
Ibid., 68624–6.
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.
244
99
100
101
102
103
104
105
106
107
108
109
110
111
112
113
114
115
116
117
118
119
120
121
122
Notes to pages 000–000
Ibid., 63. Italics in original.
Wirt to Adams, 22 November 1817, ibid., 53.
Ibid., 57.
Ibid., 57.
Wirt to Monroe, 20 November 1821, ibid., 66.
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.
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.
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.
Sir J. Dodson to Viscount Palmerston, 30 December 1839, LOFO, vol. 4: 81.
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.
Sir Edward Coke, Institutes of the Laws of England, vol. 3 (London: W.
Rawlins for Thomas Baset, 1680), 180.
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.
Wirt to Monroe, 20 November 1821, Piracy and Murder, 59.
Van Buren to Vaughan, 21 July 1829, DCUS, vol. 2, 214.
Henry Clay to William Lawrence, 23 November 1827, NARA, RG 59,
M-77, vol. 12, reel 7, 44.
Colborne to Jenison, 1 January 1839, DCUS, vol. 3, 476.
Jenison to Colborne, 10 January 1839, ibid., 477.
Colborne to Jenison, 12 February 1839, ibid., 488.
Jenison to Colborne, 16 April 1839, “Correspondence Relative to the Affairs of Canada,” 90.
Jenison to Colborne, 17 April 1839, ibid., 90–1.
The King v. Bird and Walker, 10.
Re Fisher, 251.
Ex parte Dos Santos, 949.
Samuel Livermore, Dissertations on the Questions Which Arise from the Con-
Notes to pages 000–000
123
124
125
126
127
128
129
130
131
132
133
134
135
136
137
138
139
140
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.
Paul, “Comity in International Law,” 22–3.
31 Car. II, c. 2, s. 12 [England].
J.D. Woodward, district attorney of Clinton County, to John Forsyth,
9 February 1837, N.A.R.A., S.D., M-179, Miscellaneous Letters,
reel 83.
Eliot to Rowan, 14 January 1833, AO, RG 5, A-1, Vol. 125, Reel C-6877,
69014.
Holmes v. Jenison, U.S. Reports, vol. 39, 554–5.
Forsyth to H.L. Stevens, 14 February 1840, NARA, RG 59, M-179, M-40,
vol. 30, reel 28, 481.
Fox to Fletcher Webster, 12 May 1841, AO, RG 7, G-6, vol. 7, reel C-15627,
374.
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.
Re Washburn, 106.
Correspondence cited in Holmes v. Jenison, U.S.R., 541–2.
“Fugitives from Justice,” Law Intelligencer and Review 3(11) (November
1831), 391–411.
John Spencer to Forsyth, 10 June 1839, NARA, RG 59, M-179, roll 89.
Aaron Vail to Spencer, 20 June 1839, NARA, RG 59, M-40, roll 28, vol. 30,
272.
Spencer to Forsyth, 11 July 1839, NARA, RG 59, M-179, roll 89.
“Mr Van Ness’s Argument,” American Jurist and Law Magazine 22 (January
1840), 347.
Ibid., 330–52.
Holmes v. Jenison, U.S.R., 547–51.
Ibid., 569, 573.
246
141
142
143
144
145
146
147
148
149
150
151
152
153
154
155
156
157
Notes to pages 000–000
Ibid., 569.
Ibid., 583.
Ibid., 593–4.
Ibid., appendix, 614.
Ibid., 596–8.
Ex parte George Holmes, Reports of Cases Argued and Determined in the Supreme Court of the State of Vermont, vol. 12, 632–3.
Ibid., 640–2.
For the dissent, see ibid., 642–7.
Seward to John Tyler, 4 June 1842, NARA, RG 59, M-179, roll 98.
Daniel Webster to Seward, 16 September 1841, NARA, RG 59, M-40, vol.
32, roll 30, 41.
H.S. Legare to Daniel Webster, Official Opinions of the Attorneys General of
the United States, vol. 3 (Washington: Robert Farnham, 1852), 661.
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.
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.
Bagot to Seward, 27 May 1842, NARA, RG 59, M-179, roll 98.
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.
Ibid.
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.
Notes to pages 000–000
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 See chapter 6.
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; Alexander L. Murray, “The
Extradition of Fugitive Slaves from Canada: A Re-evaluation,” Canadian
Historical Review 43 (1962), 298–314; Alexander L. Murray, “Canada and
the Anglo-American Anti-Slavery Movement,” Ph.D. diss. (University of
248
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
Notes to pages 000–000
Pennsylvania, 1960); Roman J. Zorn, “Criminal Extradition Menaces the
Canadian Haven for Fugitive Slaves, 1841–1861,” Canadian Historical Review 38 (1957), 284–94; J. Mackenzie Leask, “Jesse Happy, a Fugitive Slave
from Kentucky,” Ontario History 54(2) (1962), 87–98.
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 Ian Radforth, Royal Spectacle: The 1860 Visit of the Prince of
Wales to Canada and the United States (Toronto: University of Toronto Press,
2004).
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.
Notes to pages 000–000
249
34 Petition for Happy to Head, 186.
35 See 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. Browne 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.
250
Notes to pages 000–000
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 Lord 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:
Notes to pages 000–000
75
76
77
78
79
80
81
82
83
84
85
86
87
88
89
90
91
92
93
94
95
96
251
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.
252
Notes to pages 000–000
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
Notes to pages 000–000
116
117
118
119
120
121
122
123
124
125
126
127
128
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.
Upper Canada Law Journal 2, November 1856, 217. Italics in original.
Upper Canada Law Journal 4, September 1858, 195.
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.
“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.
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.
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.
R. v. Roberts, A Selection of Supreme Court Cases in New South Wales, 1825–
1862, 563.
Ibid., 564.
Ibid., 569.
Ibid., 572.
Ex parte The Rev. Geo. King, ibid., 1313.
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.
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,
254
129
130
131
132
133
134
135
136
137
138
139
140
141
142
143
144
145
146
147
148
149
150
151
Notes to pages 000–000
Though the Heavens May Fall: The Landmark Trial That Led to the End of Human Slavery (Cambridge, MA: Da Capo Press, 2005).
Somerset v. Stewart, 502.
Ibid.
Ibid., 508.
Ibid., 510.
Anderson, UCCP, 35.
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.
Ibid., 14547–8.
Ibid., 14549.
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.
Ibid., 777, 778.
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.
Ibid., 779.
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.
Bell, “Slavery,” 11.
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.
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.
The brief is reproduced ibid., 155–84.
Ibid., 166, 183.
Anderson, QB, 174–88.
Ibid.
Ibid., 184–5.
On this, see Stouffer, The Light of Nature.
Anderson, QB, 188.
Notes to pages 000–000
152
153
154
155
156
157
158
159
160
161
162
163
164
165
166
167
168
169
170
171
172
173
174
175
176
177
178
179
255
Ibid.
Anderson, QB, 149.
Ibid., 173.
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.
Ibid., 59–60, 71.
Anderson, UCCP, 59.
Ibid., 60.
Ibid.
Ibid., 71.
Ibid.
Ibid.
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.
Marquis, In Armageddon’s Shadow, 134–210.
Winks, Canada and the United States, 287–94.
Wilson, Justice under Pressure.
“‘The Chesapeake.’ The Case of David Collins, et al. … (Saint John: I & A McMillan, 1864), 39–52.
Re Burley (Queen’s Bench), Upper Canada Law Journal 1 (February 1865),
34–51.
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.
See, for example, Chesapeake, 31–4.
Ibid., 34.
St. Alban’s Raid, 265.
Ibid., 308.
Ibid.
Chesapeake, 46.
St. Alban’s Raid, 459.
For examples, see Chesapeake, 23; St. Alban’s Raid, 399–431.
St. Alban’s Raid, 241.
Ibid., 338.
256
Notes to pages 000–000
180 Burley, Q.B., 49.
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.
Notes to pages 000–000
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.
258
Notes to pages 000–000
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 Edward Clarke, A Treatise Upon the Law of Extradition. (London: Stevens
and Haynes, 1867, 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.
Notes to pages 000–000
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
259
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.
Evidence of the Committee on Extradition, 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.
260
Notes to pages 000–000
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 Kealey, “The Empire Strikes Back,” 16; Parnaby and Kealey, “The Origins
of Political Policing in Canada,” 211–23. 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),
116-130.
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, 18731591.
75 Report of the Privy Council, 8 December 1875. Sessional Papers, 1876, no.
49, 1.
Notes to pages 000–000
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., 818-829.
89 U.K. Debates, 6 August 1866, 2122; Fish to Hoffman, 22 May 1876,
B.F.S.P.,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, B.F.S.P., 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.
262
Notes to pages 000–000
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; Semmelman, “Doctrine of Specialty,”
126–7; U.K. Debates, 1876, 1773–1805.
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.
117 Ibid., s. 23.
Notes to pages 000–000
118
119
120
121
122
123
124
125
126
127
128
129
130
131
132
133
263
Ibid., ss. 14 and 19.
Ibid., s. 12.
Ibid., ss. 16, 17, and 19.
Ibid., s. 7(3).
Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of
International Law, 1870–1960. (Cambridge: Cambridge University Press,
2001), 69.
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.
Ibid., s. 5.
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.
Vipond, Liberty and Community, 24–5, 113–43.
Swinfen, Imperial Control of Colonial Legislation, 31–45, 85; Colonial Office
Return of Reserved Bills (London: H.M.S.O., 1864), 8–11; Colonial Office Return of Reserved Bills from Which Assent Was Withheld (London: Eyre and
Spottiswoode, 1894), 3–7.
Swinfen, Imperial Control, 35–41.
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.
Farr, The Colonial Office and Canada, 302; J.E.C. Munro, The Constitution of
Canada (Cambridge: Cambridge University Press, 1889), 268.
Memo of March, 18 July 1876, in LAC, RG 2, PCO, series A-1-a, vol. 348,
reel C-3317.
Memo of March, 1 September 1876, AO, F2, MS 20, reel 2.
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
264
134
135
136
137
138
139
140
141
142
143
144
145
146
147
148
149
150
151
152
153
154
155
156
157
158
159
160
161
162
Notes to pages 000–000
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.
Julian Pauncefote to Robert Herbert, 14 September 1876, AO, F2, MS 20,
reel 2.
In report of Blake, 19 January 1877, O.C. no. 1877-0058, LAC, RG 2, PCO,
A-1-a, vol. 352, reel C-3318.
Ibid.
Blake to Mackenzie, 20 February 1877, LAC, Mackenzie Papers, reel
M-198, 1336.
Telegram of Carnarvon, 3 March 1877, O.C. no. 1877-0189, LAC, RG 2,
PCO, A-1-a, vol. 354, reel C-3319.
Report of Blake, 5 March 1877, ibid.
Extradition Bill 1876, s. 7(3).
Report of Blake, 5 March 1877, O.C. no. 1877-0189, LAC, RG 2, PCO,
A-1-a, vol. 354, reel C-3319.
See Miller, “‘Carnival of Crime,’” 656–60.
Debates, 14 March 1877, 710–11.
Blake to Carnarvon, 27 June 1876, Sessional Papers 1877, no. 13, 16.
For the act, see 40 Vic., c. 25.
Blake to Carnarvon, 27 June 1876, Sessional Papers 1877, no. 13, 16.
Debates, 10 April 1877, 1316–17; Dufferin to Carnarvon, 11 April 1877, in
Dufferin–Carnarvon Correspondence, 44.
Carnarvon to Dufferin, 29 March 1877, O.C. no. 1882-0120, LAC, RG 2,
PCO, A-1-a, vol. 410, reel C-3337.
Carnarvon to Dufferin, 5 April 1877, ibid.
Ibid.
Blake to Mackenzie, 27 April 1877, ibid.
Ibid.
Carnarvon to Dufferin, 1 June 1877, ibid.
Re Williams, Common Law Chambers, 7, 1879, 283.
Hicks-Beach to Dufferin, 5 February 1878, O.C. no. 1882-0120, LAC, RG 2,
PCO, A-1-a, vol. 410, reel C-3337.
Lord Lorne to Hicks-Beach, 2 March 1880, ibid.
Hicks-Beach to Lorne, 13 March 1880, ibid.
Ibid.
40 Vic., c. 25, s. 16(3).
31 Vic., c. 94, s. 4.
Debates, 24 March 1880, 875.
Ibid., 875–6.
Notes to pages 000–000
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), 157-161; Dale and Lee
Gibson, “Railroading the Train Robbers: Extradition in the Shadow of
Annexation,” Manitoba Law Journal 20(1) (1991), 73, 79–80.
2 In the Matter of Bennet G. Burley, Upper Canada Law Journal (N.S.), vol. 1,
1865, 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.
266
Notes to pages 000–000
13 Ex Parte Gaynor and Greene, Canadian Law Review, vol. 1, 1901, 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 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), 71–143.
17 The Gaynor and Greene Extradition Proceedings, Canadian Law Review 1
(1901–2), 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;
Notes to pages 000–000
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
61
62
63
64
65
66
267
In re Siletti, Law Journal Reports King’s Bench, vol. 71, 935; Ex parte Thompson,
Cox’s Criminal Cases, vol. 22, 494.
Ex Parte Van Staden and Another, Cape Times Reports, vol. 16, 9.
Ex Parte Rolff and Others, Decisions of the Supreme Court of the Cape of Good
Hope, vol. 26, 441.
Ibid.
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.
Joseph Jacobs v. Resident Magistrate of Durban, Natal Law Reports, vol. 4, 130.
In re Coutts, New Zealand Law Reports, vol. 22, 206; R. v. Liepschitz, Cape
Provincial Division Reports, vol. 1, 358.
R. v. King, Ex parte King, Queensland Supreme Court Reports, vol. 1, 7.
R. v. Cohen, Cape Times Reports, vol. 11, 9.
W.N. Willis v. R., Natal Law Reports, vol. 27, 105.
In re Radcliffe, South Australian Law Reports, vol. 21, 103.
In the matter of James Ley and George Ley, South Australian Law Reports, vol.
17, 107.
In re Radcliffe [#2], South Australian Law Reports, vol. 21, 109.
Ex parte Bouvy # 3, New Zealand Law Reports, vol. 18, 615.
See In re Radcliffe and In re Radcliffe [#2], South Australian Law Reports, vol.
21, 99–103, 104–14.
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.
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.
Collis v. Smith, Commonwealth Law Reports, vol. 9, 494.
In re Radcliffe, 102; R. v. Smith, New South Wales Weekly Notes, vol. 10, 172.
Fugitive Offenders Act, 1881, 44 & 45 Vic., c. 69, ss. 10, 19.
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.
Ex parte Watson, New South Wales Weekly Notes, vol. 17, 249.
Ex parte Counsel, New South Wales Law Reports, vol. 8, 320.
Ibid., 319.
“Arrested in Canada: A Forger Traced by the Movements of His Lover,”
New York Times, 10 March 1886.
268
67
68
69
70
71
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
99
100
101
102
103
Notes to pages 000–000
Ex Parte Cadby, New Brunswick Reports, vol. 26, 456–7, 462, 467–8.
Ibid., 458.
Ibid., 461.
Ibid., 470–1.
Ibid., 25.
Re George D. Collins # 3, British Columbia Reports, vol. 11, 445.
Re Harsha # 2, Canadian Criminal Cases, vol. 11, 63.
Ibid., 69.
Ex parte Sternaman, Federal Reporter, vol. 77, 596.
United States v. Debaun, Revue Légale, 634.
Re Walter A. Dickey, Canadian Criminal Cases, vol. 8, 324.
Ex parte Schorer, Federal Reporter, vol. 195, 338.
See, for example, Re Kelly, Federal Reporter, vol. 26, 853–4.
Re Harsha # 2, 67.
Ex parte Schorer, 338.
In re Metzger, Federal Cases, vol. 17, 233.
In re Ezeta, Federal Reporter, vol. 62, 999.
R. v. Cohen, Cape Times Law Reports, vol. 11, 9.
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.
In re Radcliffe [#2], South Australian Law Reports, vol. 21, 109.
Re Simon Peter Harjes, South Australian Law Reports, vol. 16, 74, 77.
In re Radcliffe [#2], 110–11.
In the matter of James Ley and George Ley, 107.
Ibid.
Ibid., 107–8.
Ibid., 108.
In re Castioni, Queen’s Bench, vol. 1, 157.
R. v. Louis Hustin, Queensland Law Journal Reports, vol. 1, 16.
Re Carlo Pedro, Queensland Law Journal Reports, vol. 5, 22.
In re Castioni, quoted ibid., 26.
Ibid.
In re Edward Metham Marshall, Victorian Law Reports, vol. 26, 819.
Collis v. Smith, Commonwealth Law Reports, vol. 9, 493, 495.
W.N. Willis v. Rex, Natal Law Reports, vol. 27, 107–8.
See In re Patrick Ryan, Bridget Leonora Ryan, and Mary Ryan, Victorian Law
Reports, vol. 8, 330.
Kurtz v. Aicken, New Zealand Law Reports, vol. 9, 677.
For exceptions to this non-use of American literature, see In re Frederic
Notes to pages 000–000
104
105
106
107
108
109
110
111
112
113
114
115
116
117
118
119
120
121
122
123
124
125
126
127
269
Gerhard (No. 3), Victorian Law Reports, vol. 27, 660; McKelvey v. Meagher,
Commonwealth Law Reports, vol. 4, part 1, 272–3.
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.
See Gerhard (No. 3) and McKelvey v. Meagher.
Gerhard (No. 3), 660.
In re Kelly, Federal Reporter, vol. 26, 854.
Re Harsha # 2, 63.
Re Ternan and Others, Cox’s Criminal Cases, vol. 9, 536–7.
For the cases, see Re Windsor, English Reports, vol. 122, 1289, and In re Bellencontre, Queen’s Bench Reports, vol. 2, 135.
Charles Egan, The Law of Extradition (London: W.W. Robinson, 1846), viii.
Ibid., 13–14.
Ibid., 58–61.
Lewis, On Foreign Jurisdiction, 5.
Ibid., 32.
Ibid., 75.
Ibid., 58, 44.
Ibid., 68.
On Moore’s place in American extradition history, see Unterman, Uncle
Sam’s Policemen, 127–2; Margolies, Spaces of Law.
See Edward Clarke, A Treatise upon the Law of Extradition: with the conventions upon the subject existing between England & Foreign Nations, and the
cases decided thereon (London: Stevens and Haynes, 1867); John Bassett
Moore, A Treatise on Extradition and Interstate Rendition, vol. 1 (Boston:
Boston Book Company, 1891).
Clarke, Extradition, 106–7; Moore, Extradition, 19, 114.
Clarke, Extradition, 12; Moore, Extradition, 5.
Clarke, Extradition, 11; Moore, Extradition, 12.
Moore, Extradition, 111.
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.
On the use of foreign legal thought in nineteenth-century Canada, see
Reiter, “Imported Books”; Baker, “The Reconstitution of Upper Canadian
Legal Thought.”
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 Lé-
270
128
129
130
131
132
133
Notes to pages 000–000
gale, vol. 15, 103–6. The New York writer and clergyman Samuel Spear’s
book on extradition was also influential; for examples of its use 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).
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.
The “William Tapscott” Case, New Zealand Jurist, vol. 1, 86.
McKelvey v. Meagher, Commonwealth Law Reports, vol. 4, pt. 1, 272–3.
See Ex Parte Thomas Kaine, Blatchford’s Circuit Court Reports, vol. 3, 9–10.
See In re Kelley, Federal Cases, vol. 14, 235.
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.
Index
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Barrington Walker, ed., The African Canadian Legal Odyssey: Historical
Essays
2011 Robert J. Sharpe, The Lazier Murder: Prince Edward County, 1884
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
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
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
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