The Sun.
London, England, 1861-01-04 00:00:00

TRE CANADA EXTRADI2ION CASE,

TORONTO, DEC. 18.
The judges of the Court of Queen's Bench gave
their decision on Saturday in the case of Anderson,
the fugitive slave, the particulars of which case I
related in my last letter. Chief Justice 'Robinson
and Justice Barns decided that the prisoner should
be delivered up to the United States authorities.
Justice M'Lean held that the evidence against him
was insufficient to warrant his rendition. Prisoner's
counsel have applied for an appeal to the Bench of
Judges, and it is to be decided next Saturday
whether an appeal will be allowed. It is likely
eventually to be brought before the Privy Council
in England for decision. The greatest excitement
prevails throughout the country on the subject.

(From the Toronto Globs, Dse.l7.)
The prisoner, an intelligent looking man, listened
with the closest attention to the learned judges as
they read their judgments. When all was over a
shade of disappointment rested on his countenance.
It was very evident that he was painfully sensible
of the horrible results that would follow his being
consigned to the tender mercies of a jury of slave-
holders—the fate allotted to him by a majority of
the judges.
Chief Justice Robinson first pronounced his
judgment. After a long review of the facts of the
case, the evidence submitted against the prisoner,
and the circumstances attending his arrest and
commitment by the magistrates, the learned judge
said—The point which has been argued before us,
and the only point, is what construction and effect
it is proper to give to those words in the treatyand
in our statute of the 22d of Victoria, cap. 8, sec. 1
(Consolidated Statutes of Canada), which, when
read together, in effect provide that a person
charged with committing within any of the United
States of America any of the offences mentioned in
the treaty—that is to say, murder, or assault with
intent to commit murder, piracy, arson, robbery,
or forgery—" and charged upon such evidence of
criminality as, according to the law of the place
where the fugitive or person so charged be found,
would justify his apprehension and commitment
for trial if the crime or offence had there been com-
mitted," may be apprehended upon complaint made
under oath, in order that he may be brought before
the judge or justice of the peace who caused him to
be apprehended, to the end that the evidence of his
criminality may be heard and considered, " and that
if on such hearing the evidence be deemed sufficient
by law to sustain the charge according to the laws of
this province, he shall certify the same, together
with a copy of all the testimony taken before him,
to the governor of the province, in order that a war-
rant may issue upon the requisition of the proper
authorities in the United States, or of any witch
States, for the surrender of the person charged ac-
cording to the stipulation of the treaty." It has
been argued on the part of the prisoner that both
of the passages of the statute in which the suffi-
ciency of the evidence to prove criminality is spoken
of have reference to the law of this province, not
merely as regards the nature of the proof that may
be received and its conclusive tendency, but also to
the law of this province as regards the particular
offence, and in relation to whatever circumstances
may have influenced the party in committing the
act. I cannot go the whole length of that argu-
ment, as it has been endeavoured to apply it in this
case. But the construction contended for would
seem to exact that there 'should be a similarity be-
tween the law of the State from which the person
has fled and that of our country in all the features
and attributes of the particular crime. To some
extent it might be reasonable to hold that the law
of the two countries should be found to correspond.
For example, if it were the law of Missouri that
every intentional killing by a slave of his master,
however sudden, should be held to be murder,
without regard to any circumstances of provoca-
tion, or of any necessity of self-defence against
mortal or cruel injury, I do not consider that a fugi-
tive slave who, aecording to the evidence, could not
be found guilty of murder, without applying such a
principle to the case, could legally be surrendered
by the treaty. But I could not go to the length of
holding that because a man could not, in the nature
of things, be killed in this province while he was
pursuing a slave, because there are not, and by law
cannot be, any slaves here, therefore a slave who
has fled from a Slave State into this province can-
not be given up to justice because he murdered a
man in that State who was at the time attempting
to arrest him under the authority of law, in order
to take him before a magistrate with a view to his
being sent back to his master. It would not be right,
1 think, to hold that the fugitive should under such
circumstances, not be surrendered, and to hold this
without reference to wha- the positive law of that
country might allow, or to the conduct of the party
pursuing :or of the party pursued, or to the
knowledge of the latter that the purpose for which
it was desired to arrest him was not contrary to
the law of the country, or to the fact (if it should
be so) that there was no apparent necessity to inflict
death in order to escape. It is true it is not proved
that the prisoner, if he was attempting to escape
from slavery altogether, or only from the imme-
diate control of his master, was in either case com-
mitting any criminal offence against the law of
Missouri ; nor is it shown that the law of that State
made it the duty of Digges to apprehend him under
the circumstances in which he was found ; but
Digges having, as it appears, authority to take him
up and carry him before a magistrate, under the
general law of the State, it cannot be said that he
was acting illegally at the time Anderson rushed
upon him and repeatedly stabbed him with a deadly
weapon. He was acting under, a legal authority
as much as if he had been armed with process,
the fact being proved and not denied that the
statute law of Missouri applied to the prisoner un-
der the circumstances in which he was ; and unless
Digges abused his authority, by using a degree of
violence uncalled for by the circumstances, the
killing of him was not justifiable; nor can it be
said, I think, that the facts of the case lead plainly
to the conclusion that the act of the prisoner Ander-
son should be held to be nothing more than man-
slaughter. Upon his trial on a charge of murder, if
he shall be surrendered, and if he shall be tried for
that offence, it will be for the jury to dispose of
the case under the direction of a judge. There may
.:hen appear sufficient reasons to warrant the jury
in taking a favourable view of the case and to lead
them to think it probable thattheprhisini underoner
ad-
vanced towards the deceased and stabbed
necessary,
hisnot life, o
merely
to
on
faapopitriteahteenhissionowthnatesi w
et
apae.s
but tosave
to avert threatened violence at the moment. But
the case,
in my judgment, is not one in which the
justices at. Brantford would have been warranted

_
in assuming the functions of a jury,
and intercept-
ing a trial for' the graver offence. We may be told
that there is no assurance that the prisoner, being
a slave, will be tried fairly and without prejudice
in the foreign country ; but no court or magistrate '
can refuse to give effect to an act of Parliament by
acting on such an assumption, nor can we be in-
fluenced by the consideration (a very painful one
in all such cases) that the prisene'r, even if he shall
be wholly acquitted of the offence imputed to him,
must still remain a slave in a foreign country.
Mr. Justice M'Lean then delivered a long, able
judgment. He said—There is nothing before us to
show that the justices of the peace who have "ex-
amined the evidence," or rather the justice of the
peace who certifies the evidence as having been
taken before him, has coupe to any determination