The motion was heard by the Full Court.[35] Much of the argument was on the facts and on the law apart from the form of the papers, but that was hopeless from the beginning. The law and the facts were too clear, although Mr. Justice McLean thought the evidence defective. The case turned on the form of the information and warrant, a somewhat technical and refined point. The Chief Justice, Sir John Beverley Robinson, and Mr. Justice Burns agreed that the warrant was not strictly correct, but that it could be amended: Mr. Justice McLean thought it could not and should not be amended.
The case attracted great attention throughout the province, especially among the Negro population. On the day on which judgment was to be delivered, a large number of people of color with some whites assembled in front of Osgoode Hall.[36] While the adverse decision was announced, there were some mutterings of violence but counsel for the prisoner[37] addressed them seriously and impressively, reminding them "It is the law and we must obey it." The melancholy gathering melted away one by one in sadness and despair. Anderson was recommitted to the Brantford jail.[38] The case came to the knowledge of many in England. It was taken up by the British and Foreign Anti-Slavery Society and many persons of more or less note. An application was made to the Court of Queen's Bench of England for a writ of habeas corpus, notwithstanding the Upper Canadian decision, and while Anderson was in the jail at Toronto, the court after anxious deliberation granted the writ,[39] but it became unnecessary, owing to further proceedings in Upper Canada.
In those days the decision of any court or of any judge in habeas corpus proceedings was not final. An applicant might go from judge to judge, court to court[40] and the last applied to might grant the relief refused by all those previously applied to. A writ of habeas corpus was taken out from the other Common Law Court in Upper Canada, the Court of Common Pleas. This was argued in Hilary Term, 1861, and the court unanimously decided that the warrant of commitment was bad and that the court could not remand the prisoner to have it amended.[41] The prisoner was discharged. No other attempts were made to extradite him or any other escaped slave and Lincoln's Emancipation Proclamation put an end to any chance of such an attempt being ever repeated.
W. R. Riddell.
Footnotes:
[A] This paper has appeared in Transactions of the Royal Society of Canada, May, 1919.
[1] Per Hargrave arguendo, Somerset v. Stewart (1772), Lofft 1, at p. 4; the speech in the State Trials Report was never actually delivered.
[2] (1772) Lofft 1; (1772) 20 St. Trials 1.
[3] These words are not in Lofft or in the State Trials but will be found in Campbell's Lives of the Chief Justices, Vol. II, p. 419, where the words are added: "Every man who comes into England is entitled to the protection of the English law, whatever oppression he may heretofore have suffered and whatever may be the colour of his skin. 'Quamvis ille niger, quamvis tu candidus esses'" and certainly Vergil's verse was never used on a nobler occasion or to nobler purpose. Verg. E. 2, 19.
William Cowper in The Task, written 1783-1785, imitated this in his well-known lines: