It will be seen that this treaty made two important changes so far as the United States was concerned. It made it the duty of the executive to order extradition in a proper case and took away the discretion. It gave the courts jurisdiction to determine whether a case was made out for extradition.[23] These changes made it more difficult in many instances for a refugee to escape; but the courts were astute as ever in finding reasons against the return of slaves.
The case of John Anderson is a well-known one in evidence. He was born a slave in Missouri. As his master was Moses Burton, he was known as Jack Burton. He married a slave woman in Howard County, the property of one Brown. In 1853, Burton sold him to one McDonald living some thirty miles away and his new master took him to his plantation. In September 1853 he was seen near the farm of Brown, when apparently he was visiting his wife. A neighbor, Seneca T.P. Diggs, became suspicious of him and questioned him. As his answers were not satisfactory he ordered his four Negro slaves to seize him, according to the law in the State of Missouri. The Negro fled, pursued by Diggs and his slaves. In his attempt to escape the fugitive stabbed Diggs in the breast and Diggs died in a few hours. Effecting his escape to this province, he was in 1860 apprehended in Brant County, where he had been living under the name of John Anderson, and three local justices of the peace committed him under the Ashburton Treaty. A writ of habeas corpus was granted by the Court of Queen's Bench at Toronto, under which the prisoner was brought before the Court of Michaelmas Term of 1860.
The motion was heard by the full court.[24] 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.[25] While the adverse decision was announced, there were some mutterings of violence but the counsel for the prisoner[26] 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.[27] 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 jail at Toronto, the court after anxious deliberation granted the writ[28] 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[29] 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.[30] 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.[31]