Emptying the Den of Thieves: International Fugitives and the Law in British orth America/Canada, 1819-1910 by Bradley Miller A Thesis submitted in conformity with the requirements for the Degree of Doctor of Philosophy, Graduate Department of History, in the University of Toronto © Copyright by Bradley Miller, 2012 ABSTRACT Emptying the Den of Thieves: International Fugitives and the Law in British North America/Canada, 1819-1910 Doctor of Philosophy, 2012 Bradley Miller Department of History, University of Toronto This thesis examines how the law dealt with international fugitives. It focuses on formal extradition and the cross-border abduction of wanted criminals by police officers and other state officials. Debates over extradition and abduction reflected important issues of state power and civil liberty, and were shaped by currents of thought circulating throughout the imperial, Atlantic, and common law worlds. Debates over extradition involved questioning the very basis of international law. They also raised difficult questions about civil liberties and human rights. Throughout this period escaped American slaves and other groups made claims for what we would now call refugee status, and argued that their surrender violated codes of law and ideas of justice that transcended the colonies and even the wider British Empire. Such claims sparked a decades-long debate in North America and Europe over how to codify refugee protections. Ultimately, Britain used its imperial power to force Canada to accept such safeguards. Yet even as the formal extradition system developed, an informal system of police abductions operated in the Canadian-American borderlands. This system defied formal law, but it also manifested sophisticated local ideas about community justice and transnational legal order. This thesis argues that extradition and abduction must be understood within three overlapping contexts. The first is the ethos of liberal transnationalism that permeated all levels of state officials in British North America/Canada. This view largely prioritised the erosion of domestic barriers to international cooperation over the protection of individual liberty. It was predicated in large part on the idea of a common North American civilization. The second ii context is Canada’s place in the British Empire. Extradition and abduction highlight both how British North America/Canada often expounded views on legal order radically different from Britain, but also that even after Confederation in 1867 the empire retained real power to shape Canadian policy. The final context is international law and international legal order. Both extradition and abduction were aspects of law on an international and transnational level. As a result, this thesis examines the processes of migration, adoption, and adaptation of international law. iii ACKOWLEDGMETS As this project comes to an end I feel very lucky for the overwhelming support of my friends, fellow students, teachers, and family. I would first like to express my gratitude for the generous financial support provided by the Department of History at the University of Toronto for fellowships and travel grants, the Social Sciences and Humanities Research Council for a Canada Graduate Scholarship Doctoral Award, and the Osgoode Society for the R. Roy McMurtry Fellowship in Legal History. The roots of this project are in three places: Ottawa, Cambridge, and Halifax. A decade ago when I began work on the Department of Justice History Project, Wendy Burnham asked me to find out a little bit about extradition and to write her a short report. Apparently the issue stuck. A while later, when I was working in the Squire Law Library at Cambridge University the widespread interest among the librarians, graduate students, and faculty members in international law convinced me to re-visit 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. Finally, this project took shape in the Dalhousie History Department where I wrote my M.A. thesis. Dal was a transformative experience, and I can’t say enough by way of thanks to the people there, especially Jerry Bannister, Shirley Tillotson, and Philip Girard. All three have been very kind to me. Philip has also continued to be a great help with a range of projects and proposals since I left Dal, and I have benefited greatly from his advice. I’ve also been very lucky to have friends in other universities who have helped shape this project. Tony Freyer at the University of Alabama and Lyndsay Campbell at the University of Calgary were kind to invite me into their borderlands collection, and were wonderful editors. Jeffrey McNairn, likewise, shaped conference papers, essays, chapters, grant proposals, and cover letters. I don’t know where he finds the time to do what he does, but I am very grateful to him and I am excited to become his post-doctoral supervisee in January 2012. Finally, Jeffers Lennox has been a constant source of friendship and fun. In my M.A. acknowledgements I described him as “friend, mentor, and landlord.” Unfortunately our rental relationship has ended, but Jeffers continues to be a friend and mentor extraordinaire. One of the best things about my time at UofT has been the Toronto Legal History Group. Being a part of the group has been a five year-long lesson in how to read, think, and discuss. I am iv especially grateful to Balfour Halevy, Mary Stokes, Philip Girard, and Paul Craven, each of whom have supported me with all kinds of references, documents, and kind words. Many fellow students in the UofT History Department have contributed ideas and support to this project. Nadia Jones-Gailani, Jared Toney, Vanessa McCarthy, Peter Mersereau, Candace Sobers, and I all started together in 2006, and it has been a pleasure talking through the rigours of courses, comps, research, and writing with them. A few years ago John Dirks suggested a microfilm resource that opened up new avenues for my research and gave this thesis a depth it would not otherwise have had. Ariel Beaujot, Julie Gilmour, and Denis McKim all provided stellar examples to follow, and gave me their friendship and support as I struggled to follow their leads. Finally, Julia and Jeremy Rady-Shaw have been wonderful friends to Josh and I. I am grateful to them and, while disappointed that their newborn son Henry has not been named Deputy U.S. Marshal Raylan Givens, I am honoured and excited that Josh and I are going to play a role in his life anyway. I have also been very fortunate to have incredible teachers at UofT. Allan Greer, Ken Mills, and Dan Bender all enriched my year of course work, and Allan was a generous comps field supervisor as well. I am also grateful to Karen Knop, both for acting as internal examiner and for her help with prior projects. A few years ago she spent an entire afternoon with me answering questions like “please explain what international law is,” and the way she did so made me want to learn more and to take the issue up as a focal point of my research. I am honoured that John Weaver agreed to act as external examiner, and his advice has enriched both the final version of this thesis and my plans for the next stage of my research. I am also grateful to Ian Radforth for supervising a comps field for me, for his feedback and encouragement on my thesis, and for the many words of wisdom from which I’ve benefited over the last few years. Likewise, Steve Penfold has been incredibly generous during my time at UofT. In my first Ph.D. year he gave me two pieces of advice which I’ve kept in mind ever since: “Don’t be a dick” (just about teaching, I think), and “follow the question, wherever it goes” (about doing transnational history). For that, and for the hours and hours and hours of guidance and feedback he’s given me since then I can’t thank him enough. Finally, this project would simply not have been possible if it weren’t for Jim Phillips. In the last five years I’ve learned so much from him, and he has been unfailingly generous with his time, ideas, and friendship. Every time I’ve had a new idea, problem, or question my first instinct has been to run it past Jim, and every time I came away v from his office feeling lucky that he was my supervisor. I really don’t know how to thank him adequately. In the last five years my family has offered me unconditional support. Lora, Christopher, Carter, and Jack could lift anyone’s spirits, and they have certainly have boosted mine many times. Likewise, my Mom has contributed much to this thesis just by being herself. Since my Dad passed away in 2005 she has built a new life for herself, and even found a great new husband, all while remaining passionately devoted to her kids and grandkids. In other words, she’s been an inspiration. I still miss my Dad every day, but it has been wonderful to welcome Wayne into our family. Finally, Josh Cramer, who for almost ten years has been the love of my life. There’s a lot to thank him for, but I’ll stick to this: he’s made me a better, smarter, more thoughtful person, often by beating me in debates and more generally by setting an inspiring example. It’s ten years in and I’m still smitten. That’s a good sign, I think, and this thesis is dedicated to him.