Governor General Charles Bagot ordered the return of Nelson Hackett to Arkansas in January 1842 absent any formal extradition agreement between the United States and the British government which controlled Canada. But in April 1842, while Hackett was still in Detroit awaiting his forced return to Arkansas, U.S. and British diplomats began negotiating a treaty to settle longstanding disputes between the United States and British North America concerning borders, use of the Great Lakes, the international slave trade, and the extradition of criminals. The negotiations were conducted in Washington, D.C., by U.S. secretary of state Daniel Webster and British diplomat Lord Ashburton amid heightened tensions over the status of fugitives from slavery that had nearly brought the two countries to war. It was not the Hackett case that inflamed matters but rather the Creole revolt.
In November 1841, nineteen enslaved men led the most successful slave revolt in U.S. history. They revolted aboard the Creole, a ship carrying a cargo of bondspeople from Virginia to Louisiana, and diverted it to the British port of Nassau in the Bahamas, where slavery had been abolished in 1834. The local American consul demanded the return of the ship and its human cargo, but the British put the nineteen who led the revolt on trial on charges of piracy and told the remaining 128 that they were free if they chose to stay. The British court acquitted the defendants in April 1842 on the grounds that slavery was illegal and those escaping bondage had the right to use force to gain their freedom. They were then released to live as free people. The actions—first the emancipation of the 128 and then
As United States secretary of state, Daniel Webster negotiated the Webster-Ashburton Treaty in 1842. Image: Courtesy Library of Congress.
the acquittals—provoked outrage among the proslavery forces in the United States. They charged the British government with suborning slave rebellions and ignoring the property rights of American citizens, and some pro-slavery politicians even urged an armed attack on the Bahamas. The Creole revolt cast a shadow over the treaty negotiations, which concluded in the late August 1842.
George Peter Alexander Healy painted Lord Ashburton’s portrait in 1842, the same year that he negotiated the Webster-Ashburton Treaty. Image: Courtesy New York Historical Society.
The treaty’s extradition provision—Article 10—alarmed abolitionists in the United States and throughout the British Empire. Article 10 basically codified the precedent that the Province of Canada’s Executive Council had used to justify Hackett’s extradition. A person would be extradited for murder, assault, piracy, arson, robbery, or forgery when “such evidence of criminality as, according to the laws of the place where the fugitive or person so charged, shall be found, would justify his apprehension and commitment for trial, if the crime or offense had there been committed.” Abolitionists saw the provision as formalizing the process that had allowed Hackett’s extradition and feared that it would open the way for slaveholders to use charges of theft as a pretext to reclaim fugitives. The Anglo-Canadian abolitionist Charles Stuart called Article 10 “more and more horrible” the more he contemplated it.
On September 3, 1842, just before the departure of Lord Ashburton from Washington, a delegation of the American and Foreign Anti-Slavery Society visited with the British diplomat to discuss Article 10. The American and Foreign Anti-Slavery Society broke off from the larger American Anti-Slavery Society in 1840 over a number of doctrinal issues, including the unwillingness of the older group to compromise and seek political solutions in the pursuit of abolition. Led by Lewis Tappan and Gerrit Smith, the delegation opened the meeting by discussing the “particulars of the case of Nelson Hackett.”
Lord Ashburton responded that Article 10 was needed to prevent the escape of common criminals and gangs across the border, a problem that was creating difficulties on both sides. He explained that, if fugitives from slavery had been explicitly excluded from Article 10, the United States Senate would never ratify the entire treaty—an acknowledgment of how the Creole revolt had impacted the negotiations. Lord Ashburton assured Tappan and Smith that the British government remained committed to abolition and the “friends of the slave in England would be very watchful to see that no wrong practice took place under article ten.” He also suggested that Great Britain would abrogate Article 10 if it proved to be injurious to those fleeing slavery or those fugitives who had already put down roots in Canada. Ashburton’s assurances pleased some abolitionists. For example, the Boston-based Emancipator and Free American was satisfied that “such cases [as Hackett’s] will never pass again under the tenth article.” The American abolitionists, though, realized that as U.S. citizens that they were not in the best position to make demands upon British officials. That would have to come from Her Majesty’s subjects.
Lewis Tappan led the American abolitionist effort to amend the Webster-Ashburton Treaty. Image: Courtesy Library of Congress.
Primary Sources
Secondary Works
Walter Johnson, “White Lies: Human Property and Domestic Slavery aboard the Slave Ship Creole,” Atlantic Studies 5 (no. 2, 2008): 237-263.
Howard Jones, “The Peculiar Institution and the National Honor: The Case of the Creole Revolt,” Civil War History, 21 (March 1975): 33-47.
The Canadian Legislative Assembly met in Kingston in 1842 and criticized the governor’s decision to return Nelson Hackett to Arkansas. Image: Courtesy Toronto Public Library.
On October 8, 1842, members of the Canadian Legislative Assembly took up the issue of Nelson Hackett’s extradition. The debate, though, lacked focus. It was clear that the recently concluded Webster-Ashburton Treaty had changed things moving forward and that Hackett was not going to be returned to Canada. Still, the debate allowed members to vent their frustrations with Governor General Charles Bagot’s action, insisting that he did not have the authority to treat with the state of Arkansas. More importantly, the legislators enunciated a pair of principles—enslaved people cannot get fair trials in the United States and enslaved people cannot be held responsible for criminal acts—that would make extradition more difficult in the future, even under Article 10 of the Webster-Ashburton Treaty.
Extradition agreements depended on both parties having confidence in the other’s legal system, and the legislators made clear that they had little faith that the United States or its states could administer justice on issues involving fugitives. They insisted that the claims of slaveholders should not be trusted and enslaved people could never receive fair trials. William Dunlop, a Tory from Huron, said that Canadians should “have no faith in their [slaveholders’] swearing.” He explained, “There is a gang of kidnappers who haunt the frontiers on the other side, who are always ready to swear that some free black man or woman has committed a felony, in order that they may get their clutches in them.” Henry John Boulton, an independent from Niagara, insisted that returned fugitives would never receive a “fair trial” and instead be “tied to a tree, and burned or flogged to death.” Without confidence in the American legal system, the legislators suggested, the whole extradition process was a farce.
Perhaps more importantly, the legislators suggested that enslaved people could not be held responsible for their actions and were therefore ineligible for extradition under Article 10. When William Henry Draper, a Tory from Russell who as attorney general had rejected the Michigan acting governor’s request to extradite Hackett, asked, “whether a human being from a country where he is accounted a chattel, could be held capable of committing a crime,” there were shouts of “hear, hear” throughout the chamber. Boulton agreed, “In the language of one of America’s greatest men, John Quincy Adams, can cattle commit a crime? Can goods and chattel transgress moral law?” If fugitives were not responsible for their acts when enslaved, the legislators suggested, then they could never be indicted in Canada to stand trial, the standard for extradition under Article 10. Thus, Boulton concluded that the “Government should not give up any man who had been a slave no matter what was charged on him.” The legislators realized that any policy change concerning Canada’s extradition of fugitives would have to come from Her Majesty’s government in London, but they voiced what one abolitionist newspaper—the Emancipator and Free American—called “deep suspicion” of the extradition of fugitives under Article 10. Hiram Wilson, the American ministering to Toronto’s fugitive population, concluded that he was confident that moving forward Canadian officials “will look deeply in the matter before another Hackett case will ever occur.”
With Lord Ashburton’s September 1842 departure from Washington, the campaign against Article 10 moved to England, where Parliament needed to approve the entire treaty. During the effort, abolitionists repeatedly invoked Nelson Hackett’s extradition to show the injustice that awaited if Article 10 was not somehow modified. Although Parliament refused to formally amend the provision for fear that the Americans would reject the entire treaty, it did put forward a set of procedures that made it nearly impossible for Article 10 to be used to secure the return of fugitives from slavery. By the middle of 1844, abolitionists concluded that these procedures had “restored the security” of those fugitives who made it to Canada or the Bahamas.
The first to lobby Parliament to amend Article 10 was the venerable Thomas Clarkson, who earlier in the century had led the campaign against the international slave trade. Clarkson thought that Article 10 had been negotiated in good faith and that neither Webster nor Ashburton had intended the provision to cover fugitives from slavery. The wording, though, was bungled, making fugitives subject to extradition. This threatened the well-being of the 12,000 former fugitives then living in Canada: “slave owners, encouraged by the case of Nelson Hackett, and now having a legal right to make claims . . . will pester our government in Canada with thousands of applications.” For Clarkson, the solution was simple—the British government needed assurances from the United States that fugitives from slavery did not fall under the scope of Article 10. As he concluded, “I hope, when the treaty comes before parliament for ratification, that parliament will not sanction it as it now stands, unless there should be some previous understanding from the president himself that the treaty was never intended to include in it slaves.”
Anglo-Canadian abolitionist Charles Stuart was not as polite in demanding that Parliament exempt fugitives from Article 10. Instead of portraying Ashburton as acting in good faith, Stuart suggested that the diplomat was a fool for assuming that fugitives could ever receive fair trials in slave states. Citing the experience of Nelson Hackett, Stuart echoed many of the arguments made in Canada’s Legislative Assembly:
Thomas Clarkson fought to abolish slavery in the British Empire and the international slave trade before turning his attention to Nelson Hackett and the Webster-Ashburton Treaty. Image: Courtesy National Maritime Museum, Greenwich, London.
But he is accused of theft and the United States government, supplying the legal certificates, reclaims him for trial—Lord Ashburton doubtless presumed, for a fair trial by his peers. By his peers! Alas! he has none, but the cattle which graze his master’s field, or the furniture which adorns his master’s habitation! For a fair trial! What! a fair trial with no evidence admissible by law in his favour except the evidence of his exasperated enemies! What! a fair trial of a runaway slave by indignant slave-masters.
Noting that fugitives receive freedom upon stepping foot in Canada, Stuart asked what happens to them after they are returned to the United States on charges of theft and serve their time in jail: “Will he be at liberty to return openly and without impediment to Canada?” For Stuart, the answer was obvious: “Alas! he is in Arkansas—he is in the fangs of his tyrants.”
When the Webster-Ashburton Treaty went before the House of Lords, Foreign Secretary Lord Aberdeen dismissed the abolitionist requests to modify Article 10 or secure guarantees from the United States government, but he did offer several assurances that would make it difficult to extradite fugitives from slavery. First, a fugitive would never be returned for stealing something that was “necessary for his flight,” like a horse or a boat. Second, requests for extradition would have to come from the United States government rather than individual slave states. This, he suggested, would discourage fabricated claims. Third, all extraditions would be reviewed by authorities in London as a check on the actions of local officials. Last, Lord Aberdeen told the Lords that Britain would abrogate Article 10 if slave owners tried to abuse it. He concluded that some sort of extradition agreement was necessary to calm relations between the United States and British North America and Her Majesty’s government would ensure that it did not undermine the British commitment to the abolition of slavery. These assurances mollified the leading abolitionist spokesman in the House of Lords, who pronounced the Foreign Minister’s statement to be “satisfactory.”
Not all abolitionists were so easily appeased, and they continued the fight as the treaty moved to the House of Commons for approval. Clarkson lobbied the lower house to amend the treaty to “give full protection to the fugitive slave; especially guarding against the fabricated charges of an interested and infuriated master.” Likewise, an unnamed member of the House of Commons circulated a statement calling for the exclusion of all fugitives from slavery from the provisions of Article 10. The crux of the argument was that Britain could not trust the United States to administer justice when it came to issues involving enslaved people. The member used Nelson Hackett’s return to Fayetteville to illustrate his point. He insisted that that “it does not appear that he was ever subjected to any judicial trial for the crime with which he was charged.” Since the United States could not guarantee fair trials for returned fugitives, the British should refuse to extradite fugitives in all cases.
Viscount Palmerston led the effort in the House of Commons to amend the Webster-Ashburton Treaty to protect fugitives from slavery from extradition. Image: Courtesy National Portrait Gallery, London.
The effort to amend Article 10 was more robust in the House of Commons than it was in the House of Lords but no more successful. Members—led by Viscount Palmerston of the opposition Whig Party—formally demanded that fugitives from slavery be excluded from the measure, but Lord Stanley, the secretary of state for war and the colonies, and Robert Peel, the prime minister, rose to state that such a move was unnecessary and might jeopardize ratification in the United States. They reiterated the arguments that Lord Aberdeen had made in the House of Lords and suggested that safeguards were in place to prevent the Article 10 from being abused by slave owners. Palmerston and his allies lost the vote to exclude fugitives from the provisions of Article 10 by a vote of 25 to 59.
Abolitionists continued to press imperial officials on enforcement of Article 10 and made some progress when the Colonial Office sent very detailed instructions to colonial officials concerning extradition requirements. The purpose seems to have been to make the extradition of fugitives very difficult, permitting it only in extraordinary cases. Such a tactic allowed Britain to maintain its treaty obligations with the United States, ensure that fugitives were treated with justice, and mollify abolitionists within the Empire.
Primary Sources
Primary Sources Online
Debate in the House of Commons, August 11, 1843, Historic Hansard, https://api.parliament.uk/historic-hansard/commons/1843/aug/11/apprehension-of-offenders-america.
Debate in House of Lords, June 30, 1843, Historic Hansard, https://api.parliament.uk/historic-hansard/lords/1843/jun/30/extradition-of-offenders.
The first test of Article 10 came in late 1843 but not in Canada. Florida attempted to secure the return of a fugitive charged with murder who had made his way to Nassau in the Bahamas. Florida officials provided a bill of indictment for the fugitive but colonial officials found this to be insufficient absent any corroborating evidence: “it is not enough for us to know that the American jury thought the parties guilty, we ought to know the grounds upon which they thought them guilty. What may constitute the crime of murder in Florida may be very far from doing so according to the British laws.” This signaled to officials in slave states that British colonial officers would be rigid in their application of Article 10, demanding to know not only the particulars of the crime but also to receive evidence of guilt and assurances that the returnee would receive a fair trial. That this was a high standard was instantly recognized, and Joshua Leavitt attributed it the activities of abolitionists during the debates over Article 10: “The excitement, the debates, the doings in Parliament, have done so much to awaken public attention that the slaveholders will not likely make application in that quarter.”
At the center of these debates was Nelson Hackett. One man’s simple act of fleeing Arkansas and slavery set in motion events that helped to ensure that Canada and the Bahamas would remain places of asylum for those escaping bondage in the U.S. South. No more fugitives like Hackett would be returned to the United States and slavery. Although Hackett’s fate remains unknown, his martyrdom became an effective tool for those fighting not only to protect the rights of fugitives but also to abolish the institution of slavery.
Primary Sources
“Fugitive Slaves in Upper Canada,” Liberator, April 21, 1843.
Joshua Leavitt to Lewis Tappan, February 2, 1844, in A Side-Light on Anglo-American Relations, 1839-1858, ed. Annie Heloise Abel and Frank J. Klingberg (N.P.: Association for the Study of Negro Life and History, 1927), 175-176.
“Decision of Judges,” in “The Florida Fugitives,” Anti-Slavery Reporter, April 17, 1843, p. 63.