Challenge: US-British fugitive slave treaty

In his famous 1854 speech in Peoria, Illinois "On the Repeal of the Missouri Compromise," Abraham Lincoln noted how the Kansas-Nebraska Act had encouraged extremism in both the North and South:

"Already a few in the North, defy all constitutional restraints, resist the execution of the fugitive slave law, and even menace the institution of slavery in the states where it exists.

"Already a few in the South, claim the constitutional right to take to and hold slaves in the free states--demand the revival of the slave trade; *and demand a treaty with Great Britain by which fugitive slaves may be reclaimed from Canada.* As yet they are but few on either side. It is a grave question for the lovers of the Union, whether the final destruction of the Missouri Compromise, and with it the spirit of all compromise will or will not embolden and embitter each of these, and fatally increase the numbers of both." (Emphasis added) http://www.ashbrook.org/library/19/lincoln/peoria.html

Challenge: actually get the treaty which Lincoln warned against put into effect. Getting a US president to demand such a treaty is the relatively easy part. Throughout the 1850s Southerners (with support from some northern "doughfaces") escalated their demands on behalf of slavery to encompass things that would have been almost unthinkable a decade earlier--e.g., a much more stringent fugitive slave law than that of 1793, repeal of the Missouri Compromise, the duty of positive federal protection (by a federal slave code if necessary) for slavery in *all* territories, admission of Kansas under a proslavery constitution its residents clearly did not want, a right of "transit and sojourn" in free states for an indefinite period, revival of the African slave trade (though this last, unlike the others, had little support outside the Deep South and was controversial even there), etc. And in 1860 the election of a fairly extreme Southerner was by no means out of the question if the election went to the House. (Breckinridge was actually something of a moderate compared to other possible candidates of the pro-Southern wing of the Democratic party in that multicandidate race.) I could see such a president demanding the treaty Lincoln talked about. Of course getting two-thirds approval in the Senate would be hard, and yet perhaps not impossible if it were part of a treaty of peace with Great Britain after a British-American war, and rejecting the treaty meant prolonging the war. Anyway, maybe the need for a two-thirds Senate majority could be avoided by a joint resolution as in the annexation of Texas. (Even then it would be hard to get through the northern-dominated House, but remember that the House did pass the Kansas-Nebraska Act and almost passed Lecompton. The old formula of "get a near-unanimous South and use patronage to put pressure on just enough northern Democrats" might still work.)

The real challenge of course is to get a British government that would *accept* such a demand. I can think of nothing short of British defeat in a British-American war that could induce it, and even then it's hard for me to see it, given that insistence on such a condition of peace would make it harder for even a clearly defeated Britain to agree to peace, and would bring about violent dissent within the US. (Perhaps the US reduces its demands to financial compensation for slaveholders who had lost fugitives to Canada?)

In OTL, btw, even without this hypothetical treaty some US slaveholders did attempt to recover fugitives from Canada by criminal extradition proceedings based on the 1833 Upper Canada extradition law; even if slavery and therefore the crime of escape were not recognized in Canada, it was sometimes possible to accuse the fugitive of some other crime, such as theft. According to Don E. Fehrenbacher in *The Slaveholding Republic: An Acocunt of the United State's Government's Relations to Slavery* (completed and edited by Ward M. McAfee) (Oxford UP 2001), pp. 103-4: "One such effort proved successful in 1842. A slave indicted in Arkansas for larceny (including [1] theft of the horse with which he had made his escape) was returned to Arkansas by order of the Canadian governor-general. This incident provoked an outcry from abolitionists on both sides of the Atlantic. Their apprehensions increased later that same year when they learned that the Webster-Ashburton Treaty contained an article providing for mutual extradition. But in the few cases that came before them, British officials usually managed to find technical reasons for refusing to extradite runaway slaves. The most notable incident took place on the very eve of the Civil War, when a fugitive known as John Anderson reached Upper Canada after having fatally wounded a Missouri farmer who tried to capture him. Arrested and held for possible extradition as an accused murderer, Anderson was eventually released on a technicality but not until his case had caused much public furor and inspired rival judicial proceedings in England and Canada." (Incidentally, Fehrenbacher also has an interesting discussion of fugitive slaves as an issue in US-Mexico relations, which I quote at https://www.alternatehistory.com/fo...lroad-leading-to-mexico.423402/#post-15372391)

Any thoughts?

[1] Based on my reading of http://www.dmmserver.com/DialABook/978/080/781/9780807816981.html "including" seems to be the key word. If the horse had been *all* that the fugitive in question (Nelson Hackett) had taken, he presumably would not have been returned--at least if, like Jesse Happy a few years earlier he "had left the animal on the American side and had written to his former master to tell him where to find it."
 
Somerset vs Stewart (1772) even in the very narrowest of readings made it illegal (without specific, further legislation) to remove a slave from England without the slaves consent.

Now, Canada is different from England; but the political landscape is also different (abolition having been successful for one thing...) - I think this would be very difficult to implement, of not impossible, even in the case of a military defeat.
 
Somerset vs Stewart (1772) even in the very narrowest of readings made it illegal (without specific, further legislation) to remove a slave from England without the slaves consent.

Now, Canada is different from England; but the political landscape is also different (abolition having been successful for one thing...) - I think this would be very difficult to implement, of not impossible, even in the case of a military defeat.
In this era Canada is effectively if not England at least Britain, there is no way short of an ASB mind-wiping all of the British Government and the local officials in Canada that this can happen and if it did somehow that British Government would not be in office long.
 
We still have an American Revolt at least since that doesn't butterfly away the Townshed Acts, the Quebec Act, and the Proclamation of 1763.
 
Indeed anything that can deflate the abolitionist authority in Canada seems likely to be a POD that simply tips the whole English speaking world toward a more pro-slavery attitude.

You can talk of a situation where the USA can coerce British policy but I don't see it arising until the 20th century and possibly not even then, without fighting the two sides into mutual ruin anyway.

To prevent Britain from going abolitionist, would require such deep changes that we might not recognize the character of either the British system or the Union, and of course the whole matter of an American revolt and its separation from the British system would be subjected to many rolls of the dice, at every point, including the territorial division between rebel and loyalist territories when the treaty forming the USA analog is negotiated. It is possible we wind up with the rebel Americans holding all of Canada but not holding anything south of say North Carolina's southern border...which is to say that the Union might go abolitionist while Britain remains firmly committed to legal slavery.

Then of course a relatively weak Union might be compelled by a British victory in a War of 1812 analog to return escaped slaves to British custody.
 
I would add that if there is a general nerfing of Abolitionist sentiment on both sides of the Atlantic, British abolitionism might be partial. Say we have OTL boundaries of USA and British possessions, but the vested interest in slavery in the Caribbean and perhaps elsewhere "below the line" in the Empire is strong enough to preserve the institution, perhaps under some regulations stronger than OTL US ones in slave states, but in Britain and British North America slavery is forbidden. A slave owner who brings slaves physically to the northern possessions or British home islands of the UK will have the slaves confiscated when they are found ashore, and be given some compensation. Perhaps initially the compensation is meant to be full fair "market value" but as sentiment against slavery is reduced--I would say it might be a simple matter of slippage with inflation but OTL I believe the pound sterling did not suffer much inflation during the 19th century--late in the century there was probably deflation, as there was of the dollar in the USA. So reduction in real value compensation would have to be by an act of will. Or of course the price of a slave might rise in pound sterling terms as a real accrual, but the law might not keep pace, deliberately so. In that case the loss of the slave would be a loss for the slave owner, but only a partial loss. OTOH, if a slave escapes their master's control and finds their way to British free soil, the slave is not so entitled to be freed--legally they should be held and returned to their owner in more southerly possessions. It might also be the case that the master takes steps, similarly to how the Soviet Union tried to prevent eastern bloc citizens they wanted to allow to travel in the West from defecting, by holding relatives hostage--a master might then bring a slave to Britain or Nova Scotia and the slave would be freed, but might voluntarily surrender back to the master and on boarding a ship bound for home would revert to slave status. In that case the master is legally required to return the compensation on pain of conviction for felony fraud. While in the northern land the slave is free, but deemed a debtor for the compensation cost, liable to pay it off gradually on pain of being re-enslaved and sold down south somewhere, but a master who expects a slave to return "voluntarily" will have waived immediate payment and of course the slave's debt disappears if the master returns the funds or simply does not accept them. Thus a master might bring slaves along to serve on the visit, and they remain in his retinue though he has no right to physically punish them while they are on free soil--also the slave can leave the master legally any time and accept the debt for the compensation, marry some local subject freely, and so forth, it being up to the slave whether the incentives the master has offered are strong enough to return to servitude.

With a legal regime like that, the Parliament in Westminster can override any local regulations of course, and a treaty with the USA would probably include stipulations to handle American slaves in the same framework--thus a US master who brings slaves into Canada (presuming all BNA goes free-soil locally) will lose legal mastery and be offered a compensation the same as a British subject slave owner. But an American fugitive slave finding their way to BNA soil would, upon presentation by an American master pursuing return of their property with proper evidence in hand, be imprisoned subject to judgement of the truth of the owner's claim, and that proven would be handed over at the border or port of departure to legal custody. Should relations with the USA prove hostile, of course Parliament could elect to nullify American ownership rights, but that would be deemed impolitic since it violates the general principle of legal property rights that 19th century Britain stood for generally, opening the door to all sorts of Robin Hood mentality erosion of the rights of property. So it might not even require treaty stipulations for American slave owners to recover fugitives in BNA courts, just application of common law.

A Canadian populace very hostile to American slaveholding might try some chicanery; for instance, US free states are bound by the principle of full faith and credit of other state's laws and therefore even before the Fugitive Slave acts free states had a general common/Constitutional law mandate to assist Southern slave catchers and hand over resident fugitives. But the US Constitution does not apply to British possessions. Even if a treaty exists underscoring the reciprocity of both sovereign government sets to honor slave ownership as defined by the other, a Canadian court might rule that a fugitive who had previously established residency as a free person in a Union free state can be deemed to be bound by that northern state's laws, not their state of origin, and thus no longer a slave and turn away representatives of the master on that grounds; full faith and credit reciprocity does not apply in Canada. A treaty might however straighten out and close that loophole, mandating British courts to consider the laws of the state in which the slave escaped custody to apply regardless of time spent elsewhere after that. Or of course the slaveholder's advocate will point out that under full faith and credence, the northern states cannot legally protect the slave, any actions the slave took to masquerade as a free resident were ipso facto fraudulent and void.

So--under these circumstances, no particular treaties would be strictly required to get Canadian courts to assume the obligation of returning fugitives. As in the USA itself, local populations might refuse to cooperate, but in so doing they make themselves criminals in the eyes of their own law. Juries might nullify the enforcement of law against them, but the potential threat of felony conviction would give many otherwise sympathetic British subjects some pause.

In an ATL where the British emancipationists have only limited and regional success, then, the whole diplomatic issue might not arise, for if British law does not give fugitives a free pass to freedom for its own subject slaves, the same reasoning applies to US ones.

Now suppose British law does allow possessions and the home islands to declare all slaves free without condition upon arrival on their soil, then even if the machinery exists to enforce slavery in some possessions there would be no pre-set mechanism to return fugitives to masters in the free ones. Under these circumstances, it would be less difficult than OTL for the British government to be brought to agree to handle American refugees as felons in flight, guilty of the crime of stealing themselves, and formally mandate all courts in Britain and the colonies to cooperate with slave catchers. But even if British legislators have their arms twisted to go on supporting the "right" to hold slaves in some possessions where it remains profitable and thus supported by influential persons at home in Britain, those persons, if not strong enough to mandate the general legality of slavery in Britain itself, will not enjoy great popularity, and local magistrates and juries might drag their feet. And most importantly, influences favoring British slave owners in Parliament might well not extend to American ones; it is no great loss to the British slave-owner factions if US owners suffer erosion of their assets! Other British factions, such as textile mill owners, might instead champion the American slaveocracy's cause and might be a key part therefore of the coalition of pro-slavery interests in general, which the British owner's lobby owes favors to and therefore reluctantly supports in matters of gratifying the US slaveowners.

But overall, American negotiators seeking to get British courts and authorities to respect American slave property are fighting an uphill battle, especially if a strong though somewhat frustrated abolitionist movement does exist in Britain and the northern American colonies.

Thus, even in an ATL where Britain herself is equivocal about abolition, the odds of Americans getting the local law to cooperate are skewed against them, and nothing short of a severe defeat of Britain by the USA, highly unlikely to the point of ASB prior to the late 19th century, will compel British authorities.

Whereas in a more distant ATL, where it is the Yankees who are abolitionist but Britain is not at all, British demands that American authorities turn over British fugitive slaves have an excellent chance of being either accepted in a freely negotiated treaty, or being imposed after a major defeat of the Union by British power. If we thus change the hats of the parties involved, have slavery persist in the British sphere but be abolished in the USA, such a treaty running the other way does not seem too unlikely.
 
Why is everyone looking at post Somerset vs Steward POD's after the abolitionists not only won a court case and set precedent, but more importantly galvanized the previously apathetic public into supporting them? "Am I Not a Man and a Brother?" With a 1740s POD of a slave revolt, possibly assisting the French in that war, and other nudges, the Somerset vs Stweard case might still be resolved in favor of abolitionism (no precedent in public law for slavery in England) but things would be altered so much that the case would be little more than a footnote. As long as Townshed Acts, the Quebec Act, and the Proclamation of 1763 we still have an American revolution. And just maybe the Americans can convince the British to return their fleeing "human livestock"...
 
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