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Fluid border isn’t new

The sleepy town of Emerson, Man. has been much in the news recently as the entry point to Canada for refugees fleeing Donald Trump’s America. But this is not the first time Emerson’s role as a border town has thrust it into the limelight.    

Fluid border isn’t newIn 1876, U.S. soldier Eugene Shinkle decided to cross into Canada at Emerson, where he proceeded to get very drunk and disorderly in a bar. Shinkle no doubt assumed he could blow off some steam beyond the reach of American military law. However, a U.S. army officer who was searching for deserters got wind of the incident and asked a friend of his, a lawyer in Emerson named Thomas Bevans, to seize Shinkle. The U.S. army officer and Bevans entered the bar and Bevans subdued Shinkle, who was bundled into a sleigh and soon found himself back on the U.S. side of the border at Fort Pembina where he would be disciplined. Upon returning to Emerson and finding there was a warrant for his arrest, Bevans himself slipped back across the U.S. border until the heat was off. And it soon was, because the provincial government dropped the charges against Bevans, aware that cross-border abduction of deserters and troublemakers was an accepted practice.

The fluidity of the border prior to 1930, when the Depression gave rise to stricter controls, made it tempting for criminals to escape the consequences of their acts in one country by fleeing to the other. The Webster-Ashburton Treaty of 1842 aimed to prevent this, but it covered just seven offences. Its limited reach in turn inspired a little-known form of historic trans-border co-operation, whereby local law enforcement officials in one country would detain, even kidnap, miscreants wanted in the other country and deliver them back to that country’s law enforcement officials. All of this took place without the direction or involvement of national governments, though the latter sometimes winked at or implicitly approved such actions.

This co-operation, revealed in cases such as Shinkle’s, is examined in a recent book by UBC history professor Bradley Miller, Borderline Crime: Fugitive Criminals and the Challenge of the Border, 1819-1914 (2016). Miller points out that such co-operation involved a well-understood set of protocols and rituals that, far from being lawless, was understood as a form of supranational justice. Although this form of “low law” violated the formal law of extradition, it actually aimed to confirm national sovereignty by returning the criminal to be dealt with by the justice system of the appropriate country. Although it had elements of self-help, it was not vigilantism as any eventual punishment was administered according to law, not by the kidnappers.

The kidnappings usually involved nationals or officials of the host country doing the work of detention, with a sheriff or military officer of the other jurisdiction merely acting as observers until they reached the border with the accused, at which time they would be handed over. This process aimed to prevent any obvious challenge to national sovereignty. Thus, it was the Canadian lawyer Bevans who detained Shinkle and arranged for his transport to the border. Once such incidents became known to the national governments involved, the one whose sovereignty was allegedly violated by the kidnapping on its soil would demand an apology, the other government would comply and the matter would usually end there.

Fugitive slaves posed a particular problem prior to the U.S. Civil War. The Webster-Ashburton Treaty severely limited the number of extraditable offences in part in order to avoid numerous claims by slave holders whose slaves had committed minor crimes and then fled to Canada. The regime of cross-border co-operation often did not work in such cases because the return of slaves to the U.S. — even those who may have committed serious crimes — was resisted by local black communities, sometimes assisted by whites. Thus, when Tennessee slave owner Thomas James showed up in Chatham, Ont. in 1857 seeking the return of two of his slaves who had fled there, the black community protected them and the mayor of Chatham refused to intervene, leaving James to return empty-handed.  

The dominant theme of 19th-century cross-border law, according to Miller, was the paramountcy of protecting local communities from crime and the consequent under-valuing of individual rights or civil liberties. It was this congruence of goals as between national governments and local communities that permitted the regime of cross-border co-operation to remain in place for so long. In the later 20th and 21st centuries, the expansion of formal extradition regimes and the rise of refugee law has given much more protection to individual rights. Much of the autonomous role played by local decision-makers in the 19th century has migrated higher up in the legal hierarchy.

In some ways, this is a positive development. While today’s border crossers at Emerson are not criminals, one can imagine local resistance to racialized outsiders being galvanized if communities were left to their own devices. Rights to claim asylum based on international law are taken seriously today and protected by representatives of the federal state. Informal cross-border co-operation still happens, but it occurs higher up in the state hierarchy and, unlike the 19th-century kidnappings, outside of the public eye. It can thus take on a much darker aspect, as we found out in the case of Maher Arar, a Syrian-born Canadian who was wrongly accused as a terrorist by the RCMP and sent by the U.S. to Syria, where he was tortured before being released to Canada.

Philip Girard is a legal historian and professor at Osgoode Hall Law School. He’s also associate editor at the Osgoode Society for Canadian Legal History. His email address is pgirard@osgoode.yorku.ca.

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