American Citizens, British Slaves
Yankee Political Prisoners in an Australian Penal Colony 1839-1850
by Cassandra Pybus & Hamish Maxwell-Stewart
Melbourne: Melbourne University Press, 2002
The question of the treatment of "political" prisoners is quite topical: what is to be done with aliens who are involved in an incursion? Are they to be recognized as foreign combatants in accordance with the recognized laws of warfare?1 Are they to be tried as common law criminals for any acts of violence or destruction of property?2 If tried and sentenced before the regular, how are they to be punished? Should a separate penal régime be instituted in recognition of the fact that traditional concerns surrounding punishment and rehabilitation are not necessarily engaged?3 Although the answers to these and other vexing questions are beyond the scope of this brief book review, it will be of assistance to commend American Citizens, British Slaves Yankee Political Prisoners in an Australian Penal Colony 1839-1850 as a signal source of historical insight that makes plain the many injustices committed by Canadian and English authorities in their treatment of the American 'patriots' who were involved in the 'troubles' in Upper Canada in 1837-1838.
When I speak of "injustices", I wish to be understood to refer to procedural injustices in that the accused were denied adequate representation, including the services of the future Prime Minister, John A. MacDonald; they were tried pursuant to unconstitutional legislation as acknowledged by English law officers leaving aside the substantial concern that international law did not appear to condemn land pirates; they were transported beyond the seas without adequate legal authority and in such a manner as to foreclose the recourse to the Courts to redress their situation; they were denied the most fundamental rights of any detainee and were not even permitted to avail themselves immediately of the pardons that were granted thereafter. Indeed, page 204 refers to one Berry who "was never told that he had been discharged from servitude" in 1844 until 1857! The contributions of the authors is to have crafted an exhaustive and enlightening account of the travails of those unfortunate men who sought to assist in the liberation of the Canadas from the domination of the British Crown.
American Citizens, British Slaves Yankee Political Prisoners in an Australian Penal Colony 1839-1850 draws upon a wealth of primary and secondary materials, notably the first hand accounts of certain "survivors"4 and lays bare the terrible suffering visited upon them for political, not legal, imperatives. It is a valuable addition to our understanding of the lives of those slaves to imperialism and should stimulate further research touching upon the social, psychological and financial consequences of detention involving political prisoners. In few words, it is well worth reading.
1. Note the comments of F. Murray Greenwood and Barry Wrights, the editors of Rebellion and Invasion in the Canadas, 1837-1839 Canadian State Trials (Volume II), [Toronto: The Osgoode Society, 2002] at the Acknowledgments pages of their book, and at pages 23-31 and pages 130-151.
2. A useful discussion is found at various places in The Security of Freedom Essays on Canada's Anti-Terrorism Bill, edited by R.J. Daniels, P. MacKlem and K. Roach, [Toronto: University of Toronto Press, 2001]. Note in particular Professor D. Dyzenhaus' essay, "The Permanence of the Temporary: Can Emergency Powers be Normalized", at pages 25-27 .
3. Refer to the general discussion at pages 26-30 of Madam Justice Louise Arbour's book, War Crimes and the Culture of Peace, Toronto: University of Toronto Press, 2002, and in particular to Professor Paul Roberts' essay, "Restoration and Retribution in International Criminal Justice: An Exploratory Analysis" in Restorative Justice & Criminal Justice Competing or Reconcilable Paradigms, edited by A. Von Hirsh, J.V. Roberts et al, Oxford: Hart Publishing, 2003, at pages 115-134.
4. A recent publication drawing richly from post-custody accounts is The Business of Captivity Elmira and its Civil War Prison, by Michael P. Gray, [Kent: Kent State University Press, 2001].
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