298 THE ADVOCATE
VOL. 77 PART 2 MARCH 2019
Back on that September day in 1860, Crease swung into action rapidly,
and with his characteristic industry began preparing to seek a writ of habeas
corpus. Habeas corpus has been called “the great and efficacious writ in all
manner of illegal confinement”5 and “by the late 17th century … was ‘the
most usual remedy by which a man is restored again to his liberty, if he
have been against law deprived of it’”.6 Habeas corpus had been used as part
of recent efforts in San Francisco to free another slave, Archy Lee, who ultimately
made his way to Victoria as well.
The application for habeas corpus was supported by affidavits sworn on
September 25, 1860 before, it appears from the handwritten notations, Montague
William Tyrwhitt-Drake.7 Tyrwhitt-Drake was the grandfather of the
late Honourable Montague Lawrence Tyrwhitt-Drake, who was appointed to
the County Court in 1962 and later became a judge of the B.C. Supreme Court.
One affidavit was of William Jerome, stating that “the said Charles
informed me that he was slave to … Tilton and that he had tried to escape.
… I am informed that he is at present on board the Eliza Anderson and is
wrongfully detained by the officers of the said ship”. William Davis, identifying
himself as a passenger on the steamship, attested in another affidavit
taken by Tyrwhitt-Drake that Charles “told me that he was a slave and
belonged to … Tilton and was then trying to make his escape … the said boy
Charles now is locked up on board the Eliza Anderson and the Captain and
officers will not let him out as they are afraid of his obtaining his freedom
by setting foot on British soil. … the said Charles is wrongfully detained in
custody as a fugitive slave.” A third witness, James Allen (promptly fired
from the Eliza Anderson and told by Fleming he would never work again on
a Puget Sound steamer), confirmed the situation.
Crease’s application for the writ of habeas corpus was heard by Chief Justice
David Cameron of the Supreme Court of the Colony of Vancouver
Island. Cameron, a non-lawyer and the brother-in-law of Governor James
Douglas, had been appointed a judge on the creation of the court in September
1853 and as its chief justice in 1856. Views of Cameron were mixed, but
Douglas described him as a “man of good business habits, of liberal education,
some legal knowledge and what was equal to all, possessed of a more
than ordinary amount of discretion and common sense”. Before coming to
Vancouver Island in 1853, initially as an agent of the Hudson’s Bay Company,
Cameron had lived for just over 20 years in Demerara (Guyana),
where he had moved from his native Scotland to run a sugar plantation.
Ultimately he owned there a property of his own but “suffered serious
losses, which he blamed on the effects of emancipation”8 and surrendered
it at around the mid-century mark.