Some of these slaves were probably Panis. There is extant a parchment receipt dated at Detroit, October 10, 1775, which reads:

"Je certifie avoir vendu et livre au Sieur Labadie, une esclave Paniese[37] nommee Mannon pour et en consideration de la quantite de quatre-vingt minots[38] de Ble de froment qu'il doit me payer a mesure qu'il aura au printemps prochain, donne sous ma main au Detroit ce dixieme jour d'Octobre, 1775.

Temoin (Signe) James Sterling[39] (Signe) John Porteous.

Some of the reports of judges who presided over criminal assizes, moreover, contain references to slavery. Mr. Justice Powell tried a Negro, Jack York, with a jury at Sandwich for burglary in 1800. He was found guilty and in accordance with the law at that time, was sentenced to death. Powell respited the prisoner that the pleasure of the Lieutenant Governor might be known. The Lieutenant-Governor at that time was General Peter Hunter a rigid disciplinarian. Hunter wrote Powell that as York had been convicted of "the most atrocious offence without any circumstances of doubt or alleviation" he was to be hanged. When York was made aware of his fate, he promptly escaped from the ramshackle gaol at Sandwich.

In the proceedings Captain McKee informed the judge that the main witness had "been an Indian prisoner redeemed by his father and had lived in his kitchen and he did not think her credit good." She was one of Mr. James Girty's three Negroes and "known to be saucy."[40]

Another report nearly a score of years later may be of interest. It can be best understood in its historical setting. During the war of 1812, as soon as the American invasion of Canada began, prices of all commodities began to soar.[41] There was a great demand for beef for the troops regular and militia and the commissariat was not too scrupulously particular to inquire the source whence it might come. The result was that a crime which had been almost unknown suddenly increased to alarmingly large proportions. Cattle roaming in the woods were killed and the meat sold to the army. Prosecutions were instituted in many cases. It was found that the perpetrators were generally, but by no means always, landless men, not infrequently refugee slaves, who had come to the province from the United States. The offence was punishable with death:[42] and convictions were not hard to obtain. But the punishment of death was not in practice actually inflicted.

Whatever the cause, the crime continued until normal conditions were reestablished when it became as rare as it had been before the war. At the Fall Assizes, 1819, at York before Mr. Justice Campbell and a jury, a man of color, Philip Turner, was convicted of stealing and killing a heifer and sentenced to death: Mr. Justice Powell who had been in the Commission of Oyer and Terminer with Campbell reported to the Lieutenant-Governor[43] that there had as yet been no execution for this offence in the province and recommended that the sentence should be committed to banishment for life from His Majesty's dominions.[44] Tradition has it that Turner was a refugee from the United States and begged to be hanged rather than sent back where he would be again enslaved.[45]

When the fugitive slave reached the soil of Upper Canada he became and was free with all the rights and privileges of any other freeman: but sometimes the former condition of servitude had unhappy results. One case will suffice. John Harris was a slave in Virginia. He rented a house in Richmond and lived in it with his wife Sarah Holloway. Harris was a painter and gave the greater part of his earnings to his master. The wife earned money by washing and gave to her mistress part of her scanty earnings. The wife's second name was that of her master Major Halloway in whose house she had been married in 1825 to Harris by the Reverend Richard Vaughan, a Baptist minister, a free man. The couple had three children.

In 1833 Harris effected his escape to Upper Canada and came to Toronto (then York) in the spring of 1834 under the name of George Johnstone. In 1847 he obtained from John Beverley Robinson, Chief Justice of Upper Canada a deed of three acres of land part of Lot 12 in the First Concession from the bay east of the river Don in the Township of York. He died without a will in February, 1851. The deserted wife after his escape married a man by the name of Brown. She continued a slave until the fall of Richmond and died in 1869 or 1870.[46]

About that time the eldest son came to Canada, and he brought an action as the heir-at-law against one Cooper, the person in possession. All the facts were clear and the only difficulty in the way was as to the validity of the marriage of the Negro. Chief Justice William Buell Richards, of the Court of Queen's Bench tried the case at the Fall Assizes, 1870, at Toronto. Evidence was given by a Virginia lawyer and judge[47] that there was no law in Virginia either authorizing or forbidding the marriage of slaves because "slaves were property and not persons for marital purposes.... In short, by the law of Virginia, slaves were but property, treated as property exclusively, except where by special Statute they were made persons."

On this evidence, therefore, the Chief Justice dismissed the action. The plaintiff appealed to the full Court of Queen's Bench urging that the slaves had done all they could to make their marriage legal. In vain, they were not British subjects and the rules of international law were too rigid to allow of the court holding the marriage legal. Mr. Justice Wilson in giving the judgment of the Court said:[48]

"This is, no doubt, an unfortunate conclusion, for the plaintiff is undoubtedly the child of John Harris and Sarah who were made man and wife in form and by all the usual solemnities of real matrimony. The parents were of mature age, of sound sense, reason and understanding. The father had a trade which he followed by permission of his master for a yearly sum which he paid to him for the privilege, or as it is said 'he hired his own time.' He rented a house for himself; he was married with the consent of those who could give it by a minister in orders and in form at least under the sanction of religion: he lived with the woman he had taken as his wife and had children by her and left her only to gain his freedom; yet it is manifest by the force of positive human law, there was no marriage and no legitimate issue."[49]

FOOTNOTES:

[1] The Statute is (1792) 32 George III, c. 1 (U.C.).

[2] Compare the opinion of the Chief Justice of the Supreme Court of the United States in the celebrated Dred Scott case. 19 Howard, 354, pp. 404, 405.

[3] See as to this Reginald W. Jeffery, The History of The Thirteen Colonies of North America 1497-1763 (London), p. 190. This interesting work which I have found accurate gives Governor Spotswood as enforcing the Royal decree rigidly.

[4] See ante, p.

[5] This is copied from the Canadian Archives, Q. 282, pt. 1, pp. 212 sqq.; taken from the official report sent to Westminster by Simcoe. There is the usual amount of uncertainty in spelling names Grisley or Crisley, Fromand, Frooman, Froomond or Fromond (in reality Vrooman).

The following is a report of a meeting of his Executive Council:

"At the Council Chamber, Navy Hall, in the County of Lincoln, Wednesday, March 21st, 1793.

"Present "His Excellency, J.G. Simcoe, Esq., Lieut.-Governor, &c., &c., The Honble. Wm. Osgoode, Chief Justice, The Honble. Peter Russell.

"Peter Martin (a negro in the service of Col. Butler) attended the Board for the purpose of informing them of a violent outrage committed by one Fromand, an Inhabitant of this Province, residing near Queens Town, or the West Landing, on the person of Chloe Cooley a Negro girl in his service, by binding her, and violently and forcibly transporting her across the River, and delivering her against her will to certain persons unknown; to prove the truth of his Allegation he produced Wm. Grisley (or Crisley).

"William Grisley an Inhabitant near Mississague Point in this Province says: that on Wednesday evening last he was at work at Mr. Froemans near Queens Town, who in conversation told him, he was going to sell his Negro Wench to some persons in the States, that in the Evening he saw the said Negro girl, tied with a rope, that afterwards a Boat was brought, and the said Frooman with his Brother and one Vanevery, forced the said Negro Girl into it, that he was desired to come into the boat, which he did, but did not assist or was otherwise concerned in carrying off the said Negro Girl, but that all the others were, and carried the Boat across the River; that the said Negro Girl was then taken and delivered to a man upon the Bank of the River by Froomand, that she screamed violently and made resistance, but was tied in the same manner as when the said William Grisley first saw her, and in that condition delivered to the man ... Wm. Grisley farther says that he saw a negro at a distance, he believes to be tied in the same manner, and has heard that many other People mean to do the same by their Negroes.

"RESOLVED—That it is necessary to take immediate steps to prevent the continuance of such violent breaches of the Public Peace, and for that purpose, that His Majesty's Attorney-General, be forthwith directed to prosecute the said Fromond.

"ADJOURNED."

[6] John White was called to the bar in 1785 at the Inner Temple. He practised for a time but unsuccessfully in Jamaica and through the influence of his brother-in-law, Samuel Shepherd, and of Chief Justice Osgoode was appointed the first Attorney General of Upper Canada. It is probable, but the existing records do not make it certain, that it was he who introduced and had charge in the House of Assembly of the bill for the abolition of slavery passed in 1793, shortly to be mentioned. His manuscript diary is still extant, a copy being in the possession of the writer: One entry reads under date Newark Tuesday March 6 1793 "John Young from Grand River came with Mr. MacMichael respecting his runaway negro. Rec'd 5 Dols."

[7] The statute is (1793) 33 Geo. III, c. 7 (U.C.). The Parliament of Upper Canada had two houses, the Legislative Council, an upper house, appointed by the Crown; and the Legislative Assembly, a lower house or House of Commons, as it was sometimes called, elected by the people. The Lieutenant Governor gave the royal assent. The bill was introduced in the Lower House, probably by Attorney General White, as stated in last note, and read the first time, June 19. It went to the committee of the whole June 25, and was the same day reported out. On June 26 it was read the third time, passed and sent up for concurrence. The Legislative Council read it the same day for the first time, went into committee over it the next day, June 28, and July 1, when it was reported out with amendments, passed and sent down to the Commons July 2. That house promptly concurred and sent the bill back the same day. See the official reports: Ont. Arch. Reports for 1910 (Toronto, 1911), pp. 25, 26, 27, 28, 32, 33. Ont. Arch. Rep. for 1909 (Toronto, 1911), pp. 33, 35, 36, 38, 41, 42.

[8] Canadian Archives, Q. 279, 2, p. 335.

White in his diary says "To the 21 June, some opposition in the House not much"—under date June 25 when the Bill was in Committee of the whole he says "Debated the Slave Bill hardly: Met much opposition but little argument."

[9] Simcoe was almost certainly the prime mover in the legislation of 1793. When giving the royal assent to the bill he said: "The Act for the gradual abolition of Slavery in this Colony, which it has been thought expedient to frame, in no respect meets from me a more cheerful concurrence than in that provision which repeals the power heretofore held by the Executive Branch of the Constitution and precludes it from giving sanction to the importation of slaves, and I cannot but anticipate with singular pleasure that such persons as may be in that unhappy condition which sound policy and humanity unite to condemn, added to their own protection from all undue severity by the law of the land may henceforth look forward with certainty to the emancipation of their offspring." See Ont. Arch. Rep. for 1909, pp. 42-43.

I do not understand the allusion to "protection from undue severity by the Law of the land." There had been no change in the law, and undue severity to slaves was prevented only by public opinion. It is practically certain that no such bill as that of 1798 would have been promoted with Simcoe at the head of the government as his sentiments were too well known.

Vermont excluded slavery by her Bill of Rights (1777), Pennsylvania and Massachusetts passed legislation somewhat similar to that of Upper Canada in 1780; Connecticut and Rhode Island in 1784, New Hampshire by her Constitution in 1792, Vermont in the same way in 1793; New York began in 1799 and completed the work in 1827, New Jersey 1829. Indiana, Illinois, Michigan, Wisconsin and Iowa were organized as a Territory in 1787 and slavery forbidden by the Ordinance, July 13, 1787, but it was in fact known in part of the Territory for a score of years. A few slaves were held in Michigan by tolerance until far into the nineteenth century notwithstanding the prohibition of the fundamental law (Mich. Hist. Coll., VII, p. 524). Maine as such probably never had slavery, having separated from Massachusetts in 1820 after the Act of 1780; although it would seem that as late as 1833 the Supreme Court of Massachusetts left it open when slavery was abolished in that State (Commonwealth v. Aves, 18 Pick. 193, 209). (See Cobb's Slavery, pp. clxxi, clxxii, 209; Sir Harry H. Johnston's The Negro in the New World, an exceedingly valuable and interesting work, but not wholly reliable in minutiae, pp. 355 et seq.)

[10] Russell became administrator of the Government of Upper Canada, July 21, 1796, and held that position until the arrival of the new Lieutenant-Governor General Peter Hunter, August 16, 1799.

[11] Ont. Arch. Rep. for 1909, pp. 64, 69, 70, 71, 75; ibid. for 1910, pp. 67, 68, 69, 70.

The bill was introduced in the Lower House by Christopher Robinson, member for Addington and Ontario. He was a Virginian Loyalist, who in 1784 emigrated to New Brunswick, and in 1788 to that part of Canada, later Lower Canada; and in 1792 to Upper Canada. Accustomed from infancy to slavery, he saw no great harm in it—no doubt he saw it in its best form.

The chief opponent of the bill was Robert Isaac Dey Gray, the young Solicitor General, the son of Major James Gray, a half-pay British Officer. He studied law in Canada. He was elected member of the House of Assembly for Stormont in the election of 1796, and again in 1804.

The motion for the three months' hoist in the Upper House was made by the Honorable Richard Cartwright seconded by the Honorable Robert Hamilton. These men, who had been partners, generally agreed on public measures and both incurred the enmity of Simcoe. He called Hamilton a Republican, then a term of reproach distinctly worse than Pro-German would be now, and Cartwright was, if anything, worse. But both were men of considerable public spirit and great personal integrity. For Cartwright see The Life and Letters of Hon. Richard Cartwright, Toronto, 1876. For Hamilton see Riddell's edition of La Rochefoucault's Travels in Canada in 1795 (Toronto, 1817), in Ont. Arch. Rep. for 1916; Miss Carnochan's Queenston in Early Years, Niagara Hist. Soc. Pub. No. 25; Buffalo Hist. Soc. Pub. Vol. 6, pp. 73-95.

There was apparently no division in the Upper House although there were five other Councillors in addition to Cartwright and Hamilton in attendance that session, viz.: McGill, Shaw, Duncan, Baby and Grant; and the bill passed the committee of the whole.

[12] Slaves were valuable even in those days. A sale is recorded in Detroit of a "certain Negro man Pompey by name" for L45 New York Currency ($112.50) in October, 1794; and the purchaser sold him again January, 1795, for L50 New York Currency ($125.00). (Mich. Hist. Coll., XIV, p. 417.) But it would seem that from 1770 to 1780 the price ranged to $300 for a man and $250 for a woman (Mich. Hist. Coll., XIV, p. 659). The number of slaves in Detroit is said to have been 85 in 1773 and 179 in 1782 (Mich. Hist. Coll., VII, p. 524).

[13] A number of interesting wills are in the Court of Probate files at Osgoode Hall, Toronto. One of them deserves special mention, viz.: that of Robert I. D. Gray, the first Solicitor General of the Province, whose death was decidedly tragic. In this will, dated August 27, 1803, a little more than a year before his death, he releases and manumits "Dorinda my black woman servant ... and all her children from the State of Slavery," in consequence of her long and faithful services to his family. He directs a fund to be formed of L1,200 or $4,800 the interest to be paid to "the said Dorinda her heirs and Assigns for ever." To John Davis, Dorinda's son, he gave 200 acres of land, Lot 17 in the Second Concession of the Township of Whitby and also L50 or $200. John, after the death of his master whose body servant and valet he was, entered the employ of Mr., afterwards Chief, Justice Powell; but he had the evil habit of drinking too much and when he was drunk he would enlist in the army. Powell got tired of begging him off and after a final warning left him with the regiment in which he had once more enlisted. Davis is said to have been in the battle of Waterloo; he certainly crossed the ocean and returned later on to Canada. He survived till 1871, living at Cornwall, Ontario, a well-known character—with him, died the last of all those who had been slaves in the old Province of Quebec or the Province of Upper Canada.

In the Canadian Archives, M. 393, is the copy of a letter, the property of the late Judge Pringle of Cornwall, by Robert I. D. Gray to his sister Mrs. Valentine dated at Kempton February 16, 1804, and addressed to her "at Captain Joseph Anderson's, Cornwall, Eastern District": speaking of a trip to Albany, New York, he says:

"I saw some of our old friends while in the states, none was I more happy to meet than Lavine, Dorin's mother. Just as I was leaving Albany I heard from our cousin Mrs. Garret Stadts who is living in Albany in obscurity and indigence owing to her husband being a drunken idle fellow, that Lavine was living in a tavern with a man of the name of Broomly. I immediately employed a friend of mine, Mr. Ramsay of Albany, to negotiate with the man for the purchase of her. He did so stating that I wished to buy her freedom, in consequence of which the man readily complied with my wishes, and altho' he declared she was worth to him L100 (i.e., $250) he gave her to me for 50 dollars. When I saw her, she was overjoyed and appeared as happy as any person could be, at the idea of seeing her child Dorin, and her children once more, with whom if Dorin wishes it, she will willingly spend the remainder of her days. I could not avoid doing this act, the opportunity seemed to have been thrown in my way by providence and I could not resist it. She is a good servant yet—healthy & strong and among you, you may find her useful, I have promised her, that she may work as much or as little as she pleases while she lives—but from the character I have of her, idleness is not her pleasure, I could not bring her with me, she wanted to see some of her children before she sets out; I have paved the way for her, and some time this month, Forsyth, upon her arrival here will forward her to you...."

Then follows a pathetic touch:

"I saw old Cato, Lavine's father at Newark, while I was at Col. Ogden's; he is living with Mrs. Governeur—is well taken care of & blind—poor fellow came to feel me, for he could not see, he asked affectionately after the family."

In the will of the well-known Colonel John Butler of Butler's Rangers there are bequests to his son Andrew of "a negro woman named Pat": to his grandson John of "a Negro Boy named George ... until the said negro arrives at the years that the Law directs to receive his freedom" and to John's sister Catharine "a negro girl named Jane" for a similar time.

[14] Michigan Hist. Coll., XIV, p. 659. But the actual effect of the Ordinance of 1787, even after 1805 was not absolute. "As late as 1807 Judge Woodward refused to free a negro man and woman on a writ of habeas corpus, holding in effect that as they had been slaves at the time of the surrender in 1796, there was something in Jay's Treaty that forbade their release." Michigan as a Province, Territory and State, 1906, p. 339. "There is a tradition that even as late as the coming of Gen. John T. Mason, as Secretary of the Territory in 1831, he brought some domestic slaves with him from Virginia. It is not improbable that a few domestic servants continued with their old Masters down to the time of the adoption of the State Constitution" (in 1835) ibid., p. 338, note.

Before Detroit and its adjoining territory were given up by the British to the Americans under Jay's Treaty, August, 1796, there were many instances of slaves escaping from the United States territory to British territory in that neighborhood and vice versa. One instance of escape from British territory will suffice.

Colonel Alexander McKee, a well-known and very prominent Loyalist of Detroit, lost a mulatto slave in 1795 and his friend and colleague Captain Matthew Elliott sent a man David Tait to look for him in what is now Indiana. Tait's success or want of success is shown by his affidavit before George Sharp a justice of the peace for the Western District of Upper Canada residing in Detroit. The whole deposition will be given as it illustrates the terms on which the two peoples were living at the time in that country, and shows that even then the charges were made which were afterwards made one of the pretexts for the War of 1812. It is given in the Mich. Hist. Coll., Vol. XII, pp. 164, 165.

"DEPOSITION

"I being sent by Captain Elliott in search of a Molato man name Bill the property of Colonel McKee, which was thought to be at Fort Wayne, But on my Arrival at the Glaize was inform'd by the officer there that he was gone, they said he had gained his liberty, by getting into their lines he being stole from their Country.

"They abused the Gentlemen in this place very & Told me that Governor Sancom (Simcoe) Colonel England and Captain Elliott caused bills in print to be dropped near their fort, Encouraging their Soldiers to desert.

"They called Coll McKee & Capt Elliott dam'd rasculs and said that they gave the Indians Rum to make them Drunk to prevent them from going to Counsil & That Capt Brent they said was a Dam'd rascul and had done everything in his power against them. But they said in Course of Nine Months that they Expected to be in full possession of Detroit and all the Country between their & it & I begged liberty to withdraw when Major Hunt told me to make the best of my way from Whence I came, while I was getting ready to return the Serjeant of their Guard came & Told me it was the Majors orders that I should leave the place immediately & not to stay about any of the Indian Camps. Which Orders I obeyed.

(signed) DAVID TAIT.

Sworn before me at Detroit 4th August 1795.

GEO SHARP, J. P. W. D." Indian Affairs, M. G. VII.

[15] I have found no reliable accounts of slaves in this region—some traditions which I have investigated proved unreliable and illusory.

[16] I cannot trace many Panis slaves in Upper Canada proper; that there were some at Detroit is certain and equally certain that some were at one time on both shores of the Niagara River. I do not know of an account of the numbers of slaves at the time; in Detroit, March 31, 1779, there were 60 male and 78 female slaves in a population of about 2,550 (Mich. Hist. Coll., X, p. 326); Nov. 1, 1780, 79 male and 96 female slaves in a somewhat smaller population (Mich. Hist. Coll., XIII, p. 53); in 1778, 127 in a population of 2,144 (Mich. Hist. Coll., IX, p. 469); 85 in 1773, 179 in 1782 (Mich. Hist. Coll., VII, p. 524); 78 male and 101 female (Mich. Hist. Coll., XIII, p. 54). The Ordinance of Congress July 13, 1787, forbidding slavery "northwest of the Ohio River" passed with but one dissenting voice, that of a delegate from New York was quite disregarded in Detroit (Mich. Hist. Coll., I, 415); and indeed as has been said, Detroit and the neighboring country remained British (de facto) until August, 1796, and part of Upper Canada from 1791 till that date.

[17] This is indicated by a number of facts none of much significance and all together far from conclusive—but it is a mere estimate perhaps not much more than a guess and I should not be astonished if it were proved that the estimate was astray by 100 either way. Indeed contemporary estimates gave for the Nassau District alone in 1791, 300 Negro slaves and a few Panis. Col. Mathew Elliott in 1784 brought more than 50 slaves to his estate at Amherstburg.

[18] See letter of Sheriff Sherwood, Papers &c, Ontario Historical Society 1901, Vol. 3, p. 107. Justus Sherwood came from Vermont, originally from Connecticut, joined Burgoyne's army in 1777 and came to Canada in 1778, joined Rogers' Rangers and served during the war. He came to Prescott in 1784. He had had a not unusual experience with the Continentals. His "Negro wench and two negroe children" had been seized and "sold to Wm. Drake." (Second Ont. Arch. Rep., 1904, p. 820.) Daniel Jones, father of Sir Daniel Jones of Brockville, came from Charlotte County, New York (ibid., p. 398). He was also a native of Connecticut.

[19] He was in full possession of all his faculties and had been brought to Ottawa to prove the death of one person in 1803 and of another in 1814. The action was Morris v. Henderson "Ottawa Citizen" May 3, 1867. Robert I. D. Gray mentioned in note 13 above, came from this district.

[20] A Van Alstyne—Major Peter Van Alstyne—was elected to represent Prince Edward County in the first Legislative Assembly when Philip Dorland was unseated because he would not take the prescribed oath being a Quaker.

[21] See the interesting paper read before the Women's Historical Society of Toronto by Mrs. W. T. Hallam, B.A., and published in The Canadian Churchman, May 8, 1919, republished in pamphlet form. I am authorized by Mrs. Hallam to make full use of her researches and I take advantage of this permission. Mrs. Hallam has also the following:

"There is an old orchard between Collins Bay and Bath, Ontario, now used as a garden, which belongs to the Fairfield family. The children of this Loyalist family brought the seeds in their pockets from the old home in Vermont, and here lie buried the slaves belonging to the Fairfield and Pruyn families. On the way over they milked the cows, which were brought with them, and sometimes the milk was the only food which they had. The old Fairfield Homestead, built in 1793, is still standing, but the negro quarters are unused, for as those who live there say, "On a hot day you would declare the slaves were still there."

Miss Alice Fairfield of the White House, Collins Bay, a descendant of these Fairfields gives the following account in a paper read before the Woman's Historical Society, Toronto (of which Mrs. Seymour Corley of Toronto has been good enough to furnish me a copy) "In March 1799, Stephen Fairfield married Maria Pruyn (from Kinder Hook, N. Y.), whose marriage portion included several slaves. They remained with the family as a matter of course after the law had given them their freedom. Of their devotion a story is told—"Mott" the old black nurse of my great grandmother walked to York (Toronto) a distance of 160 miles in cold weather to warn her of a plot against her property—the shoes were literally worn off her feet." The writer adds "The Tory branch of the Fairfield family that came to Canada were from Paulet County, Vermont ... they brought some 'niggers' as they called their black slaves, into Canada." "The first apples grown in the country were raised from the seeds of apples with which the Children had filled their pockets at the old home."

A contributor to the Napanee Banner writes: "There has been considerable controversy of late whether slaves ever were owned in this section of Canada. The Allens brought three slaves with them who remained with the family for years. Thomas Dorland also had a number of slaves who were members of the house-hold as late as 1820. The Pruyns who lived on the front of Fredericksburg had, we are informed, over a dozen slaves with them. The Ruttans of Adolphustown brought two ablebodied slaves with them. Major Van Alstyne also had slaves; so had John Huyck who lived north of Hay Bay, and the Bogarts near neighbors, and the Trampours of the opposite side of Hay Bay. The Clarks of Ernestown, now called Bath, owned slaves who were with them years after their residence in Canada. The Everetts of Kingston Township and the Cartwrights of Kingston had theirs."

[22] A man of considerable note: in 1800 appointed with Richard Cartwright, Commissioner to settle the finances between the two Provinces.

[23] Member for Lenox, Hastings and Northumberland Counties in the first Legislative Assembly: and afterwards Sheriff.

[24] The Pruyns of Fredericksburg are credited with owning more slaves than any other family in that region. Mrs. Hallam, ut supra, p. 4.

The above extracts are taken from the Registers published by the Ont. Hist. Soc., Vol. 1.

[25] Both prominent families in Kingston.

[26] Trans. Can. Inst., Vol. 1 (1889-1890), p. 106.

[27] For this and the following incident see that most interesting book "Toronto of Old" by Henry Scadding, D.D., Toronto, 1873, pp. 293, 294, 295.

[28] Henry Scadding's Toronto of Old, p. 296. Dr. Scadding, speaks of his "in former times" gazing at Amy Pompadour with some curiosity.

Miss Elizabeth Russell, sister of the Administrator, had a slave, a pure Negro Amy Pompadour, whom she gave to Mrs. Denison wife of Captain John Denison, an old comrade in arms of her brother's.

[29] Ibid., p. 292. The boy if he had stolen his master's money would be guilty of grand larceny, a capital offence at the time and consequently not tried at the Quarter Sessions. He was, therefore, recommitted to prison to await the Court of Oyer and Terminer and General Gaol Delivery commonly called the Assizes.

The master probably withdrew the charge against the girl and Coachly, or they may have been so fortunate as that there was no evidence against them.

[30] See the lists in the Ont. Hist. Soc. Papers (1901), Vol. 3, pp. 9 sqq.

In the list of marriages are found: "1797, Oct. 12, Cuff Williams and Ann, Negroes from Mr. C. McNabb"; "1800, Dec. 1, Prince Robinson and Phillis Gibson, Negroes" and six other marriages down to 1831 between persons "of Colour". These last were probably not slaves.

That Joseph Brant "Thayendinaga," the celebrated Indian Chief, had Negro slaves has been confidently asserted and as confidently denied. That there were Negroes in his household seems certain and their status was inferior. Whether he called them slaves or not, it is probable that he had full control of them.

See Stones' Life of Brant, New York, 1838. He rather boasted of his slaves. He was attended on his journeys and at table by two of them, Patton and Simon Gauseville. Hamilton in his Osgoode Hall, Toronto, 1904, says (p. 21): "Thayendinaga lived surrounded with slaves and retainers in barbarous magnificence at Burlington." But that is rhetoric.

[31] Trans. Can. Inst., Vol. 1 (1889-1890), p. 105.

[32] Dr. Scadding ut supra, p. 295. This is almost the only trace of Panis slavery in Upper Canada, proper, which I have found. The attempt to make a crime by the advertiser is not without precedent or imitation: it was, however, merely a threat and a brutum fulmen.

[33] Dr. Scadding ut supra, pp. 294, 295.

Such advertisements as these of 1802 indicate an uneasiness as to the security of the slave property. Dr. Scadding remarks "Cash and lands were plainly beginning to be regarded as less precarious property than human chattels," ibid., p. 295.

[34] See supra, p.

[35] Trans. Can. Inst., ut supra, p. 106.

These if actual slaves could not have been very young. If they were brought into the province after the Act of 1793 they would become free ipso facto. If born after that Act they would not properly speaking be slaves at all but only subject to service until the age of 25.

If they were slaves they must have been at least 37 in 1830; but probably they were born after 1793 and had not attained the age of 25 in 1833. They might then be young as described by Sir Adam.

[36] Labadie had been twice married.

[37] For "Panise."

[38] The French Minot is 39.36 litres; the Canadian 36.34 litres or 63.94 pints—the bushel is 64 pints—the Canadian minot is consequently almost exactly one bushel.

[39] Essex Historical Society—Papers and Addresses, Vol. 1, Windsor, Ont. (1913), pp. 13, 39, 48-52.

This is translated thus: I certify that I have sold and delivered to Mr. Labodie a Panis slave called Manon for and in consideration of 80 minots (practically 80 bushels) of wheat which he is to pay me as he has it the coming spring—given under my hand at Detroit this 10th day of October, 1775.

WITNESS: (Signed) (Signed) JOHN PORTEOUS. JAMES STERLING."

[40] The fact was that Jack York had broken into McKee's dwelling house to commit rape and he had committed rape on the person of Mrs. Ruth Sufflemine (or Stufflemine).

Powell's report is dated from Mount Dorchester, September 22, 1800. Canadian Archives, Sundries U.C. 1792-1800; Hunter's decision in May is in Canadian Archives Letters Hunter to Heads of Departments, p. 65; York's escape is ibid., p. 84; the Death Warrant is referred to in Canadian Archives Sundries U.C. 1792-1800.

There were certainly slaves in the Western District. The will of Antoine Louis Descomps Labadie made May 26, 1806, contains a bequest "I also give and bequeath to my wife Charlotte, the use or service of two slaves that she may select as long as she continues to be my widow." "A black boy slave to Mrs. Benton, widow of the late Commodore of the Lakes" seems to have been as bad as Jack York. Convicted at Kingston of a house robbery, a capital crime he had the "benefit of clergy" that is, set free as a first offence. But he did not mend his ways. He committed burglary and was convicted at Kingston 1795 before Mr. Justice Powell. The judge sentenced him to be hanged but recommended a pardon. He said the boy was said to be 17 but looked no more than 15 and in view of his education as a slave he hoped that his "would not be the first capital example." Can. Arch., B. 210.

[41] In a memorial by the judges of the Court of King's Bench to the Lieutenant Governor, January 10, 1814, they point out that prices have doubled since the war. The prices before the war and at the time were of bread 1/ and 2/; of beef 6 d and 1/; of wood 7/6 and 15/.

[42] Before 1772, this was not a crime at all but only a civil trespass; the Waltham Black Act (1722) 9 George I, c. 22 made it a felony punishable with death without benefit of clergy. This continued to be the law in England until the Act (1827) 7, 8 George IV, c. 27 (Imp.), and in Upper Canada until 1841.

[43] Sir Peregrine Maitland.

[44] Banishment existed as a punishment in Upper Canada until 1841, when it was finally abolished and succeeded by imprisonment. Banishment was a very common alternative for hanging. I have counted as many as four cases at one assize.

[45] The tradition is a floating and rather indefinite one. It has some plausibility but there is nothing which to my mind can be dignified by the name of proof. The facts of the Turner case will be found in a Report by Mr. (afterwards Chief) Justice Powell to Sir Peregrine Maitland's Secretary Edward McMahon, November 1, 1819, Canadian Archives, Sundries, U.C., 1819.

[46] Canadian Archives, Q. 324, pp. 432, 436 Letter, June 8, 1818, from "Thos. N. Stewart, Capt. H. P. late Royal Newfoundland Regiment" to the Right Honourable Earl Bathurst, dated from Barnstable, North Devon.

Turning to a more pleasant subject, while it may not be strictly within the purview of this treatise, it may be permitted to bring to light from the files of the Canadian Archives a story of a poor black woman who showed true humanity. It may be considered by some at the expense of her patriotism. That will not be admitted by everyone, for what share did the Negro have in America in which he lived more than in Britain which offered him freedom?

When in May, 1813, General Dearborn took Fort George in Upper Canada, one of his prisoners was Captain Thomas N. Stewart of the Royal Newfoundland Regiment who was wounded. Taken to the United States, he was with several other British officers kept for months a close prisoner at Philadelphia as a hostage under the retaliation system.

"At length," said he, "I with fourteen other officers made my escape from the prison at Philadelphia by sawing off the iron bars with the springs of watches, but from the active search which was made ten of my companions were retaken in the course of three days. I ... attribute my success (as well as that of two more British officers) in being enabled to elude the vigilance of the enemy to the kindness and humanity of a poor black woman to whose protection we committed ourselves in our real character and situation: and notwithstanding a reward of one hundred dollars was offered for the apprehension of each officer without our even being able to reward her in an equal degree, she persevered in affording us comfort and accommodation, greatly to her own risk and loss by the total resignation of her small hut and a tender of her services to our use visiting us only at night with provisions, &c. This she continued to do for eight days. When it was thought that the active search was in a great degree abated I ventured by night to leave the abode of this black woman with the intention of going to the Headquarters of the British Army in Canada and this I ultimately succeeded in accomplishing."

His companions leaving one by one at different times also succeeded in returning to the service of their country. Having only $70 and having to travel 600 miles, Capt. Stewart could give the woman only $20: and all she received from all the officers was only $50. He wrote Earl Bathurst, Secretary of State for War and the Colonies asking that she should be remunerated and saying that he would "be most happy to give the address and the source thro' which communication could be made."

Bathurst replied June 13, asking for particulars, and Captain Stewart June 18 wrote again on the eighteenth of June saying that the matter required the utmost circumspection and excusing himself from giving information until he had communication with America, hoping to point out the precise object whom "His Lordship has thought worthy of remuneration." No doubt the matter then passed into the Secret Service, as no further correspondence is preserved in documents open to the public.

[46a] The motion was heard in Trinity Term, 34 Victoriae i.e. in February, 1871, see the report in 31 Upper Canada Queens Bench Reports, p. 182: Harris v. Cooper. The Court was composed of the Chief Justice William Buell Richards, afterward Sir William Buell Richards, Chief Justice of Canada, Mr. Justice Joseph Curran Morrison, afterwards a Judge of the Court of Error and Appeal, and Mr. Justice Adam Wilson, afterwards successively Chief Justice of the Court of Common Pleas, and of the Court of Queen's Bench.

[47] Two years after her first husband's death, that is, in 1853, the widow who had then married one Scott sold the lot to Mr. Boomer for $300. Mr. Boomer sold two acres to Edward Osborne and he to Cooper for $800. By 1871 the land had appreciated in value so as to make it worth a lawsuit. Of course, the widow never had any right to sell the land, but it was at least ungracious for her son to repudiate her deed.

[48] The law of Virginia as to marriages of slaves even with the consent of the master was fully and clearly stated by the Court of Appeals of Virginia in the case of Scott v. Raub (1872) 88 Virginia, 721. See also the decision of the Supreme Court of the United States in the case of Hall v. United States, 92 U. S. 127; and in Alabama, Matilda v. Gardner, 24 Alabama, 719.

[49] 31 Upper Canada Queens Bench Reports at p. 195, 1871.



CHAPTER VI

THE FUGITIVE SLAVE IN UPPER CANADA

Before the Act of 1793, there was some immigration of slaves fleeing from their masters in the United States. After the Act of 1793, however, a slave by entering Upper Canada became free, whether he was brought in by his master or fled from him. Legislation of the United States in the same year[1] increased the number of those fleeing to the province under this law. Slaves who had effected their escape to what were considered free States were liable to be reclaimed by their masters. Shocking instances of the forcing into renewed slavery of the escaped slave and even of enslaving the free persons of color are on record and there are told worse which never saw the open light of day.

Eli Whitney's invention of the cotton gin about the same time[2] made slaves much more valuable and not only checked the movement toward gradual emancipation but increased the ardor with which the fugitive was pursued. From 1793 the influx of fugitive slaves into the province never quite ceased. The War of 1812 saw former slaves in the Canadian militia fighting against their former masters and Canada as an asylum of freedom became known in the South by mysterious but effective means. "As early as 1815 negroes were reported crossing the Western Reserve to Canada in great numbers and one group of Underground Railway workers in Southern Ohio is stated to have passed on more than 1000 fugitives before 1817."[3]

It is not proposed here to give an account of the celebrated Underground Railway. It is sufficient to say that it was the cause of hundreds of slaves reaching the province.[4] Some slaves escaped by their own efforts in what can fairly be called a miraculous way. No more dramatic or thrilling tales were ever told than could be told by some of these refugees. Some having been brought by their masters near to the Canadian boundary then clandestinely or by force effected a passage. Some came from far to the South, guided by the North Star. Many were assisted by friends more or less secretly. These refugees joined settlements with other people of color freeborn or freed in the western part of the Peninsula, in the counties of Essex and Kent and elsewhere.[5] Some of them settled in other parts of the province, either together or more usually sporadically. Toronto received many. These were superior to most of their race, for none but those with more than ordinary qualities could reach Canada.[6]

The masters of runaway slaves did not always remain quiet when their slaves reached this province. Sometimes they followed them in an attempt to take them back. There are said to have been a few instances of actual kidnapping. There were some of attempted kidnapping. Most of these are merely traditional but at least one is well authenticated.[7]

In May, 1830, a young man with finely chiselled features, bright hazel eyes, apparently a quadroon or octoroon applied for service at the house of Charles Baby, "the old Baby mansion in the ... historical town of Sandwich" in Upper Canada on the Detroit River. He said he had escaped from slavery in Kentucky, had arrived on the previous evening at Detroit and had crossed the river to Canada as quickly as possible. He had been a mason but understood gardening and attending to horses and had other accomplishments. He was engaged and proved a satisfactory servant "respectful, cleanly, capable, lithe and active as a panther." His former master came from Kentucky and reclaimed him after the lapse of six months. The recognition was mutual and immediate. The Kentuckian, offered $2000 to Baby for the return of Andrew his former slave, but the offer was indignantly refused. It turned out that Andrew had taken his master's favorite horse to assist him in his flight but had turned it loose after riding it some twenty-five miles. Whether for this reason or for some other, the Kentuckian did not appeal for the extradition of Andrew[8] but determined to use violence.

A short time afterwards five desperadoes from Detroit attempted to kidnap Andrew while the family were at Church, but they were successfully resisted by Andrew and Charles Baby until the service was over and the people were seen hastening home. The would-be kidnappers made their escape across the river. Finding it dangerous to keep Andrew so near the border, the neighbors took up a subscription and he was sent by stage to York (Toronto). This place he reached in safety. "He made good" and lived a respectable and useful life undisturbed by any fear of Kentucky vengeance.[9]

The law as to such attempts was authoritatively stated in 1819 by John Beverley Robinson, Attorney General of Upper Canada, afterwards Sir John Beverley Robinson, Bart, Chief Justice of Upper Canada. The opinion will be given in his own words:[10]

"In obedience to Your Excellency's comments I have perused the accompanying letter from G. C. Antrobus Esquire, His Majesty's charge d'affaires at the Court of Washington and have attentively considered the question referred to me by Your Excellency thereupon—namely—"Whether the owners of several Negro Slaves who have fled from the United States of America and are now resident in this Province can be permitted to come hither and obtain possession of their property, and whether restitution of such Negroes can be made by the interposition of the government of this Province" and I beg to express most respectfully my opinion to your Excellency that the Legislature of this Province having adopted the Law of England as the rule of decision in all questions relative to property and civil rights, and freedom of the person being the most important civil right protected by those laws, it follows that whatever may have been the condition of these Negroes in the Country to which they formerly belonged, here they are free—For the enjoyment of all civil rights consequent to a mere residence in the country and among them the right to personal freedom as acknowledged and protected by the Laws of England in cases similar to that under consideration, must notwithstanding any legislative enactment that may be thought to affect it, with which I am acquainted, be extended to these Negroes as well as to all others under His Majesty's Government in this Province. The consequence is that should any attempt be made by any person to infringe upon this right in the persons of these Negroes, they would most probably call for, and could compel the interference of those to whom the administration of our Laws is committed and I submit with the greatest deference to Your Excellency that it would not be in the power of the Executive Government in any manner to restrain or direct the Courts or Judges in the exercise of their duty upon such an application."[11]

Then came a number of applications for the return of runaway slaves cloaked under criminal charges, the pretence being made that they had committed some crime and that it was desired to bring them to trial and punishment. There can be no doubt that in the absence of some constitutional provision every country has the right to keep out criminals and, if they have entered the country, to hand them over to the authorities of the country whence they came; but the rules of international law have never gone so far as to make it obligatory on any country to send away immigrant criminals even if demanded by their former country. It has always been the theory in Upper Canada that the Governor had the power independently of statute or treaty to deliver up alien refugees charged with crimes.[12] This was not wholly satisfactory and the legislature took the matter up and passed an act governing such cases, February 13th, 1833,[13] providing for the apprehension of fugitive offenders from foreign countries, and delivering them up to justice. This provides that on the requisition of the executive of any foreign country the governor of the province on the advice of his executive council may deliver up any person in the province charged with "Murder, Forgery, Larceny or other crime which if committed within the province would have been punishable with death, corporal punishment, the pillory, whipping or confinement at hard labour." The person charged might be arrested and detained for inquiry, but the act was permissive only and the delivery up was at the discretion of the Governor-in-Council.

It was under this act that the extradition of Thornton Blackburn was sought but finally refused. The case was this: Two persons of color named Blackburn, a man and his wife, were claimed as slaves on behalf of some person in the State of Kentucky. They were arrested in Detroit in 1833 and examined before a magistrate, who, in accordance with the law of the United States, made his certificate and directed them to be delivered over as the personal property of the claimant in Kentucky. The sheriff took them into custody but when one of them was on the point of being removed from the prison to be restored to his owner, he was violently rescued and directed across the river into Canada. On the day before the rescue of Thornton Blackburn his wife eluded the jailer in disguise and escaped to Canada.

The Upper Canadian Government was, therefore, called upon to return these prisoners to the United States. Upon examining the record in the case, however, the Attorney General of Upper Canada in reply to the Governor for information in the case, advised that the so-called offences of Thornton Blackburn in trying to effect his own escape from persons seeking to return him to slavery could not be construed as rioting or rescuing a prisoner from an officer of the law as had been set forth in the requisition papers from the Michigan authorities and certainly could not be applied to Thornton Blackburn's wife who, as the evidence showed, had taken no part at all in the rescue.

The council[14] was thereafter called upon to consider the question whether, if a similar charge had been committed in Canada, the offenders would be liable to undergo any of the punishments provided for in the act passed at the session of the Canadian Legislature in 1833. The Attorney General[15] was of the opinion that had the government been confined to the official requisition that had accompanied it, he might have been warranted in delivering up these persons inasmuch as there was evidence on which, according to the terms of the Canadian law, a magistrate would have been warranted in apprehending and committing for trial persons charged with riot, forcible rescue and assault and battery. The Attorney General believed, however, that the Governor and the Council were not confined to such evidence since, though limited in their authority to enforcing the provisions of the act against fugitives from foreign States, on being satisfied that the evidence would warrant the commitment for trial, yet in coming to that conclusion, they were bound to hear not ex parte evidence alone but matter explanatory to guide their judgment; for even with the authority so to do, they were not required to deliver up any prisoner so charged, if for any reason they deemed it inexpedient so to do.

The conclusion of the Attorney General, therefore, was that Blackburn and his wife were not charged with any of the offences enumerated in the statute of Canada and that the Governor and Council were not authorized by its provisions to send them out of the province. He said, moreover: "It has not escaped our attention as a peculiar feature in this case that two of the persons whom the Government of this Province is requested to deliver up are persons recognized by the Government of Michigan as slaves and that it appears upon these documents that if they should be delivered up they would by the laws of the United States be exposed to be forced into a state of slavery from which they had escaped two years ago when they fled from Kentucky to Detroit; that if they should be sent to Michigan and upon trial be convicted of the riot and punished they would after undergoing their punishment be subject to be taken by their masters and continued in a state of slavery for life, and that, on the other hand, if they should never be prosecuted, or if they should be tried and acquitted, this consequence would equally follow.

The next case was not so happy in its result. It caused much excitement at the time and is not yet forgotten. Solomon Mosely or Moseby, a Negro slave, came to the province across the Niagara River from Buffalo which he had reached after many days travel from Louisville, Kentucky. His master followed him and charged him with the larceny of a horse which the slave took to assist him in his flight. That he had taken the horse there was no doubt and as little that after days of hard riding he had sold it. The Negro was arrested and placed in the Niagara Gaol. A prima facie case was made out and an order sent for his extradition.[16]

The people of color of the Niagara region made the Mosely case their own and determined to prevent his delivery up to the American authorities to be taken to the land of the free and the home of the brave, knowing that there for him to be brave meant torture and death, and that death alone could set him free. Under the leadership of Herbert Holmes, a yellow man[17] a teacher and preacher, they lay around the jail night and day to the number of from two to four hundred to prevent the prisoner's delivery up. At length the deputy sheriff with a military guard brought out the unfortunate man shackled to a wagon from the jail yard, to go to the ferry across the Niagara River. Holmes and a man of color named Green grabbed the lines. Deputy Sheriff McLeod gave the order to fire and charge. One soldier shot Holmes dead and another bayoneted Green, so that he died almost at once. Mosely, who was very athletic leaped from the wagon and made his escape. He went to Montreal and afterward to England, finally returning to Niagara, where he was joined by his wife, who also escaped from slavery.

An inquest was held on the bodies of Holmes and Green. The jury found "justifiable homicide" in the case of Holmes. "Whether justifiable or unjustifiable" there was not sufficient evidence before the jury to decide in the case of Green. The verdict in the case of Holmes was the only possible verdict on the admitted facts. Holmes was forcibly resisting an officer of the law in executing a legal order of the proper authority. In the case of Green the doubt arose from the uncertainty whether he was bayoneted while resisting the officer or after Mosely had made his escape. The evidence was conflicting and the fact has never been made quite clear. No proceedings were taken against the deputy sheriff; but a score or more of the people of color were arrested and placed in prison for a time. The troublous times of the Mackenzie Rebellion came on and the men of color were released, many of them joining a Negro militia company which took part in protecting the border.

The affair attracted much attention in the province and opinions differed. While there were exceptions on both sides, it may fairly be said that the conservative and government element reprobated the conduct of the blacks in the strongest terms, being as little fond of mob law as of slavery, and that the radicals including the followers of Mackenzie, looked upon Holmes and Green as martyrs in the cause of liberty. That Holmes and Green and their followers violated the law there is no doubt; but so did Oliver Cromwell, George Washington and John Brown. Every one must decide for himself whether the occasion justified in the courts of Heaven an act which must needs be condemned in the courts of earth.[18]

It was, however, only when the alleged crime was recent and followed up promptly that the rigid rule of extraditing slaves accused of crime was applied. A case which came before the Executive Council a few days after Mosely's is a good illustration of the care taken in such cases. Jesse Happy, a slave in Kentucky, had made his escape to Canada, stealing a horse with which he outran his pursuers. Knowing the indisposition of the Canadian authorities to return fugitives from slavery, the Governor of Kentucky undertook to have this fugitive extradited on the ground that he was charged with a felony in that commonwealth. It appeared that the real object of the application from Kentucky was not so much to bring Happy to trial for the alleged felony as to reduce him again to a state of slavery. In the report of the Attorney General reference was made to an application for extradition in a case in which the offence had been recently committed, and because of this fact the requisition was honored. In the case of Jesse Happy, however, the alleged offence had been committed four years prior to making an effort to have him extradited. No process had been issued in the State of Kentucky nor had any steps been taken to punish him for felony. It was suggested, therefore, that the real object of this apprehension was to give him up to his former owners and to deprive him of the personal liberty secured to him by the laws of Canada.

As the delivery of the slave under these circumstances would subject him to a double penalty, the one of being punished for the crime and the other of being returned to a state of slavery even if he should be acquitted, the Canadian authorities were in a dilemma; for punishment of the felony was in strict accordance with the statutes of Canada whereas the enslavement of the fugitive was in direct opposition to the genius of its institutions and the spirit of its laws. Yet as the council[19] could not take the position that because a man happened to be a fugitive slave he should escape the consequences of crime committed in a foreign country to which a free man would be amenable, action was suspended so as to give the accused time to furnish affidavits of the facts set forth in the petition on his behalf, and not wishing to make of this a precedent without the support of the highest authority, the matter was submitted to the Government in England with a request for their views upon this case as a matter of general policy.[20]

Lord Palmerston having had the matter brought to his attention by Lord Glenelg, Secretary of State for War and the Colonies, recognized its very great importance. He accordingly had it submitted to the Law Officers of the Crown. The opinion of these officers Sir John Campbell and Sir Robert Mousey Rolfe appears from a letter from W.T.H. Fox Strangeways, Parliamentary Secretary of State for Foreign Affairs addressed February 25, 1838, to Sir George Gray of the Colonial Department. This officer said:

"I have received and laid before Viscount Palmerston your Letter to me of the 6 December 1837 with its accompanying copy of a Dispatch from Sir Francis Head, in which that officer requests Instructions for his guidance, in the general case of Fugitive Slaves who, having escaped to Canada may be demanded from the Canadian Authorities by the Authorities of the United States on the plea of their having committed crimes in the last mentioned Country and in the particular case of Jesse Happy, who having escaped to Upper Canada more than four years ago, had been demanded from the Lieut. Governor of that Province, upon the ground of a charge of Horse Stealing.

"These two questions have by direction of Lord Palmerston been submitted to the Law Officers of the Crown, and I am directed by his Lordship to state to you the opinion of these officers for the information of Lord Glenelg.

"The Law Officers report upon the general question, that they think that no distinction should in the case contemplated, be made between the demand for Slaves or for Freemen.

"It is the opinion of the Law Officers that in every case in which there is such Evidence of criminality as, according to the terms of the Canadian Statutes, would warrant the apprehension of the accused Party, if the alleged offence had been committed in Canada, then on the requisition of the Governor of the Foreign State, the accused Party ought to be delivered up, without reference to the question as to whether he is or is not a Slave.

"The Law Officers desire however that it should be distinctly understood, that the Evidence for this Purpose must be evidence taken in Canada, upon which (if false) the Parties making it may be indicted for Perjury.

"The Law Officers remark further on this point that the 3rd Section of the Provincial Statute enables the Governor to refuse to deliver up a Party, whenever special circumstances may render it inexpedient to accede to the demand made to the Governor on such a point.

"The Law Officers, reporting upon the subject of Jesse Happy state that they do not think that there was in that case such evidence of criminality, as, according to the Laws of the Province of Upper Canada would warrant the apprehension of Jesse Happy if the offence charged had been committed in U. Canada.

"The Law Officers indeed go farther, and say that so far as there is any evidence of the Facts, what took place was not Horse Stealing according to the Laws of Upper Canada, but merely an unauthorized use of a horse, without any intention of appropriating it.

"The Law Officers conclude by, stating, that upon these grounds, they are of opinion, that Jesse Happy ought to be set at liberty, and that instructions to that effect should be sent to the Lieutenant Governor of Upper Canada."[21]

On the ninth of May Glenelg wrote to Sir George Arthur who succeeded Bond Head as Lieutenant Governor of Upper Canada, saying: "With reference to my Dispatch to Sir Francis Bond Head of the 4th December last No 255, I enclose for your information the copy of a letter from the Under Secretary of State for Foreign Affairs stating the substance of the opinion given by the Law Officers of the Crown in respect to the restitution of Fugitive Slaves who may be demanded from the Government of Upper Canada on the plea of their having committed crimes at the places from which they have fled. In conformity with the opinion of the Law Officers of the Crown I have to desire that Jessie Happy, the individual with respect to whom this question was raised shall be forthwith set at liberty."

It is impossible not to see that the very stringent rules laid down by the Law Officers of the Crown at Westminster were intended to be in favorem libertatis. Happy was released November 14th, 1837, and so far as appears from the official records no further application was ever made for the extradition of a runaway slave until after 1842. That year the well-known Ashburton Treaty was concluded[22] between Britain and the United States. This by Article X provides that "the United States and Her Britannic Majesty shall, upon mutual requisitions ... deliver up to justice all persons ... charged with murder, or assault with intent to commit murder, or piracy or arson or robbery or forgery or the utterance of forged paper...." Power was given to judges and other magistrates to issue warrants of arrest, to hear evidence and if "the evidence be deemed sufficient ... it shall be the duty of the ... judge or magistrate to certify the same to the proper executive authority that a warrant may issue for the surrender of such fugitive."

It will be seen that this treaty made two important changes so far as the United States was concerned. It made it the duty of the executive to order extradition in a proper case and took away the discretion. It gave the courts jurisdiction to determine whether a case was made out for extradition.[23] These changes made it more difficult in many instances for a refugee to escape; but the courts were astute as ever in finding reasons against the return of slaves.

The case of John Anderson is a well-known one in evidence. He was born a slave in Missouri. As his master was Moses Burton, he was known as Jack Burton. He married a slave woman in Howard County, the property of one Brown. In 1853, Burton sold him to one McDonald living some thirty miles away and his new master took him to his plantation. In September 1853 he was seen near the farm of Brown, when apparently he was visiting his wife. A neighbor, Seneca T.P. Diggs, became suspicious of him and questioned him. As his answers were not satisfactory he ordered his four Negro slaves to seize him, according to the law in the State of Missouri. The Negro fled, pursued by Diggs and his slaves. In his attempt to escape the fugitive stabbed Diggs in the breast and Diggs died in a few hours. Effecting his escape to this province, he was in 1860 apprehended in Brant County, where he had been living under the name of John Anderson, and three local justices of the peace committed him under the Ashburton Treaty. A writ of habeas corpus was granted by the Court of Queen's Bench at Toronto, under which the prisoner was brought before the Court of Michaelmas Term of 1860.

The motion was heard by the full court.[24] Much of the argument was on the facts and on the law apart from the form of the papers, but that was hopeless from the beginning. The law and the facts were too clear, although Mr. Justice McLean thought the evidence defective. The case turned on the form of the information and warrant, a somewhat technical and refined point. The Chief Justice Sir John Beverley Robinson, and Mr. Justice Burns agreed that the warrant was not strictly correct, but that it could be amended. Mr. Justice McLean thought it could not and should not be amended.

The case attracted great attention throughout the province, especially among the Negro population. On the day on which judgment was to be delivered, a large number of people of color with some whites assembled in front of Osgoode Hall.[25] While the adverse decision was announced, there were some mutterings of violence but the counsel for the prisoner[26] addressed them seriously and impressively, reminding them "It is the law and we must obey it." The melancholy gathering melted away one by one in sadness and despair.

Anderson was recommitted to the Brantford Jail.[27] The case came to the knowledge of many in England. It was taken up by the British and Foreign Anti-Slavery Society and many persons of more or less note. An application was made to the Court of Queen's Bench of England for a writ of habeas corpus, notwithstanding the Upper Canadian decision, and while Anderson was in jail at Toronto, the court after anxious deliberation granted the writ[28] but it became unnecessary owing to further proceedings in Upper Canada.

In those days the decision of any Court or of any judge in habeas corpus proceedings was not final. An applicant might go from judge to judge, court to court[29] and the last applied to might grant the relief refused by all those previously applied to. A writ of habeas corpus was taken out from the other Common Law Court in Upper Canada, the Court of Common Pleas. This was argued in Hilary Term, 1861, and the court unanimously decided that the warrant of commitment was bad and that the court could not remand the prisoner to have it amended.[30] The prisoner was discharged. No other attempts were made to extradite him or any other escaped slave; and Lincoln's Emancipation Proclamation put an end to any chance of such an attempt being ever repeated.[31]

FOOTNOTES:

[1] The first Fugitive Slave Law was passed by the United States in 1793. Three years afterwards occurred an episode, little known and less commented upon, showing very dearly the views of George Washington on the subject of fugitive slaves, at least of those slaves who were his own.

A slave girl of his escaped and made her way to Portsmouth, N. H.; Washington on discovering her place of refuge, wrote concerning her to Joseph Whipple the Collector at Portsmouth, November 28, 1796. The letter is still extant. It is of three full pages and was sold in London in 1877 for ten guineas. (Magazine of American History, Vol. 1, December, 1877, p. 759.) Charles Sumner had it in his hands when he made the speech reported in Charles Sumner's Works, Vol. III, p. 177. Washington in the letter described the fugitive and particularly expressed the desire of "her mistress" Mrs. Washington for her return to Alexandria. He feared public opinion in New Hampshire for he added.

"I do not mean by this request that such violent measure should be used as would excite a mob or riot which might be the case if she has adherents; or even uneasy sensations in the minds of well disposed citizens. Rather than either of these should happen, I would forego her services altogether and the example also which is of infinite more importance."

In other words if the slave girl has no friends or "adherents" send her back to slavery—if she has and they would actively oppose her return, let her go—and even if it only be that "well-disposed citizens" disapprove of her capture and return let her remain free.

[2] Whitney's first patent was 1784. His rights were firmly established in 1807.

[3] Landon, Canada's Part in Freeing the Slave, Ontario Historical Society, Papers, etc. (1919), quoting Birney's James G. Birney and His Times, p. 435.

Mr. Landon's paper is of great interest and value and I gladly avail myself of the permission to use it.

[4] A fairly good account of the Underground Railroad will be found in William Still's Underground Railroad, Philadelphia, 1872, in W.H. Mitchell's Underground Railway, London, 1860; in W.H. Siebert's Underground Railway, New York, 1899, and in a number of other works on Slavery. Considerable space is given the subject in most works on Slavery.

One branch of it ran from a point on the Ohio River, through Ohio and Michigan to Detroit; but there were many divagations, many termini, many stations; Oberlin was one of these. See Dr. A.M. Ross, Memoirs of a Reformer, Toronto, 1893, and Mich. Hist. Coll., XVII, p. 248.

[5] The Buxton Mission in the County of Kent is well known. The Wilberforce Colony in the County of Middlesex was founded by free Negroes but they had in mind to furnish homes for future refugees. See Mr. Fred Landon's account of this settlement in the recent (1918) Transactions of the London and Middlesex Hist. Soc., pp. 30-44. For an earlier account see A. Steward's Twenty Years a Slave (Rochester, N.Y., 1857).

[6] "The Kingdom of Heaven suffereth violence and the violent take it by force." There can be no doubt that the Southern Negro looked upon Canada as a paradise. I have heard a colored clergyman of high standing say that of his own personal knowledge dying slaves in the South not infrequently expressed a hope to meet their friends in Canada.

[7] Souvenirs of the Past, by William Lewis Baby, Windsor, Ontario, 1896. Mr. Baby is a member of an old French-Canadian family of the highest repute for honor and public service. Charles Baby was the author's brother. The author lived with him and tells the story of his own knowledge. The quotations are from Mr. Baby's book.

[8] As was done in the case of Solomon Mosely, spoken of infra, p.

[9] I have not been able to verify other tales of attempted abduction to my satisfaction, there are, however, several stories which may be true.

[10] Canadian Archives Sundries, U. C., 1819.

[11] John Beverley Robinson was the son of Christopher Robinson mentioned above.

[12] The same rule obtained in Lower Canada; (1827) re Joseph Fisher, 1 Stuart's L. C. Rep. 245.

[13] This is the Act (1833), 3 Will IV, c. 7 (U. C.). This statute came forward as cap. 96 in the Consolidated Statutes of Upper Canada, 1859, but was repealed by an Act of (United) Canada (1860), 23 Vic. c. 91 (Can.).

The Act of 1833 was drawn by Chief Justice Robinson and introduced by him into the Legislative Council of which he was Speaker—it was a "Government measure." Notice of bringing in the bill was given November 28, 1832; the bill brought in November 30; read the second time December 3 passed the committee of the whole on the fourth of December and was finally passed by the Council the following day. It reached the Legislative Assembly the same day where it was passed without opposition and received the Royal Assent February 13, 1833.

[14] At the meeting were present His Excellency Sir John Colborne, K. C. B. Lieutenant Governor, the Hon. and Rev. John Strachan, D.D., Archdeacon of York, the Honorable Peter Robinson, the Honorable George Herchmer Markland, the Honorable Joseph Fells, and the Honorable John Elmsley. The Executive Council at that time was very much under the influence of the Chief Justice and Dr. Strachan, then Archdeacon afterwards the first Anglican Bishop of York or Toronto.

[15] Robert Sympson Jameson an English barrister of the Middle Temple, a familiar friend of Coleridge and Southey and the husband of Anna Jameson of some literary note.

The report is from the Canadian Archives, State J., p. 137.

[16] The Executive Council on September 7th 1837 recommended his extradition. The following is a copy of the Proceedings:

EXECUTIVE COUNCIL CHAMBER AT TORONTO Thursday 7th September 1837

REQUISITION FOR SOLOMON MOSELY

Read the Requisition of the Governor of the State of Kentucky and other documents relating to the surrender of Solomon Mosely a fugitive from the State of Kentucky charged with Horse stealing.

Read also the Attorney General opinion thereon as follows:

ATTORNEY GENERAL'S OFFICE TORONTO 6th September 1837

Sir,

I have the honor to report that in my opinion there is sufficient proof of the guilt of Solomon alias John Mosely a fugitive from the State of Kentucky charged with horse stealing in that Country—to Warrant His Excellency the Lieutenant Governor (with the advice of the Executive Council) to deliver him up upon the request made by the Governor of the State referred to.

I have the honor to be &c (Signed) CS HAGERMAN, Atty, Gen

J JOSEPH ESQ,

Civil Secretary.

The Council concur in the above opinion of the Attorney General and consider that the case comes within 3rd Wm 4 Ch 7 and therefore advise His Excellency the Lieutenant Governor to deliver up the Fugitive alluded to in the requisition of His Excellency the Governor of the State of Kentucky.

—Can. Arch. State J. Upper Canada, p. 595.

In a despatch from Head to Lord Glenelg, October 8, 1837, Can. Arch. 398, p. 149, Head says: "In a case brought before me only a few days previous to that which is the subject of this communication (i.e., the Jesse Happy case) I insisted on giving up to the Governor of the Commonwealth of Kentucky (a slave) who in order to effect his escape had been guilty of stealing his Master's horse." It was suggested that the real object was to get him back to his Master—not to punish him for the crime. But the crime was perfectly proved and the Council followed the judicial opinion in the Thornton Blackburn case that as the black had been shown to have committed an offence clearly coming within the statute of 1833, they could not advise a course to be taken "different from that which should be pursued with respect to free white persons under the same circumstances." They, therefore, advised an order for extradition.

[17] To his people he seems to have been known as "Hubbard Holmes" he is always called a "yellow man," whether mulatto, quadroon, octoroon or other does not appear.

[18] The contemporary accounts of this transaction, e.g., in the Christian Guardian of Toronto, and the Niagara Chronicle, are not wholly consistent. The main facts are clear; although there is some doubt as to the time, the military guard were ordered to fire.

[19] Present, Allen, Hon. Augustus Baldwin and Hon. William Henry Draper (afterwards Chief Justice of the Court of Common Pleas, 1856, Chief Justice of the Province of Upper Canada, 1863, and President of the Court of Error and Appeal 1868 till his death, 1877).

[20] Canadian Archives State J., p. 597.

[21] Canadian Archives, G. 84, p. 277. The letter to Sir George Arthur is ibid., G. 84, p. 275. The despatch from Lord Glenelg to Sir Francis Bond Head dated January 4, 1837, has endorsed on it a pencil memorandum "Jesse Happy has been liberated by Lieutenant Governor's command November 14, 1837," ibid., G. 83, p. 238.

[22] Concluded at Washington, August 9, 1842.

[23] It was held in the Province of Upper Canada that the Act of 1833 was superseded by the Ashburton Treaty in respect to the United States, but that it remained in force with respect to other countries (Reg. v. Tubber, 1854, 1, P.R. 98). Since the treaty our government has refused to extradite where the offence charged is not included in the treaty. In re Laverne Beebe (1863), 3 P.R. 273—a case of burglary. The provisions of the treaty were brought into full effect in Canada (Upper and Lower) by the Canadian Statute of 1849, 12, Vic. c. 19; C.S.C. (1859), c. 89.

[24] The Chief Justice Sir John Beverley Robinson, Mr. Justice McLean (afterwards Chief Justice of Upper Canada) and Mr. Justice Burns.

[25] The seat of the Superior Courts in Toronto, the Palais de Justice of the Province.

[26] Mr. Samuel B. Freeman Q.C., of Hamilton, a man of much natural eloquence, considerable knowledge of law and more of human nature; he was always ready and willing to take up the cause of one unjustly accused and was singularly successful in his defences. I have heard it said that it was Mr. M.C. Cameron, Q.C., who so addressed the gathering but he does not seem to have been concerned in the case in the Queen's Bench.

[27] The case is reported in (1860) 20 U. Can. Q.B., pp. 124-123. The warrant is given at pp. 192, 193.

[28] The case is reported in (1861) 3 Ellis & Ellis Reports, Queen's Bench, p. 487; 30, Law Jour., Q.B., p. 129; 7 Jurist N.S., p. 122; 3 Law Times, N.S., p. 622; 9 Weekly Rep., p. 255.

It was owing to this decision that the statute was passed at Westminster (1862) 25, 26, Vic. c. 20, which by sec. 1 forbids the courts in England to issue a writ of habeas corpus into any British possession which has a court with the power to issue such writ. The Court was Lord Chief Justice Cockburn and Justices Crompton Hill and Blackburn, a very strong court. The Counsel for Anderson was the celebrated but ill-fated Edwin James. The writ was specially directed to the sheriff at Toronto, the sheriff at Brantford and the jail keeper at Brantford. Judgment was given January 15, 1861.

[29] Common Law of course, not Chancery.

[30] The court was composed of Chief Justice William Henry Draper, C.B., Mr. Justice Richards, afterwards Chief Justice successively of the Court of Common Pleas, of the Court of Queen's Bench and of the Supreme Court of Canada and Mr. Justice Hagarty, afterwards Chief Justice successively of the Court of Common Pleas, of the Court of King's Bench, and of Ontario.

Mr. Freeman was assisted in this argument by Mr. M.C. Cameron, a lawyer of the highest standing professionally and otherwise, afterwards Justice of the Court of Queen's Bench and afterwards Counsel for the Crown on both arguments were Mr. Eccles, Q.C., a man of deservedly high reputation, and Robert Alexander Harrison, afterwards Chief Justice of the Court of Queen's Bench, an exceedingly learned and accurate lawyer.

The case in the Court of Common Pleas is reported in Vol. 11. Upper Can., C.P., pp. 1 sqq.

[31] Canadian Archives, Sundries U.C., 1807.

It would be unfair to the United States to say or suggest that all the flights for freedom were in the one direction. Very early trouble was experienced by Canadian owners of slaves from their running away to the United States. The following letter tells its own story. D.M. Erskine the British representative writing from New York, May 26, 1807, to Francis Gore, Lieutenant Governor of Upper Canada, says:

"I have the honour to acknowledge the receipt of your letter of the 24th ult enclosing a Memorial presented to you by the Proprietors of Slaves in the Western District of the Province of Upper Canada.

"I regret equally with yourself the Inconvenience which His Majesty's subjects in Upper Canada experience from the Desertion of their slaves into the Territory of the United States, and of Persons bound to them for a term of years, as also of his Majesty's soldiers and sailors; but I fear no Representation to the Government of the United States will at present avail in checking the evils complained of, as I have frequently of late had occasion to apply to them for the Surrender of various Deserters under different circumstances and always without success.

"The answer that has been usually given, has been, 'That the Treaty between Great Britain & the United States which alone gave them the Power to surrender Deserters having expired, it was impossible for them to exercise such an authority without the Sanction of the Laws.'

"I will however forward to His Majesty's Minister for Foreign Affairs the Memorial above mentioned in the Hope that some arrangements may be entered into to obviate in future the great Losses which are therein described."

In the Life and Adventures of Wilson Benson, written by himself (Toronto, 1876), is found the following, pp. 34-36:

"In 1849 I shipped on the schooner Rose of Milton, Capt. Hamilton, cruising on Lakes Ontario and Erie. In one trip to the town of Erie, Pennsylvania, for a cargo of coal, while lying at the dock, a diminutive negro man, with a white beard, came on board the vessel, and inquiried of me if this was a British vessel. On being informed that it was, he desired to be secreted, stating that he was a runaway slave, and that his pursuers were on his track. I at once secreted him in a closet which served as a store-room for vegetables, &c., and as we were almost ready to set sail, I did not discover his presence to either Captain or crew until we were some distance out on the lake. When he appeared, Capt. Hamilton inquired of me where I had obtained 'that child,' and on being informed, expressed some anxiety, as we were liable to be captured had we been followed by a steamer. As it was, he merely looked up at the rigging, and exclaimed, 'Blow, breezes, blow!' The negro, who knew no other name than 'Sambo' we brought to Toronto. On one occasion, when I offered him some molasses, he shook his head and made grimaces expressive of disgust. He informed me that the slaves employed on the sugar plantations, when beaten by their masters, in order to obtain an indirect revenge, spat in the syrup, and committed other filthy things as an imaginary punishment upon the whites. I frequently saw Sambo in Toronto, and many times he expressed thankfulness to me for his deliverance. I may here mention that shortly after the arrival of Sambo on board the Rose of Milton at Erie, two suspicious-looking men, dressed in plain clothes, came aboard and paced up and down the deck several times, and as all the crew were absent at the time, I felt some apprehenson for the safety of the poor fugitive; but seeing nothing of a suspicious appearance, and the almost entire absence of the crew, they sauntered away. I made several other trips up and down the lakes during that summer on the same vessel."



CHAPTER VII

SLAVERY IN THE MARITIME PROVINCES

The French population of the territory by the sea, the Acadians, are described by the poet as:

Men whose lives glided on like rivers that water the woodlands, Darkened by shadows of earth, but reflecting an image of heaven.

History does not bear out this idyll; but whatever their faults, at least the Acadians had the negative virtue of possessing no slaves,[1] Panis or Negro: nor was it until the coming of the people whose native air was too pure for a slave that the curse came upon the land.

The permanent settlement by the English of Acadia may fairly be considered as beginning when in 1749 Cornwallis founded Halifax.[2] Negro slaves were among the population of Halifax from the beginning or very shortly after. Where they came from is uncertain and it has been suggested that they came with the original settlers across the ocean. In the absence of any other explanation more plausible, this might be accepted. Lord Mansfield's decision in the Somerset case was a quarter of a century in the future. But it seems more probable that they were brought from the English Colonies, and some almost certainly were.

The official records of the country exhibit much evidence to this effect. In September, 1751, the Boston Evening Post advertised "Just arrived from Halifax and to be sold, ten strong hearty, Negro men mostly tradesman, such as caulkers, carpenters, sailmakers and ropemakers.[3] Any person wishing to purchase may enquire of Benjamin Halliwell of Boston." Such an advertisement indicates that shipbuilding was slack at Halifax and more brisk at Boston. A conjecture may be hazarded that these slaves had been taken by their master to Halifax to build ships and then returned to the colony when required no longer in Acadia.

Some such conjecture receives a little assistance from a will still on record in Halifax. It was made February 28, 1752, by Thomas Thomas "late of New York but now of Halifax" and disposed of his "goods, chattels and negros" including one bequest to this effect: "all my plate and my negro servant Orange that now lives with me at Halifax, I leave and bequeath to my son."

In the same year, The Halifax Gazette of May 15 contains the advertisement "Just imported and to be sold by Joshua Mauger at Major Lockman's store in Halifax, several Negro slaves as follows: A woman aged 35, two boys aged 12 and 13 respectively, two of 18 and a man aged 30." In the Halifax Gazette of Saturday, May 30, 1752, sale is advertised thus: "Just imported and to be sold by Joshua Mauger, at Major Lockman's store in Halifax, several negro slaves, viz., a very likely negro wench, of about thirty-five years of age, a Creole born, has been brought up in a gentleman's family, and capable of doing all sorts of work belonging thereto, as needle-work of all sorts and in the best manner; also washing, ironing, cooking, and every other thing that can be expected from such a slave: also two negro boys of about 12 or 13 years old, likely, healthy, and well-shaped, and understand some English. Likewise two healthy negro slaves of about 18 years of age, of agreeable tempers and fit for any kind of business: And also a healthy negro man of about 30 years of age." In September 1759, a Halifax merchant, Malachy Salter wrote to his wife then visiting relatives in Boston informing her of the state of the family, saying that "Jack is Jack still but rather worse. I am obliged to exercise the cat or stick almost every day. I believe Halifax don't afford another such idle, deceitful villain"—"Pray purchase a Negro boy if possible."

In the year of the surrender of Montreal, the Halifax Gazette, November 1, 1760, advertised "To be sold at public auction on Monday the 3rd of November, at the house of Mr. John Rider, two slaves, viz., a boy and a girl, about 11 years old; likewise a puncheon of choice cherry brandy with sundry other articles."

Some legal sanction, moreover, was given slavery. A General Assembly the first Elective Legislature in what is now Canada, met at Halifax in 1757. In 1762 the second session of the third General Assembly passed an act[4] which seems not to have received very much attention from legists[5] and writers. It contains a recognition of slavery. The act provides by section 2 that "in case any soldier, sailor, servant, apprentice, bound servant or negro slave or any other person whatsoever shall leave any pawn or pledge with a vendor of liquor for the payment of any sum exceeding five shillings for liquor such soldier, sailor, servant, apprentice bound servant or negro slave ... or the master or mistress of such servant, apprentice, bound servant or negro slave" might by proceedings before a Justice of the Peace obtain an order for the restoration of the pawn or pledge—and the vendor might be fined 20 shillings "for the use of the poor."[6]

For this reason slavery could easily continue as subsequent records prove. In July, 1767, Charles Proctor of Halifax sold Louisa, a "Mulotta" girl, to Mary Wood of Annapolis for L15 currency[7] and next year Mary Wood assigned the girl to her daughter Mrs. Mary Day. In June, 1767, James Simonds of the St. John River wrote to Hazen and Jarvis at Newburyport, Massachusetts, a letter in which he complains of "that rascal negro, West" who cannot be got to do a quarter of a man's work. In an advertisement in a Halifax paper in 1769 are offered for sale to the highest bidder "two hogsheads of rum, three of sugar and two well-grown negro girls aged 14 and 12." Those were clearly a consignment from the West Indies. The executors of John Margerum of Halifax deceased, in their accounts give credit for L29.9.4.1/2 "net proceeds of a negro boy sold at Carolina." In 1770 the executors of Joseph Gerrish of Halifax lost L30 on the sale of three Negroes for L150 to Richard Williams and Abraham Constable, the Negroes having been appraised at L180: and a Negro boy named John Fame was not then sold. In April 1770, Mrs. Martha Prichard of Halifax, widow, bequeathed to her daughter, wife of Moses Delesdernier a Negro slave woman named Jessie. If Mrs. Delesdernier did not wish to retain the slave, she was to be sold and the proceeds of the sale given to Mrs. Delesdernier. If she kept her, the slave at the death of Mrs. Delesdernier was to be the property of her son Ferdinand. By the same instrument the testatrix bequeathed to her grand-daughter a mulatto slave John Patten two and a half years old.

By the census of the year 1771 the Rev. James Lyon, the first Presbyterian Minister in Nova Scotia, is shown to have owned a colored boy, the only Negro in the township of Onslow and John Young in the township of Amherst also a Negro boy, the only one in the township. In Annapolis, Magdalen Winnett owned a man, woman and girl; Joseph Winnett owned a woman and a boy; Ebenezer Messenger and Ann Williams each a man, and John Stork of Granville owned a man the only Negro in the township; and Henry Evans of Annapolis had the previous year owned a colored girl.

Jacob Hurd of Halifax offered in 1773 a reward of L5 for the apprehension of his runaway Negro, Cromwell, a "short thick set strong fellow," strongly pock marked "especially on the nose" and wearing a green cloth jacket and a cocked hat. In July 1773, in the Nova Scotia Gazette and Weekly Chronicle the executor and executrix of Joseph Pierpont of Halifax advertised "a Negro named Prince to be sold at private sale." This perhaps indicated a repugnance to offering human beings for sale by auction. In the Nova Scotia Gazette and Weekly Chronicle, March 27, 1775 is an advertisement for the sale of a "likely well-made negro boy about 16 year old."

In the inventory of the estate of the late John Rock appeared in 1776 a Negro woman named Thursday. She was inventoried at L25 but sold for L20. In this year also a Windsor farmer, Joseph Wilson left by will two Negro women Byna and Sylla to his wife. In January 1779 the Nova Scotia Gazette and Weekly Chronicle advertised for sale an able Negro woman, about 21 year old, "capable of performing both town and country work and an exceedingly good cook." In the same year Daniel Stratford of Halifax left to his wife a Negro man slave Adam for life, after her death to become the property of his daughter Sarah Lawson. Matthew Harris of Picton sold for L50 to Matthew Archibald of Truro, tanner, a "Negro boy named Abram, about 12 years of age" born of Harris' Negro slave in Harris' house in Maryland.

In 1780 rewards were offered, one of 3 guineas, for the apprehension and delivery at the office of the Commanding Officer of Engineers at Halifax of two runaway Negro men; another "a handsome reward to be paid for securing in any gaol a Negro boy Mungo about 14 years old and well built"—the owner Benjamin De Wolfe of Windsor to be notified. That year the executors of Colonel Henry Denny Denson of West Falmouth debit themselves with L75 received for "Spruce," L60 for "John" and L30 for "Juba" and credit themselves with L2.11.6 paid for taking two of these to Halifax probably for sale there.

Abel Michener of Falmouth advertised in 1781 a reward of L5 for the capture of a Negro named James; and Samuel Mack of Port Medway wanted a Negro named "Chance" returned.

Richard Wenman of Halifax in September of that year agreed to give his Negro, Cato, his liberty "if he will faithfully serve my said daughter, Elizabeth Susannah Pringle two years." Captain Wilson of the transport Friends requested in 1782 that masters of vessels will not ship as a seaman his runaway Negro lad Ben, saying: "He is my own property."

There is no need for further particularization; for we now come to the year of the definitive peace between the mother country and the new republic. As in the upper country so by the sea there was a great influx of Loyalists, accompanied in many instances by their slaves. Thereafter sales, advertisements for auctions, rewards for runaway slaves, bequests of slaves, &c., are very common and there were some manumissions. That, however, was not the cause of the great increase in the Negro population of the Maritime Province. The Island of St. John, afterwards Prince Edward Island had been set off as a separate province in 1769 but the Province of Nova Scotia included what became the Province of New Brunswick until 1786.

During the Revolutionary War, the British commanders, Sir Henry Clinton in particular, had made it a point to invite the slaves to the British line and many had accepted the invitation. No few of these refugees were of material service to the British troops in various ways both menial and otherwise. At the peace Washington demanded the return of these quondam slaves.[8] Sir Guy Carleton refused but made a careful inventory of them with full description, name, former master, etc., so that Washington might claim compensation from the British Government, if he saw fit.[9] In addition to these slaves somewhere about 3,000 freed Negroes accompanied the British troops on their withdrawal from New York, nearly all coming to Nova Scotia. Many of these after suffering great hardships were sent to Sierra Leone on the West Coast of Africa in 1792. Some remained in the province where their descendants are found until this day; but not in any very great numbers. The Loyalists, however, retained their property in their own slaves; and immigration was encouraged by the Act of 1790.[10]

The trade in Negroes was very brisk for some years. For example, on June 24, 1783, the Nova Scotia Gazette and Weekly Chronicle advertised for sale a Negro woman, "25 years of age, a good house servant." On December 11, 1783, Captain Alexander Campbell late of the South Carolina Loyalists sold to Captain Thomas Green late of the Royal Nova Scotia Foot a Negro woman named Nancy for L40. Nancy two years later was sold by Green to Abraham Forst of Halifax and a year later still with her child Tom to Gregory Townsend.

A shipment was made by John Wentworth from Halifax to Surinam, Dutch Guiana, of nineteen Negro slaves, "all American born or well seasoned ... perfectly stout, healthy, sober, orderly, industrious and obedient." These, said he, "I have had christened and would rather have liberated them than send them to any estate that I am not sure of their being treated with care and humanity which I shall consider as the only favour that can be done to me on this occasion" by his correspondent.[11]

On October 29, 1787, John Rapalje, a Royalist, sent from Brookligne (Brookland or Brooklyn Ferry) to George Leonard by desire of his (R's) father a Negro woman named Eve about 35 years and her child named Suke about 15 to sell as he himself cannot go to Nova Scotia. Eve was one of the best servants "perfectly sober, honest" and the only fault she had was her near sight.

The records show occasional manumission also. In 1784 the inventory of the estate of John Porter late of Cornwallis, a Negro man is valued at L80. That same year Charles Montague of Halifax says: "I have only one Negro, named Francis; he is to have his freedom." In May 1787, Margaret Murray, widow of Halifax by her will manumitted her two Negro women Marianne and Flora; and (when he was 21) her Negro boy Brutus. From the records of a trial at Shelburne, in a magistrate's court in 1788 it appears that one Jesse Gray of Argyle had sold a Negro woman for 100 bushels of potatoes. At a trial the ownership by Gray was proved and the sale confirmed.

We now come to the times of a Chief Justice whose heart was set on destroying slavery in the province of Nova Scotia, therein wholly differing from the Chief Justice of New Brunswick, George Duncan Ludlow, who had received his appointment on the separation of that province in 1784. The forward-looking jurist was Thomas Andrew Strange who became Chief Justice of the Supreme Court in 1791.[12] The same impulse for liberty which about this time was noted in the upper country manifested itself from time to time by the sea. Slaves ran away from their masters; the masters pursued and imprisoned them. Some blacks claimed freedom without fleeing. When a writ of habeas corpus came up in the Supreme Court, Chief Justice Strange did his best to avoid giving a decision. He knew that slavery was lawful but he knew it was detestable and he pursued a course which did not require him to stultify himself but which would nevertheless confer substantial benefits upon the black claiming liberty.