"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. Froomans 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 a.s.sist 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 situation 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."[15]
The Attorney-General was John White[16] an accomplished English lawyer. He knew that the brutal master was well within his rights in acting as he did. He had the same right to bind, export, and sell his slave as to bind, export, and sell his cow. Chloe Cooley had no rights which Vrooman was bound to respect: and it was no more a breach of the peace than if he had been dealing with his heifer. Nothing came of the direction to prosecute and nothing could be done.
It is probable that it was this circ.u.mstance which brought about legislation. At the Second Session of the First Parliament which met at Newark, May 31, 1793, a bill was introduced and unanimously pa.s.sed the House of a.s.sembly. The trifling amendments introduced by the Legislative Council were speedily concurred in, the royal a.s.sent was given July 9, 1793, and the bill became law.[17] It recited that it was unjust that a people who enjoy freedom by law should encourage the introduction of slaves, and that it was highly expedient to abolish slavery in the Province so far as it could be done gradually without violating private property; and proceeded to repeal the Imperial Statute of 1790 so far as it related to Upper Canada, and to enact that from and after the pa.s.sing of the Act, "No Negro or other person who shall come or be brought into this Province ... shall be subject to the condition of a slave or to" bounden involuntary service for life. With that regard for property characteristic of the English-speaking peoples, the act contained an important proviso which continued the slavery of every "negroe or other person subjected to such service" who has been lawfully brought into the Province. It then enacted that every child born after the pa.s.sing of the act, of a Negro mother or other woman subjected to such service should become absolutely free on attaining the age of twenty-five, the master in the meantime to provide "proper nourishment and cloathing" for the child, but to be ent.i.tled to put him to work, all issue of such children to be free whenever born. It further declared any voluntary contract of service or indenture should not be binding longer than nine years.
Upper Canada was the first British possession to provide for the abolition of slavery.[18]
It will be seen that the Statute did not put an end to slavery at once. Those who were lawfully slaves remained slaves for life unless manumitted and the statute rather discouraged manumission, as it provided that the master on liberating a slave must give good and sufficient security that the freed man would not become a public charge. But, defective as it was, it was not long without attack. In 1798, Simcoe had left the province never to return,[19] and while the government was being administered by the time-serving Peter Russell, a bill was introduced into the Lower House to enable persons "migrating into the province to bring their negro slaves with them." The bill was contested at every stage but finally pa.s.sed on a vote of eight to four. In the Legislative Council it received the three months" hoist and was never heard of again.[20] The argument in favor of the bill was based on the scarcity of labor which all contemporary writers speak of, the inducement to intending settlers to come to Upper Canada where they would have the same privileges in respect of slavery as in New York and elsewhere; in other words the inevitable appeals to greed.
After this bill became law, slavery gradually disappeared. Public opinion favored manumission and while there were not many manumissions _inter vivos_,[21] in some measure owing to the provisions of the act requiring security to be given in such case against the freed man becoming a public charge, there were not a few liberations by will.[22]
The number of slaves in Upper Canada was also diminished by what seems at first sight paradoxical, that is, their flight across the Detroit River into American territory. So long as Detroit and its vicinity were British in fact and even for some years later, Section 6 of the Ordinance of 1787 "that there shall be neither slavery not involuntary servitude in the said territory otherwise than as the punishment of crime" was in great measure a dead letter: but when Michigan was incorporated as a territory in 1805, the ordinance became effective.
Many slaves made their way from Canada to Detroit, a real land of the free; so many, indeed, that we find that a company of Negro militia was formed in Detroit in 1806 to a.s.sist in the general defence of the territory, composed entirely of escaped slaves from Canada.[23]
Almost from the pa.s.sing of the Canada Act, however, runaway Negroes began to come to Upper Canada, fleeing from slavery; this influx increased and never ceased until the American Civil War gave its death blow to slavery in the United States. Hundreds of blacks thus obtained their freedom, some having been brought by their masters near to the international boundary and then clandestinely or by force effecting a pa.s.sage; some coming from far to the South, guided by the North Star; many a.s.sisted by friends more or less secretly. The Underground Railroad was kept constantly running.[24] These refugees joined settlements with other people of color freeborn or freed in the western part of the Peninsula, in the counties of Ess.e.x and Kent and elsewhere.[25] Some of them settled in other parts of the province, either together or more usually sporadically.
At the time of the outbreak of the Civil War there were many thousands of black refugees in the province.[26] More than half of these were manumitted slaves who in consequence of unjust laws had been forced to leave their State. While some of such freedmen went to the Northern States, most came to Canada, some returning to the Northern States.
The Negro refugees were superior to most of their race, for none but those with more than ordinary qualities could reach Canada.[27]
The masters of runaway slaves did not always remain quiet when their slave reached this province. Sometimes they followed him in an attempt to take him back. There are said to have been a few instances of actual kidnapping, a few of attempted kidnapping.[28] There have been cases in which criminal charges have been laid against escaped slaves, and their extradition sought, ostensibly to answer the criminal charges. It has always been the theory in this province that the governor has the power independently of statute or treaty to deliver up alien refugees charged with crime.[29] To make it clear, the Parliament of Upper Canada in 1833 pa.s.sed an Act for the apprehension of fugitive offenders from foreign countries, and delivering them up to justice.[30] 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. The Act was permissive only and the delivery up was at the discretion of the governor.
When this act was in force 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 a.s.sist 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 Niagara jail; a _prima facie_ case was made out and an order sent for his extradition.
The people of color of the Niagara region made Mosely"s 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,[31] 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 in 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 from his horse 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 afterwards 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 officers 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, 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 fellows 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.[32]
In 1842 the well-known Ashburton Treaty was concluded[33] 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 a.s.sault 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: (1) It made it the duty of the executive to order extradition in a proper case and took away the discretion, (2) it gave the courts jurisdiction to determine whether a case was made out for extradition.[34] These changes made it more difficult in many instances for a refugee to escape: but as ever the courts were astute in finding reasons against the return of slaves.
The case of John Anderson is well known. 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.[35] 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 a.s.sembled in front of Osgoode Hall.[36] While the adverse decision was announced, there were some mutterings of violence but counsel for the prisoner[37] 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.[38] 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 the jail at Toronto, the court after anxious deliberation granted the writ,[39] 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[40] 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.[41] The prisoner was discharged. No other attempts were made to extradite him or any other escaped slave and Lincoln"s Emanc.i.p.ation Proclamation put an end to any chance of such an attempt being ever repeated.
W. R. RIDDELL.
FOOTNOTES:
[A] This paper has appeared in _Transactions of the Royal Society of Canada_, May, 1919.
[1] Per Hargrave _arguendo_, Somerset _v._ Stewart (1772), Lofft 1, at p. 4; the speech in the State Trials Report was never actually delivered.
[2] (1772) Lofft 1; (1772) 20 St. Trials 1.
[3] These words are not in Lofft or in the State Trials but will be found in Campbell"s _Lives of the Chief Justices_, Vol. II, p. 419, where the words are added: "Every man who comes into England is ent.i.tled to the protection of the English law, whatever oppression he may heretofore have suffered and whatever may be the colour of his skin. "Quamvis ille niger, quamvis tu candidus esses"" and certainly Vergil"s verse was never used on a n.o.bler occasion or to n.o.bler purpose. Verg. E. 2, 19.
William Cowper in _The Task_, written 1783-1785, imitated this in his well-known lines:
"Slaves cannot breathe in England; if their lungs Receive our air, that moment they are free.
They touch our country and their shackles fall."
[4] I use the spelling in Lofft; the State Trials and Lord Campbell have "Somersett" and "Steuart."
[5] See, _e. g._, Vinogradoff, _Villeinage in England_, pa.s.sim; Hallam"s _Middle Ages_ (ed. 1827), Vol. 3, p. 256; Pollock & Maitland, _History of English Law_, Vol. 1, pp. 395 sqq. Holdsworth"s _History of English Law_, Vol. 2, pp. 33, 63, 131; Vol. 3, pp. 167, 377-393.
[6] See Pollock & Maitland"s _History Eng. Law_, Vol. 1, pp. 1-13, 395, 415; Holdworth"s _Hist. Eng. Law_, Vol. 2, pp. 17, 27, 30-33, 131, 160, 216.
[7] "So spake the fiend and with necessity, The tyrant"s plea, excused his devilish deeds."
Paradise Lost, Bk. 4, ll. 393, 394.
Milton a true lover of freedom well knew the peril of an argument based upon supposed necessity. Necessity is generally but another name for greed or worse.
[8] _E. g._, the Statute of (1732) 5 Geo. II, C. 7, enacted, sec. 4, "that from and after the said 29th. September, 1732, the Houses, Lands, Negroes and other Hereditaments and real Estates situate or being within any of the said (British) Plantations (in America) shall be liable" to be sold under execution. Note that the Negroes are "Hereditaments and Real Estate."
[9] The name _Pani_ or _Panis_, Anglicized into _p.a.w.nee_, was used generally in Canada as synonymous with "Indian Slave" because these slaves were usually taken from the p.a.w.nee tribe. Those who would further pursue this matter will find material in the _Wisconsin Historical Collections_, Vol. XVIII, p. 103 (note); Lafontaine, _L"Esclavage in Canada_ cited in the above; _Michigan Pioneer and Historical Collections_, Vol. XXVII, p. 613 (n); Vol. x.x.x, pp. 402, 596. Vol. x.x.xV, p. 548; Vol. x.x.xVII, p. 541. From Vol. x.x.x, p. 546, we learn that Dr. Anthon, father of Prof. Anthon of Cla.s.sical Text-book fame, had a "Panie Wench" who when the family had the smallpox "had them very severe" along with Dr. Anthon"s little girl and his "aeltest boy" "whoever they got all safe over it and are not disfigured."
Dr. Kingsford in his _History of Canada_, Vol. V, p. 30 (n), cites from the _Doc.u.ments of the Montreal Historical Society_, Vol. I, p. 5, an "ordonnance au sujet des Negres et des sauvages appeles panis, du 15 avril 1709" by "Jacques Raudot, Intendant." "Nous sous le bon plaisir de Sa Majeste ordonnons, que tous les Panis et Negres qui ont ete achetes et qui le seront dans la suite, appartiendront en pleine propriete a ceux qui les ont achetes comme etant leurs esclaves." "We with the consent of His Majesty enact that all the Panis and Negroes who heretofore have been or who hereafter shall be bought shall be the absolute property as their slaves of those who bought them." This ordinance is quoted (_Mich. Hist. Coll._, XII, p. 511), and its language ascribed to a (nonexistent) "wise and humane statute of Upper Canada of May 31, 1798"--a curious mistake, perhaps in copying or printing.
There does not seem to have been any distinction in status or rights or anything but race between the Panis and the other slaves. I do not know of an account of the numbers of slaves in Canada 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" (pa.s.sed with but one dissenting voice, that of a Delegate from New York) was quite disregarded in Detroit (_Mich. Hist. Coll._, I, 415); and indeed Detroit and the neighboring country remained British (de facto) until August, 1796, and part of Upper Canada from 1791 till that date.
[10] This Act (1790) 30 Geo. III, c. 27, was intended to encourage "new settlers in His Majesty"s Colonies and Plantations in America"
and applied to all "subjects of the United States." It allowed an importation into any of the Bahama, Bermuda or Somers Islands, the Province of Quebec (then including all Canada), Nova Scotia and every other British territory in North America. It allowed the importation by such American subjects of "negros, household furniture, utensils of husbandry or cloathing free of duty," the "household furniture, utensils of husbandry and cloathing" not to exceed in value 50 for every white person in the family and 2 for each negro, any sale of negro or goods within a year of the importation to be void.
[11] The Royal Proclamation is dated 7th October, 1763; it will be found in Shortt & Doughty, _Doc.u.ments relating to the Const.i.tutional History of Canada_ published by the _Archives of Canada_, Ottawa, 1907, pp. 119 sqq. The Proclamation fixes the western boundary of the (Province or) Government at a line drawn from the south end of Lake Nip.i.s.sing to where the present international boundary crosses the River St. Lawrence.