[19] One result of these decisions was to induce the escape of Negro slaves from Upper Canada where slavery was lawful to Lower Canada. For example one hears of two of the three slaves whom Captain Allan brought with him into Upper Canada from New Jersey running away to Montreal. The owner pursued them to Montreal and searched for them in vain for ten days. The third slave, a woman, he sold with her child.
The Statute is (1833) 3, 4, William IV, c. 73 (Imp.). One result of this Act is exceedingly curious and to the philosophical lawyer exceedingly interesting. Slaves which had been real estate, as soon as the act was pa.s.sed ceased to be such, and the benefit to be obtained from their labor until fully enfranchised and the money to be paid by the legislature as compensation for their freedom became personal estate. See the luminous judgment of the Judicial Committee of the Privy Council in Richard _v._ Attorney General of Jamaica, Moore"s _Report of Cases in the Judicial Committee_ (1848), Vol. 6, p. 381.
In a note on p. 35 of a paper in the _Transactions of the Royal Society of Canada_, 1900, on _La Declaration de 1732_ M. L"Abbe Auguste Gosselin, Litt.D., F.R.S., Can., we read:
"On trouve dans le livre de Mgr. Tanguay _A travers les Registres_, p.
157, une notice sur l"Esclavage au Canada, avec un "Tableau des familles possedant des esclaves de la nation des Panis" L"esclavage ne fut definitivement aboli par une loi, en Canada, qu"en 1833."
The learned author does not mean that there was legislation on slavery in Canada in 1833, or that it was Canadian legislation which abolished slavery; for such was not the case.
[20] From September 8, 1828, to October 19, 1830.
[21] _Canadian Archives_, State K, p. 406.
CHAPTER V
UPPER CANADA--EARLY PERIOD
The first Parliament of the Province of Upper Canada sat at Newark formerly and now Niagara-on-the-Lake, September 17, 1792. The very first act of this first Parliament of Upper Canada reintroduced the English civil law.[1] This did not destroy slavery, nor did it ameliorate the condition of the slave. It was rather the reverse, for as the English law did not, like the civil law of Rome and the systems founded on it, recognize the status of the slave at all, when it was forced by grim fact to acknowledge slavery, it had no room for the slave except as a mere piece of property. Instead of giving him rights like those of the "servus," he was deprived of all rights, marital, parental, proprietary, even the right to live. In the English law and systems founded on it, the slave had no rights which the master was bound to respect.[2] At one time, indeed, it was understood in the English colonies that the master had the _jus vitae necisque_ over his slaves; but at the beginning of the eighteenth century the Crown much to the anger and disgust of the colonists made the murder of a Negro a capital offence, and at least some of the governors vigorously upheld this decision.[3]
Upper Canada was settled almost wholly by United Empire Loyalists who had left their homes in the revolted colonies and kept their faith to the Crown. Many of them brought their slaves as well as their other property to the new land. The statute of 1790 encouraged this practice.[4]
The first Lieutenant-Governor of Upper Canada was Col. John Graves Simcoe. He hated slavery and had spoken against it in the House of Commons in England. Arriving in Upper Canada in the summer of 1792, he was soon made fully aware by the Chloe Cooley case that the horrors of slavery were not unknown in his new province. There came up to the Executive Council the complaint that a Negro girl thus named had been cruelly forced across the border and sold in the United States by one Vroomen. Much indignation was expressed by both citizens and officials.
The Attorney-General was John White[6] an English lawyer of no great eminence indeed but of sufficient skill to know 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 unless there should be an actual breach of the peace.
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.[7]
Simcoe, as was his duty, reported to Henry Dundas afterwards Lord Melville, Secretary of State for the Home Department concerning this Act September 28, 1793. Simcoe had discovered that there was much resistance to the slave law. There were many plausible arguments of the demand for labor and the difficulty of obtaining "Servants to cultivate Lands." "Some possessed of Negroes," said he, "knowing that it was very questionable whether any subsisting Law did authorize Slavery and having purchased several taken in war by the Indians at small prices wished to reject the Bill entirely; others were desirous to supply themselves by allowing the importation for two years. The matter was finally settled by undertaking to secure the property already obtained upon condition that an immediate stop should be put to the importation and that Slavery should be gradually abolished."[8]
The Act 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. It repealed 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 "negro or other person subjected to such service" who had 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 that any voluntary contract of service or indenture should not be binding longer than nine years.
Upper Canada was the first British possession to provide by legislation for the abolition of slavery.[9]
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, and while the government was being administered by the timeserving Peter Russell,[10] 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.[11] 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 appeal to greed.
After this bill became law, slavery gradually disappeared. Public opinion favored manumission and while there were not many manumissions _inter vivos_[12] in some measure owing to the provisions of the act requiring security to be given in such case against the free man becoming a public charge, there were not a few emanc.i.p.ated by will.[13]
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 nor involuntary servitude in the said territory otherwise than as punishment of crime"
was a dead letter: but when Michigan was incorporated as a territory in 1805, the Ordinance of 1787 became legally and at least in form effective. Many slaves made their way from Canada to Detroit, then a real land of the free; so many, indeed, that we find that a company of Negro militia composed entirely of escaped slaves from Canada was formed in Detroit in 1806 to a.s.sist in the general defence of the territory.[14]
The number of slaves in Upper Canada cannot be ascertained with anything approaching accuracy. The returns of the census of 1784 show that very many of the 212 slaves in the District of Montreal, which then extended from the Rivers St. Maurice and G.o.dfrey to the Detroit River _de jure_ and to the Mississippi _de facto_, were the property of the United Empire Loyalists on the St. Lawrence in territory which in 1791 became part of the new Province of Upper Canada.
The settlement crept up the St. Lawrence and Lake Ontario so as to be as far as the River Trent by the end of the eighteenth century: and Prince Edward County had also its quota of settlers. Until the nineteenth century had set in there were practically no settlers from the Trent to near York (Toronto) but that splendid territory of level clay and loam land covered by magnificent forests of beech and maple gradually filled in and by the 30"s was fairly well settled. In the latter territory there were very few, if any, slaves.[15]
Farther east, however, in what became the Eastern and Midland Districts there were many slaves. It is probable that by far the greatest number had their habitat in that region. When York became the provincial capital (1796-7) slaves were brought to that place by their masters. In the Niagara region there were also some slaves, in great part bought from the Six Nation Indians as some of these in the eastern part of the province were bought from the Mississaguas who had a rendezvous on Carleton Island near Kingston. In the Detroit region there were many slaves, some of them Panis;[16] and many of both kinds, Panis and Negro bought from the Shawanese, Pottawattaimies and other Western Indians, taken for the most part from the Ohio and Kentucky country. Most of these slaves were west of the river, few being in the Province of Upper Canada _de jure_. Omitting Detroit, the number of slaves in the province at the time of the Act of 1793 was probably not far from 500.[17]
In the Eastern District, part of which became the District of Johntown in 1798, there were certainly some slaves. Justus Sherwood one of the first settlers brought a Negro slave Caesar Congo to his location near Prescott. Caesar was afterwards sold to a half pay officer Captain Bottom settled about six miles above Prescott and after about twenty years service was emanc.i.p.ated by his master. Caesar afterwards married a woman of color and lived in Brockville for many years and until his death. Daniel Jones another old settler had a female Negro slave and there were a few more slaves in the district.[18]
It is possible that this part of the province was the home of a Negro who at the age of 101 appeared at the a.s.size Court at Ottawa in 1867 to give evidence. He was born in the Colony of New York in 1766, had been brought to Upper Canada by his master, a United Empire Loyalist, had fought through the war of 1812 on the British side, was present at the Battles of Chippewa and Lundy"s Lane and was wounded at Sackett"s Harbor.[19]
In the Midland District at Kingston such leading families as the Cartwrights, Herkimers and Everetts were slave owners. Further west the Ruttans, Bogarts, Van Alstynes,[20] Petersons, Allens, Clarks, Bowers, Thompsons, Meyers, Spencers, Perrys, Pruyns, speaking generally all the people of substance had their slaves.[21]
It may be noted that there are many records of births, deaths and marriages of slaves. In the Register for the Township of Fredericksburg (Third Township) of the Reverend John Langhorn, Anglican clergyman, we find in 1791, November 13, that he baptized "Richard son of Pomps and Nelly a negro living with Mr. Timothy Thompson.[22] On October 6, 1793, "Richard surnamed Pruyn a negro, living with Harmen Pruyn," on March 2, 1796, "Betty, surnamed Levi, a negro girl living with Johannes Walden Meyers" of the Township of Thurlow. On April 22, 1805, "Francis, son of Violet, a negro woman living with Hazelton Spencer[23] Esq. by Francis Green." We find that "Francis, son of Violet ... by Francis Green as was supposed" was buried January 17, 1806.[24]
In a paper by the late J. C. Hamilton, a barrister of Toronto, he says that Lieutenant Governor Sir Alexander Campbell had favored him with a note concerning slaves at Kingston, which concluded "I had personally known two slaves in Canada: one belonging to the Cartwright and the other to the Forsyth family.[25] When I remember them in their old age, each had a cottage, surrounded by many comforts on the family property of his master and was the envy of all the old people in the neighborhood."[26]
York (Toronto) and its neighborhood were settled later but they received their quota of Negro slaves, at least the town did. In 1880, the _Gazette_ at York announces to be sold "a healthy strong negro woman, about thirty years of age; understands cooking, laundry and the taking care of poultry. N.B. She can dress ladies" hair. Enquire of the Printers, York, Dec. 20, 1800."[27]
The best people in the capital owned Negroes. Peter Russell who had been administrator of the government of the province and therefore the head of the State advertised in the _Gazette and Oracle_ of February 19, 1806:
"To be sold: a Black Woman named Peggy, aged forty years and a Black Boy her son named Jupiter, aged about fifteen years, both of them the property of the Subscriber. The woman is a tolerable cook and washerwoman and perfectly understands making soap and candles. The boy is tall and strong for his age, and has been employed in the country business but brought up princ.i.p.ally as a house servant. The price of the woman is one hundred and fifty dollars. For the boy two hundred dollars payable in three years with interest from the day of sale and to be secured by bond, &c. But one-fourth less will be taken for ready money."
Peggy was not a satisfactory slave, she had awkward visions of freedom. On September 2, 1803, Russell advertised: "The subscriber"s black servant Peggy not having his permission to absent herself from his service, the public are hereby cautioned from employing or harbouring her without the owner"s leave. Whoever will do so after this notice may expect to be treated as the law directs."
Peggy was not the only slave who was dissatisfied with her lot. On March 1, 1811, William Jarvis, the Secretary of the Province "informed the Court that a negro boy and girl, his slaves, had the evening before been committed to prison for having stolen gold and silver out of his desk in his dwelling house and escaped from their said master; and prayed that the Court would order that the said prisoners with one Coachly a free negro, also committed to prison on suspicion of having advised and aided the said boy and girl in eloping with their master"s property...." It was "ordered that the said negro boy named Henry commonly called Prince be recommitted to prison and there safely kept till discharged according to law and that the said girl do return to her said master and Coachly be discharged."[29]
Jarvis had slaves when he resided at Niagara. We find in the Register of St. Mark"s Parish there an entry of February 5, 1797, of Moses and Phoebe, Negro slaves of Mr. "Sec"y Jarvis." Nor is this a unique entry for we find this: "1819 April 4, Cupitson Walker and Margt. Lee (of Colour)," but these may have been free.
There were baptized: "1793, January 3, Jane a daughter of Martin, Col.
Butler"s Negro," "1794, September 3, Cloe, a mulatto," "1800, March 29, Peggy a mulatto (_filia populi_)," "1807, May 10, John of a negro girl (_filius populi_)" and in the same list was a soldier shot for desertion, a soldier who shot himself, "an unfortunate stranger," "R.
B. Tickel, alas he was starved," an Indian child, "Cutnose Johnson, a Mohawk chief" and there is recorded the burial of "Mrs. Waters a negro woman," September 29, 1802.[30]
Slaves continued to run away. Colonel Butler in the _Upper Canada Gazette_ of July 4, 1793, advertised a reward of $5 for his "negro-man servant named John."[31] On August 28, 1802, Mr. Charles Field of Niagara advertised in the _Herald_: "All persons are forbidden harbouring, employing or concealing my Indian Slave Sal, as I am determined to prosecute any offender to the extremity of the law and persons who may suffer her to remain in or upon their premises for the s.p.a.ce of half an hour, without my written consent will be taken as offending and dealt with accordingly."[32]
There was always a demand for good slaves. For example, in the _Gazette and Oracle_ of Niagara October 11, 1797, W. & J. Crooks of West Niagara "Wanted to purchase a negro girl of good disposition": a little later, January 2, 1802 the _Niagara Herald_ advertised for sale "a negro man slave, 18 years old, stout and healthy; has had the Smallpox and is capable of service either in the house or out-doors.
The terms will be made easy to the purchaser, and cash or new lands received in payment." On January 18, 1802, the _Niagara Herald_ proclaimed for sale: "the negro man and woman, the property of Mrs.
Widow Clement. They have been bred to the business of a farm; will be sold on highly advantageous terms for cash or lands."[33]
Slavery in Upper Canada continued until the Imperial Act of 1833[34]
but there does not seem to be any record of sales after 1806. Probably the last slaves to become free were two who are mentioned by the late Sir Adam Wilson, Chief Justice successively of the Courts of Common Pleas and Queen"s Bench at Toronto. These were "two young slaves, Hank and Sukey whom he met at the residence of Mrs. O"Reilly, mother of the venerable Miles O"Reilly, Q. C., in Halton County about 1830. They took freedom under the Act of 1833 and were perhaps the last slaves in the province."[35]
In the Detroit neighborhood there were undoubtedly many slaves, Panis and Negro: most of these were lost to the province on the delivery up of the retained territory in 1796 under the provisions of Jay"s Treaty. But some were on the Canadian side and some were brought over by their masters on the surrender. Colonel Matthew Elliott who settled in 1784 just below Amherstburg brought many slaves, some sixty it is said. The remains of slave quarters are still in existence on the place. Jacques Duperon Baby the well-known fur-trader had at least thirty.
Antoine Louis Descompte dit Labadie, who raised a family of thirty-three children was the owner of slaves also. He was a wealthy farmer of the Township of Sandwich (now Walkerville) and died in 1806, aged 62. On May 26, 1806, he made at Sandwich his will by which he made the following bequest: "I also give and bequeath to my wife the use or service of two slaves that she may select, as long as she continues to be my widow." After a number of bequests there follows: "I will that all my personal property not here above bequeathed as well as my slaves with the exception of the two left to my wife, be portioned out or sold, and that the proceeds arising therefrom be equally divided between my said wife and the nine children[36] born out of my marriage with her."
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 quant.i.te 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 a.s.sizes, 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 circ.u.mstances 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]