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 inst.i.tuted 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 a.s.sizes, 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 a.s.sizes, 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 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 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 a.s.sembly of the bill for the abolition of slavery pa.s.sed in 1793, shortly to be mentioned. His ma.n.u.script 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 a.s.sembly, a lower house or House of Commons, as it was sometimes called, elected by the people.
The Lieutenant Governor gave the royal a.s.sent. 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, pa.s.sed 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, pa.s.sed 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 a.s.sent 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 Const.i.tution and precludes it from giving sanction to the importation of slaves, and I cannot but antic.i.p.ate 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 emanc.i.p.ation 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 Ma.s.sachusetts pa.s.sed legislation somewhat similar to that of Upper Canada in 1780; Connecticut and Rhode Island in 1784, New Hampshire by her Const.i.tution 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 Ma.s.sachusetts in 1820 after the Act of 1780; although it would seem that as late as 1833 the Supreme Court of Ma.s.sachusetts 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 a.s.sembly 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 pa.s.sed 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 45 New York Currency ($112.50) in October, 1794; and the purchaser sold him again January, 1795, for 50 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 1,200 or $4,800 the interest to be paid to "the said Dorinda her heirs and a.s.signs 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 50 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 100 (_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."