REQUISITION FOR SOLOMON MOSELY
Read the Requisition of the Governor of the State of Kentucky and other doc.u.ments 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 circ.u.mstances." 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 pa.s.sed 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 c.o.c.kburn 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 a.s.sisted 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 circ.u.mstances 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 mola.s.ses, 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 advertis.e.m.e.nt 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 a.s.sistance 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."