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NOTES

The next annual meeting of the Association for the Study of Negro Life and History will convene in Washington, D. C., next November. All institutions interested in the teaching of Negro life and history will be invited to send representatives to this meeting to confer as to the best methods of prosecuting studies in this neglected field. The session will cover two days to be devoted to addresses by the best thinkers of the country. The official program will appear within a few weeks.

The illustrated textbook in Negro history by Dr. C. G. Woodson has been further delayed by disturbances among the printers. It is hoped that it will appear before the end of the year.

A. B. Caldwell, of Atlanta, has published Volume III (South Carolina edition) of what he calls the History of the American Negro.

The Journal of Negro History
Vol. V—July, 1920—No. 3

THE SLAVE IN CANADA

Preface

When engaged in a certain historical inquiry, I found occasion to examine the magnificent collection of the Canadian Archives at Ottawa, a collection which ought not to be left unexamined by anyone writing on Canada. In that inquiry I discovered the proceedings in the case of Chloe Cooley set out in Chapter V of the text. This induced me to make further researches on the subject of slavery in Upper Canada. The result was incorporated in a paper, The Slave in Upper Canada, read before the Royal Society of Canada in May 1919, and subsequently published in the Journal of Negro History for October, 1919. Some of the Fellows of the Royal Society of Canada and the editor of the Journal of Negro History have asked me to expand the paper. The present work is the result.

I have spent many happy hours in the Canadian Archives and have read all and copied most of the documents referred to in this book; but I cannot omit to thank the officers at Ottawa for their courtesy in forwarding my labor of love, in furnishing me with copies, photographic and otherwise, and in unearthing interesting facts. It will not be considered invidious if I mention William Smith, Esq., I.S.O. and Miss Smillie, M.A., as specially helpful. My thanks are also due to Messrs. Herrington, K.C., of Napanee, F. Landon, M.A., of London, Mrs. Hallam and Mrs. Seymour Corley of Toronto, General Cruikshank of Ottawa, the Very Reverend Dean Raymond of Victoria, as well as to many others of whose labors I have taken advantage. This general acknowledgment will, I trust, be accepted in lieu of special and particular acknowledgment from time to time.

The chapter on the Maritime Provinces is almost wholly taken from the Reverend Dr. T. Watson Smith's paper on Slavery in Canada in the Nova Scotia Historical Society's Collections, Vol. X, Halifax, 1899.

CHAPTER I

Before the Conquest

That slavery existed in Canada before its conquest by Britain in 1759-60, there can be no doubt, although curiously enough it has been denied by some historians and essayists.367 The first Negro slave of which any account is given was brought to Quebec by the English in 1628. He was a young man from Madagascar and was sold in Quebec for 50 half crowns.368 Sixty years thereafter in 1688, Denonville, the Governor and DeChampigny, the Intendant of New France, wrote to the French Secretary of State, complaining of the dearness and scarcity of labor, agricultural and domestic, and suggesting that the best remedy would be to have Negro slaves. If His Majesty would agree to that course, some of the principal inhabitants would have some bought in the West Indies on the arrival of the Guinea ships. The minister replied in 1689 in a note giving the King's consent but drawing attention to the danger of the slaves coming from so different a climate dying in Canada and thereby rendering the experiment of no avail.369

The Indians were accustomed to make use of slaves, generally if not universally of those belonging to other tribes: and the French Canadians frequently bought Indian slaves from the aborigines. These were called "Panis."370 It would seem that a very few Indians were directly enslaved by the inhabitants: but the chief means of acquiring Panis was purchase from les sauvages.

The property in slaves was well recognized in International Law. We find that in the Treaty of Peace and Neutrality in America signed at London, November 16, 1686,371 between the Kings of France and England, which James II had arranged shortly after attaining the throne, Article 10 provides that the subjects of neither nation should take away the savage inhabitants, or their slaves or the goods which the savages had taken belonging to the subjects of either nation, and that they should give no assistance or protection to such raids and pillage. In 1705 it was decided that Negroes in America were "moveables," meubles, corresponding in substance to what is called "personal property" in the English law.372 This decision was on the Coutume de Paris, the law of New France.

The Panis and Negro slaves were not always obedient. Jacques Raudot, the Intendant, April 13, 1709, made an ordinance on "the Subject of Negroes and Savages called Panis." In this he recited the advantage the colony would acquire by certainty of ownership of the savages called Panis "whose nation is far removed from this country" and that certainty could only be brought about through the Indians who capture them in their homes and deal for the most part with the English of Carolina, but who sometimes in fact sell them to the Canadians who are often defrauded of considerable sums through an idea of liberty inspired in the Panis by those who do not buy,373 so that almost daily they leave their masters under the pretext that there are no slaves in France—that is not wholly true since in the islands of this Continent all the Negroes bought as such are regarded as slaves."

The further recital says that all the colonies should be on the same footing, and that the Panis were as necessary for the Canadians for the cultivation of the land and other work as the Negroes were for the islands, that it was necessary to assure the property in their purchases those who have bought and those who should buy in the future. Then comes the enactment "Nous sous le bon plaisir de Sa Majesté ordonnons, que tous les Panis et Nègres qui ont été achetés et qui le seront dans la suite, appartiendront en pleine proprieté à ceux qui les ont achetés comme étant 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."374

This ordinance was not a dead letter. On February 8, 1734, Gilles Hocquart, the Intendant at Quebec issued an ordinance in which he recited that in 1732 Captain Joanne of the Navy brought a Carib slave of his to Canada and employed him as a sailor; that he had deserted when Captain Joanne was ready to embark for the West Indies; and that the master had seen and recognized him a short time theretofore in the Parish of St. Augustine but on reclaiming him certain evil-disposed persons had facilitated his escape. The ordinance directed all captains and officers of the militia to give their assistance to the master in recovering the Carib slave and forbade all persons to conceal him or facilitate his escape on pain of fine or worse.375

Slavery thereafter tended to expand. The Edict of October 1727 concerning the American islands and colonies and therefore including Canada in the preamble spoke of the islands and colonies being in a condition to support a considerable navigation and commerce by the consumption and trade of Negroes, goods and merchandise, and the measures taken to furnish the necessary Negroes, goods and merchandise. It was decreed that only such Negroes, goods, and merchandise should be received by the islands and colonies as should be brought in French bottoms. Very explicit and rigid regulations were made to that end.

Some of these slaves were too vindictive to be good servants. There is given by Abbé Gosselin in a paper in the Transactions, Royal Society of Canada for 1900, an account of a mutiny of part of the garrison at Niagara incited by a Panis probably in the service of an officer at the post. Some of the mutineers were sentenced to death but made their escape while the Panis, Charles, was sent to Martinique with a request to the authorities to make him a slave and to take every precaution that he should not escape to Canada or even to the English colonies. A female slave of color belonging to Mme. de Francheville who had been bought in the English Colonies set fire to her mistress' home the night of the 10-11 April 1734, thus causing a conflagration which destroyed a part of the city of Montreal. The unfortunate slave was apprehended and tried for the crime then and for long after a capital felony. Being found guilty, she was hanged June, 1734.

The increase in the number of slaves made necessary some regulation concerning their liberation. September 1, 1736, Gilles Hocquart, the Intendant already mentioned, made an ordinance concerning the formalities requisite in the enfranchisement of slaves. Reciting that he had been informed that certain persons in Canada had freed their slaves without any other formality than verbally giving them their liberty, and the necessity of fixing in an invariable manner the status of slaves who should be enfranchised, he ordered that for the future all enfranchisements should be by notarial act and that all other attempted enfranchisements should be null and void.

Slaves unable to secure their freedom by legal means, however, undertook sometimes to effect the same by flight. A royal decree of July 23, 1745, recited the escape of three male and one female Negro slaves from the English West India Island of Antigua to the French Island of Guadeloupe and there sold. There followed a decision of the Superior Council of Guadeloupe that the proceeds of the sale belonged to the King of France and Negro slaves belonging to the enemy when they came into a French colony became at once the property of His Majesty. To make clear the course to pursue for the future, the decree declared that Negro slaves who escape from enemy colonies into French colonies and all they bring with them belong to His Majesty alone in the same way as enemy ships and goods wrecked on his coasts.

With all of this security the ownership of slaves became common. In the Registers of the Parish of La Longue Pointe is found the certificate of the burial, March 13, 1755, of the body of Louise, a female Negro slave, aged 27 days, the property of M. Deschambault. In the same Parish is found the certificate of baptism of Marie Judith, a Panis, about 12 years of age belonging to Sieur Preville of the same Parish, November 4, 1756. On January 22, 1757, one Constant a Panis slave of Sieur de Saint Blain, officer of Infantry, is sentenced by de Monrepos, Lieutenant-Governor civil and criminal in the Jurisdiction of Montreal,376 to the pillory in a public place on a market day and then to perpetual banishment from the jurisdiction.

The conquest of Canada begun at Quebec in 1759 and completed by the surrender to Amherst of Montreal by de Vaudreuil in 1760 had some bearing on slavery. One of the Articles of Capitulation, the 47th, provided that "the Negroes and Panis of both Sexes shall remain in the possession of the French and Canadians to whom they belong; they shall be at liberty to keep them in their service in the Colony or to sell them: and they may also continue to bring them up in the Roman religion."377

Having now reached the end of the French period, it will be well to say a word as to the rights of the slaves. There is nowhere any intimation that there was any difference in that regard between the Negro and the Panis. The treatment of the latter by their fellow Indians depended upon the individual master. The Panis had no rights which his Indian master was bound to respect. Remembering the persistence of customs among uncivilized peoples, one may conclude that the description given of slavery among the Chinook Indians about a century later will probably not be far from the mark concerning the Indians of the earlier time and their slaves.

Paul Kane, the celebrated explorer and artist,378 in a paper read before the Canadian Institute379 in 1857 said: "Slavery is carried on to a great extent along the North-West Coast and in Vancouver Island and the Chinooks.... The inhabitants still retain a large number of slaves. These are usually procured from the Chastay Tribe who live near the Umqua, a river south of the Columbia emptying into the Pacific. They are sometimes seized by war-parties but are often bought from their own people.... Their slavery is of the most abject description: the Chinook men and women treat them with great severity and exercise the power of life and death at pleasure."

Kane gives shocking instances of this. He tells of a chief who sacrificed five slaves to a colossal wooden idol he had set up and says that the unfortunate slaves were not considered entitled even to burial but their bodies were cast out to the crows and vultures.

Amongst the French such an extreme of barbarity did not obtain. Their law was based upon the civil law, that is, the law of Rome, which in its developed form recognized the slave as a human being. The Roman world was full of slaves. Not only were there slaves born but debtors sometimes sold themselves380 or their children. The criminal might be enslaved. In early pagan times the slave had no rights. He was a chattel disposable according to the will of his master who had jus vitæ necisque, who could slay, mutilate, scourge at pleasure.381 In the course of time this extreme power was restrained. Hadrian forbade the killing of slaves, Marius allowed the slave to lay an information against his master. The prefect at Rome and the presidents of the provinces took cognizance of crimes against the slave; and Constantine allowed a master to go free on killing his slave in chastisement only if he used rods or whips, but not if he used sticks, stones or javelins or tortured him to death.382 Hard as was his lot, the unhappy slave had at least some rights in the later civil law, few and slight as they were, and these he had under the Coutume de Paris, the law of French Canada.

CHAPTER II

The Early British Period

When Canada passed under the British flag by conquest there was for a time confusion as to the law in force. During the military regime from 1760 to 1764 the authorities did the best they could and applied such law as they thought the best for the particular case. There was no dislocation in the common affairs of the country. When Canada was formally ceded to Britain by the Treaty of Paris, 1763,383 it was not long before there was issued a royal proclamation creating among other things a "Government of Quebec" with its western boundary a line drawn from the "South end of Lake Nipissim"384 to the point at which the parallel of 45° north latitude crosses the River St. Lawrence. In all that vast territory the English law, civil and criminal, was introduced.385 It is important now to see what was the law of England at the time respecting slavery.

The dictum of Lord Chief Justice Holt: "As soon as a slave enters England he becomes free,"386 was succeeded by the decision of the Court of King's Bench to the same effect in the celebrated case of Somerset v. Stewart,387 when Lord Mansfield is reported to have said: "The air of England has long been too pure for a slave and every man is free who breathes it."388

James Somerset,389 a Negro slave of Charles Stewart in Jamaica, "purchased from the African coast in the course of the slave trade as tolerated in the plantations," had been brought by his master to England "to attend and abide with him and to carry him back as soon as his business should be transacted." The Negro refused to go back, whereupon he was put in irons and taken on board the ship Ann and Mary lying in the Thames and bound for Jamaica. Lord Mansfield granted a writ of habeas corpus requiring Captain Knowles to produce Somerset before him with the cause of the detainer. On the motion, the cause being stated as above indicated, Lord Mansfield referred the matter to the full court of King's Bench; whereupon, on June 22, 1772, judgment was given for the Negro.390 The basis of the decision and the theme of the argument were that the only kind of slavery known to English law was villeinage, that the Statute of Tenures enacted in 1660, expressly abolished villeins regardant to a manor and by implication villeins in gross. The reasons for the decision would hardly stand fire at the present day. The investigation of Paul Vinogradoff and others have conclusively established that there was not a real difference in status between the so-called villein regardant and villein in gross, and that in any case the villein was not properly a slave but rather a serf.391 Moreover, the Statute of Tenures deals solely with tenure and not with status.

But what seems to have been taken for granted, namely that slavery, personal slavery, had never existed in England and that the only unfree person was the villein, who, by the way, was real property, is certainly not correct. Slaves were known in England as mere personal goods and chattels, bought and sold, at least as late as the middle of the twelfth century.392 However weak the reasons given for the decision, its authority has never been questioned and it is good law. But it is good law for England, for even in the Somerset case it was admitted that a concurrence of unhappy circumstances had rendered slavery necessary393 in the American colonies; and Parliament had recognized the right of property in slaves there.394 Consequently so long as the slaves, Panis or Negro, remained in the colony they were not enfranchised by the law of the conqueror but retained their servile status.

The early records show the use of slaves. General James Murray, who became Governor of the Quebec Fortifications and adjoining territory immediately after the fall of Quebec and in 1763 the first Captain General and Governor in Chief of the new Province of Quebec,395 writing from Quebec, November 2, 1763, to John Watts in New York speaks thus of the promoting of agriculture in the Province:

"I must most earnestly entreat your assistance, without servants nothing can be done, had I the inclination to employ soldiers which is not the case, they would disappoint me, and Canadians will work for nobody but themselves. Black Slaves are certainly the only people to be depended upon, but it is necessary, I imagine they should be born in one or other of our Northern Colonies, the Winters here will not agree with a Native of the torrid zone, pray therefore if possible procure for me two Stout Young Fellows, who have been accustomed to Country Business, and as I shall wish to see them happy, I am of opinion there is little felicity without a Communication with the Ladys, you may buy for each a clean young wife, who can wash and do the female offices about a farm. I shall begrudge no price, so hope we may, by your goodness succeed."396

From time to time slavery makes its appearance in official correspondence. Moreover, there are still subsisting records which show the prevalence of slavery in the province.397 In January, 1763, there took place at Longueuil the marriage of Marie, slave of baroness de Longueuil, with Jacques César, slave of M. Ignace Gamelin. From 1763 to 1769 there are found records of the baptism of the children of slaves in the registers of the Parish of Lachine. In the first issue of the Gazette of Montreal, June 3, 1778, there is an advertisement by the widow Dufy Desaulniers, offering a reward of six dollars for the return to her of a female slave who had run away on the 14th. She was thirty-five years old and she was dressed in striped calico of the ordinary cut and was of "tolerable stoutness."

Alexander Henry writing from Montreal, October 5, 1778, to the Governor Sir Frederick Haldimand, says that he had obtained a Judgment in the Court of Common Pleas against one Gillelande in the colonies who owed him a considerable sum of money. "Hearing that a Negro of his had deserted from him," said Henry, "and was lurking in this Province I obtained an execution upon that judgment and got the negro apprehended—who is still in gaol." General Powell who was the Commander there sent to Mr. Gray the Sheriff desiring him to postpone the sale until such time as the Governor should be made acquainted with the matter. Mr. Gray thereafter informed Mr. Henry that he mentioned the affair to Sir Frederic Haldimand, who likewise ordered the sheriff to postpone the sale until the Governor could confer with the Attorney-General. The Attorney-General thereafter informed Mr. Henry that he had spoken to the Governor, who was of the opinion that the civil law should take its course.... Mr. Gray thought he should have some definite authority to sell.... He said: "There are some gentlemen from the Upper Countries398 whom I presume will give more for him than any person resident here and … they are now on their return." He asked that an order for sale should be sent before the departure of these gentlemen.399 The higher price which the gentlemen from the "Upper Countries" would pay indicates the objection of those in the old settled parts of the province to Slavery.

An official report made in 1778 by James Monk, Attorney General at Quebec, to the Governor, Sir Guy Carleton, (afterwards Lord Dorchester) gives a sufficiently full account of an occurrence the subject of much controversy and correspondence showing the significance of slavery at that time. The Attorney General examined the several papers, making a case of complaint, by Joseph Despin of St. Francois Merchant a trader against Major de Barner Commanding a Regiment of Light Infantry Chasseurs of Brunswick Troops. Despin complained to Brigadier General Ehrenkrook, Commander of the Brunswick Troops at Trois Rivieres, that Major de Barner by his orders or otherwise at Midnight of the first of the previous June, occasioned forcibly to be taken from said Despin a Negro-woman slave, Despin's property and suffered her to be carried out of the province. He therefore prayed Brigadier General Ehrenkrook, that Major de Barner might either return to him the said slave with damages or pay to Despin the value thereof.

Upon this complaint an inquiry was made. In the course of this inquiry Joseph Despin did not support his complaint and charge with those legal proofs which could entitle him to recover from Major de Earner thereupon; "or induce a Court of Justice to consider Major de Barner as having either given any others for the taking of, or even had any knowledge touching the intended escape of the Slave." The complaint of Despin was then deemed very justly dismissed.

Upon the dismission of this complaint Major de Barner requested of the Governor satisfaction and punishment upon the accuser, and a notary, one Robin, who prepared notarial acts, in an unbecoming affrontive manner. This request was made under three heads: first, that Despin might be exemplarily punished, not merely for a false dishonoring accusation of Major de Barner, a commanding officer and injurious to his whole battalion, but punishment for the personal insults to Major de Barner and his character; second, that Despin might pay the expenses of preparing and making out writings; and third, that the said Robin, the notary, may be equally punished for using expressions in his acts hurtful and indecent to persons of honor and character.

The Attorney General asserted that there is reason to conclude from the several testimonies appearing in the case, that Despin had lost his slave by means of some soldiers belonging to the Battalion of Chasseurs which Major de Barner Commanded, though not in the least by the orders or with the knowledge or consent of Major de Barner as charged.

One of the most extraordinary stories of the time is told by William Dummer Powell afterwards Chief Justice of Upper Canada, but in 1780400 and later practising as a barrister in Montreal. "Meeting in the Street of Montreal an armed Party escorting to the Provost Guard several female prisoners and Children," says Mr. Powell, "curiosity was excited and upon engaging the Non-Commissioned Officer commanding the Escort, Mr. Powell was informed that they were Prisoners of war, taken in the Kentucky Country and brought into Detroit by a Detachment of the Garrison and now arrived from thence. Further Enquiry after procuring necessary relief to the first wants of the party, drew from Mrs. Agnes La Force the following Narrative:

"That her husband was a loyal Subject in the Province of North Carolina,401 having a good Plantation well stocked and a numerous family. That his political Sentiments exposed him to so much Annoyance from the governing Party, that he determined to retire into the wilderness, that he accordingly mustered his whole family, consisting of several Sons and their Wives and Children, and Sons-in-law with their Wives and Children, a numerous band of select and valuable Slaves Male and female, and a large Stock of Cattle, with which they proceeded westward, intending to retire into Kentucky.

"That after" the accidental death of the father they pursued their route to the westward and settled with their Slaves in the wilderness about five hundred miles from any civil establishment. After a residence of three years, a party of regular Troops and Indians from the British Garrison at Detroit appeared in the plain and summoned them to surrender.402 "Relying upon British faith," says Mr. Powell, "they open'd their Gate on condition of Protection to their Persons and property from the Indians; but they had no sooner surrendered and received that promise than her sons and sons-in-law had to resort to arms to resist the Insults of the Indians to their wives and Slaves.403 Several lives were lost and the whole surviving Party was marched into Detroit, about six hundred Miles, where the Slaves were distributed among the Captors and the rest marched or boated eight hundred miles further to Montreal and driven into the Provot Prison as Cattle into a Pound."404

This story will be credited with difficulty but accident some time after put into the hands of Mr. Powell a document of undeniable credit, which, however, was unnecessary: for on Mr. Powell's representation of the case to Sir F. Haldimand the most peremptory orders to the Commandant at Detroit to find out the slaves of Mrs. La Force in whose ever possession they might be and transmit them to their mistress at Montreal. But Detroit was too far distant from headquarters and interests prompting to disobedience of such an order too prevalent for it to produce any effect; and the commandant acknowledged in answer to a reiterated order that the slaves could not be produced, although their names and those of their new masters were correctly ascertained and the following list transmitted with the order.

List of slaves formerly the property of Mrs. Agnes La Force and in possession of others:

20 They were taken in an expedition nominally under Captain Bird but he had little control over the Indians and had only a few men of his own British Regulars. He had had bitter experience of the cruelty and unreliability of the Indians in 1779 but had to go with them in 1780. This was not one of the two large Forts which Bird took in his 1780 expedition, Fort Liberty and Martin's Station, but a smaller fortification. It was taken June 26, 1780 (Can. Arch., B. 172, 480); that there were several small forts is certain; that some of the prisoners brought to Detroit were from the small forts and that they (or some of them) were not rebels appears from the letter from De Peyster of August 4, 1780 (Canadian Archives, B. 100, p. 441): "In a former letter to the Commander in Chief," said he, "I observed that it would be dangerous having so many Prisoners here but I then thought those small Forts were occupied by a different set of people."


The case of Mrs. La Force and some similar cases led Haldimand to require Sir John Johnson, the Superintendent of Indian Affairs, to report. He wrote from Quebec, July 16, 1781, "Several complaints having been made upon the subject of selling negroes brought into this Province (Quebec) by scouting parties—who allege a Right to Freedom and others belonging to Loyalists who are obliged to relinquish their properties or reclaim them by paying the money for which they were sold, I must desire that you upon the most minute enquiry give in to Brigadier General Maclean a Return of all Negroes who have been brought into the Province by Parties in any Respect under your Directions whether Troops or Indians, specifying their names, their former masters, whether Loyalists or Rebels, by whom brought in and to whom sold, at what price and where they are at present. I shall direct Cols. Campbell and Clans to do the same by which it will be in my Power to reduce the Grievances now complained of and to make such arrangements as will prevent them in future."

Johnson sent a return of Negroes to Maclean and Maclean July 26, 1781, and they sent it on to Haldimand: Clans and Campbell made returns direct to Haldimand in August of the same year. Fortunately the covering letters are extant as are the reports. There is also one Negro, Abraham, reported in a Return of Rebel Prisoners in and about Montreal as having been taken June 18, 1781; and, therefore, about a year after Mrs. La Force's capture.405

"Of the fifty or more slaves named in this list," says Dr. T. W. Smith, "nearly half were sold at Montreal, a few being carried by the Indians and Whites to Niagara. The others were handed to their former owners. 'Charles' 'taken at Balls Town making his escape out of a window in Col. Gordon's house' was sold to the Rev. David C. DeLisle, the Episcopal rector at Montreal, for £20 Halifax currency; Samuel Judah, Montreal, paid £24 for 'Jacob' also a slave of Col. Gordon, a rebel master, but for a Negro girl of the same owner he gave £60; Nero, another of Col. Gordon's slaves, captured by a Mohawk Indian, Patrick Langan sold to John Mittleberger of Montreal for £60; 'Tom' was sold by Captain Thompson of Col. Butler's Rangers for £25 to Sir John Johnson who gave him to Mr. Langan; and William Bowen, a Loyalist owner, sold his recovered slave 'Jack' for £70 to Captain John McDonell of the Rangers. 'William,' who was also sold for £30 to Mr. McDonell and afterwards carried to Quebec, had been taken from his master's house by Mohawk Indians under Captain John the Mohawk with a wagon and horses which he had got ready to convey his mistress Mrs. Fonda wife of Major Fonda to Schenectady … another Negro man, name unknown, was sold 'by a soldier of the 8th Regiment to Lieutenant Herkimer of the Corps of Rangers, who disposed of him to Ensign Sutherland of the Royal Regiment of New York.'"

367.For example in Garneau's Histoire du Canada (1st Edit) Vol. 2, p. 447 after speaking of correspondence of 1688-9 referred to in the text he says of the answer of the authorities in Paris:
  "C'était assez pour faire échouer une enterprise, qui aurait greffé sur notre société la grande et terrible plaie qui paralyse la force d'une portion si considérable de l'Union Américaine, l'esclavage, cette plaie inconnue sous notre ciel du Nord"—"That was effective to strand a scheme which would have engrafted upon our society that great and terrible plague which paralyses the energies of so considerable a part of the American Union, Slavery, that plague unknown under our northern sky."
368.He was sold by David Kertk or Kirke the first English Conqueror of Quebec. England held her conquest only from 1629 to 1632, if it be permissible to call Kirke's possession that of England when he was repudiated by his country.
  Relations des Jesuites, 1632, p. 12: do. do. 1633, p. 25. Much of the information which follows concerning slavery in Quebec is taken from a paper in the Memoirs of the Historical Society of Montreal, 1859, De L'esclavage en Canada, written by M. Jacques Viger and Sir L.H. Lafontaine. I have made an independent investigation and am satisfied that the facts are truly stated. This general acknowledgment will prevent the necessity of particular reference.
  In a local history of Montreal Memoirs de la Société Historique de Montreal 1869, p. 200, there is a reference to Panis slaves in Montreal in 1670.
369."Mais il est bon de leur faire remarquer qu'il est à craindre que ces nègres, venant d'un climat si différent, no périssent en Canada et le projet serait alors inutile." "Il est à craindre" that the prospect of "le projet" being "inutile" was more alarming than that of "ces nègres" perishing in frozen Canada.
370.The name Pani or Panis, Anglicized into Pawnee, was used generally in Canada as synonymous with "Indian Slave" because these slaves were usually taken from the Pawnee tribe. It is held by some that the Panis were a tribe wholly distinct from the tribe known among the English as Pawnees—e.g., Drake's History of the Indians of North America. Those who would further pursue this matter will find material in the Wisconsin Historical Collections, Vol. XVIII, p. 103 (note); Vigor and Lafontaine, L'Esclavage en Canada cited above n. 2; Michigan Pioneer and Historical Collections, Vol. XXVII, p. 613 (n); Vol. XXX, pp. 402, 596; Vol. XXXV, p. 548; Vol. XXXVII, p. 541. From Vol XXX, p. 546, we learn that Dr. Anthon, father of Prof. Anthon of Classical 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 "æltest boy"—"however they got all safe over it and are not disfigured." Thwaites, an exceedingly careful writer, in his edition of Long's Travels, Cleveland, 1904, says in a note on page 117; "Indian Slavery among the French was first practised in the Illinois Country." He gives no authority and I know of none.
371.Referred to in Chalmers' Collection of Treaties between Great Britain and Other Powers, London, 1790, p. 328: Pap. Off. B. 25.
372.We shall see later in this work that by the English law, the "villein" was real property and in the same case as land: also that when Parliament came to legislate so as to make lands in the American Colonies liable for debts, "Negroes" were included in "hereditaments" and therefore "real estate."
373.Thus early do we find the Abolitionist getting in his fiendish work—the enemy of society, of God and man!
374.This ordinance is quoted (Mich. Hist. Coll., XII, p. 511, 517) and its language ascribed to a (non-existent) "wise and humane statute of Upper Canada of May 31, 1798"—a curious mistake, perhaps in copying or printing.
  In Kingsford's History of Canada, Vol. 2, p. 507, we are told: "In 1718, several young men were prosecuted on account of their relations with Albany carried on through Lake Champlain. One of them, M. de la Découverte, had made himself remarkable by bringing back a Negro slave and some silver ware. One of the New York Livingstones resided in Montreal and was generally the intermediary in these transactions. The author adds in a note: "This negro must have been among the first brought to Canada."
375."A peine d'amende arbitraire et de plus grande peine si le cas y escheoit."
376.Canada was at this time divided into three Jurisdictions or Districts—those of Quebec, Trois Rivières and Montreal.
377.There are trifling variations in the English text in the several versions in the Capitulations and Extracts of Treaties relating to Canada, 1797; Knox's Journal, Vol. 2, p. 423: Documents relative to the Colonial History of the State of New York, Vol. 10, p. 1107. That in the text is from Shortt & Doughty's Constitutional Documents 1759-1791, Canadian Archives Publication, Ottawa, 1907. There is no substantial difference in terminology and none at all in meaning. I give the French version, as to which there is no dispute: "Les Nègres et panis des deux Sexes resteront En leur qualité d'Esclaves, en la possession des françois et Canadiens à qui Ils apartiement; Il leur Sera libre de les garder à leur Service dans la Colonie od de les vendre, Et Ils pourront aussi Continuer à les faire Elever dans la Religion Romaine."
378.The Province of Ontario is the proud possessor of many of Paul Kane's sketches.
379.Now the Royal Canadian Institute. The paper appears in Series II of the Transactions, Vol. 2, p. 20 (1857).
  The use by the Indians of Slaves is noted very early: for example in Galinée's Narrative of the extraordinary voyage of LaSalle and others in 1669-70 the travellers are shown to have obtained from the Indians, slaves as guides. See pp. 21, 27, 43 of Coyne's edition, 4 Ont. Hist. Soc. Papers (1903). These Indians were accustomed to take their slaves to the Dutch. Ibid., p. 27.
  Still there is not very much in the old authors about slavery among the Indians: the references are incidental and fragmentary and the institution is taken for granted. Thus in Lescarbot's History of New France, published in 1609, the only reference which I recall is on pp. 270, 449 of The Champlain Society's edition, Toronto, 1914; speaking of the Micmacs the author says: " … the conquerors keep the women and children prisoners … herein they retain more humanity than is sometimes shown by Christians. For in any case, one should be satisfied to make them slaves as do our savages or to make them purchase their liberty."
380.It will be remembered that the ancient law of Rome, the Twelve Tables, authorized creditors to take an insolvent debtor, kill him and divide his body amongst them, a real execution against the person more trenchant if not more effective than the capias ad satisfaciendum dear to the English lawyer.
381.Everyone has shuddered at the awful picture drawn by Juvenal in his Sixth Satire of the fashionable Roman dame who had eight husbands in five years and who ordered her slave to immediate crucifixion. When her husband mildly ventured to suggest that there should at least be some evidence of guilt and that no time should be considered long where the life of a man is in question he was snubbed, just as the Roman lady who was expostulated with for taking her bath in the presence of man slaves asked "An servus homo?" The horrible but pithy dialogue reads:
"Pone crucem servo." "Meruit quo crimine servusSupplicium? Quis testis adest? Quis detulit? AudiNulla umquam de morte hominis cunctatio longa est""O demens, ita servus homo est? Nil fecerit, estoHoc volo, sic jubeo, sit pro ratione voluntas."—Juvenal, Sat., VI, ll. 219-223.  "The cross for the slave!" "What is the charge? What is the evidence? Who laid the information? Hear what he has to say—No delay is ever great where the death of a man is in question." "You driveller! So a slave is a man! Have it your own way—he did nothing. I wish it, that is my order, my wish is a good enough reason."
  The natural death for a Roman slave was on the cross or under the scourge.
382.Constantine also by his Constitution No. 319 provided for slaves becoming free: the Constitution referred to in the text is No. 326. The best short account of slave legislation in Rome which I have seen is in a paper read by the late Vice Chancellor Proudfoot of the Ontario Court of Chancery, February 7, 1891, before the Canadian Institute. Trans. Can. Ins., Series IV, Vol. 2, p. 173. Many of the judgments of Vice Chancellor Proudfoot (venerabile nomen) show a profound knowledge and appreciation of the Civil Law.
  The following is taken from Prof. Sherman's great work Roman Law in the Modern World, Boston, 1917. The learned author has laid philosophical lawyers of all countries under heavy obligations by this splendid book, as noted for its lucidity as for its learning.
  Vol. I, 69. "To inflict unnatural cruelty upon—and finally to kill—a slave was prohibited by Augustus Claudius and Antoninus Pius. Moreover, because by natural law all men were born free and equal (see Digest, 50, 17, 32) the Emperor often restored to slaves the status of a freeborn person."
  I, 146. "Constantine … abolished crucifixion as a punishment; encouraged the emancipation of slaves...."
  I, 150. " … It is regrettable that Christianity did not change other parts of the Roman law of persons which ought to have been reformed. The chief example of this failure is slavery, which the law of Justinian fully recognized. The inertia of past centuries as to slavery was too great to be overcome. St. Paul's attitude towards slavery was to recognize the status quo, and he did not counsel wholesale emancipation. But Christianity continued the progress of the pagan law along the lines of mercy and kindness, e.g., to poison a slave or brand him was treated in later Imperial Roman law as homicide, and manumission was made easier; but the Church did not recognize the marriage of slaves until over 300 years after Justinian's death."
  II, 434, "In Roman law … the slave was a thing or chattel—nothing more legally. Slaves could no hold property—slaves could not marry, their actual unions were never legally recognized."
  II, 436, "With the advent of Greek culture and Christianity the harsh manners of ancient Rome became greatly altered."
  II, 828, "One feature of the Lex Aquilia is … that it granted an action in damages for the unlawful killing of … the slave of another man." Inst., 413, pr; Gaius 3, 210.
  II. 829, " … the owner had his option either of suing the culprit for damages under the lex Aquilia or of causing him to be criminally prosecuted." Inst., 4, 3, 11 Gaius 3, 213.
  II, 935, "A free person called as a witness could not be subjected to torture, but a slave could be tortured."
383.See this Treaty which was concluded at Paris, February 10, 1763 "au Nom de la Très Sainte & indivisible Trinité, Pere, Fils & Saint Esprit"—Shortt & Doughty, Constitutional Documents, 1759-1791, pp. 73 sqq.
384.What we now call Lake Nipissing.
385.See the Proclamation, Shortt & Doughty, Const. Docs., pp. 119, sqq.
386.Per Hargrave, arguendo, Somerset v. Stewart (1772), Lofft 1, at p. 4; the speech in the State Trials Report was never actually delivered.
387.(1772) Lofft, 12 Geo. III, 1; (1772) 20 St. Trials 1.
388
  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 entitled to the protection of the English law, whatever oppression he may heretofore have suffered and whatever may be the color of his skin. Quamvis ille niger, quamvis tu candidus esses and certainly Vergil's verse was never used to a nobler 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 lungsReceive our air, that moment they are free.They touch our country and their shackles fall."

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389.I use the spelling in Lofft. The State Trials and Lord Campbell have "Somersett" and "Steuart."
390.This was in direct opposition to the opinion of Sir Philip Yorke, Attorney General (afterwards Lord Chancellor Lord Hardwicke) and Sir Charles Talbot, Solicitor General (afterwards Lord Chancellor Lord Talbot) who had pledged themselves to the British planters for all the legal consequences of Slaves coming over to England. The law of Scotland agreed with that of England.
391.See e.g., Vinogradoff, Villeinage in England, passim. Hallam's Middle Ages (ed. 1827), Vol. 3, p. 256; Pollock and 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.
392.See Pollock and Maitland's History Eng. Law, Vol. 1, pp. 1-13, 395, 415; Holdsworth's Hist. Eng. Law, Vol. 2, pp. 17, 27, 30-33, 131, 160, 216.
393."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.
394.For example, 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," as were the villeins—a rule wholly different from that of the French law.
395.His Commission is dated November 28, 1763, Shortt & Doughty, Constitutional Documents, 1759-1761, pp. 126, sqq.
396.Canadian Archives, Murray Papers, Vol. II, p. 15: the Quebec Act mentioned immediately below is (1774) 14 George III, c. 83.
  In 1774 the well known Quebec Act reintroduced the former French Canadian law in civil matters while it retained the English law in criminal matters; but the change made no difference in the condition of the slave.
397.The three which follow I owe to the interesting paper of Mr. E. Z. Massicotte, Archivist of Montreal published in Le Bulletin des Recherches Historiques for November, 1918, pp. 348 sqq.—the advertisement in the Gazette is to be found in Terrill's Chronicles of Montreal. The paper was 2½ Spanish dollars per annum, 10 sous per copy, published every Wednesday.
398.The "Upper Countries" were Detroit and Michilimackinae, sometimes including the Niagara region—at this time there were practically no residents in what became the Province of Upper Canada and is now the Province of Ontario. The letter is to be found in the Canadian Archives, B. 217, p. 21: as no further record appears, it is to be presumed that an order was made for sale by the Sheriff.
  The Report of James Monk Attorney-General at Quebec about to be mentioned is to be found in the Canadian Archives, B. 207, p. 105.
399.The "Upper Countries" were Detroit and Michilimackinae, sometimes including the Niagara region—at this time there were practically no residents in what became the Province of Upper Canada and is now the Province of Ontario. The letter is to be found in the Canadian Archives, B. 217, p. 21: as no further record appears, it is to be presumed that an order was made for sale by the Sheriff.
  The Report of James Monk Attorney-General at Quebec about to be mentioned is to be found in the Canadian Archives, B. 207, p. 105.
400.In the same year a much wronged Negro petitioned Haldimand. His petition dated at Quebec, October 17, 1778, reads: "To His Excellency Frederick
  Haldimand, Governor & Commander in Chief of all Kanady and the territories thereunto belonging,
  The Petition of Joseph King humbly sheweth that Your Petitioner has been twice taken by the Yankys and sold by them each time at Public Vendue: he has made his escape and brought two white men through the woods: he was a servant to Captain McCoy last winter in Montreal and came here (Quebec) last spring. Your Petitioner has gone through many Perils and Dangers of his life for making his escape from the Yankeys. He hoaps that Your Excellency through the abundance of Your Benevolence will grant him his liberty for which your poor Petitioner as in Duty bound will ever pray." Canadian Archives, B. 217, p. 324.
401.In the Petition referred to post, Mrs. La Force states that her husband was "late of Virginia."
402.In the Petition referred to post, Mrs. La Force states that her husband was "late of Virginia."
403.I have followed the Powell MSS. in spelling, capitalization, etc.
404.I have followed the Powell MSS. in spelling, capitalization, etc.
405.The well-known so-called Renegade, is in reality a loyal subject whose reputation pays the penalty of a losing cause. The others are all well-known loyalists of Detroit.
  Mrs. La Force's Petition to Haldimand is still extant. Canadian Archives, B. 217, p. 116. Her name is included in the list of women and children remaining at Montreal, the list being dated Quebec, September 11, 1782, and she being given as of Virginia and taken June 26, 1780.
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