Kitabı oku: «The Journal of Negro History, Volume 5, 1920», sayfa 20
"I have received and laid before Viscount Palmerston your Letter to me of the 6 December 1837 with its accompanying copy of a Dispatch from Sir Francis Head, in which that officer requests Instructions for his guidance, in the general case of Fugitive Slaves who, having escaped to Canada may be demanded from the Canadian Authorities by the Authorities of the United States on the plea of their having committed crimes in the last mentioned Country and in the particular case of Jesse Happy, who having escaped to Upper Canada more than four years ago, had been demanded from the Lieut. Governor of that Province, upon the ground of a charge of Horse Stealing.
"These two questions have by direction of Lord Palmerston been submitted to the Law Officers of the Crown, and I am directed by his Lordship to state to you the opinion of these officers for the information of Lord Glenelg.
"The Law Officers report upon the general question, that they think that no distinction should in the case contemplated, be made between the demand for Slaves or for Freemen.
"It is the opinion of the Law Officers that in every case in which there is such Evidence of criminality as, according to the terms of the Canadian Statutes, would warrant the apprehension of the accused Party, if the alleged offence had been committed in Canada, then on the requisition of the Governor of the Foreign State, the accused Party ought to be delivered up, without reference to the question as to whether he is or is not a Slave.
"The Law Officers desire however that it should be distinctly understood, that the Evidence for this Purpose must be evidence taken in Canada, upon which (if false) the Parties making it may be indicted for Perjury.
"The Law Officers remark further on this point that the 3rd Section of the Provincial Statute enables the Governor to refuse to deliver up a Party, whenever special circumstances may render it inexpedient to accede to the demand made to the Governor on such a point.
"The Law Officers, reporting upon the subject of Jesse Happy state that they do not think that there was in that case such evidence of criminality, as, according to the Laws of the Province of Upper Canada would warrant the apprehension of Jesse Happy if the offence charged had been committed in U. Canada.
"The Law Officers indeed go farther, and say that so far as there is any evidence of the Facts, what took place was not Horse Stealing according to the Laws of Upper Canada, but merely an unauthorized use of a horse, without any intention of appropriating it.
"The Law Officers conclude by, stating, that upon these grounds, they are of opinion, that Jesse Happy ought to be set at liberty, and that instructions to that effect should be sent to the Lieutenant Governor of Upper Canada."525
On the ninth of May Glenelg wrote to Sir George Arthur who succeeded Bond Head as Lieutenant Governor of Upper Canada, saying: "With reference to my Dispatch to Sir Francis Bond Head of the 4th December last No 255, I enclose for your information the copy of a letter from the Under Secretary of State for Foreign Affairs stating the substance of the opinion given by the Law Officers of the Crown in respect to the restitution of Fugitive Slaves who may be demanded from the Government of Upper Canada on the plea of their having committed crimes at the places from which they have fled. In conformity with the opinion of the Law Officers of the Crown I have to desire that Jessie Happy, the individual with respect to whom this question was raised shall be forthwith set at liberty."
It is impossible not to see that the very stringent rules laid down by the Law Officers of the Crown at Westminster were intended to be in favorem libertatis. Happy was released November 14th, 1837, and so far as appears from the official records no further application was ever made for the extradition of a runaway slave until after 1842. That year the well-known Ashburton Treaty was concluded526 between Britain and the United States. This by Article X provides that "the United States and Her Britannic Majesty shall, upon mutual requisitions … deliver up to justice all persons … charged with murder, or assault with intent to commit murder, or piracy or arson or robbery or forgery or the utterance of forged paper...." Power was given to judges and other magistrates to issue warrants of arrest, to hear evidence and if "the evidence be deemed sufficient … it shall be the duty of the … judge or magistrate to certify the same to the proper executive authority that a warrant may issue for the surrender of such fugitive."
It will be seen that this treaty made two important changes so far as the United States was concerned. It made it the duty of the executive to order extradition in a proper case and took away the discretion. It gave the courts jurisdiction to determine whether a case was made out for extradition.527 These changes made it more difficult in many instances for a refugee to escape; but the courts were astute as ever in finding reasons against the return of slaves.
The case of John Anderson is a well-known one in evidence. He was born a slave in Missouri. As his master was Moses Burton, he was known as Jack Burton. He married a slave woman in Howard County, the property of one Brown. In 1853, Burton sold him to one McDonald living some thirty miles away and his new master took him to his plantation. In September 1853 he was seen near the farm of Brown, when apparently he was visiting his wife. A neighbor, Seneca T.P. Diggs, became suspicious of him and questioned him. As his answers were not satisfactory he ordered his four Negro slaves to seize him, according to the law in the State of Missouri. The Negro fled, pursued by Diggs and his slaves. In his attempt to escape the fugitive stabbed Diggs in the breast and Diggs died in a few hours. Effecting his escape to this province, he was in 1860 apprehended in Brant County, where he had been living under the name of John Anderson, and three local justices of the peace committed him under the Ashburton Treaty. A writ of habeas corpus was granted by the Court of Queen's Bench at Toronto, under which the prisoner was brought before the Court of Michaelmas Term of 1860.
The motion was heard by the full court.528 Much of the argument was on the facts and on the law apart from the form of the papers, but that was hopeless from the beginning. The law and the facts were too clear, although Mr. Justice McLean thought the evidence defective. The case turned on the form of the information and warrant, a somewhat technical and refined point. The Chief Justice Sir John Beverley Robinson, and Mr. Justice Burns agreed that the warrant was not strictly correct, but that it could be amended. Mr. Justice McLean thought it could not and should not be amended.
The case attracted great attention throughout the province, especially among the Negro population. On the day on which judgment was to be delivered, a large number of people of color with some whites assembled in front of Osgoode Hall.529 While the adverse decision was announced, there were some mutterings of violence but the counsel for the prisoner530 addressed them seriously and impressively, reminding them "It is the law and we must obey it." The melancholy gathering melted away one by one in sadness and despair.
Anderson was recommitted to the Brantford Jail.531 The case came to the knowledge of many in England. It was taken up by the British and Foreign Anti-Slavery Society and many persons of more or less note. An application was made to the Court of Queen's Bench of England for a writ of habeas corpus, notwithstanding the Upper Canadian decision, and while Anderson was in jail at Toronto, the court after anxious deliberation granted the writ532 but it became unnecessary owing to further proceedings in Upper Canada.
In those days the decision of any Court or of any judge in habeas corpus proceedings was not final. An applicant might go from judge to judge, court to court533 and the last applied to might grant the relief refused by all those previously applied to. A writ of habeas corpus was taken out from the other Common Law Court in Upper Canada, the Court of Common Pleas. This was argued in Hilary Term, 1861, and the court unanimously decided that the warrant of commitment was bad and that the court could not remand the prisoner to have it amended.534 The prisoner was discharged. No other attempts were made to extradite him or any other escaped slave; and Lincoln's Emancipation Proclamation put an end to any chance of such an attempt being ever repeated.535
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,536 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.537 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.538 Any person wishing to purchase may enquire of Benjamin Halliwell of Boston." Such an advertisement 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 assistance 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."
In the same year, The Halifax Gazette of May 15 contains the advertisement "Just imported and to be sold by Joshua Mauger at Major Lockman's store in Halifax, several Negro slaves as follows: A woman aged 35, two boys aged 12 and 13 respectively, two of 18 and a man aged 30." In the Halifax Gazette of Saturday, May 30, 1752, sale is advertised thus: "Just imported and to be sold by Joshua Mauger, at Major Lockman's store in Halifax, several negro slaves, viz., a very likely negro wench, of about thirty-five years of age, a Creole born, has been brought up in a gentleman's family, and capable of doing all sorts of work belonging thereto, as needle-work of all sorts and in the best manner; also washing, ironing, cooking, and every other thing that can be expected from such a slave: also two negro boys of about 12 or 13 years old, likely, healthy, and well-shaped, and understand some English. Likewise two healthy negro slaves of about 18 years of age, of agreeable tempers and fit for any kind of business: And also a healthy negro man of about 30 years of age." In September 1759, a Halifax merchant, Malachy Salter wrote to his wife then visiting relatives in Boston informing her of the state of the family, saying that "Jack is Jack still but rather worse. I am obliged to exercise the cat or stick almost every day. I believe Halifax don't afford another such idle, deceitful villain"—"Pray purchase a Negro boy if possible."
In the year of the surrender of Montreal, the Halifax Gazette, November 1, 1760, advertised "To be sold at public auction on Monday the 3rd of November, at the house of Mr. John Rider, two slaves, viz., a boy and a girl, about 11 years old; likewise a puncheon of choice cherry brandy with sundry other articles."
Some legal sanction, moreover, was given slavery. A General Assembly the first Elective Legislature in what is now Canada, met at Halifax in 1757. In 1762 the second session of the third General Assembly passed an act539 which seems not to have received very much attention from legists540 and writers. It contains a recognition of slavery. The act provides by section 2 that "in case any soldier, sailor, servant, apprentice, bound servant or negro slave or any other person whatsoever shall leave any pawn or pledge with a vendor of liquor for the payment of any sum exceeding five shillings for liquor such soldier, sailor, servant, apprentice bound servant or negro slave … or the master or mistress of such servant, apprentice, bound servant or negro slave" might by proceedings before a Justice of the Peace obtain an order for the restoration of the pawn or pledge—and the vendor might be fined 20 shillings "for the use of the poor."541
For this reason slavery could easily continue as subsequent records prove. In July, 1767, Charles Proctor of Halifax sold Louisa, a "Mulotta" girl, to Mary Wood of Annapolis for £15 currency542 and next year Mary Wood assigned the girl to her daughter Mrs. Mary Day. In June, 1767, James Simonds of the St. John River wrote to Hazen and Jarvis at Newburyport, Massachusetts, a letter in which he complains of "that rascal negro, West" who cannot be got to do a quarter of a man's work. In an advertisement in a Halifax paper in 1769 are offered for sale to the highest bidder "two hogsheads of rum, three of sugar and two well-grown negro girls aged 14 and 12." Those were clearly a consignment from the West Indies. The executors of John Margerum of Halifax deceased, in their accounts give credit for £29.9.4.½ "net proceeds of a negro boy sold at Carolina." In 1770 the executors of Joseph Gerrish of Halifax lost £30 on the sale of three Negroes for £150 to Richard Williams and Abraham Constable, the Negroes having been appraised at £180: and a Negro boy named John Fame was not then sold. In April 1770, Mrs. Martha Prichard of Halifax, widow, bequeathed to her daughter, wife of Moses Delesdernier a Negro slave woman named Jessie. If Mrs. Delesdernier did not wish to retain the slave, she was to be sold and the proceeds of the sale given to Mrs. Delesdernier. If she kept her, the slave at the death of Mrs. Delesdernier was to be the property of her son Ferdinand. By the same instrument the testatrix bequeathed to her grand-daughter a mulatto slave John Patten two and a half years old.
By the census of the year 1771 the Rev. James Lyon, the first Presbyterian Minister in Nova Scotia, is shown to have owned a colored boy, the only Negro in the township of Onslow and John Young in the township of Amherst also a Negro boy, the only one in the township. In Annapolis, Magdalen Winnett owned a man, woman and girl; Joseph Winnett owned a woman and a boy; Ebenezer Messenger and Ann Williams each a man, and John Stork of Granville owned a man the only Negro in the township; and Henry Evans of Annapolis had the previous year owned a colored girl.
Jacob Hurd of Halifax offered in 1773 a reward of £5 for the apprehension of his runaway Negro, Cromwell, a "short thick set strong fellow," strongly pock marked "especially on the nose" and wearing a green cloth jacket and a cocked hat. In July 1773, in the Nova Scotia Gazette and Weekly Chronicle the executor and executrix of Joseph Pierpont of Halifax advertised "a Negro named Prince to be sold at private sale." This perhaps indicated a repugnance to offering human beings for sale by auction. In the Nova Scotia Gazette and Weekly Chronicle, March 27, 1775 is an advertisement for the sale of a "likely well-made negro boy about 16 year old."
In the inventory of the estate of the late John Rock appeared in 1776 a Negro woman named Thursday. She was inventoried at £25 but sold for £20. In this year also a Windsor farmer, Joseph Wilson left by will two Negro women Byna and Sylla to his wife. In January 1779 the Nova Scotia Gazette and Weekly Chronicle advertised for sale an able Negro woman, about 21 year old, "capable of performing both town and country work and an exceedingly good cook." In the same year Daniel Stratford of Halifax left to his wife a Negro man slave Adam for life, after her death to become the property of his daughter Sarah Lawson. Matthew Harris of Picton sold for £50 to Matthew Archibald of Truro, tanner, a "Negro boy named Abram, about 12 years of age" born of Harris' Negro slave in Harris' house in Maryland.
In 1780 rewards were offered, one of 3 guineas, for the apprehension and delivery at the office of the Commanding Officer of Engineers at Halifax of two runaway Negro men; another "a handsome reward to be paid for securing in any gaol a Negro boy Mungo about 14 years old and well built"—the owner Benjamin De Wolfe of Windsor to be notified. That year the executors of Colonel Henry Denny Denson of West Falmouth debit themselves with £75 received for "Spruce," £60 for "John" and £30 for "Juba" and credit themselves with £2.11.6 paid for taking two of these to Halifax probably for sale there.
Abel Michener of Falmouth advertised in 1781 a reward of £5 for the capture of a Negro named James; and Samuel Mack of Port Medway wanted a Negro named "Chance" returned.
Richard Wenman of Halifax in September of that year agreed to give his Negro, Cato, his liberty "if he will faithfully serve my said daughter, Elizabeth Susannah Pringle two years." Captain Wilson of the transport Friends requested in 1782 that masters of vessels will not ship as a seaman his runaway Negro lad Ben, saying: "He is my own property."
There is no need for further particularization; for we now come to the year of the definitive peace between the mother country and the new republic. As in the upper country so by the sea there was a great influx of Loyalists, accompanied in many instances by their slaves. Thereafter sales, advertisements for auctions, rewards for runaway slaves, bequests of slaves, &c., are very common and there were some manumissions. That, however, was not the cause of the great increase in the Negro population of the Maritime Province. The Island of St. John, afterwards Prince Edward Island had been set off as a separate province in 1769 but the Province of Nova Scotia included what became the Province of New Brunswick until 1786.
During the Revolutionary War, the British commanders, Sir Henry Clinton in particular, had made it a point to invite the slaves to the British line and many had accepted the invitation. No few of these refugees were of material service to the British troops in various ways both menial and otherwise. At the peace Washington demanded the return of these quondam slaves.543 Sir Guy Carleton refused but made a careful inventory of them with full description, name, former master, etc., so that Washington might claim compensation from the British Government, if he saw fit.544 In addition to these slaves somewhere about 3,000 freed Negroes accompanied the British troops on their withdrawal from New York, nearly all coming to Nova Scotia. Many of these after suffering great hardships were sent to Sierra Leone on the West Coast of Africa in 1792. Some remained in the province where their descendants are found until this day; but not in any very great numbers. The Loyalists, however, retained their property in their own slaves; and immigration was encouraged by the Act of 1790.545
The trade in Negroes was very brisk for some years. For example, on June 24, 1783, the Nova Scotia Gazette and Weekly Chronicle advertised for sale a Negro woman, "25 years of age, a good house servant." On December 11, 1783, Captain Alexander Campbell late of the South Carolina Loyalists sold to Captain Thomas Green late of the Royal Nova Scotia Foot a Negro woman named Nancy for £40. Nancy two years later was sold by Green to Abraham Forst of Halifax and a year later still with her child Tom to Gregory Townsend.
A shipment was made by John Wentworth from Halifax to Surinam, Dutch Guiana, of nineteen Negro slaves, "all American born or well seasoned … perfectly stout, healthy, sober, orderly, industrious and obedient." These, said he, "I have had christened and would rather have liberated them than send them to any estate that I am not sure of their being treated with care and humanity which I shall consider as the only favour that can be done to me on this occasion" by his correspondent.546
On October 29, 1787, John Rapalje, a Royalist, sent from Brookligne (Brookland or Brooklyn Ferry) to George Leonard by desire of his (R's) father a Negro woman named Eve about 35 years and her child named Suke about 15 to sell as he himself cannot go to Nova Scotia. Eve was one of the best servants "perfectly sober, honest" and the only fault she had was her near sight.
The records show occasional manumission also. In 1784 the inventory of the estate of John Porter late of Cornwallis, a Negro man is valued at £80. That same year Charles Montague of Halifax says: "I have only one Negro, named Francis; he is to have his freedom." In May 1787, Margaret Murray, widow of Halifax by her will manumitted her two Negro women Marianne and Flora; and (when he was 21) her Negro boy Brutus. From the records of a trial at Shelburne, in a magistrate's court in 1788 it appears that one Jesse Gray of Argyle had sold a Negro woman for 100 bushels of potatoes. At a trial the ownership by Gray was proved and the sale confirmed.
We now come to the times of a Chief Justice whose heart was set on destroying slavery in the province of Nova Scotia, therein wholly differing from the Chief Justice of New Brunswick, George Duncan Ludlow, who had received his appointment on the separation of that province in 1784. The forward-looking jurist was Thomas Andrew Strange who became Chief Justice of the Supreme Court in 1791.547 The same impulse for liberty which about this time was noted in the upper country manifested itself from time to time by the sea. Slaves ran away from their masters; the masters pursued and imprisoned them. Some blacks claimed freedom without fleeing. When a writ of habeas corpus came up in the Supreme Court, Chief Justice Strange did his best to avoid giving a decision. He knew that slavery was lawful but he knew it was detestable and he pursued a course which did not require him to stultify himself but which would nevertheless confer substantial benefits upon the black claiming liberty.
He endeavored in every case to bring the parties to an agreement to sign articles whereby the master would have the services of the Negro for a stated time, after the expiration of which the Negro received his freedom. When the master refused this, as sometimes there was a refusal, the Chief Justice required the matter to be tried by a jury, which usually found for the Negro.548
The practice adopted was like the practice in cases of alleged villenage in England. It was recognized that slavery might exist in Nova Scotia, but it was made as difficult as possible for the master to succeed on the facts. Except the act already mentioned there was no statute recognizing slavery and an attempt in 1787 to incorporate such a recognition in the statute law failed of success by a large majority. The existing act, too, was given what seems a very forced and unnatural interpretation so as to emasculate it of any authority in that regard.
Salter Sampson Blowers, the Attorney General, fully agreed with the Chief Justice's plan. On one occasion he threatened to prosecute a person for sending a Negro out of the province against his will.549 The Negro managed to get back and the master acknowledged his right, so that no proceedings were necessary. After a number of verdicts for the alleged slaves, masters were generally very willing to enter into articles whereby the slave after serving faithfully for a fixed number of years was given his freedom.
After Blowers became Chief Justice, 1797,550 he continued Chief Justice Strange's practice with marked results. In one case of which he tells where he had discharged a black woman from the Annapolis gaol on habeas corpus and an action had been brought, the plaintiff proved that he had bought her in New York; but the Chief Justice held that he had not proved the right of the seller so to dispose of her and directed the jury to find for the defendant which they promptly did.
Slavery continued, however. Almost every year we find records of sales, advertisements for runaway slaves, bequests of slaves, &c., till almost the end of the first decade of the 19th century, the latest known bill of sale is dated March 21, 1807 and transfers a "Negro Woman named Nelly of the age of twenty five or thereabout." It was, however, decadent and from about the beginning of the 19th century was quite as much to the advantage of the Negro in many cases as that of the master.
A final effort to legalize slavery in Nova Scotia was made in 1808. Mr. Warwick, member for Digby Township, presented a petition from John Taylor and other slave owners setting up that the doubts entertained by the courts rendered their property useless and that the slaves were deserting and defying their masters. They asked for an act securing them their property or indemnifying them for their loss. Thomas Ritchie member for Annapolis introduced a bill to regulate Negro servants within the province. The bill passed its second reading January 11, 1808, but failed to become law; and the attempt was never renewed.
New Brunswick was separated from Nova Scotia in 1784. The Chief Justice of that province was not as averse from slavery as his brother of Nova Scotia. One of the most interesting and celebrated cases came before the Supreme Court of New Brunswick in Hilary Term, February 1800. Captain Stair Agnew who had been an officer in the Queen's Rangers settled opposite Fredericton. He was a man much thought of as is shown by his being chosen for thirty years to represent York County in the Legislature. He owned a slave Nancy Morton551 who claimed her freedom and whom apparently he had put in charge of one Caleb Jones. A writ of habeas corpus was obtained directed to Jones and the matter was arranged to be argued before the full court of four judges. For the applicant appeared Ward Chipman552 and Samuel Denny Street for the master, Jonathan Bliss, Attorney General of the province, Thomas Wetmore, John Murray Bliss, Charles J. Peters and Witham Botsford, all men of ability and eminence. On the Bench were Chief Justice Ludlow and Puisne Justices Allen, Upham and Saunders.
The addresses of the Attorney-General and Mr. Chipman are extant. The former divided his speech into thirty-two heads; the latter took eighty pages of foolscap for his. The arguments were extremely able and exhaustive,553 everything in history, morals and decided cases being brought to bear. The case took two full days to argue and after careful consideration the court divided equally, the Chief Justice and Mr. Justice Upham affirming the right of the master and Mr. Justice Allan and Mr. Justice Saunders held for the alleged slave.
The return of Jones to the writ was that Nancy "was at the time of her birth and ever since hath been a female Negro slave or servant for life born of an African Negro slave and before the removal of the said Caleb Jones from Mary Land to New Brunswick was and became by purchase the lawful and proper Negro slave or servant for life of him the said Caleb Jones …, that the said Caleb Jones in the year of our Lord 1785 brought and imported the said … Nancy his Negro slave or servant for life into the Province of New Brunswick … and has always hitherto held the said … Nancy as his proper Negro slave or servant for life … or by laws he has good right and authority to do...."554
The Chief Justice based his opinion on what he called the "Common Law of the Colonies"—and although that expression was ridiculed at the time and has been since, there is no difficulty in understanding it. He meant custom recognized as law not contained in an express legislative enactment. In that sense a modern lawyer will agree that he was right. Practically all the English colonies had slavery thoroughly recognized and often without or before legislation; and all the well known legal maxims asserted the cogency of such custom.555 Mr. Justice Allen considered that no human power could justify slavery—and his brother Saunders agreed with him. It would seem that these judges were concerned with what the law should be, the others with what it actually was.556
In the result the return was held sufficient and the master had his slave. But the decision of the divided court had its effect. Agnew reconveyed Nancy to William Bailey from whom he had bought her and she bound herself to serve for fifteen years, then to receive her freedom.557 The result of this case was that while slavery was not formally abolished, it before many years practically ceased to exist.558
Prince Edward Island was called Isle St. Jean until 1798. In this island slavery had the same history as in the other maritime provinces. Shortly after the peace Negro slaves were brought into the Island by their United Empire Loyalist masters. As late as 1802 we find recorded the sale of "a Mulatto boy three years old called Simon" for £20, Halifax currency, then £18 sterling, and a gift of "one Mulatto girl about five years of age named Catherine." We also find Governor Fanning (1786-1804), freeing his two slaves and giving one of them, Shepherd, a farm.
It was owing to this decision that the statute was passed 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 Cockburn 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.
Mr. Freeman was assisted 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.
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 circumstances 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 molasses, 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."
Sir Guy Carleton claimed that the Negroes who had taken refuge in the British lines at once lost their status of slavery and became free. They were "not Negroes or other property of the American," a rather technical not to say finely drawn distinction but in favorem libertatis; and in any event Britain would not betray the helpless who had put their faith in her.
John Wentworth, last Royalist Governor of New Hampshire and afterwards Sir John Wentworth, Lieutenant Governor of Nova Scotia, doubtless believed himself to be a good man and a good Christian.
The story of Eve and Suke infra is told by Archdeacon Raymond, 3 N. B. Mag., 1899, p. 221.
The last advertisement for sale by auction of a slave in the Maritime Provinces seems to be that in The Royal Gazette and Nova Scotia Advertiser of September 7, 1790, where William Millet of Halifax offers for sale by auction September 9 "A stout likely negro man and sundry other articles."
In 1802 the census showed that there were 451 Blacks in Halifax; in 1791 there were 422.
Dr. T. Watson Smith says in a paper "Slavery in Canada" republished in "Canadian History," No. 12, December, 1900, at p. 321.
"About 1806, so Judge Marshall has stated, a master and his slave were taken before Chief Justice Blowers on a writ of habeas corpus. When the case and the question of slavery in general had been pretty well argued on each side, the Chief Justice decided that slavery had no legal place in Nova Scotia."
I have not been able to trace such a decision and cannot think that it has been correctly reported. Dr. Smith is wholly justified in his statement "there is good ground for the opinion that this baneful system was never actually abolished in the present Canadian Provinces until the vote of the British Parliament and the signature of King William IV in 1833 rendered it illegal throughout the British Empire."
His services to Nancy Morton were given without fee or hope of reward.
Mr. Chipman in his interesting correspondence with Chief Justice Blowers (Trans. R. Soc. Can., 1898, pp. 148 sqq.) admits that if his opponents had hit upon the Nova Scotia Statute of 1762 as revised in 1783 "the conclusiveness of their reasoning on their principles would have been considered as demonstrated." He adds: "In searching your laws upon this occasion I found this clause but carefully avoided mentioning it," which raises a curious question in legal ethics.
If Dr. Jack is right in his conjecture the argument took place when she was 36 and she would receive her freedom when she was 51. Agnew challenged Judge Allen for some reflection upon him by the Judge; the challenge was declined and Agnew then challenged Street who accepted—and they fought a bloodless duel. Street later in 1821 fought a duel with George Ludlow Wetmore over words which passed on leaving the Court. Wetmore was struck in the head and died in a few hours. Street was tried and aquitted. One result of this case was that Mr. Justice Upham freed his slaves. His wife had six inherited from her father and he himself had some, one a girl born in the East Indies whom he had bought from her master in New York, the master of a ship, afterwards married a soldier in Colonel Allen's regiment.
