Read the book: «The Journal of Negro History, Volume 4, 1919», page 22
In the midst of these busy days Mr. Ray also served as a minister. For twenty years he was the pastor of the Bethesda Congregational Church in New York City where many learned to wait upon his ministry. He lived until 1886, long enough to enjoy some of that liberty for which he so patiently toiled. His more valuable services to his race, however, were rendered during the period prior to the Civil War. Although in the midst of this struggle of the subsequent period there came forward men who towered higher in the public opinion than he did, the valuable work which he did as an abolitionist, and an editor, should not be neglected.
M. N. Work
THE SLAVE IN UPPER CANADA 580
The dictum of Lord Chief Justice Holt: "As soon as a slave enters England he becomes free"581 was succeeded by the decision of the Court of King's Bench to the same effect in the celebrated case of Somerset v. Stewart582 where 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."583
James Somerest,584 a Negro slave of Charles Stewart in Jamaica, 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. The basis of the decision, the theme of the argument, was that the only kind of slavery known to English law was villeinage, that the Statute of Tenures (1660) (12 Car. 11, c. 24) 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.585 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.586 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 necessary587 in the American colonies: and Parliament had recognized the right of property in slaves there.588
When Canada was conquered in 1760, slavery existed in that country. There were not only Panis589 or Indian Slaves, but also Negro slaves. These were not enfranchised by the conqueror, but retained their servile status. When the united empire loyalists came to this northern land after the acknowledgment by Britain of the independence of the revolted colonies, some of them brought their slaves with them: and the Parliament of Great Britain in 1790 passed an Act authorizing any "subject of … the United States of America" to bring into Canada "any negroes" free of duty having first obtained a license from the Lieutenant Governor.590
An immense territory formerly Canada was erected into a Government or Province of Quebec by Royal Proclamation in 1763 and the limits of the province were extended by the Quebec Act in 1774.591 This province was divided into two provinces, Upper Canada and Lower Canada in 1791.592 At this time the whole country was under the French Canadian law in civil matters. The law of England had been introduced into the old Government of the Province of Quebec by the Royal Proclamation of 1763; but the former French Canadian law had been reintroduced in 1774 by the Quebec Act in matters of property and civil rights, leaving the English criminal law in full force. The law, civil and criminal, had been modified in certain details (not of importance here) by Ordinances of the Governor and Council of Quebec.
The very first act of the first Parliament of Upper Canada reintroduced the English civil law.593 This did not destroy slavery, nor did it ameliorate the condition of the slave. Rather the reverse, for as the English law did not, like the civil law of Rome and the systems founded on it, recognize the status of the slave at all, when it was forced by grim fact to acknowledge slavery it had no room for the slave except as a mere piece of property. Instead of giving him rights like those of the "servus," he was deprived of all rights, marital, parental, proprietary, even the right to live. In the English law and systems founded on it, the slave had no rights which the master was bound to respect.594
The first Lieutenant-Governor of Upper Canada was Col. John Graves Simcoe. He hated slavery and had spoken against it in the House of Commons in England. Arriving in Upper Canada in the summer of 1792, he was soon made fully aware that the horrors of slavery were not unknown in his new Province. The following is a report of a meeting of his Executive Council:
"At the Council Chamber, Navy Hall, in the County of Lincoln, Wednesday, March 21st, 1793.
"Present
"His Excellency, J. G. Simcoe, Esq., Lieut.-Governor, &c., &c.,
The Honble Wm. Osgoode, Chief Justice
The Honble Peter Russell.
"Peter Martin (a negro in the service of Col. Butler) attended the Board for the purpose of informing them of a violent outrage committed by one – Fromand, an Inhabitant of this Province, residing near Queens Town, or the West Landing, on the person of Chloe Cooley a Negro girl in his service, by binding her, and violently and forcibly transporting her across the River, and delivering her against her will to certain persons unknown; to prove the truth of his Allegation he produced Wm. Grisley (or Crisley).
"William Grisley an Inhabitant near Mississague Point in this Province says: that on Wednesday evening last he was at work at Mr. Froomans near Queens Town, who in conversation told him, he was going to sell his Negro Wench to some persons in the States, that in the Evening he saw the said Negro girl, tied with a rope, that afterwards a Boat was brought, and the said Frooman with his Brother and one Vanevery, forced the said Negro Girl into it, that he was desired to come into the boat, which he did, but did not assist or was otherwise concerned in carrying off the said Negro Girl, but that all the others were, and carried the Boat across the River; that the said Negro Girl was then taken and delivered to a man upon the Bank of the River by – Froomand, that she screamed violently and made resistance, but was tied in the same manner as when the said William Grisley first saw her, and in that situation delivered to the man.... Wm. Grisley farther says that he saw a negro at a distance, he believes to be tied in the same manner, and has heard that many other People mean to do the same by their Negroes
"Resolved.—That it is necessary to take immediate steps to prevent the continuance of such violent breaches of the Public Peace, and for that purpose, that His Majesty's Attorney-General, be forthwith directed to prosecute the said Fromond.
"Adjourned."595
The Attorney-General was John White596 an accomplished English lawyer. He knew that the brutal master was well within his rights in acting as he did. He had the same right to bind, export, and sell his slave as to bind, export, and sell his cow. Chloe Cooley had no rights which Vrooman was bound to respect: and it was no more a breach of the peace than if he had been dealing with his heifer. Nothing came of the direction to prosecute and nothing could be done.
It is probable that it was this circumstance which brought about legislation. At the Second Session of the First Parliament which met at Newark, May 31, 1793, a bill was introduced and unanimously passed the House of Assembly. The trifling amendments introduced by the Legislative Council were speedily concurred in, the royal assent was given July 9, 1793, and the bill became law.597 It recited that it was unjust that a people who enjoy freedom by law should encourage the introduction of slaves, and that it was highly expedient to abolish slavery in the Province so far as it could be done gradually without violating private property; and proceeded to repeal the Imperial Statute of 1790 so far as it related to Upper Canada, and to enact that from and after the passing of the Act, "No Negro or other person who shall come or be brought into this Province … shall be subject to the condition of a slave or to" bounden involuntary service for life. With that regard for property characteristic of the English-speaking peoples, the act contained an important proviso which continued the slavery of every "negroe or other person subjected to such service" who has been lawfully brought into the Province. It then enacted that every child born after the passing of the act, of a Negro mother or other woman subjected to such service should become absolutely free on attaining the age of twenty-five, the master in the meantime to provide "proper nourishment and cloathing" for the child, but to be entitled to put him to work, all issue of such children to be free whenever born. It further declared any voluntary contract of service or indenture should not be binding longer than nine years. Upper Canada was the first British possession to provide for the abolition of slavery.598
It will be seen that the Statute did not put an end to slavery at once. Those who were lawfully slaves remained slaves for life unless manumitted and the statute rather discouraged manumission, as it provided that the master on liberating a slave must give good and sufficient security that the freed man would not become a public charge. But, defective as it was, it was not long without attack. In 1798, Simcoe had left the province never to return,599 and while the government was being administered by the time-serving Peter Russell, a bill was introduced into the Lower House to enable persons "migrating into the province to bring their negro slaves with them." The bill was contested at every stage but finally passed on a vote of eight to four. In the Legislative Council it received the three months' hoist and was never heard of again.600 The argument in favor of the bill was based on the scarcity of labor which all contemporary writers speak of, the inducement to intending settlers to come to Upper Canada where they would have the same privileges in respect of slavery as in New York and elsewhere; in other words the inevitable appeals to greed.
After this bill became law, slavery gradually disappeared. Public opinion favored manumission and while there were not many manumissions inter vivos,601 in some measure owing to the provisions of the act requiring security to be given in such case against the freed man becoming a public charge, there were not a few liberations by will.602
The number of slaves in Upper Canada was also diminished by what seems at first sight paradoxical, that is, their flight across the Detroit River into American territory. So long as Detroit and its vicinity were British in fact and even for some years later, Section 6 of the Ordinance of 1787 "that there shall be neither slavery not involuntary servitude in the said territory otherwise than as the punishment of crime" was in great measure a dead letter: but when Michigan was incorporated as a territory in 1805, the ordinance became effective. Many slaves made their way from Canada to Detroit, a real land of the free; so many, indeed, that we find that a company of Negro militia was formed in Detroit in 1806 to assist in the general defence of the territory, composed entirely of escaped slaves from Canada.603
Almost from the passing of the Canada Act, however, runaway Negroes began to come to Upper Canada, fleeing from slavery; this influx increased and never ceased until the American Civil War gave its death blow to slavery in the United States. Hundreds of blacks thus obtained their freedom, some having been brought by their masters near to the international boundary and then clandestinely or by force effecting a passage; some coming from far to the South, guided by the North Star; many assisted by friends more or less secretly. The Underground Railroad was kept constantly running.604 These refugees joined settlements with other people of color freeborn or freed in the western part of the Peninsula, in the counties of Essex and Kent and elsewhere.605 Some of them settled in other parts of the province, either together or more usually sporadically.
At the time of the outbreak of the Civil War there were many thousands of black refugees in the province.606 More than half of these were manumitted slaves who in consequence of unjust laws had been forced to leave their State. While some of such freedmen went to the Northern States, most came to Canada, some returning to the Northern States. The Negro refugees were superior to most of their race, for none but those with more than ordinary qualities could reach Canada.607
The masters of runaway slaves did not always remain quiet when their slave reached this province. Sometimes they followed him in an attempt to take him back. There are said to have been a few instances of actual kidnapping, a few of attempted kidnapping.608 There have been cases in which criminal charges have been laid against escaped slaves, and their extradition sought, ostensibly to answer the criminal charges. It has always been the theory in this province that the governor has the power independently of statute or treaty to deliver up alien refugees charged with crime.609 To make it clear, the Parliament of Upper Canada in 1833 passed an Act for the apprehension of fugitive offenders from foreign countries, and delivering them up to justice.610 This provides that on the requisition of the executive of any foreign country the governor of the province on the advice of his executive council may deliver up any person in the province charged with "Murder, Forgery, Larceny or other crime which if committed within the Province would have been punishable with death, corporal punishment, the Pillory, whipping or confinement at hard labour." The person charged might be arrested and detained for inquiry. The Act was permissive only and the delivery up was at the discretion of the governor.
When this act was in force Solomon Mosely or Moseby, a Negro slave, came to the Province across the Niagara River from Buffalo which he had reached after many days' travel from Louisville, Kentucky. His master followed him and charged him with the larceny of a horse which the slave took to assist him in his flight. That he had taken the horse there was no doubt, and as little that after days of hard riding he had sold it. The Negro was arrested and placed in Niagara jail; a prima facie case was made out and an order sent for his extradition.
The people of color of the Niagara region made Mosely's case their own and determined to prevent his delivery up to the American authorities to be taken to the land of the free and the home of the brave, knowing that there for him to be brave meant torture and death, and that death alone could set him free. Under the leadership of Herbert Holmes, a yellow man,611 a teacher and preacher, they lay around the jail night and day to the number of from two to four hundred to prevent the prisoner's delivery up. At length the deputy sheriff with a military guard brought out the unfortunate man shackled in a wagon from the jail yard, to go to the ferry across the Niagara River. Holmes and a man of color named Green grabbed the lines. Deputy Sheriff McLeod from his horse gave the order to fire and charge. One soldier shot Holmes dead and another bayoneted Green, so that he died almost at once. Mosely, who was very athletic, leaped from the wagon and made his escape. He went to Montreal and afterwards to England, finally returning to Niagara, where he was joined by his wife, who also escaped from slavery.
An inquest was held on the bodies of Holmes and Green. The jury found "justifiable homicide" in the case of Holmes; "whether justifiable or unjustifiable there was not sufficient evidence before the jury to decide" in the case of Green. The verdict in the case of Holmes was the only possible verdict on the admitted facts. Holmes was forcibly resisting an officer of the law in executing a legal order of the proper authority. In the case of Green the doubt arose from the uncertainty whether he was bayoneted while resisting the officers or after Mosely had made his escape. The evidence was conflicting and the fact has never been made quite clear. No proceedings were taken against the deputy sheriff; but a score or more of the people of color were arrested and placed in prison for a time. The troublous times of the Mackenzie Rebellion came on, the men of color were released, many of them joining a Negro militia company which took part in protecting the border.
The affair attracted much attention in the province and opinions differed. While there were exceptions on both sides, it may fairly be said that the conservative and government element reprobated the conduct of the blacks in the strongest terms, being as little fond of mob law as of slavery, and that the radicals, including the followers of Mackenzie, looked upon Holmes and Green as martyrs in the cause of liberty. That Holmes and Green and their fellows violated the law there is no doubt, but so did Oliver Cromwell, George Washington and John Brown. Every one must decide for himself whether the occasion justified in the courts of Heaven an act which must needs be condemned in the courts of earth.612
In 1842 the well-known Ashburton Treaty was concluded613 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: (1) It made it the duty of the executive to order extradition in a proper case and took away the discretion, (2) it gave the courts jurisdiction to determine whether a case was made out for extradition.614 These changes made it more difficult in many instances for a refugee to escape: but as ever the courts were astute in finding reasons against the return of slaves.
The case of John Anderson is well known. 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.615 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.616 While the adverse decision was announced, there were some mutterings of violence but counsel for the prisoner617 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.618 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 the jail at Toronto, the court after anxious deliberation granted the writ,619 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 court620 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.621 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.
W. R. Riddell.
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 colour of his skin. 'Quamvis ille niger, quamvis tu candidus esses'" and certainly Vergil's verse was never used on a nobler occasion or to 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."
[Закрыть]
Dr. Kingsford in his History of Canada, Vol. V, p. 30 (n), cites from the Documents of the Montreal Historical Society, Vol. I, p. 5, an "ordonnance au sujet des Nègres et des sauvages appelés panis, du 15 avril 1709" by "Jacques Raudot, Intendant." "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 a 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." This ordinance is quoted (Mich. Hist. Coll., XII, p. 511), and its language ascribed to a (nonexistent) "wise and humane statute of Upper Canada of May 31, 1798"—a curious mistake, perhaps in copying or printing.
There does not seem to have been any distinction in status or rights or anything but race between the Panis and the other slaves. I do not know of an account of the numbers of slaves in Canada at the time; in Detroit, March 31, 1779, there were 60 male and 78 female slaves in a population of about 2,550 (Mich. Hist. Coll., X, p. 326); Nov. 1, 1780, 79 male and 96 female slaves in a somewhat smaller population (Mich. Hist. Coll., XIII, p. 53); in 1778, 127 in a population of 2,144 (Mich. Hist. Coll., IX, p. 469); 85 in 1773, 179 in 1782 (Mich. Hist. Coll., VII, p. 524); 78 male and 101 female (Mich. Hist. Coll., XIII, p. 54). The Ordinance of Congress July 13, 1787, forbidding slavery "northwest of the Ohio River" (passed with but one dissenting voice, that of a Delegate from New York) was quite disregarded in Detroit (Mich. Hist. Coll., I, 415); and indeed Detroit and the neighboring country remained British (de facto) until August, 1796, and part of Upper Canada from 1791 till that date.
The Quebec Act is (1774) 14 Geo. III, C. 83. It extends Quebec south to the Ohio and west to the Mississippi; Shortt & Doughty, pp. 401 sqq.
This repulsive subject now chiefly of historical interest is treated at large in such works as Cobb's Law of Slavery, Philadelphia, 1858; Hurd's Law of Freedom and Bondage, Boston, 1858; Von Holst's Const. Hist. U. S. (1750-1833), Chicago, 1877; the judgments of all the Judges in the Dred Scott case are well worth reading, especially that of Mr. Justice Curtis.
Osgoode was an Englishman, the first Chief Justice of Upper Canada. Arriving in this Province in the summer of 1792, he left to become Chief Justice of Lower Canada in the summer of 1794. Resigning in 1801, he returned to England on a pension which he enjoyed until his death in 1824. He left no mark on our jurisprudence and never sat in any but trial courts of criminal jurisdiction. Osgoode Hall, our Ontario Palais de Justice, is called after him.
Russell came to Upper Canada also in 1792 as Receiver-General and Legislative Councillor; he was an Executive Councillor and when Simcoe left Canada in 1796, he acted as Administrator until the coming of the new Lieutenant Governor Peter Hunter in 1799. Russell was not noted for anything but his acquisitiveness but he was a faithful servant of the Crown in his own way.
Col. John Butler, born in Connecticut in 1728, became a noted leader of Indians. He took the Loyalist side, raising the celebrated Butler's Rangers; he settled at Niagara after the Revolutionary war and proved himself a useful citizen; he died in 1796. See Cruikshanks' Butler's Rangers, Lundy's Lane Historical Society's publication; Robertson's Free Masonry in Canada, Vol. I, p. 470; Riddell's edition of La Rochefoucauld's Travels in Canada, 1795, published by the Ontario Archives, 1917, p. 177.
Navy Hall was in the little town which Simcoe named "Newark," which before this had been called Niagara, West Niagara, Nassau, Lenox and Butlersburg, now called Niagara or Niagara-on-the-lake. Navy Hall was the seat of government from 1792 to 1797. Queens Town is the present Queenston; Mississagua Point is at the embouchure of the Niagara River; it is still known by the same name, spelled generally however with a final "a." Nothing seems to be known of the subsequent fate of Chloe Cooley.
The Vroomans and Cryslers (or Chrystlers or Chryslers) the same family as Chrystler of Chrystler's Farm, the scene of an American defeat, November 11, 1813, were well-known residents. I am indebted to General E.A. Cruikshank for the following note:
"The Vrooman Farm is situated on the west bank of the Niagara, in the township of Niagara, about a mile below the village of Queenston, and includes that feature of the river bank generally known as Vrooman's Point; it was still in the possession of the Vrooman family when I last visited the place about twelve years ago. The remains of a small half-moon or redan battery on the point which had been constructed in the War of 1812, and played a considerable part in the battle of Queenston were then quite well marked. One of the Vrooraans of that time was in the militia artillery, and assisted to serve the gun mounted on the battery. The possessor of the farm was then, I think, more than eighty years of age, but he was active and in possession of his memory and other faculties. He stated to me the exact number of shots which he had been informed by his father, or the Vrooman engaged in the action, had been fired from this gun, which of course, may or may not be correct. An Adam Chrysler, who was a lieutenant in the Indian Department in the Revolutionary War, and before that, a resident in the Scoharie district, of the Mohawk country, received lands either in the township of Niagara or the township of Stamford, near the village of Queenston. His grandson, John Chrysler, some twenty years ago, then being quite an old man, who is now dead, loaned me some very interesting documents which had been preserved in the family, and belonged to this Adam Chrysler. One of them, I remember, was the original instructions issued to him, and signed by Lieut.-Colonel John Butler, the deputy superintendent general, strictly enjoining him to restrain the Indians, with whom he was acting, from all acts of cruelty upon prisoners and non-combatants. Some members of his family, ladies, were residing at Niagara Falls, Ontario, ten years ago, and I presume still are there. I have no doubt that it was some member of Adam Crysler's family who took part in the abduction of the Cooley girl. The original spelling of this name was Kreisler, which is a fairly common German name in the Rhine Palatinate, from which this family came."
In the report by Col. John Butler of the Survey of the Settlement at Niagara, August 25, 1782 (Can. Arch., Series B, 169, p. 1), McGregor Van-Every is named as the head of a family. He was married, without children, hired men or slaves, had 3 horses, no cows, sheep or hogs, 8 acres of "clear land" and raised 4 bushels of Indian corn and 40 of potatoes but no wheat or oats. His neighbor, Thomas McMicken, was married, had two young sons, one hired man and one male slave. He had two horses, 1 cow and 20 hogs, and raised ten bushels of Indian corn, 10 of oats and 10 of potatoes (no wheat) on his 8 acres of "clear land."
The first Fugitive Slave Law was passed by the United States in 1793. Three years afterwards occurred an episode, little known and less commented upon, showing very clearly the views of George Washington on the subject of fugitive slaves, at least, of those slaves who were his own.
A slave girl of his escaped and made her way to Portsmouth, N. H. Washington, on discovering her place of refuge, wrote concerning her to Joseph Whipple, the Collector at Portsmouth, November 28, 1796. The letter is still extant. It is of three full pages and was sold in London in 1877 for ten guineas (Magazine of American History, Vol. 1, December, 1877, p. 759). Charles Sumner had it in his hands when he made the speech reported in Charles Summer's Works, Vol. III, p. 177. Washington in the letter described the fugitive and particularly expressed the desire of "her mistress," Mrs. Washington, for her return to Alexandria. He feared public opinion in New Hampshire, for he added
"I do not mean however, by this request that such violent measures should be used as would excite a mob or riot which might be the case if she has adherents; or even uneasy sensations in the minds of well-disposed citizens. Rather than either of these should happen, I would forgo her services altogether and the example also which is of infinite more importance."
In other words, "if the slave girl has no friends or 'adherents'" send her back to slavery—if she has and they would actively oppose her return, let her go—and even if it only be that "well-disposed citizens" disapprove of her capture and return, let her remain free.
There may be some difficulty in justifying Washington's course by the opinion of Thomas Aquinas (Summa Theologics, 1 ma., 2 dae., Quaest. XCVI, Art. 4), who says that an unjust law is not binding in conscience "nisi forte propter vitandum scandalum vel turbationem." Aquinas is speaking of an unjust law which may be resisted unless scandal or tumult would result from resistance. Washington is speaking of a law which he considers right, but which he would not enforce if it should occasion such evils. The analogy does not hold as the editor of Charles Sumner's Works seems to think (Vol. III, p. 178, note).
Whipple answered from Portsmouth, December 22, 1796:
"I will now, Sir, agreeably to your desire, send her to Alexandria if it be practicable without the consequences which you except—that of exciting a riot or a mob or creating uneasy sensations in the minds of well disposed persons. The first cannot be calculated beforehand; it will be governed by the popular opinion of the moment or the circumstances that may arise in the transaction. The latter may be sought into and judged of by conversing with such persons without discovering the occasion. So far as I have had opportunity, I perceive that different sentiments are entertained on the subject."
Whipple made enquiry. Public opinion in Portsmouth was adverse to the return of the fugitive. She was unmolested and lived out a long life in Portsmouth and Kittery.
Nothing more clearly and impressively shows the veneration felt by his countrymen for George Washington than the praise the fearless, outspoken, uncompromising hater of slavery, Charles Sumner, of the conduct of the President in this transaction. Sumner considered the poor slave girl "a monument of the just forbearance of him whom we aptly call Father of his Country.... While a slaveholder and seeking the return of a fugitive, he has left in permanent record a rule of conduct which if adopted by his country will make slave hunting impossible." With almost any other man, Sumner would have no praise or reverence for a desire to force a fugitive back into slavery unless prevented by fear of mob or riot or adverse public opinion.
In the same letter Washington gives what may be considered a reason or excuse for his demand. "However well disposed I might be to a gradual abolition, or even to an entire emancipation of that description of people, if the latter was itself practicable at this moment, it would neither be expedient nor just to reward unfaithfulness with a premature preference and thereby discontent beforehand the minds of all her fellow servants who by their steady attachment are far more deserving than herself of favour."
This is the familiar pretext of the master, private or state. Those who rebel against oppression and wrong are not to be given any relief—that would be unjust to those who tamely submit. That very argument was advanced by the ruler across the sea against the proposition to come to terms with Washington and his party who had ventured to oppose the would-be master.
And it is to be noted that Washington did not free those "who by their steady attachment are far more deserving … of favour" till he had had all the advantage he could from their services—he did indeed free them by his will, but only after the death of his wife.
Sumner cannot be said to minimize his merits when he says "He was at the time a slaveholder—often expressing himself with various degrees of force against slavery, and promising his suffrage for its abolition, he did not see this wrong as he saw it at the close of life." (Sumner's Works, Vol. III, pp. 759 sq.)
The bill was introduced in the Lower House by Christopher Robinson, member for Addington and Ontario, Ontario being then comprised of the St. Lawrence and Lake Ontario Islands, and having nothing in common with the present County of Ontario. He was a Virginian loyalist, who in 1784 emigrated to New Brunswick, and in 1788 to that part of Canada later Lower Canada and in 1792 to Upper Canada. He lived in Kingston till 1798 and then came to York, later Toronto, but died three weeks afterwards. He was one of the lawyers who took part in the inauguration of the Law Society of Upper Canada at Wilson's Tavern, Newark, in July, 1797, and was an active and successful practitioner. His ability was great, but his fame is swallowed up by that of his more famous son, Sir John Beverley Robinson, the first Canadian Chief Justice of Upper Canada, and of his grandson, the much loved and much admired Christopher Robinson, Q.C., of our own time. Accustomed from infancy to slavery, he saw no great harm in it—no doubt he saw it in its best form.
The chief opponent of the bill was Robert Isaac Dey Gray, the young solicitor general. John White was not in this the second house. The son of Major James Gray, a half-pay British Officer, he studied law in Canada. He was elected member of the House of Assembly for Stormont in the election of 1796 and again in 1804. He was appointed the first Solicitor General in 1797 and was drowned in 1804 in the Speedy disaster. An Indian, Ogetonicut, accused of a murder in the Newcastle District, was captured on the York Peninsula, now Toronto or Hiawatha Island, in the Home District, and had to be sent to Newcastle, now Presqu' Isle Point near Brighton, in the Newcastle District, for trial. The Government Schooner Speedy sailed for Newcastle with the Assize Judge Gray; Macdonell, who was to defend the Indian; the Indian prisoner, Indian interpreters, witnesses, the High Constable of York and certain inhabitants of York. It was lost, captain, crew and passengers—spurlos versenkt.
The motion for the three months' hoist in the Upper House was made by the Honorable Richard Cartwright seconded by the Honorable Robert Hamilton. These men, who had been partners, generally agreed on public measures and both incurred the enmity of Simcoe. He called Hamilton a Republican, then a term of reproach distinctly worse than Pro-German would be now, and Cartwright was, if anything, worse. But both were men of considerable public spirit and personal integrity. For Cartwright see The Life and Letters of Hon Richard Cartright, Toronto, 1876. For Hamilton see Riddell's edition of La Rochefoucault's Travels in Canada in 1795, Toronto, 1817, in Ont. Arch. Rep. for 1916; Miss Carnochan's Queenstown in Early Years, Niagara Hist. Soc. Pub., No. 25; Buffalo Hist. Soc. Pub., Vol. 6, pp. 73-95.
There was apparently no division in the Upper House although there were five other Councillors in addition to Cartwright and Hamilton in attendance that session viz.: McGill, Shaw, Duncan, Baby and Grant; and the bill passed committee of the whole.
The best people in the province continued to hold slaves. On February 19, 1806, the Honourable Peter Russell, who had been administrator of the government, and therefore head of the State for three years, advertised for sale at York "A Black woman named Peggy, aged 40 years, and a Black Boy, her son, named Jupiter, aged about 15 years," both "his property," "each being servants for life"—the woman for $150 and the boy for $200, 25 per cent off for cash. William Jarvis, the secretary, two years later, March 1, 1811, had two of his slaves brought into court for stealing gold and silver out of his desk. The boy "Henry commonly called prince" was committed for trial and the girl ordered back to her master. Other instances will be found in Dr. Scadding's very interesting work, Toronto of Old, Toronto, 1873, at pp. 292 sqq.
One branch of it ran from a point on the Ohio River, through Ohio and Michigan to Detroit; but there were many divagations, many termini, many stations: Oberlin was one of these. See Dr. A. M. Ross' Memoirs of a Reformer, Toronto, 1893, and Mich. Hist. Coll., XVII, p. 248.
There are several stories more or less well authenticated of masters bringing slaves into Canada with the intention of taking them back again as Charles Stewart intended with his slave James Somerset and the slaves successfully asserting their freedom, resisting removal with the assistance of Canadians. Of one of the most shocking cases of wrong, if not quite kidnapping, a citizen of Toronto was the subject. John Mink, a respectable man with some Negro blood, had a livery stable on King Street, Toronto. He was also the proprietor of stage-coach lines and a man of considerable wealth. He had an only daughter of great personal beauty, and showing little trace of Negro origin. It was understood that she would marry no one but a white man, and that the father was willing to give her a handsome dowry on such a marriage. A person of pure Caucasian stock from the Southern States came to Toronto, wooed and won her. They were married and the husband took his bride to his home in the South. Not long afterwards the father was horrified to learn that the plausible scoundrel had sold his wife as a slave. He at once went South and after great exertion and much expense, he succeeded in bringing back to his house the unhappy woman, the victim of brutal treachery.
There have been told other stories of the same kind, equally harrowing, and unfortunately not ending so well, but I have not been able to verify them. The one mentioned here I owe to the late Sir Charles Moss, Chief Justice of Ontario.
Deputy Sheriff Alexander McLeod was a man of some note if not notoriety. During the rebellion of 1837 and 1838 he was in the Militia of Upper Canada. He took a creditable part in the defence of Toronto against the followers of Mackenzie in December, 1837, and was afterwards stationed on the Niagara frontier. There he claimed to have taken part in the cutting out of the Steamer Caroline in which exploit a Buffalo citizen, Amos Durfee, was killed. McLeod, visiting Lewiston in New York State, in November, 1840, was arrested on the charge of murder and committed for trial. This arrest was the cause of a great deal of communication and discussion between the governments of the United States and of Great Britain, the latter claiming that what had been done by the Canadian militia was a proper public act and they demanded the surrender of McLeod. This was refused. McLeod was tried for murder at Utica, October, 1841, and acquitted, it being conclusively proved that he was not in the expedition at all.
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.
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.
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, as Sir Matthew Cameron, Chief Justice of the Court of Common Pleas. 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.
