The Journal of Negro History, Volume 4, 1919

"Present

"His Excellency, J. G. Simcoe, Esq., Lieut.-Governor, &c., &c.,

The Hon

Wm. Osgoode, Chief Justice

The Hon

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 - This is copied from the Canadian Archives Collection, Q. 282, pt. I, pp. 212 sqq.; taken from the official report sent to Westminster by Simcoe. There is the usual amount of uncertainty in spelling names Grisley or Crisly, Fromand, Frooman, Froomond or Fromond (in reality Vrooman).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 Attorney-General was John White[596 - John White called to the Bar in 1785 at the Inner Temple (probably); he practised for a time but unsuccessfully in Jamaica and through the influence of his brother-in-law, Samuel Shepherd and of Chief Justice Osgoode was appointed the first Attorney General of Upper Canada. He arrived in the Province in the summer of 1792 and was elected a member of the first House of Assembly for Leeds and Frontenac. He was an active and useful member. It is probable, but the existing records do not make it certain, that it was he who introduced and had charge in the House of Assembly of the Bill for the abolition of slavery passed in 1793, shortly to be mentioned. In January, 1800, he was killed in a duel at York, later Toronto, by Major John Small, Clerk of the Executive Council. His will, drawn by himself after his fatal wound, is still extant in the Court of Probate records at Toronto. One clause reads: "I desire to be rolled up in a sheet and not buried fantastically, and that I may be buried at the back of my own house." Buried in his garden at his direction, his bones were accidentally uncovered in 1871 and reverently buried in Toronto. His manuscript diary is still extant, a copy being in the possession of the writer.] 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 - The statute is (1793) 33 Geo. III, c. 7, (U. C.). The Parliament of Upper Canada had two Houses, the Legislative Council, an Upper House, appointed by the Crown and the Legislative Assembly, a Lower House or House of Commons, as it was sometimes called, elected by the people. The Lieutenant Governor gave the royal assent. The bill was introduced in the Lower House, probably by Attorney General White, as stated in last note, and read the first time, June 19. It went to the committee of the whole June 25, and was the same day reported out. On June 26 it was read the third time, passed and sent up for concurrence. The Legislative Council read it the same day for the first time, went into Committee over it the next day, June 28, and July I, when it was reported out with amendments, passed and sent down to the Commons July 2. That House promptly concurred and sent the bill back the same day. See the official reports; Ont. Arch. Reports for 1910 (Toronto, 1911), pp. 25, 26, 27, 28, 32, 33, Ont. Arch. Rep. for 1909 (Toronto, 1911), pp. 33, 35, 36, 38, 41, 42.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.)] 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 - Vermont excluded slavery by her Bill of Rights (1777), Pennsylvania and Massachusetts passed legislation somewhat similar to that of Upper Canada in 1780; Connecticut and Rhode Island in 1784, New Hampshire by her Constitution in 1792, Vermont in the same way in 1793: New York began in 1799 and completed the work in 1827, New Jersey 1829; Indiana, Illinois, Michigan, Wisconsin and Iowa were organized as a Territory in 1787 and slavery forbidden by the Ordinance, July 13, 1787, but it was in fact known in part of the Territory for a score of years. A few slaves were held in Michigan by tolerance until far into the nineteenth century notwithstanding the prohibition of the fundamental law (Mich. Hist. Coll., VII, p. 524). Maine as such, never had slavery having separated from Massachusetts in 1820 after the Act of 1780, although it would seem that as late as 1833 the Supreme Court of Massachusetts left it open when slavery was abolished in that State (Commonwealth v. Aves, 18 Pick. 193, 209). (See Cobb's Slavery, pp. clxxi, clxxii, 209; Sir Harry H. Johnston's The Negro in the New World, an exceedingly valuable and interesting work but not wholly reliable in minutiæ, pp. 355 et seq.)]

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 - Simcoe was almost certainly the prime mover in the legislation of 1793. When giving the royal assent to the bill he said: "The Act for the gradual abolition of Slavery in this Colony, which it has been thought expedient to frame, in no respect meets from me a more cheerful concurrence than in that provision which repeals the power heretofore held by the Executive Branch of the Constitution and precludes it from giving sanction to the importation of slaves, and I cannot but anticipate with singular pleasure that such persons as may be in that unhappy condition which sound policy and humanity unite to condemn, added to their own protection from all undue severity by the law of the land may henceforth look forward with certainty to the emancipation of their offspring." (See Ont. Arch. Rep. for 1909, pp. 42-43.) I do not understand the allusion to "protection from undue severity by the Law of the land." There had been no change in the law, and undue severity to slaves was prevented only by public opinion. It is practically certain that no such bill as that of 1798 would have been promoted with Simcoe at the head of the government as his sentiments were too well known.] 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 - Ont. Arch. Rep. for 1909, pp. 64, 69, 70, 71, 74; ibid. for 1910, pp. 67, 68, 69, 70.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 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 - Slaves were valuable even in those days. A sale is recorded in Detroit of a "certain Negro man Pompey by name" for £45 New York Currency ($112.50) in October, 1794; and the purchaser sold him again January, 1795, for £50 New York Currency ($125.00). (Mich. Hist. Coll., XIV, p. 417.) But it would seem that from 1770 to 1780 the price ranged to $300 for a man and $250 for a woman (Mich. Hist. Coll., XIV, p. 659). The number of slaves in Detroit is said to have been 85 in 1773 and 179 in 1782 (Mich. Hist. Coll., VII, p. 524).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.] 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 - A number of interesting wills are in the Court of Probate files at Osgoode Hall, Toronto. One of them only I shall mention, viz.: that of Robert I.D. Gray, the first solicitor general of the province, whose tragic death is related above. In this will, dated August 27, 1803, a little more than a year before his death, he releases and manumits "Dorinda my black woman servant … and all her children from the State of Slavery," in consequence of her long and faithful services to his family. He directs a fund to be formed of £1,200 or $4,800 the interest to be paid to "the said Dorinda her heirs and Assigns for ever." To John Davis, Dorinda's son, he gave 200 acres of land, Lot 17 in the Second Concession of the Township of Whitby and also £50 or $200. John, after the death of his master whose body servant and valet he was, entered the employ of Mr., afterwards Chief, Justice Powell; but he had the evil habit of drinking too much and when he was drunk he would enlist in the Army. Powell got tired of begging him off and after a final warning left him with the regiment in which he had once more enlisted. Davis is said to have been in the battle of Waterloo. He certainly crossed the ocean and returned later on to Canada. He survived till 1871, living at Cornwall, Ontario, a well-known character. With him died the last of all those who had been slaves in the old Province of Quebec or the Province of Upper Canada.]

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 - Mich. Hist. Coll., XIV, p. 659.]

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 - A fairly good account of the Underground Railroad will be found in William Still's Underground Railroad, Philadelphia, 1872, in W.M. Mitchell's Underground Railway, London, 1860; in W.H. Siebert's Underground Railway, New York, 1899; and in a number of other works on Slavery. Considerable space is given the subject in most works on slavery.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.] 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 - The Buxton Mission in the County of Kent is well known. The Wilberforce Colony in the County of Middlesex was founded by free Negroes; but they had in mind to furnish homes for future refugees. See Mr. Fred Landon's account of this settlement in the recent (1918) Transactions of the London and Middlesex Hist. Soc., pp. 30-44. For an earlier account see A. Steward's Twenty Years a Slave, Rochester, N. Y., 1857.] 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 - Ross in his Memoirs gives, on page 111, 40,000, but he may be speaking for all Canada. The number is rather high for Upper Canada alone.] 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 Kingdom of heaven suffereth violence and the violent take it by force." There can be no doubt that the Southern Negro looked upon Canada as a paradise. I have heard a colored clergyman of high standing say that of his own personal knowledge, dying slaves in the South not infrequently expressed a hope to meet their friends in Canada.]

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 - These being merely traditional and not supported by contemporary documents are more or less mythical and I do not attempt to collect the various and varying stories.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.] 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 - The same rule obtained in Lower Canada; (1827) re Joseph Fisher, 1 Stuart's L. C. Rep. 245.] 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 is the Act (1833), 3 Will IV, c. 7 (U. C.). This came forward as cap. 96 in the Consolidated Statutes of Upper Canada 1859, but was repealed by an Act of (United) Canada (1860), 23 Vic., c. 91 (Can.).] 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 - To his people he seems to have been known as Hubbard Holmes; he is always called a yellow man, whether mulatto, quadroon, octoroon or other does not appear.] 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 - The contemporary accounts of this transaction, e. g., in the Christian Guardian of Toronto, and the Niagara Chronicle, are not wholly consistent. The main facts, however, are clear. Although there was some doubt as to the time, the military guard were ordered to fire. Miss Janet Carnochan has given a good account of this in Slave Rescue in Niagara, Sixty Years Ago, Niag. Hist. Soc., Pub. No. 2. It is said that "the Judge said he must go back," the fact being that the direction was by the executive and not the courts. The Reminiscences of Mrs. J. G. Currie, born at Niagara in 1829 and living there at the time of the trouble, are printed in the Niagara Hist. Soc., Pub. No. 20. Mrs. Currie gives a brief account (p. 331) and says that one of the party, one MacIntyre, had a bullet or bayonet wound in his cheek. In Miss Carnochan's account, her informant, who was the daughter of a slave who had escaped in 1802 and was herself born in Niagara in 1824, says that "the sheriff went up and down slashing with his sword and keeping the people back. Many of our people had sword cuts in their necks. They were armed with all kinds of weapons, pitchforks, flails, sticks, stones. One woman had a large stone in a stocking and many had their aprons full of stones and threw them too." Mrs. Anna Jameson, in her Sketches in Canada, ed. of 1852, London, on pp. 55-58, gives another account. She rightly makes the extradition order the governor's act, but errs in saying that "the law was too expressly and distinctly laid down and his duty as Governor was clear and imperative to give up the felon" as "by an international compact between the United States and our province, all felons are mutually surrendered." There was nothing in the common law, or in the statute of 1833 which made it the duty of the governor to order extradition, and there was no binding compact between the United States and Upper Canada such as Mrs. Jameson speaks of. No doubt the reason given by her for the order was that in vogue among the official set with whom she associated, her husband being vice-chancellor and head (treasurer) of the Law Society. The Christian Guardian, Niagara Reporter and Niagara Chronicle and St. Catharines Journal of September, October and November, 1837, contain accounts of and comments upon the occurrences, and sometimes attacks upon each other.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.]

In 1842 the well-known Ashburton Treaty was concluded[613 - Concluded at Washington, August 9, 1842, ratification exchanged at London, October 13, 1842, proclaimed November 10, 1842; this treaty put an end to many troublesome questions, amongst them the Maine boundary which it was found impracticable to settle by Joint Commissions or by reference to a European crowned head, William, King of the Netherlands. It will be found in all the collections of treaties of Great Britain or the United States, and in most of the treaties on extradition, amongst them the useful work by John G. Hawley, Chicago, 1893 (see pp. 119 sqq.).] 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 - It was held in this province that the Act of 1883 was superseded by the Ashburton Treaty in respect to the United States, but that it remained in force with respect to other countries (Reg. v. Tubber, 1854, 1, P. R., 98). Since the treaty, our government has refused to extradite where the offense charged is not included in the treaty. In re Laverne Beebe (1863), 3, P. R., 273—a case of burglary.The provisions of the treaty were brought into full effect in Canada (Upper and Lower) by the Canadian Statute of 1849, 12, Vic., c. 19, C. S. C. (1859), c. 89.] 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 - Chief Justice Sir John Beverley Robinson, Mr. Justice McLean (afterwards Chief Justice of Upper Canada) and Mr. Justice Burns.] 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 - The seat of the Superior Courts in Toronto, the Palais de Justice of the Province.] While the adverse decision was announced, there were some mutterings of violence but counsel for the prisoner[617 - Mr. Samuel B. Freeman, Q.C., of Hamilton, a man of much natural eloquence, considerable knowledge of law and more of human nature; he was always ready and willing to take up the cause of one unjustly accused and was singularly successful in his defences.I have heard it said that it was Mr. M. C. Cameron, Q.C., who so addressed the gathering, but he does not seem to have been concerned in the case in the Queen's Bench.] 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 is reported in (1860), 20 Up. Can., Q. B., pp. 124-193. The warrant is given at pp. 192, 193.] 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 - The case is reported in (1861), 3, Ellis & Ellis Reports, Queen's Bench, p. 487; 30, Law Jour., Q. B., p. 129; 7, Jurist, N. S., p. 122; 3, Law Times, N. S., p. 622; 9, Weekly Rep., p. 255.It was owing to this decision that the statute was 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.] 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 court[620 - Common law, of course, not chancery.] 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 court was composed of Chief Justice William Henry Draper, C.B., Mr. Justice Richards, afterwards Chief Justice successively of the Court of Common Pleas, of the Court of Queen's Bench, and, as Sir William Buell Richards, of the Supreme Court of Canada, and Mr. Justice Hagarty, afterwards Chief Justice successively of the Court of Common Pleas, of the Court of King's Bench, and, as Sir John Hawkins Hagarty, of Ontario.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.] 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.

DOCUMENTS

NOTES ON SLAVERY IN CANADA[622 - For these documents Mr. Justice Riddell is indebted to Mr. William Smith of the Department of Archives, Ottawa, Canada.]

The following Notes received from the Canadian Archives Department, Ottawa, have more or less bearing upon the question of slavery in Upper Canada:

1. General James Murray, the first Governor of the new Government of Quebec, writing to John Watts, of New York, from Quebec, November 2, 1763, and speaking of the promoting of the improvement of agriculture, says:

"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," (Can. Arch., Murray Papers, Vol. II, p. 15.)

2. D. M. Erskine, writing from New York, May 26, 1807, to Francis Gore, Lt. 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 Desertions 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 the 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." (Can. Arch., Sundries, Upper Canada, 1807.)

3. John Beverley Robinson, Attorney General, Upper Canada, giving an opinion to the Lt. Governor, York, July 8, 1819, says the following:

"May it please Your Excellency

"In obedience to Your Excellency's commands I have perused the accompanying letter from C. C. Antrobus Esquire, His Majesty's Chargé d'affaires at the Court of Washington and have attentively considered the question referred to me by Your Excellency therein—namely—'Whether the owners of several Negro slaves from the United States of America and are now resident in this Province' and I beg to express most respectfully my opinion to Your Excellency that the Legislature of this Province having adopted the Law of England as the rule of decision in all questions relative to property and civil rights, and freedom of the person being the most important civil right protected by those laws, it follows that whatever may have been the condition of these Negroes in the Country to which they formerly belonged, here they are free—For the enjoyment of all civil rights consequent to a mere residence in the country and among them the right to personal freedom as acknowledged and protected by the Laws of England in Cases similar to that under consideration, must notwithstanding any legislative enactment that may be thought to affect it, with which I am acquainted, be extended to these Negroes as well as to all others under His Majesty's Government in this Province—

"The consequence is that should any attempt be made by any person to infringe upon this right in the persons of these Negroes, they would most probably call for, and could compel the interference of those to whom the administration of our Laws is committed and I submit with the greatest deference to Your Excellency that it would not be in the power of the Executive Government in any manner to restrain or direct the Courts or Judges in the exercise of their duty upon such an application." (Can. Arch., Sundries, Upper Canada, 1819.)

4. At a meeting of the Executive Council of the Province of Lower Canada held at the Council Chamber in the Castle of St. Lewis, on Thursday, June 18, 1829, under Sir James Kempt, the Administrator of the Government, the following proceedings were had:

"Report of a Committee of the whole Council Present The Honble. the Chief Justice in the Chair, Mr. Smith, Mr. DeLery, Mr. Stewart, and Mr. Cochran on Your Excellency's Reference of a Letter from the American Secretary of State requesting that Paul Vallard accused of having stolen a Mulatto Slave from the State of Illinois may be delivered up to the Government of the United States of America together with the Slave.

"May it please Your Excellency

"The Committee have proceeded to the consideration of the subject matter of this reference with every wish and disposition to aid the Officers of the Government of the United States of America in the execution of the Laws of that Dominion and they regret therefore the more that the present application cannot in their opinion be acceded to.

"In the former Cases the Committee have acted upon the Principle which now seems to be generally understood that whenever a Crime has been committed and the Perpetrator is punishable according to the Lex Loci of the Country in which it is committed, the country in which he is found may rightfully aid the Police of the Country against which the Crime was committed in bringing the Criminal to Justice—and upon this ground have recommended that Fugitives from the United States should be delivered up.

"But the Committee conceive that the Crimes for which they are authorized to recommend the arrest of Individuals who have fled from other Countries must be such as are mala in se, and are universally admitted to be Crimes in every Nation, and that the offence of the Individual whose person is demanded must be such as to render him liable to arrest by the Law of Canada as well as by the Law of the United States.

"The state of slavery is not recognized by the Law of Canada nor does the Law admit that any Man can be the proprietor of another.