LOWER CANADA
The Province of Lower Canada continued the former law--in criminal
matters, the English law, in civil matters the French law. It was not
long before the status of the slave became a burning issue. At the
first session of the first Parliament[1] of the new Province Lower
Canada, Mr. P. L. Panet, a member of the House of Assembly, moved
(January 28, 1793) for leave to introduce a bill for the abolition of
slavery in the province and leave was unanimously given. On the
twenty-sixth of February, Panet introduced a bill pursuant to leave
given, and it was read in French and in English. On the eighth of
March, Mr. B. Panet proposed the first reading of the bill and it was
so read. On the nineteenth of April Mr. P. L. Panet moved that the
bill be taken into consideration by the Committee of the Whole on the
following Tuesday. The motion was debated and Mr. Debonne moved an
amendment to table the bill, which was carried 31 to 3.[2] There was
no further effort toward legislative dealing with slavery until
1799.[3]
The sale of Negroes continued as indicated by the records.[4] On the
twelfth of May, 1794, Francois Boucher de la Periere and Marie Pecaudy
de Contrecoeur, his wife, gave liberty to James, their Negro slave,
aged 21 years, on condition that he should live in the most remote
parts of the upper country. If, however, he left those parts, he
should return to slavery. On the fifteenth of December, 1795, Frs.
Dumoulin, merchant of Bout de l'ile sold to Myer Michaels, merchant, a
mulatto named Prince, aged 18 years, for the price of 50 louis.
On the sixteenth of January, 1796 there was found a bill of sale of a
female Negro slave named Rose, dated January 15, 1794, the vendor
being P. Byrne, the purchaser Simon Meloche, for the price of 360
shillings, deposited with the Notary J. P. Delisle. On the third of
September John Shuter by notarial act promised his Negro, Jack, to
give him his liberty in six years, if, in the meantime, he served him
faithfully. Later, on November 2, 1803, Shuter declared that Jack had
fulfilled his obligation, and he accordingly emancipated him. On the
thirteenth of September, J. B. Routier, merchant of the Faubourg
Saint-Antoine, sold to Louis Charles Foucher, Solicitor-General of His
Majesty, Jean Louis, a mulatto, aged 27 years, height 5' 10", the
price being 1300 shillings. Routier declared that he had bought Jean
Louis as well as his mother at the Island of Saint-Domingue in 1778.
On the twenty-third of November Cesar, a free Negro of New London,
Connecticut, engaged for ten years as a domestic to Dr. John Aussem,
living in the Faubourg Saint Antoine, with a salary of 30 louis in
advance. Dr. Aussem reserved to himself the right to sell the services
of his domestic to whomsoever he pleased during the ten years.
On the twenty-fifth of May, 1797 Dame Marie-Catherine Tessier, Widow
of Antoine Janisse, in his lifetime a voyager, liberated her slave
Marie Antoine de Pade, an Indian, aged 23 years, in recognition of her
services which she had rendered her, and in addition gave her a
trousseau. On the twenty-fifth of August Thomas Blaney, gold painter,
sold to Thomas John Sullivan, hotel-keeper of Montreal, the Negro
Manuel about 33 years old for 36 louis, payable in monthly instalments
of three louis each. On the same date and before the same notary,
Sullivan promised the slave to liberate him in 5 years, if he served
him faithfully. On the twenty-second of November George Westphall,
formerly Lieutenant of the 6th Regiment, who owed 20 louis to Richard
Dillon, proprietor of the Montreal Hotel in security for payment,
delivered to his creditor a mulatress, a slave called Ledy, aged 26
years. She was to work with Mr. Dillon until he was repaid what was
owed him by Westphall for principal and interest.
In the year 1793, there came up in the Court of Appeal at Quebec a
case involving slavery but nothing was really decided. The plaintiff
Jacob Smith sued Peter McFarlane in the Court of Common Pleas for
taking away his wife and her clothes and detaining them. McFarlane
claimed that Smith's wife was his slave. The Court of Common Pleas
gave the plaintiff judgment for L100 and McFarlane appealed to the
Court of Appeal. The Court pointed out that it was for McFarlane to
prove that Smith's wife was his slave and that he had not done so: but
as there had been error in the proceedings the case was sent back to
be retried. It is important to notice that the court considered that
if McFarlane could prove that Smith's wife was his slave, he had the
right to take her away.[5]
A lawsuit also arose over the Negro Manuel (Allen) sold August 25,
1797, to Thomas John Sullivan. When Blaney sold him for L36 Sullivan
paid down only half and the balance with interest L30.15.2 was sued
for in the Court of King's Bench at Montreal in 1798. Sullivan pleaded
that Manuel was not the plaintiff's slave but a free Negro and that
he had run away March, 1798, at Montreal where he continued to be: and
Sullivan claimed to be reimbursed the L18 which he had paid. On the
sixth of October Manuel himself came into the suit and claimed that
"by the laws of this land he is not a slave but a freeman." Evidence
was given that he had absconded from Sullivan's service alleging as a
reason that he was a freeman, "that other blacks were free and that he
wanted to be free also." In February, 1799, the court held that no
title or right to sell Manuel has been shown and dismissed the action
directing the return of the L18.[6]
In 1797 the Imperial Act of 1732 for the sale of Negroes and other
hereditaments for debt in the American Plantations was repealed so far
as it related to Negroes[7] but this made no difference in their
status. The courts, however, were becoming astute in favor of
assisting those claiming freedom. In February, 1798, a certain female
Negro slave called Charlotte belonging to Miss Jane Cook left her
mistress and refused to return. On information laid she was committed
by the magistrates to prison. She sued out a writ of habeas corpus
from the Court of King's Bench at Montreal and Chief Justice, James
Monk, ordered her release. On this becoming known, the Negroes of the
city and district of Montreal became very threatening in their
demeanor. Many renounced all service and one woman called Jude who had
been bought at Albany in 1795 for L80 by Elias Smith, a merchant of
Montreal, left her master and was committed to prison in the same way
by the magistrates. Being brought up in the Court of King's Bench at
Montreal on habeas corpus, Chief Justice Monk discharged her March 8,
1798 without deciding the question of slavery. The Chief Justice
declared that he would set free every Negro, articled apprentice, or
domestic servant who should be committed to prison in this way by the
magistrates. But this was because the statute in force at that
time[8] gave power to the magistrates to cause such due correction and
punishment to be ministered to an apprentice as they thought fit and
this empowered them to commit apprentices to the house of correction
as a punishment, but it gave no authority to commit to a common gaol
or other prison.
These decisions alarmed the owners of slaves: and a petition from many
inhabitants of Montreal was presented to the House of Assembly April
19, 1799, by Joseph Papineau. This petition set forth the ordinance of
the Intendant Raudot in 1709[9] the Act of 1732,[10] that of 1790,[11]
the facts concerning Charlotte, Jude and the other Negroes, the
judgments of Chief Justice Monk, and the absence of any house of
correction. It prayed that an Act should be passed that until a house
of correction should be established every slave, Panis or Negro who
should desert the service of his master, might be proceeded against in
the same way as apprentices in England, and be committed to the common
gaol of the District; and further that no one should aid or receive a
deserting slave or that there should be passed a law declaring that
there was no slavery in the Province or such other provision
concerning slaves should be made as the House should deem
convenient.[12] The petition was laid on the table.
In 1799 there was passed an Act providing houses of correction for
several districts, but no provision was made concerning slavery.
Perhaps the wisdom of this house proved insufficient to devise any
"provision convenable."
The next year another petition was brought in by Papineau from certain
inhabitants of the District of Montreal saying that doubts had been
entertained how far property in Negroes and Panis was sustainable
under the laws of the province. They cited Raudot's ordinance, the
recognition of slavery for years, and stated that in a recent case the
Court of King's Bench at Montreal in discharging a slave of Mr.
Fraser's who had been committed to the house of correction by three
justices of the peace, had expressed the opinion that the Act of
1797[13] had repealed all the laws concerning slavery. They asked that
the House should pass an act declaring that with certain restrictions
slavery did exist in the province and investing the owners with full
property in the slave; and that this chamber should also pass such
laws and regulations in the matter as should be thought advisable.[14]
The petition on motion of Messrs. Papineau and Black was referred to a
committee of five, Papineau, Grant, Craigie, Cuthbert and Dumas. The
committee reported and Cuthbert introduced on April 30, 1800, a bill
to regulate the condition of slaves, to limit the term of their
slavery and to prevent further introduction of slavery in the
province. The bill passed the second reading and was referred to the
Committee of the Whole, but got no further. The next year Cuthbert
introduced a similar bill with the same result, and again in 1803. The
reason for the failure of these attempts was that any legislation on
slavery would in view of the decisions of the courts be reactionary
and change for the worse the condition of the slave.
The most celebrated of these decisions was in the case of Robin,
_alias_ Robert, a black. James Fraser, a Loyalist of the colony of New
York, became the owner of Robin a Negro man in 1773, before the
American Revolution. The colonies were successful and provisional
articles of peace were signed November 30, 1782. Congress proclaimed
them April 11, 1783 and it was almost inevitable that they would
become a permanent and definitive treaty. Article VII provided for the
speedy evacuation by the British forces of territory to be allotted to
the United States of America "without carrying away any negroes or
other property of the American inhabitants." There was allowed full
time for everyone who desired to live under the British flag to leave
New York. James Fraser made up his mind to go to Nova Scotia and
obtained a pass from William Walton, the Magistrate of Police of the
city, for his slave Robin and another, Lydia, September 23, 1783.[15]
Fraser went to Shelborne, Nova Scotia, and the following year in
September he went to "the Island of St. John,"[16] accompanied by
Robin who was and acknowledged himself to be Fraser's property.
Afterwards Fraser brought him to the Current of Saint Mary near the
city of Montreal where Fraser became a farmer. Robin, infected with
the pernicious doctrines of freedom then rather prevalent left Fraser,
March 19, 1799, and went to live with Richard, a tavern keeper in
Montreal. Fraser laid an Information before Charles Blake, a justice
of the peace, and January 31, 1800, Charles Blake, Robert Jones and
James Dunlop, justices of the peace of the District of Montreal
committed Robin to the "Common Gaol and House of Correction at
Montreal" with a warrant to Jacob Kuhn "Keeper of His Majesty's Jail
and House of Correction" to receive "a negroman named Robert who
refuses to go home to his owner and him safely to keep till he may be
discharged or otherwise dealt with according to law."
In the February Term 1800 of the Court of King's Bench for the
District of Montreal[17] Mr. A. Perry, his advocate, obtained a writ
of habeas corpus and on the tenth of February the black was produced
in court. Mr. Perry for the black and Mr. Kerr for James Fraser
presented their arguments upon this day and on the thirteenth of
February, and after consideration and consultation the court five days
later ordered the discharge of Robin alias Robert from his confinement
under the warrant.[18]
The decision proceeded on the ground that the Act of 1797 which
repealed the provision for the sale of Negroes to answer a judgment
had revoked all the laws concerning slavery. Remembering that the Act
of 1732 was intended to change the common law of England which did not
allow the sale of land under a writ of execution, fieri facias, it
should probably be considered that the sole effect of the repeal of
the act as regards Negroes was to exempt them from sale under fieri
facias, without affecting their status. And it is well known that
slavery continued in the West India Islands and in Upper Canada long
after the Act of 1797.
The effect of the decisions while not technically abolishing slavery
rendered it innocuous. The slave could not be compelled to serve
longer than he would, and the burden of slavery was rather on the
master who must support his slave than on the slave who might leave
his master at will. The legislature refusing to interfere, the law of
slavery continued in this state until the year 1833 when the Imperial
Parliament passed the celebrated act which forever abolished slavery
in British Colonies from and after August 1, 1834.[19]
As Lower Canada passed no legislation on slavery, the extradition of
fugitives was made impossible and Canada became therefore an asylum
for the oppressed in the United States. Before the Act of 1833 there
was one instance of a request from the Secretary of State of the
United States for the delivery up of a slave. The matter was referred
to the Executive Council by Sir James Kempt, the Administrator of the
Government.[20] The report of the Executive Council shows the view
held that "the Law of Canada does not admit a slave to be a subject of
property."
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.
"Every slave therefore who comes into the province is immediately
free whether he has been brought in by violence or has entered it
of his own accord; and his liberty cannot from thenceforth be
lawfully infringed without some cause for which the law of Canada
has directed an arrest.
"On the other hand, the Individual from whom he has been taken
cannot pretend that the slave has been stolen from him in as much
as the law of Canada does not admit a slave to be a subject of
property.
"All of which is respectfully submitted to Your Excellency's
Wisdom."[21]
FOOTNOTES:
[1] Under the Canada Act of 1791, the provinces had each a parliament
or legislature, an upper house, the Legislative Council, of nominated
members, not fewer than seven in Upper and not fewer than fifteen in
Lower Canada, and a lower house, the House of Assembly, sometimes
called the House of Commons elected by the people, not fewer than
sixteen in Upper and not fewer than fifty in Lower Canada.
[2] In the sister province a bill to the same effect was more
fortunate in the same year a little later. This will be considered in
the next chapter.
[3] In a work of some authority, Bibaud's _Pantheon Canadien_, page
211, it is said that "Joseph Papineau, Notary Public, Member of the
Legislature Assembly for Upper Quebec presented about 1797 a petition
of the citizens of Montreal for the abolition of slavery." If that be
the case there was nothing done on the petition, but it seems probable
that the author refers to the petition of 1799 spoken of later in the
Text.
[4] From Massicotte _ut supra_ in _Le Bulletin des Recherches
Historiques_, Vol. II, p. 136, it is said: "Une annonce publiee dans
la Gazette de Quebec vers: cette epoque (_i.e._, 1797) represente un
negre courant a toutes jambes. 'Il est offert une recompense honnete a
qui remenera a son maitre marchand de Trois Rivieres son esclave
fugitif' Ce pauvre diable pensait sans doute que la loi qu'on
proposait pourrait pas d'effet retroactif."
[5] Lafontaine _ut supra_, pp. 49-51.
[6] Lafontaine _ut supra_, pp. 52 & 56.
[7] For the Act of 1732 (5 George II, c. 7). The repealing Act was
(1797) 37 George III, c. 119 (Imp.).
[8] The Statute of 1562, 5 Elizabeth, c. 4, not repealed until 1814,
54 George III, c. 96 (Imp.).
[9] See ante, p. 304.
[10] _Ibid._, p. 305.
[11] _Ibid._, p. 310.
[12] "Ou qu'une loi puisse etre passee declarant qu'il n'y a point
d'esclavage dans la Province; ou telle autre provision concernant les
esclaves que cette Chambre, dans sa sagesse, jugera convenable." The
Act of 1799 providing for houses of correction (really the common
gaol) was 39 George II, c. 6 (L. C.), and was to be in force for two
years. It was amended and continued for four years by the Act (1802)
42 George III, c. 6 (L. C.) and again by (1806) 46 George III, c. 6
(L. C.), until January 1, 1810 when it expired.
[13] See ante, note 7. The effect of this Act was probably not as
stated. The slave of Mr. Fraser's was Robin alias Robert to be spoken
of _infra_, page.
[14] The two reasons given for the request are the familiar ones. The
petitioners had paid large sums for the slaves who had left them and
"they are all wholly convinced that that class of men really lazy
leading an idle and abandoned life would attempt to commit crime."
[15] The definitive treaty was in fact signed September 3, 1783, but
not ratified by Congress until January 14, 1784. The armistice had
been concluded January 20, 1783. In the definitive treaty, Article VII
contains the same provisions as to Negroes as the corresponding
article in the preliminary articles.
[16] Isle St. Jean so called from about the end of the sixteenth
century until 1798, when it was given the name Prince Edward Island
out of compliment to Prince Edward, Duke of Kent (father of Queen
Victoria), then commanding the British Forces in North America. The
name it still retains.
[17] The Judges were James Monk, Chief Justice and Pierre Louis Panet
and Isaac Ogden, Puisne Justices.
[18] Lafontaine ut supra, pp. 56-63. It has often been said that it
was Chief Justice Osgoode who gave the death blow to slavery in Lower
Canada. For example, in James P. Taylor's _Cardinal facts of Canadian
History_, Toronto, 1899, on p. 88 we find a statement that in 1803,
Chief Justice Osgoode in Montreal declared slavery inconsistent with
the laws of Canada. But Osgoode became Chief Justice of the Province
in July, 1794. Continuing as such Chief Justice, he became Chief of
the Court of King's Bench for the District of Quebec later on in the
same year on the coming into force of the Act of 1794, 34 George III,
c. 6, which erected two Courts of King's Bench one for each District.
James Monk became Chief Justice of the Court of King's Bench for the
District of Montreal, which position he retained until 1825. Osgoode
resigned his position and went to England in 1801 and lived in England
until his death in 1824: he was never Chief Justice at Montreal.
[19] One result of these decisions was to induce the escape of Negro
slaves from Upper Canada where slavery was lawful to Lower Canada. For
example one hears of two of the three slaves whom Captain Allan
brought with him into Upper Canada from New Jersey running away to
Montreal. The owner pursued them to Montreal and searched for them in
vain for ten days. The third slave, a woman, he sold with her child.
The Statute is (1833) 3, 4, William IV, c. 73 (Imp.). One result of
this Act is exceedingly curious and to the philosophical lawyer
exceedingly interesting. Slaves which had been real estate, as soon as
the act was passed ceased to be such, and the benefit to be obtained
from their labor until fully enfranchised and the money to be paid by
the legislature as compensation for their freedom became personal
estate. See the luminous judgment of the Judicial Committee of the
Privy Council in Richard _v._ Attorney General of Jamaica, Moore's
_Report of Cases in the Judicial Committee_ (1848), Vol. 6, p. 381.
In a note on p. 35 of a paper in the _Transactions of the Royal
Society of Canada_, 1900, on _La Declaration de 1732_ M. L'Abbe
Auguste Gosselin, Litt.D., F.R.S., Can., we read:
"On trouve dans le livre de Mgr. Tanguay _A travers les Registres_, p.
157, une notice sur l'Esclavage au Canada, avec un 'Tableau des
familles possedant des esclaves de la nation des Panis' L'esclavage ne
fut definitivement aboli par une loi, en Canada, qu'en 1833."
The learned author does not mean that there was legislation on slavery
in Canada in 1833, or that it was Canadian legislation which abolished
slavery; for such was not the case.
[20] From September 8, 1828, to October 19, 1830.
[21] _Canadian Archives_, State K, p. 406.