CHAPTER IV

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.

The Journal of Negro History, Volume 5, 1920 · 第 4 / 10 章