THE FUGITIVE SLAVE IN UPPER CANADA
Before the Act of 1793, there was some immigration of slaves fleeing
from their masters in the United States. After the Act of 1793,
however, a slave by entering Upper Canada became free, whether he was
brought in by his master or fled from him. Legislation of the United
States in the same year[1] increased the number of those fleeing to
the province under this law. Slaves who had effected their escape to
what were considered free States were liable to be reclaimed by their
masters. Shocking instances of the forcing into renewed slavery of the
escaped slave and even of enslaving the free persons of color are on
record and there are told worse which never saw the open light of
day.
Eli Whitney's invention of the cotton gin about the same time[2] made
slaves much more valuable and not only checked the movement toward
gradual emancipation but increased the ardor with which the fugitive
was pursued. From 1793 the influx of fugitive slaves into the province
never quite ceased. The War of 1812 saw former slaves in the Canadian
militia fighting against their former masters and Canada as an asylum
of freedom became known in the South by mysterious but effective
means. "As early as 1815 negroes were reported crossing the Western
Reserve to Canada in great numbers and one group of Underground
Railway workers in Southern Ohio is stated to have passed on more than
1000 fugitives before 1817."[3]
It is not proposed here to give an account of the celebrated
Underground Railway. It is sufficient to say that it was the cause of
hundreds of slaves reaching the province.[4] Some slaves escaped by
their own efforts in what can fairly be called a miraculous way. No
more dramatic or thrilling tales were ever told than could be told by
some of these refugees. Some having been brought by their masters near
to the Canadian boundary then clandestinely or by force effected a
passage. Some came from far to the South, guided by the North Star.
Many were assisted by friends more or less secretly. 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.[5] Some of them settled in other parts of the province,
either together or more usually sporadically. Toronto received many.
These were superior to most of their race, for none but those with
more than ordinary qualities could reach Canada.[6]
The masters of runaway slaves did not always remain quiet when their
slaves reached this province. Sometimes they followed them in an
attempt to take them back. There are said to have been a few instances
of actual kidnapping. There were some of attempted kidnapping.
Most of these are merely traditional but at least one is well
authenticated.[7]
In May, 1830, a young man with finely chiselled features, bright hazel
eyes, apparently a quadroon or octoroon applied for service at the
house of Charles Baby, "the old Baby mansion in the ... historical
town of Sandwich" in Upper Canada on the Detroit River. He said he had
escaped from slavery in Kentucky, had arrived on the previous evening
at Detroit and had crossed the river to Canada as quickly as possible.
He had been a mason but understood gardening and attending to horses
and had other accomplishments. He was engaged and proved a
satisfactory servant "respectful, cleanly, capable, lithe and active
as a panther." His former master came from Kentucky and reclaimed him
after the lapse of six months. The recognition was mutual and
immediate. The Kentuckian, offered $2000 to Baby for the return of
Andrew his former slave, but the offer was indignantly refused. It
turned out that Andrew had taken his master's favorite horse to assist
him in his flight but had turned it loose after riding it some
twenty-five miles. Whether for this reason or for some other, the
Kentuckian did not appeal for the extradition of Andrew[8] but
determined to use violence.
A short time afterwards five desperadoes from Detroit attempted to
kidnap Andrew while the family were at Church, but they were
successfully resisted by Andrew and Charles Baby until the service was
over and the people were seen hastening home. The would-be kidnappers
made their escape across the river. Finding it dangerous to keep
Andrew so near the border, the neighbors took up a subscription and he
was sent by stage to York (Toronto). This place he reached in safety.
"He made good" and lived a respectable and useful life undisturbed by
any fear of Kentucky vengeance.[9]
The law as to such attempts was authoritatively stated in 1819 by John
Beverley Robinson, Attorney General of Upper Canada, afterwards Sir
John Beverley Robinson, Bart, Chief Justice of Upper Canada. The
opinion will be given in his own words:[10]
"In obedience to Your Excellency's comments I have perused the
accompanying letter from G. C. Antrobus Esquire, His Majesty's
charge d'affaires at the Court of Washington and have attentively
considered the question referred to me by Your Excellency
thereupon--namely--"Whether the owners of several Negro Slaves
who have fled from the United States of America and are now
resident in this Province can be permitted to come hither and
obtain possession of their property, and whether restitution of
such Negroes can be made by the interposition of the government
of 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."[11]
Then came a number of applications for the return of runaway slaves
cloaked under criminal charges, the pretence being made that they had
committed some crime and that it was desired to bring them to trial
and punishment. There can be no doubt that in the absence of some
constitutional provision every country has the right to keep out
criminals and, if they have entered the country, to hand them over to
the authorities of the country whence they came; but the rules of
international law have never gone so far as to make it obligatory on
any country to send away immigrant criminals even if demanded by their
former country. It has always been the theory in Upper Canada that the
Governor had the power independently of statute or treaty to deliver
up alien refugees charged with crimes.[12] This was not wholly
satisfactory and the legislature took the matter up and passed an act
governing such cases, February 13th, 1833,[13] providing for the
apprehension of fugitive offenders from foreign countries, and
delivering them up to justice. 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, but the act was permissive only and the delivery up was at
the discretion of the Governor-in-Council.
It was under this act that the extradition of Thornton Blackburn was
sought but finally refused. The case was this: Two persons of color
named Blackburn, a man and his wife, were claimed as slaves on behalf
of some person in the State of Kentucky. They were arrested in Detroit
in 1833 and examined before a magistrate, who, in accordance with the
law of the United States, made his certificate and directed them to be
delivered over as the personal property of the claimant in Kentucky.
The sheriff took them into custody but when one of them was on the
point of being removed from the prison to be restored to his owner,
he was violently rescued and directed across the river into Canada. On
the day before the rescue of Thornton Blackburn his wife eluded the
jailer in disguise and escaped to Canada.
The Upper Canadian Government was, therefore, called upon to return
these prisoners to the United States. Upon examining the record in the
case, however, the Attorney General of Upper Canada in reply to the
Governor for information in the case, advised that the so-called
offences of Thornton Blackburn in trying to effect his own escape from
persons seeking to return him to slavery could not be construed as
rioting or rescuing a prisoner from an officer of the law as had been
set forth in the requisition papers from the Michigan authorities and
certainly could not be applied to Thornton Blackburn's wife who, as
the evidence showed, had taken no part at all in the rescue.
The council[14] was thereafter called upon to consider the question
whether, if a similar charge had been committed in Canada, the
offenders would be liable to undergo any of the punishments provided
for in the act passed at the session of the Canadian Legislature in
1833. The Attorney General[15] was of the opinion that had the
government been confined to the official requisition that had
accompanied it, he might have been warranted in delivering up these
persons inasmuch as there was evidence on which, according to the
terms of the Canadian law, a magistrate would have been warranted in
apprehending and committing for trial persons charged with riot,
forcible rescue and assault and battery. The Attorney General
believed, however, that the Governor and the Council were not confined
to such evidence since, though limited in their authority to enforcing
the provisions of the act against fugitives from foreign States, on
being satisfied that the evidence would warrant the commitment for
trial, yet in coming to that conclusion, they were bound to hear not
ex parte evidence alone but matter explanatory to guide their
judgment; for even with the authority so to do, they were not required
to deliver up any prisoner so charged, if for any reason they deemed
it inexpedient so to do.
The conclusion of the Attorney General, therefore, was that Blackburn
and his wife were not charged with any of the offences enumerated in
the statute of Canada and that the Governor and Council were not
authorized by its provisions to send them out of the province. He
said, moreover: "It has not escaped our attention as a peculiar
feature in this case that two of the persons whom the Government of
this Province is requested to deliver up are persons recognized by the
Government of Michigan as slaves and that it appears upon these
documents that if they should be delivered up they would by the laws
of the United States be exposed to be forced into a state of slavery
from which they had escaped two years ago when they fled from Kentucky
to Detroit; that if they should be sent to Michigan and upon trial be
convicted of the riot and punished they would after undergoing their
punishment be subject to be taken by their masters and continued in a
state of slavery for life, and that, on the other hand, if they should
never be prosecuted, or if they should be tried and acquitted, this
consequence would equally follow.
The next case was not so happy in its result. It caused much
excitement at the time and is not yet forgotten. 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 the Niagara Gaol. A prima facie case was made out and an
order sent for his extradition.[16]
The people of color of the Niagara region made the Mosely 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[17] 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
to 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 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 afterward 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 officer 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 and 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 followers 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.[18]
It was, however, only when the alleged crime was recent and followed
up promptly that the rigid rule of extraditing slaves accused of crime
was applied. A case which came before the Executive Council a few days
after Mosely's is a good illustration of the care taken in such cases.
Jesse Happy, a slave in Kentucky, had made his escape to Canada,
stealing a horse with which he outran his pursuers. Knowing the
indisposition of the Canadian authorities to return fugitives from
slavery, the Governor of Kentucky undertook to have this fugitive
extradited on the ground that he was charged with a felony in that
commonwealth. It appeared that the real object of the application from
Kentucky was not so much to bring Happy to trial for the alleged
felony as to reduce him again to a state of slavery. In the report of
the Attorney General reference was made to an application for
extradition in a case in which the offence had been recently
committed, and because of this fact the requisition was honored. In
the case of Jesse Happy, however, the alleged offence had been
committed four years prior to making an effort to have him extradited.
No process had been issued in the State of Kentucky nor had any steps
been taken to punish him for felony. It was suggested, therefore, that
the real object of this apprehension was to give him up to his former
owners and to deprive him of the personal liberty secured to him by
the laws of Canada.
As the delivery of the slave under these circumstances would subject
him to a double penalty, the one of being punished for the crime and
the other of being returned to a state of slavery even if he should be
acquitted, the Canadian authorities were in a dilemma; for punishment
of the felony was in strict accordance with the statutes of Canada
whereas the enslavement of the fugitive was in direct opposition to
the genius of its institutions and the spirit of its laws. Yet as the
council[19] could not take the position that because a man happened to
be a fugitive slave he should escape the consequences of crime
committed in a foreign country to which a free man would be amenable,
action was suspended so as to give the accused time to furnish
affidavits of the facts set forth in the petition on his behalf, and
not wishing to make of this a precedent without the support of the
highest authority, the matter was submitted to the Government in
England with a request for their views upon this case as a matter of
general policy.[20]
Lord Palmerston having had the matter brought to his attention by Lord
Glenelg, Secretary of State for War and the Colonies, recognized its
very great importance. He accordingly had it submitted to the Law
Officers of the Crown. The opinion of these officers Sir John
Campbell and Sir Robert Mousey Rolfe appears from a letter from W.T.H.
Fox Strangeways, Parliamentary Secretary of State for Foreign Affairs
addressed February 25, 1838, to Sir George Gray of the Colonial
Department. This officer said:
"I have received and laid before Viscount Palmerston your Letter to me
of the 6 December 1837 with its accompanying copy of a Dispatch from
Sir Francis Head, in which that officer requests Instructions for his
guidance, in the general case of Fugitive Slaves who, having escaped
to Canada may be demanded from the Canadian Authorities by the
Authorities of the United States on the plea of their having committed
crimes in the last mentioned Country and in the particular case of
Jesse Happy, who having escaped to Upper Canada more than four years
ago, had been demanded from the Lieut. Governor of that Province, upon
the ground of a charge of Horse Stealing.
"These two questions have by direction of Lord Palmerston been
submitted to the Law Officers of the Crown, and I am directed by his
Lordship to state to you the opinion of these officers for the
information of Lord Glenelg.
"The Law Officers report upon the general question, that they think
that no distinction should in the case contemplated, be made between
the demand for Slaves or for Freemen.
"It is the opinion of the Law Officers that in every case in which
there is such Evidence of criminality as, according to the terms of
the Canadian Statutes, would warrant the apprehension of the accused
Party, if the alleged offence had been committed in Canada, then on
the requisition of the Governor of the Foreign State, the accused
Party ought to be delivered up, without reference to the question as
to whether he is or is not a Slave.
"The Law Officers desire however that it should be distinctly
understood, that the Evidence for this Purpose must be evidence taken
in Canada, upon which (if false) the Parties making it may be indicted
for Perjury.
"The Law Officers remark further on this point that the 3rd Section of
the Provincial Statute enables the Governor to refuse to deliver up a
Party, whenever special circumstances may render it inexpedient to
accede to the demand made to the Governor on such a point.
"The Law Officers, reporting upon the subject of Jesse Happy state
that they do not think that there was in that case such evidence of
criminality, as, according to the Laws of the Province of Upper Canada
would warrant the apprehension of Jesse Happy if the offence charged
had been committed in U. Canada.
"The Law Officers indeed go farther, and say that so far as there is
any evidence of the Facts, what took place was not Horse Stealing
according to the Laws of Upper Canada, but merely an unauthorized use
of a horse, without any intention of appropriating it.
"The Law Officers conclude by, stating, that upon these grounds, they
are of opinion, that Jesse Happy ought to be set at liberty, and that
instructions to that effect should be sent to the Lieutenant Governor
of Upper Canada."[21]
On the ninth of May Glenelg wrote to Sir George Arthur who succeeded
Bond Head as Lieutenant Governor of Upper Canada, saying: "With
reference to my Dispatch to Sir Francis Bond Head of the 4th December
last No 255, I enclose for your information the copy of a letter from
the Under Secretary of State for Foreign Affairs stating the substance
of the opinion given by the Law Officers of the Crown in respect to
the restitution of Fugitive Slaves who may be demanded from the
Government of Upper Canada on the plea of their having committed
crimes at the places from which they have fled. In conformity with the
opinion of the Law Officers of the Crown I have to desire that Jessie
Happy, the individual with respect to whom this question was raised
shall be forthwith set at liberty."
It is impossible not to see that the very stringent rules laid down by
the Law Officers of the Crown at Westminster were intended to be in
_favorem libertatis_. Happy was released November 14th, 1837, and so
far as appears from the official records no further application was
ever made for the extradition of a runaway slave until after 1842.
That year the well-known Ashburton Treaty was concluded[22] between
Britain and the United States. This by Article X provides that "the
United States and Her Britannic Majesty shall, upon mutual
requisitions ... deliver up to justice all persons ... charged with
murder, or assault with intent to commit murder, or piracy or arson or
robbery or forgery or the utterance of forged paper...." Power was
given to judges and other magistrates to issue warrants of arrest, to
hear evidence and if "the evidence be deemed sufficient ... it shall
be the duty of the ... judge or magistrate to certify the same to the
proper executive authority that a warrant may issue for the surrender
of such fugitive."
It will be seen that this treaty made two important changes so far as
the United States was concerned. It made it the duty of the executive
to order extradition in a proper case and took away the discretion. It
gave the courts jurisdiction to determine whether a case was made out
for extradition.[23] These changes made it more difficult in many
instances for a refugee to escape; but the courts were astute as ever
in finding reasons against the return of slaves.
The case of John Anderson is a well-known one in evidence. He was born
a slave in Missouri. As his master was Moses Burton, he was known as
Jack Burton. He married a slave woman in Howard County, the property
of one Brown. In 1853, Burton sold him to one McDonald living some
thirty miles away and his new master took him to his plantation. In
September 1853 he was seen near the farm of Brown, when apparently he
was visiting his wife. A neighbor, Seneca T.P. Diggs, became
suspicious of him and questioned him. As his answers were not
satisfactory he ordered his four Negro slaves to seize him, according
to the law in the State of Missouri. The Negro fled, pursued by Diggs
and his slaves. In his attempt to escape the fugitive stabbed Diggs in
the breast and Diggs died in a few hours. Effecting his escape to this
province, he was in 1860 apprehended in Brant County, where he had
been living under the name of John Anderson, and three local justices
of the peace committed him under the Ashburton Treaty. A writ of
habeas corpus was granted by the Court of Queen's Bench at Toronto,
under which the prisoner was brought before the Court of Michaelmas
Term of 1860.
The motion was heard by the full court.[24] 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.[25] While the adverse decision was
announced, there were some mutterings of violence but the counsel for
the prisoner[26] 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.[27] The case came to
the knowledge of many in England. It was taken up by the British and
Foreign Anti-Slavery Society and many persons of more or less note. An
application was made to the Court of Queen's Bench of England for a
writ of habeas corpus, notwithstanding the Upper Canadian decision,
and while Anderson was in jail at Toronto, the court after anxious
deliberation granted the writ[28] 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[29] 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.[30] 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.[31]
FOOTNOTES:
[1] 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 dearly 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 Sumner'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 by this request that such violent measure 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 forego
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.
[2] Whitney's first patent was 1784. His rights were firmly
established in 1807.
[3] Landon, _Canada's Part in Freeing the Slave_, Ontario Historical
Society, Papers, etc. (1919), quoting Birney's _James G. Birney and
His Times_, p. 435.
Mr. Landon's paper is of great interest and value and I gladly avail
myself of the permission to use it.
[4] A fairly good account of the Underground Railroad will be found in
William Still's _Underground Railroad_, Philadelphia, 1872, in W.H.
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.
[5] 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).
[6] "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.
[7] _Souvenirs of the Past_, by William Lewis Baby, Windsor, Ontario,
1896. Mr. Baby is a member of an old French-Canadian family of the
highest repute for honor and public service. Charles Baby was the
author's brother. The author lived with him and tells the story of his
own knowledge. The quotations are from Mr. Baby's book.
[8] As was done in the case of Solomon Mosely, spoken of infra, p.
[9] I have not been able to verify other tales of attempted abduction
to my satisfaction, there are, however, several stories which may be
true.
[10] _Canadian Archives Sundries, U. C._, 1819.
[11] John Beverley Robinson was the son of Christopher Robinson
mentioned above.
[12] The same rule obtained in Lower Canada; (1827) re Joseph Fisher,
1 Stuart's L. C. Rep. 245.
[13] This is the Act (1833), 3 Will IV, c. 7 (U. C.). This statute
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.).
The Act of 1833 was drawn by Chief Justice Robinson and introduced by
him into the Legislative Council of which he was Speaker--it was a
"Government measure." Notice of bringing in the bill was given
November 28, 1832; the bill brought in November 30; read the second
time December 3 passed the committee of the whole on the fourth of
December and was finally passed by the Council the following day. It
reached the Legislative Assembly the same day where it was passed
without opposition and received the Royal Assent February 13, 1833.
[14] At the meeting were present His Excellency Sir John Colborne, K.
C. B. Lieutenant Governor, the Hon. and Rev. John Strachan, D.D.,
Archdeacon of York, the Honorable Peter Robinson, the Honorable George
Herchmer Markland, the Honorable Joseph Fells, and the Honorable John
Elmsley. The Executive Council at that time was very much under the
influence of the Chief Justice and Dr. Strachan, then Archdeacon
afterwards the first Anglican Bishop of York or Toronto.
[15] Robert Sympson Jameson an English barrister of the Middle Temple,
a familiar friend of Coleridge and Southey and the husband of Anna
Jameson of some literary note.
The report is from the _Canadian Archives, State J._, p. 137.
[16] The Executive Council on September 7th 1837 recommended his
extradition. The following is a copy of the Proceedings:
EXECUTIVE COUNCIL CHAMBER AT TORONTO Thursday 7th September 1837
REQUISITION FOR SOLOMON MOSELY
Read the Requisition of the Governor of the State of Kentucky and
other documents relating to the surrender of Solomon Mosely a
fugitive from the State of Kentucky charged with Horse stealing.
Read also the Attorney General opinion thereon as follows:
ATTORNEY GENERAL'S OFFICE
TORONTO 6th September 1837
_Sir_,
I have the honor to report that in my opinion there is sufficient
proof of the guilt of Solomon alias John Mosely a fugitive from
the State of Kentucky charged with horse stealing in that
Country--to Warrant His Excellency the Lieutenant Governor (with
the advice of the Executive Council) to deliver him up upon the
request made by the Governor of the State referred to.
I have the honor to be &c
(Signed) CS HAGERMAN, _Atty, Gen_
J JOSEPH ESQ,
_Civil Secretary._
The Council concur in the above opinion of the Attorney General
and consider that the case comes within 3rd Wm 4 Ch 7 and
therefore advise His Excellency the Lieutenant Governor to
deliver up the Fugitive alluded to in the requisition of His
Excellency the Governor of the State of Kentucky.
--_Can. Arch. State J. Upper Canada_, p. 595.
In a despatch from Head to Lord Glenelg, October 8, 1837, Can. Arch.
398, p. 149, Head says: "In a case brought before me only a few days
previous to that which is the subject of this communication (_i.e._,
the Jesse Happy case) I insisted on giving up to the Governor of the
Commonwealth of Kentucky (a slave) who in order to effect his escape
had been guilty of stealing his Master's horse." It was suggested that
the real object was to get him back to his Master--not to punish him
for the crime. But the crime was perfectly proved and the Council
followed the judicial opinion in the Thornton Blackburn case that as
the black had been shown to have committed an offence clearly coming
within the statute of 1833, they could not advise a course to be taken
"different from that which should be pursued with respect to free
white persons under the same circumstances." They, therefore, advised
an order for extradition.
[17] 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.
[18] 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 are clear; although there is some
doubt as to the time, the military guard were ordered to fire.
[19] Present, Allen, Hon. Augustus Baldwin and Hon. William Henry
Draper (afterwards Chief Justice of the Court of Common Pleas, 1856,
Chief Justice of the Province of Upper Canada, 1863, and President of
the Court of Error and Appeal 1868 till his death, 1877).
[20] _Canadian Archives State J._, p. 597.
[21] _Canadian Archives_, G. 84, p. 277. The letter to Sir George
Arthur is _ibid._, G. 84, p. 275. The despatch from Lord Glenelg to
Sir Francis Bond Head dated January 4, 1837, has endorsed on it a
pencil memorandum "Jesse Happy has been liberated by Lieutenant
Governor's command November 14, 1837," _ibid._, G. 83, p. 238.
[22] Concluded at Washington, August 9, 1842.
[23] It was held in the Province of Upper Canada that the Act of 1833
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 offence 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.
[24] The Chief Justice Sir John Beverley Robinson, Mr. Justice McLean
(afterwards Chief Justice of Upper Canada) and Mr. Justice Burns.
[25] The seat of the Superior Courts in Toronto, the Palais de Justice
of the Province.
[26] 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.
[27] The case is reported in (1860) 20 U. Can. Q.B., pp. 124-123. The
warrant is given at pp. 192, 193.
[28] 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.
[29] Common Law of course, not Chancery.
[30] 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 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 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
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.
[31] Canadian Archives, Sundries U.C., 1807.
It would be unfair to the United States to say or suggest that all the
flights for freedom were in the one direction. Very early trouble was
experienced by Canadian owners of slaves from their running away to
the United States. The following letter tells its own story. D.M.
Erskine the British representative writing from New York, May 26,
1807, to Francis Gore, Lieutenant Governor of Upper Canada, says:
"I have the honour to acknowledge the receipt of your letter of the
24th ult enclosing a Memorial presented to you by the Proprietors of
Slaves in the Western District of the Province of Upper Canada.
"I regret equally with yourself the Inconvenience which His Majesty's
subjects in Upper Canada experience from the Desertion of their slaves
into the Territory of the United States, and of Persons bound to them
for a term of years, as also of his Majesty's soldiers and sailors;
but I fear no Representation to the Government of the United States
will at present avail in checking the evils complained of, as I have
frequently of late had occasion to apply to them for the Surrender of
various Deserters under different circumstances and always without
success.
"The answer that has been usually given, has been, 'That the Treaty
between Great Britain & the United States which alone gave them the
Power to surrender Deserters having expired, it was impossible for
them to exercise such an authority without the Sanction of the Laws.'
"I will however forward to His Majesty's Minister for Foreign Affairs
the Memorial above mentioned in the Hope that some arrangements may be
entered into to obviate in future the great Losses which are therein
described."
In the _Life and Adventures of Wilson Benson, written by himself_
(Toronto, 1876), is found the following, pp. 34-36:
"In 1849 I shipped on the schooner Rose of Milton, Capt. Hamilton,
cruising on Lakes Ontario and Erie. In one trip to the town of Erie,
Pennsylvania, for a cargo of coal, while lying at the dock, a
diminutive negro man, with a white beard, came on board the vessel,
and inquiried of me if this was a British vessel. On being informed
that it was, he desired to be secreted, stating that he was a runaway
slave, and that his pursuers were on his track. I at once secreted him
in a closet which served as a store-room for vegetables, &c., and as
we were almost ready to set sail, I did not discover his presence to
either Captain or crew until we were some distance out on the lake.
When he appeared, Capt. Hamilton inquired of me where I had obtained
'that child,' and on being informed, expressed some anxiety, as we
were liable to be captured had we been followed by a steamer. As it
was, he merely looked up at the rigging, and exclaimed, 'Blow,
breezes, blow!' The negro, who knew no other name than 'Sambo' we
brought to Toronto. On one occasion, when I offered him some molasses,
he shook his head and made grimaces expressive of disgust. He informed
me that the slaves employed on the sugar plantations, when beaten by
their masters, in order to obtain an indirect revenge, spat in the
syrup, and committed other filthy things as an imaginary punishment
upon the whites. I frequently saw Sambo in Toronto, and many times he
expressed thankfulness to me for his deliverance. I may here mention
that shortly after the arrival of Sambo on board the Rose of Milton at
Erie, two suspicious-looking men, dressed in plain clothes, came
aboard and paced up and down the deck several times, and as all the
crew were absent at the time, I felt some apprehenson for the safety
of the poor fugitive; but seeing nothing of a suspicious appearance,
and the almost entire absence of the crew, they sauntered away. I made
several other trips up and down the lakes during that summer on the
same vessel."