The Journal of Negro History Volume V Part 55

Sir Guy Carleton claimed that the Negroes who had taken refuge in the British lines at once lost their status of slavery and became free.

They were "not Negroes or other property of the American," a rather technical not to say finely drawn distinction but _in favorem libertatis_; and in any event Britain would not betray the helpless who had put their faith in her.

[9] Washington did make a claim; but the United States had not carried out its part of the contract and Britain would not and never did pay.

Jones' _Loyalist History of New York_, Vol. 2. p. 256, says that the number of Negroes who found shelter in the British lines was 2000 at least; probably this is an underestimate. Hay's _Historical Reading_ at p. 249 gives the number of Negroes who came into Nova Scotia with their Masters at least 3000--and of free Negroes 1522 at Shelburne, 182 at St. John River. 270 at Guysborough, 211 in Annapolis County, and a smaller number at other places. 1200 were sent to Sierre Leone in 1792.

[10] See ante, p. --. The Negro population in 1784 estimated at about 3000 was included in the 28,347 of _Disbanded Troops and Loyalists called New Inhabitants, Can. Arch._, Report for 1885, p. 10. There were some free Negroes in various companies of the British forces in one capacity or another.

[11] The Negroes sent were Abraham, James, Lymas, Cyrus, John, Isaac, Quako, January, Priscella, Rachel, Venus, Daphne, Ann, Dorothy and four children Celia, William, Venus, Eleanora--reserving Matthew and Susannah at home. All these had been christened, February 11, 1784.

"Isaac is a thorough good carpenter and master sawyer, perfectly capable of overseeing and conducting the rest and strictly honest; Lymas is a rough carpenter and sawyer; Quako is a field negro has met with an accident in his arm which will require some indulgence. The other men are sawyers and John also a good axeman. Abraham has been used to cattle and to attend in the house, &c. All the men are expert in boats. The women are stout and able and promise well to increase their numbers. Venus is useful in the hospital, poultry yard, gardens, etc. Upon the whole they are a most useful lot of Negroes."

John Wentworth, last Royalist Governor of New Hampshire and afterwards Sir John Wentworth, Lieutenant Governor of Nova Scotia, doubtless believed himself to be a good man and a good Christian.

The story of Eve and Suke _infra_ is told by Archdeacon Raymond, 3 N.

B. Mag., 1899, p. 221.

[12] He went to England in 1796 (it was said, for a visit) resigned his position in Nova Scotia, was Knighted and appointed Recorder of Fort St. George, Bombay, India.

[13] A collateral ancestor of my own, the Reverend Archibald Riddell, had the advantage of a similar proceeding a century before. Being apprehended for taking part in the uprising of the Covenanters in Scotland he was given (or sold) with others to a Scottish Laird who chartered a vessel and proceeded to take his human chattels to America for sale. The plague broke out on the ship, the Laird and his wife died of it as did some of the crew. When the ship reached New Jersey, there being no master, the "slaves" escaped up country. The Laird's son-in-law and personal representative came to America and claimed Riddell and others. The governor called a jury to determine whether they were slaves and the jury promptly found in their favor. Riddell preached in New Jersey until the Revolution of 1688 made it safe for him to return to Scotland. Juries in such cases are liable to what Blackstone calls "pious perjury." All this practice was based upon the common law proceedings when a claim was made of villenage. When a person claimed to be the lord of a villein who had run away and remained outside the manor unto which he was regardant, he sued out a writ of neif, that is, de nativo habendo. The sheriff took the writ and if the nativus admitted that he was villein to the lord who claimed him, he was delivered by the sheriff to the lord of the manor; but if he claimed to be free, the sheriff should not seize him but the Lord was compelled to take out a _Pone_ to have the matter tried before the Court of Common Pleas or the Justices in Eyre, that is, the a.s.sizes. Or the alleged villein might himself sue out a writ of libertate probanda: and until trial of the case the lord could not seize the alleged villein. The curious will find the whole subject dealt with in Fitzherbert's _Natura Brevium_, pp. 77 sqq.

[14] This is very much like the Chloe Cooley case in Upper Canada. I do not know what form the prosecution could possibly take if the Negro was in fact a slave. See Chapter V, note 5 ante.

[15] It is said that August 1797 was the date of the last public slave sale at Montreal, that of Emmanuel Allen for 36.

The last advertis.e.m.e.nt for sale by auction of a slave in the Maritime Provinces seems to be that in _The Royal Gazette and Nova Scotia Advertiser_ of September 7, 1790, where William Millet of Halifax offers for sale by auction September 9 "A stout likely negro man and sundry other articles."

In 1802 the census showed that there were 451 Blacks in Halifax; in 1791 there were 422.

Dr. T. Watson Smith says in a paper "Slavery in Canada" republished in "Canadian History," No. 12, December, 1900, at p. 321.

"About 1806, so Judge Marshall has stated, a master and his slave were taken before Chief Justice Blowers on a writ of habeas corpus. When the case and the question of slavery in general had been pretty well argued on each side, the Chief Justice decided that slavery had no legal place in Nova Scotia."

I have not been able to trace such a decision and cannot think that it has been correctly reported. Dr. Smith is wholly justified in his statement "there is good ground for the opinion that this baneful system was never actually abolished in the present Canadian Provinces until the vote of the British Parliament and the signature of King William IV in 1833 rendered it illegal throughout the British Empire."

[16] J. Allen Jack, Q. C., D. C., L., of St. John, New Brunswick, gives a full account of this case from which (and similar sources) most of the facts are taken. In a paper read before the Royal Society of Canada May 26, 1898, _Trans. R. S. Can._, 1898, pp. 137 sqq., Dr.

Jack conjectures that Nancy Morton is the Negro female slave conveyed by bill of sale registered in the office of the Register of Deeds, St.

John's, N. B. Slaves were treated as realty as regards fieri facias under the Act of 1732 (see ante, p. --) and at least "savoured of the realty." The bill of sale registered January 31, 1791, was dated November 13, 1778, and was executed by John Johnson of the Township of Brooklyn in King's County, Long Island, Province of New York. It conveyed with a covenant to warrant and defend t.i.tle to Samuel Duffy, Innkeeper for 40 currency (say $100) "a certain negro female about fourteen years of age and goes by the name of Nancy," pp. 141, 142.

However that may be, Stair Agnew bought Nancy from William Bailey of the County of York in the Province of New Brunswick for 40 with full warranty of t.i.tle as a slave.

[17] He was born in Boston in 1753, the son of John Chipman, a member of the Bar. Graduating at Harvard, he joined the Boston Bar and practised in that City until 1776. After the Peace he went to England and in 1784 sailed for New Brunswick of which he was appointed Solicitor General. After a quarter of a century of successful practice he was appointed 1808 a puisne judge of the Supreme Court. He died in February, 1826.

His services to Nancy Morton were given without fee or hope of reward.

[18] That of Mr. Chipman is given in _Trans. R. Soc. Can._, 1898, pp.

155-184.

[19] It will be seen that the return sets up that Jones bought and owned the slave and the case was argued on that hypothesis, but the historians say that Captain Stair Agnew was the owner. The point is not of importance.

[20] _Mos regit legem, Mos pro lege, Leges moribus servient, Consuetudo est optimus interpres legum_, custom is the life of the law, custom becomes law, &c., &c. That slavery was necessary and therefore legal in the American Colonies was admitted in the Somerset case.

[21] The modern lawyer, in my opinion, would find no difficulty in coming to the same conclusion as the Chief Justice.

Mr. Chipman in his interesting correspondence with Chief Justice Blowers (_Trans. R. Soc. Can._, 1898, pp. 148 sqq.) admits that if his opponents had hit upon the Nova Scotia Statute of 1762 as revised in 1783 "the conclusiveness of their reasoning on their principles would have been considered as demonstrated." He adds: "In searching your laws upon this occasion I found this clause but carefully avoided mentioning it," which raises a curious question in legal ethics.

[22] The reconveyance to Bailey, a quit claim deed, is witnessed by George Leonard and Thomas Wetmore and is dated February 22, 1800. The indenture by which Nancy bound herself for fifteen years is dated February 23, 1800.

If Dr. Jack is right in his conjecture the argument took place when she was 36 and she would receive her freedom when she was 51. Agnew challenged Judge Allen for some reflection upon him by the Judge; the challenge was declined and Agnew then challenged Street who accepted--and they fought a bloodless duel. Street later in 1821 fought a duel with George Ludlow Wetmore over words which pa.s.sed on leaving the Court. Wetmore was struck in the head and died in a few hours. Street was tried and aquitted. One result of this case was that Mr. Justice Upham freed his slaves. His wife had six inherited from her father and he himself had some, one a girl born in the East Indies whom he had bought from her master in New York, the master of a ship, afterwards married a soldier in Colonel Allen's regiment.

[23] What is believed to be the last advertis.e.m.e.nt for the sale of a slave in any maritime province is in the New Brunswick _Royal Gazette_ of October 16, 1809 when Daniel Brown offered for sale Nancy a Negro woman, guaranteeing a good t.i.tle. The latest offer of a reward for the apprehension of a runaway slave is said to be in the same paper for July 10, 1816.

[24] For this act the perpetrator was excluded by his masonic lodge; being brought to trial before the Supreme Court in August 1792 he was "honourably acquitted" and afterwards he was reinstated by his lodge.

[25] Seldom mentioned and never much boasted of in the United States.

[26] The word _Camouflage_ may be new. The practice antedated humanity.

[27] There is a record of 371 arriving at St. John from Halifax on May 25, 1815, by the _Romulus_, who had taken refuge on board the British Men of War in the Chesapeake. The Negro settlement at Loch Lomond was founded by them.

At the Census of 1824, 1421 "persons of color" were found in New Brunswick. The Very Rev. Archdeacon Raymond, an excellent authority, thinks most of these "were at one time slaves or the children of slaves," but many were not slaves in New Brunswick.

Those that were brought by Admiral Cochrane to Halifax became a great burden to the community. It was proposed in 1815 by the British Government to remove them to a warmer climate, but this scheme does not seem to have been carried out. By a census taken in 1816 there was found to be 684 in Halifax and elsewhere in Nova Scotia. In the winter of 1814-15 they had suffered rather severely from small pox and were vaccinated to prevent its spread. Some were placed on Melville Island.

[28] Presumably because he had the greatest number of serfs in the world and was, therefore, the best judge of slaves.

[29] Of course, Britain refused to give up a single fugitive. She could not betray a trust even of the humblest. She knew that in "the land of the free and the home of the brave" for the Negro returned to his master, to be brave was to incur torture and death and death alone could make him free.

[30] The Act (1833) 3, 4 William III, c. 73 (Imp.), pa.s.sed the House of Commons August 7 and received the Royal a.s.sent August 28, 1833; and there were no slaves in all the British world after August, 1838.

CHAPTER VIII

GENERAL OBSERVATIONS

The curse of Negro slavery affected the whole English speaking world; and that part of the world where it was commercially profitable resisted its abolition. The British part of this world does not need to a.s.sert any higher sense of justice and right than had those who lived in the Northern States; and it may well be that had Negro slave service been as profitable in Canada as in the Cotton States, the heinousness of the sin might not have been more manifest here than there. Nevertheless we must not too much minimize the real merit of those who sought the destruction of slavery. Slaves did not pay so well in Canada as in Georgia, but they _paid_.

It is interesting to note the various ways in which slavery was met and finally destroyed. In Upper Canada, the existing slaves, 1793, remained slaves but all those born thereafter were free, subject to certain conditions of service. There was a statutory recognition of the existing status and provision for its destruction in the afterborn. This continued slavery though it much mitigated its severity and secured its downfall in time. But there were slaves in Upper Canada when the Imperial Act of 1833 came in force. The Act of 1793 was admittedly but a compromise measure; and beneficial as it was it was a paltering with sin.

In Lower Canada, there was no legislation, and slavery was never formally abolished until the Imperial Act of 1833; but the courts decided in effect if not in form that a master had no rights over his slave, and that is tantamount to saying that where there is no master there is no slave. The reasoning in these cases as in the Somerset case may not recommend itself to the lawyer but the effect is undoubtedly, "Slaves cannot live in Lower Canada."

In Nova Scotia, there was no decision that slavery did not exist.

Indeed the course of procedure presupposed that it did exist, but the courts were astute to find means of making it all but impossible for the alleged master to succeed; and slavery disappeared accordingly.

In New Brunswick the decision by a divided court was in favor of the master; but juries were of the same calibre and sentiments in New Brunswick as in Nova Scotia and the same results were to be antic.i.p.ated, if Nova Scotian means were used; and the slave owners gave way.

In the old land, judicial decision destroyed slavery on the British domain; but conscience and sense of justice and right impelled its destruction elsewhere by statute; and the same sense of justice and right impelled the Parliament of Great Britain to recompense the owners for their property thus destroyed. If there be any more altruistic act of any people in any age of the world's history I have failed to hear or read of it.

In the United States, slavery was abolished as a war measure. Lincoln hating slavery as he did would never have abolished it, had he not considered it a useful war measure. No compensation was paid, of course.[1] Everywhere slavery was doomed and in one way or another it has met a deserved fate.