The Journal of Negro History, Volume 5, 1920

In a paper by the late J. C. Hamilton, a barrister of Toronto, he says that Lieutenant Governor Sir Alexander Campbell had favored him with a note concerning slaves at Kingston, which concluded "I had personally known two slaves in Canada: one belonging to the Cartwright and the other to the Forsyth family.481 When I remember them in their old age, each had a cottage, surrounded by many comforts on the family property of his master and was the envy of all the old people in the neighborhood."482

York (Toronto) and its neighborhood were settled later but they received their quota of Negro slaves, at least the town did. In 1880, the Gazette at York announces to be sold "a healthy strong negro woman, about thirty years of age; understands cooking, laundry and the taking care of poultry. N.B. She can dress ladies' hair. Enquire of the Printers, York, Dec. 20, 1800."483

The best people in the capital owned Negroes. Peter Russell who had been administrator of the government of the province and therefore the head of the State advertised in the Gazette and Oracle of February 19, 1806:

"To be sold: a Black Woman named Peggy, aged forty years and a Black Boy her son named Jupiter, aged about fifteen years, both of them the property of the Subscriber. The woman is a tolerable cook and washerwoman and perfectly understands making soap and candles. The boy is tall and strong for his age, and has been employed in the country business but brought up principally as a house servant. The price of the woman is one hundred and fifty dollars. For the boy two hundred dollars payable in three years with interest from the day of sale and to be secured by bond, &c. But one-fourth less will be taken for ready money."

Peggy was not a satisfactory slave, she had awkward visions of freedom. On September 2, 1803, Russell advertised: "The subscriber's black servant Peggy not having his permission to absent herself from his service, the public are hereby cautioned from employing or harbouring her without the owner's leave. Whoever will do so after this notice may expect to be treated as the law directs."

Peggy was not the only slave who was dissatisfied with her lot. On March 1, 1811, William Jarvis, the Secretary of the Province "informed the Court that a negro boy and girl, his slaves, had the evening before been committed to prison for having stolen gold and silver out of his desk in his dwelling house and escaped from their said master; and prayed that the Court would order that the said prisoners with one Coachly a free negro, also committed to prison on suspicion of having advised and aided the said boy and girl in eloping with their master's property...." It was "ordered that the said negro boy named Henry commonly called Prince be recommitted to prison and there safely kept till discharged according to law and that the said girl do return to her said master and Coachly be discharged."484

Jarvis had slaves when he resided at Niagara. We find in the Register of St. Mark's Parish there an entry of February 5, 1797, of Moses and Phoebe, Negro slaves of Mr. "Sec'y Jarvis." Nor is this a unique entry for we find this: "1819 April 4, Cupitson Walker and Margt. Lee (of Colour)," but these may have been free.

There were baptized: "1793, January 3, Jane a daughter of Martin, Col. Butler's Negro," "1794, September 3, Cloe, a mulatto," "1800, March 29, Peggy a mulatto (filia populi)," "1807, May 10, John of a negro girl (filius populi)" and in the same list was a soldier shot for desertion, a soldier who shot himself, "an unfortunate stranger," "R. B. Tickel, alas he was starved," an Indian child, "Cutnose Johnson, a Mohawk chief" and there is recorded the burial of "Mrs. Waters a negro woman," September 29, 1802.485

Slaves continued to run away. Colonel Butler in the Upper Canada Gazette of July 4, 1793, advertised a reward of $5 for his "negro-man servant named John."486 On August 28, 1802, Mr. Charles Field of Niagara advertised in the Herald: "All persons are forbidden harbouring, employing or concealing my Indian Slave Sal, as I am determined to prosecute any offender to the extremity of the law and persons who may suffer her to remain in or upon their premises for the space of half an hour, without my written consent will be taken as offending and dealt with accordingly."487

There was always a demand for good slaves. For example, in the Gazette and Oracle of Niagara October 11, 1797, W. & J. Crooks of West Niagara "Wanted to purchase a negro girl of good disposition": a little later, January 2, 1802 the Niagara Herald advertised for sale "a negro man slave, 18 years old, stout and healthy; has had the Smallpox and is capable of service either in the house or out-doors. The terms will be made easy to the purchaser, and cash or new lands received in payment." On January 18, 1802, the Niagara Herald proclaimed for sale: "the negro man and woman, the property of Mrs. Widow Clement. They have been bred to the business of a farm; will be sold on highly advantageous terms for cash or lands."488

Slavery in Upper Canada continued until the Imperial Act of 1833489 but there does not seem to be any record of sales after 1806. Probably the last slaves to become free were two who are mentioned by the late Sir Adam Wilson, Chief Justice successively of the Courts of Common Pleas and Queen's Bench at Toronto. These were "two young slaves, Hank and Sukey whom he met at the residence of Mrs. O'Reilly, mother of the venerable Miles O'Reilly, Q. C., in Halton County about 1830. They took freedom under the Act of 1833 and were perhaps the last slaves in the province."490

In the Detroit neighborhood there were undoubtedly many slaves, Panis and Negro: most of these were lost to the province on the delivery up of the retained territory in 1796 under the provisions of Jay's Treaty. But some were on the Canadian side and some were brought over by their masters on the surrender. Colonel Matthew Elliott who settled in 1784 just below Amherstburg brought many slaves, some sixty it is said. The remains of slave quarters are still in existence on the place. Jacques Duperon Baby the well-known fur-trader had at least thirty.

Antoine Louis Descompte dit Labadie, who raised a family of thirty-three children was the owner of slaves also. He was a wealthy farmer of the Township of Sandwich (now Walkerville) and died in 1806, aged 62. On May 26, 1806, he made at Sandwich his will by which he made the following bequest: "I also give and bequeath to my wife the use or service of two slaves that she may select, as long as she continues to be my widow." After a number of bequests there follows: "I will that all my personal property not here above bequeathed as well as my slaves with the exception of the two left to my wife, be portioned out or sold, and that the proceeds arising therefrom be equally divided between my said wife and the nine children491 born out of my marriage with her."

Some of these slaves were probably Panis. There is extant a parchment receipt dated at Detroit, October 10, 1775, which reads:

"Je certifie avoir vendu et livré au Sieur Labadie, une esclave Paniese492 nommée Mannon pour et en considération de la quantité de quatre-vingt minots493 de Blé de froment qu'il doit me payer à mesure qu'il aura au printemps prochain, donné sous ma main au Detroit ce dixième jour d'Octobre, 1775.

(Signé) James Sterling494

Temoin

(Signé) John Porteous.

Some of the reports of judges who presided over criminal assizes, moreover, contain references to slavery. Mr. Justice Powell tried a Negro, Jack York, with a jury at Sandwich for burglary in 1800. He was found guilty and in accordance with the law at that time, was sentenced to death. Powell respited the prisoner that the pleasure of the Lieutenant Governor might be known. The Lieutenant-Governor at that time was General Peter Hunter a rigid disciplinarian. Hunter wrote Powell that as York had been convicted of "the most atrocious offence without any circumstances of doubt or alleviation" he was to be hanged. When York was made aware of his fate, he promptly escaped from the ramshackle gaol at Sandwich.

In the proceedings Captain McKee informed the judge that the main witness had "been an Indian prisoner redeemed by his father and had lived in his kitchen and he did not think her credit good." She was one of Mr. James Girty's three Negroes and "known to be saucy."495

Another report nearly a score of years later may be of interest. It can be best understood in its historical setting. During the war of 1812, as soon as the American invasion of Canada began, prices of all commodities began to soar.496 There was a great demand for beef for the troops regular and militia and the commissariat was not too scrupulously particular to inquire the source whence it might come. The result was that a crime which had been almost unknown suddenly increased to alarmingly large proportions. Cattle roaming in the woods were killed and the meat sold to the army. Prosecutions were instituted in many cases. It was found that the perpetrators were generally, but by no means always, landless men, not infrequently refugee slaves, who had come to the province from the United States. The offence was punishable with death:497 and convictions were not hard to obtain. But the punishment of death was not in practice actually inflicted.

Whatever the cause, the crime continued until normal conditions were reestablished when it became as rare as it had been before the war. At the Fall Assizes, 1819, at York before Mr. Justice Campbell and a jury, a man of color, Philip Turner, was convicted of stealing and killing a heifer and sentenced to death: Mr. Justice Powell who had been in the Commission of Oyer and Terminer with Campbell reported to the Lieutenant-Governor498 that there had as yet been no execution for this offence in the province and recommended that the sentence should be committed to banishment for life from His Majesty's dominions.499 Tradition has it that Turner was a refugee from the United States and begged to be hanged rather than sent back where he would be again enslaved.500

When the fugitive slave reached the soil of Upper Canada he became and was free with all the rights and privileges of any other freeman: but sometimes the former condition of servitude had unhappy results. One case will suffice. John Harris was a slave in Virginia. He rented a house in Richmond and lived in it with his wife Sarah Holloway. Harris was a painter and gave the greater part of his earnings to his master. The wife earned money by washing and gave to her mistress part of her scanty earnings. The wife's second name was that of her master Major Halloway in whose house she had been married in 1825 to Harris by the Reverend Richard Vaughan, a Baptist minister, a free man. The couple had three children.

In 1833 Harris effected his escape to Upper Canada and came to Toronto (then York) in the spring of 1834 under the name of George Johnstone. In 1847 he obtained from John Beverley Robinson, Chief Justice of Upper Canada a deed of three acres of land part of Lot 12 in the First Concession from the bay east of the river Don in the Township of York. He died without a will in February, 1851. The deserted wife after his escape married a man by the name of Brown. She continued a slave until the fall of Richmond and died in 1869 or 1870.501

About that time the eldest son came to Canada, and he brought an action as the heir-at-law against one Cooper, the person in possession. All the facts were clear and the only difficulty in the way was as to the validity of the marriage of the Negro. Chief Justice William Buell Richards, of the Court of Queen's Bench tried the case at the Fall Assizes, 1870, at Toronto. Evidence was given by a Virginia lawyer and judge502 that there was no law in Virginia either authorizing or forbidding the marriage of slaves because "slaves were property and not persons for marital purposes.... In short, by the law of Virginia, slaves were but property, treated as property exclusively, except where by special Statute they were made persons."

On this evidence, therefore, the Chief Justice dismissed the action. The plaintiff appealed to the full Court of Queen's Bench urging that the slaves had done all they could to make their marriage legal. In vain, they were not British subjects and the rules of international law were too rigid to allow of the court holding the marriage legal. Mr. Justice Wilson in giving the judgment of the Court said:503

"This is, no doubt, an unfortunate conclusion, for the plaintiff is undoubtedly the child of John Harris and Sarah who were made man and wife in form and by all the usual solemnities of real matrimony. The parents were of mature age, of sound sense, reason and understanding. The father had a trade which he followed by permission of his master for a yearly sum which he paid to him for the privilege, or as it is said 'he hired his own time.' He rented a house for himself; he was married with the consent of those who could give it by a minister in orders and in form at least under the sanction of religion: he lived with the woman he had taken as his wife and had children by her and left her only to gain his freedom; yet it is manifest by the force of positive human law, there was no marriage and no legitimate issue."504

CHAPTER VI

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 year505 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 time506 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."507

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.508 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.509 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.510

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.511

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 Andrew512 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.513

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:514

"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."515

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.516 This was not wholly satisfactory and the legislature took the matter up and passed an act governing such cases, February 13th, 1833,517 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 council518 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 General519 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.