The Journal of Negro History, Volume 5, 1920

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.520

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 man521 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.522

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 council523 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.524

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."525

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 concluded526 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.527 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.528 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.529 While the adverse decision was announced, there were some mutterings of violence but the counsel for the prisoner530 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.531 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 writ532 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 court533 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.534 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.535

CHAPTER VII

Slavery in the Maritime Provinces

The French population of the territory by the sea, the Acadians, are described by the poet as:

Men whose lives glided on like rivers that water the woodlands,

Darkened by shadows of earth, but reflecting an image of heaven.

History does not bear out this idyll; but whatever their faults, at least the Acadians had the negative virtue of possessing no slaves,536 Panis or Negro: nor was it until the coming of the people whose native air was too pure for a slave that the curse came upon the land.

The permanent settlement by the English of Acadia may fairly be considered as beginning when in 1749 Cornwallis founded Halifax.537 Negro slaves were among the population of Halifax from the beginning or very shortly after. Where they came from is uncertain and it has been suggested that they came with the original settlers across the ocean. In the absence of any other explanation more plausible, this might be accepted. Lord Mansfield's decision in the Somerset case was a quarter of a century in the future. But it seems more probable that they were brought from the English Colonies, and some almost certainly were.

The official records of the country exhibit much evidence to this effect. In September, 1751, the Boston Evening Post advertised "Just arrived from Halifax and to be sold, ten strong hearty, Negro men mostly tradesman, such as caulkers, carpenters, sailmakers and ropemakers.538 Any person wishing to purchase may enquire of Benjamin Halliwell of Boston." Such an advertisement indicates that shipbuilding was slack at Halifax and more brisk at Boston. A conjecture may be hazarded that these slaves had been taken by their master to Halifax to build ships and then returned to the colony when required no longer in Acadia.

Some such conjecture receives a little assistance from a will still on record in Halifax. It was made February 28, 1752, by Thomas Thomas "late of New York but now of Halifax" and disposed of his "goods, chattels and negros" including one bequest to this effect: "all my plate and my negro servant Orange that now lives with me at Halifax, I leave and bequeath to my son."

In the same year, The Halifax Gazette of May 15 contains the advertisement "Just imported and to be sold by Joshua Mauger at Major Lockman's store in Halifax, several Negro slaves as follows: A woman aged 35, two boys aged 12 and 13 respectively, two of 18 and a man aged 30." In the Halifax Gazette of Saturday, May 30, 1752, sale is advertised thus: "Just imported and to be sold by Joshua Mauger, at Major Lockman's store in Halifax, several negro slaves, viz., a very likely negro wench, of about thirty-five years of age, a Creole born, has been brought up in a gentleman's family, and capable of doing all sorts of work belonging thereto, as needle-work of all sorts and in the best manner; also washing, ironing, cooking, and every other thing that can be expected from such a slave: also two negro boys of about 12 or 13 years old, likely, healthy, and well-shaped, and understand some English. Likewise two healthy negro slaves of about 18 years of age, of agreeable tempers and fit for any kind of business: And also a healthy negro man of about 30 years of age." In September 1759, a Halifax merchant, Malachy Salter wrote to his wife then visiting relatives in Boston informing her of the state of the family, saying that "Jack is Jack still but rather worse. I am obliged to exercise the cat or stick almost every day. I believe Halifax don't afford another such idle, deceitful villain"—"Pray purchase a Negro boy if possible."

In the year of the surrender of Montreal, the Halifax Gazette, November 1, 1760, advertised "To be sold at public auction on Monday the 3rd of November, at the house of Mr. John Rider, two slaves, viz., a boy and a girl, about 11 years old; likewise a puncheon of choice cherry brandy with sundry other articles."

Some legal sanction, moreover, was given slavery. A General Assembly the first Elective Legislature in what is now Canada, met at Halifax in 1757. In 1762 the second session of the third General Assembly passed an act539 which seems not to have received very much attention from legists540 and writers. It contains a recognition of slavery. The act provides by section 2 that "in case any soldier, sailor, servant, apprentice, bound servant or negro slave or any other person whatsoever shall leave any pawn or pledge with a vendor of liquor for the payment of any sum exceeding five shillings for liquor such soldier, sailor, servant, apprentice bound servant or negro slave … or the master or mistress of such servant, apprentice, bound servant or negro slave" might by proceedings before a Justice of the Peace obtain an order for the restoration of the pawn or pledge—and the vendor might be fined 20 shillings "for the use of the poor."541

For this reason slavery could easily continue as subsequent records prove. In July, 1767, Charles Proctor of Halifax sold Louisa, a "Mulotta" girl, to Mary Wood of Annapolis for £15 currency542 and next year Mary Wood assigned the girl to her daughter Mrs. Mary Day. In June, 1767, James Simonds of the St. John River wrote to Hazen and Jarvis at Newburyport, Massachusetts, a letter in which he complains of "that rascal negro, West" who cannot be got to do a quarter of a man's work. In an advertisement in a Halifax paper in 1769 are offered for sale to the highest bidder "two hogsheads of rum, three of sugar and two well-grown negro girls aged 14 and 12." Those were clearly a consignment from the West Indies. The executors of John Margerum of Halifax deceased, in their accounts give credit for £29.9.4.½ "net proceeds of a negro boy sold at Carolina." In 1770 the executors of Joseph Gerrish of Halifax lost £30 on the sale of three Negroes for £150 to Richard Williams and Abraham Constable, the Negroes having been appraised at £180: and a Negro boy named John Fame was not then sold. In April 1770, Mrs. Martha Prichard of Halifax, widow, bequeathed to her daughter, wife of Moses Delesdernier a Negro slave woman named Jessie. If Mrs. Delesdernier did not wish to retain the slave, she was to be sold and the proceeds of the sale given to Mrs. Delesdernier. If she kept her, the slave at the death of Mrs. Delesdernier was to be the property of her son Ferdinand. By the same instrument the testatrix bequeathed to her grand-daughter a mulatto slave John Patten two and a half years old.

By the census of the year 1771 the Rev. James Lyon, the first Presbyterian Minister in Nova Scotia, is shown to have owned a colored boy, the only Negro in the township of Onslow and John Young in the township of Amherst also a Negro boy, the only one in the township. In Annapolis, Magdalen Winnett owned a man, woman and girl; Joseph Winnett owned a woman and a boy; Ebenezer Messenger and Ann Williams each a man, and John Stork of Granville owned a man the only Negro in the township; and Henry Evans of Annapolis had the previous year owned a colored girl.

Jacob Hurd of Halifax offered in 1773 a reward of £5 for the apprehension of his runaway Negro, Cromwell, a "short thick set strong fellow," strongly pock marked "especially on the nose" and wearing a green cloth jacket and a cocked hat. In July 1773, in the Nova Scotia Gazette and Weekly Chronicle the executor and executrix of Joseph Pierpont of Halifax advertised "a Negro named Prince to be sold at private sale." This perhaps indicated a repugnance to offering human beings for sale by auction. In the Nova Scotia Gazette and Weekly Chronicle, March 27, 1775 is an advertisement for the sale of a "likely well-made negro boy about 16 year old."

In the inventory of the estate of the late John Rock appeared in 1776 a Negro woman named Thursday. She was inventoried at £25 but sold for £20. In this year also a Windsor farmer, Joseph Wilson left by will two Negro women Byna and Sylla to his wife. In January 1779 the Nova Scotia Gazette and Weekly Chronicle advertised for sale an able Negro woman, about 21 year old, "capable of performing both town and country work and an exceedingly good cook." In the same year Daniel Stratford of Halifax left to his wife a Negro man slave Adam for life, after her death to become the property of his daughter Sarah Lawson. Matthew Harris of Picton sold for £50 to Matthew Archibald of Truro, tanner, a "Negro boy named Abram, about 12 years of age" born of Harris' Negro slave in Harris' house in Maryland.

In 1780 rewards were offered, one of 3 guineas, for the apprehension and delivery at the office of the Commanding Officer of Engineers at Halifax of two runaway Negro men; another "a handsome reward to be paid for securing in any gaol a Negro boy Mungo about 14 years old and well built"—the owner Benjamin De Wolfe of Windsor to be notified. That year the executors of Colonel Henry Denny Denson of West Falmouth debit themselves with £75 received for "Spruce," £60 for "John" and £30 for "Juba" and credit themselves with £2.11.6 paid for taking two of these to Halifax probably for sale there.

Abel Michener of Falmouth advertised in 1781 a reward of £5 for the capture of a Negro named James; and Samuel Mack of Port Medway wanted a Negro named "Chance" returned.

Richard Wenman of Halifax in September of that year agreed to give his Negro, Cato, his liberty "if he will faithfully serve my said daughter, Elizabeth Susannah Pringle two years." Captain Wilson of the transport Friends requested in 1782 that masters of vessels will not ship as a seaman his runaway Negro lad Ben, saying: "He is my own property."

There is no need for further particularization; for we now come to the year of the definitive peace between the mother country and the new republic. As in the upper country so by the sea there was a great influx of Loyalists, accompanied in many instances by their slaves. Thereafter sales, advertisements for auctions, rewards for runaway slaves, bequests of slaves, &c., are very common and there were some manumissions. That, however, was not the cause of the great increase in the Negro population of the Maritime Province. The Island of St. John, afterwards Prince Edward Island had been set off as a separate province in 1769 but the Province of Nova Scotia included what became the Province of New Brunswick until 1786.