FOOTNOTES:

FOOTNOTES:[1]For example in Garneau'sHistoire du Canada(1st Edit) Vol. 2, p. 447 after speaking of correspondence of 1688-9 referred to in the text he says of the answer of the authorities in Paris:"C'était assez pour faire échouer une enterprise, qui aurait greffé sur notre société la grande et terrible plaie qui paralyse la force d'une portion si considérable de l'Union Américaine, l'esclavage, cette plaie inconnue sous notre ciel du Nord"—"That was effective to strand a scheme which would have engrafted upon our society that great and terrible plague which paralyses the energies of so considerable a part of the American Union, Slavery, that plague unknown under our northern sky."[2]He was sold by David Kertk or Kirke the first English Conqueror of Quebec. England held her conquest only from 1629 to 1632, if it be permissible to call Kirke's possession that of England when he was repudiated by his country.Relations des Jesuites, 1632, p. 12: do. do. 1633, p. 25. Much of the information which follows concerning slavery in Quebec is taken from a paper in theMemoirs of the Historical Society of Montreal, 1859,De L'esclavage en Canada, written by M. Jacques Viger and Sir L.H. Lafontaine. I have made an independent investigation and am satisfied that the facts are truly stated. This general acknowledgment will prevent the necessity of particular reference.In a local history of MontrealMemoirs de la Société Historique de Montreal1869, p. 200, there is a reference to Panis slaves in Montreal in 1670.[3]"Mais il est bon de leur faire remarquer qu'il est à craindre que ces nègres, venant d'un climat si différent, no périssent en Canada et le projet serait alors inutile." "Il est à craindre" that the prospect of "le projet" being "inutile" was more alarming than that of "ces nègres" perishing in frozen Canada.[4]The name Pani or Panis, Anglicized into Pawnee, was used generally in Canada as synonymous with "Indian Slave" because these slaves were usually taken from the Pawnee tribe. It is held by some that the Panis were a tribe wholly distinct from the tribe known among the English as Pawnees—e.g., Drake'sHistory of the Indians of North America. Those who would further pursue this matter will find material in theWisconsin Historical Collections, Vol. XVIII, p. 103 (note); Vigor and Lafontaine,L'Esclavage en Canadacited above n. 2;Michigan Pioneer and Historical Collections, Vol. XXVII, p. 613 (n); Vol. XXX, pp. 402, 596; Vol. XXXV, p. 548; Vol. XXXVII, p. 541. From Vol XXX, p. 546, we learn that Dr. Anthon, father of Prof. Anthon of Classical Text-book fame, had a "Panie Wench" who, when the family had the smallpox "had them very severe" along with Dr. Anthon's little girl and his "æltest boy"—"however they got all safe over it and are not disfigured." Thwaites, an exceedingly careful writer, in his edition ofLong's Travels, Cleveland, 1904, says in a note on page 117; "Indian Slavery among the French was first practised in the Illinois Country." He gives no authority and I know of none.[5]Referred to in Chalmers'Collection of Treaties between Great Britain and Other Powers, London, 1790, p. 328: Pap. Off. B. 25.[6]We shall see later in this work that by the English law, the "villein" was real property and in the same case as land: also that when Parliament came to legislate so as to make lands in the American Colonies liable for debts, "Negroes" were included in "hereditaments" and therefore "real estate."[7]Thus early do we find the Abolitionist getting in his fiendish work—the enemy of society, of God and man![8]This ordinance is quoted (Mich. Hist. Coll., XII, p. 511, 517) and its language ascribed to a (non-existent) "wise and humane statute of Upper Canada of May 31, 1798"—a curious mistake, perhaps in copying or printing.In Kingsford'sHistory of Canada, Vol. 2, p. 507, we are told: "In 1718, several young men were prosecuted on account of their relations with Albany carried on through Lake Champlain. One of them, M. de la Découverte, had made himself remarkable by bringing back a Negro slave and some silver ware. One of the New York Livingstones resided in Montreal and was generally the intermediary in these transactions. The author adds in a note: "This negro must have been among the first brought to Canada."[9]"A peine d'amende arbitraire et de plus grande peine si le cas y escheoit."[10]Canada was at this time divided into three Jurisdictions or Districts—those of Quebec, Trois Rivières and Montreal.[11]There are trifling variations in the English text in the several versions in theCapitulations and Extracts of Treaties relating to Canada, 1797;Knox's Journal, Vol. 2, p. 423:Documents relative to the Colonial History of the State of New York, Vol. 10, p. 1107. That in the text is from Shortt & Doughty'sConstitutional Documents 1759-1791, Canadian Archives Publication, Ottawa, 1907. There is no substantial difference in terminology and none at all in meaning. I give the French version, as to which there is no dispute: "Les Nègres et panis des deux Sexes resteront En leur qualité d'Esclaves, en la possession des françois et Canadiens à qui Ils apartiement; Il leur Sera libre de les garder à leur Service dans la Colonie od de les vendre, Et Ils pourront aussi Continuer à les faire Elever dans la Religion Romaine."[12]The Province of Ontario is the proud possessor of many of Paul Kane's sketches.[13]Now the Royal Canadian Institute. The paper appears in Series II of theTransactions, Vol. 2, p. 20 (1857).The use by the Indians of Slaves is noted very early: for example in Galinée'sNarrativeof the extraordinary voyage of LaSalle and others in 1669-70 the travellers are shown to have obtained from the Indians, slaves as guides. See pp. 21, 27, 43 of Coyne's edition, 4Ont. Hist. Soc. Papers(1903). These Indians were accustomed to take their slaves to the Dutch.Ibid., p. 27.Still there is not very much in the old authors about slavery among the Indians: the references are incidental and fragmentary and the institution is taken for granted. Thus in Lescarbot'sHistory of New France, published in 1609, the only reference which I recall is on pp. 270, 449 of The Champlain Society's edition, Toronto, 1914; speaking of the Micmacs the author says: " ... the conquerors keep the women and children prisoners ... herein they retain more humanity than is sometimes shown by Christians. For in any case, one should be satisfied to make them slaves as do our savages or to make them purchase their liberty."[14]It will be remembered that the ancient law of Rome, the Twelve Tables, authorized creditors to take an insolvent debtor, kill him and divide his body amongst them, a real execution against the person more trenchant if not more effective than thecapias ad satisfaciendumdear to the English lawyer.[15]Everyone has shuddered at the awful picture drawn by Juvenal in his Sixth Satire of the fashionable Roman dame who had eight husbands in five years and who ordered her slave to immediate crucifixion. When her husband mildly ventured to suggest that there should at least be some evidence of guilt and that no time should be considered long where the life of a man is in question he was snubbed, just as the Roman lady who was expostulated with for taking her bath in the presence of man slaves asked "An servus homo?" The horrible but pithy dialogue reads:"Pone crucem servo." "Meruit quo crimine servusSupplicium? Quis testis adest? Quis detulit? AudiNulla umquam de morte hominis cunctatio longa est""O demens, ita servus homo est? Nil fecerit, estoHoc volo, sic jubeo, sit pro ratione voluntas."—Juvenal, Sat., VI, ll. 219-223."The cross for the slave!" "What is the charge? What is the evidence? Who laid the information? Hear what he has to say—No delay is ever great where the death of a man is in question." "You driveller! So a slave is a man! Have it your own way—he did nothing. I wish it, that is my order, my wish is a good enough reason."The natural death for a Roman slave was on the cross or under the scourge.[16]Constantine also by his Constitution No. 319 provided for slaves becoming free: the Constitution referred to in the text is No. 326. The best short account of slave legislation in Rome which I have seen is in a paper read by the late Vice Chancellor Proudfoot of the Ontario Court of Chancery, February 7, 1891, before the Canadian Institute.Trans. Can. Ins., Series IV, Vol. 2, p. 173. Many of the judgments of Vice Chancellor Proudfoot (venerabile nomen) show a profound knowledge and appreciation of the Civil Law.The following is taken from Prof. Sherman's great workRoman Law in the Modern World, Boston, 1917. The learned author has laid philosophical lawyers of all countries under heavy obligations by this splendid book, as noted for its lucidity as for its learning.Vol. I, 69. "To inflict unnatural cruelty upon—and finally to kill—a slave was prohibited by Augustus Claudius and Antoninus Pius. Moreover, because by natural law all men were born free and equal (see Digest, 50, 17, 32) the Emperor often restored to slaves the status of a freeborn person."I, 146. "Constantine ... abolished crucifixion as a punishment; encouraged the emancipation of slaves...."I, 150. " ... It is regrettable that Christianity did not change other parts of the Roman law of persons which ought to have been reformed. The chief example of this failure is slavery, which the law of Justinian fully recognized. The inertia of past centuries as to slavery was too great to be overcome. St. Paul's attitude towards slavery was to recognize thestatus quo, and he did not counsel wholesale emancipation. But Christianity continued the progress of the pagan law along the lines of mercy and kindness,e.g., to poison a slave or brand him was treated in later Imperial Roman law as homicide, and manumission was made easier; but the Church did not recognize the marriage of slaves until over 300 years after Justinian's death."II, 434, "In Roman law ... the slave was a thing or chattel—nothing more legally. Slaves could no hold property—slaves could not marry, their actual unions were never legally recognized."II, 436, "With the advent of Greek culture and Christianity the harsh manners of ancient Rome became greatly altered."II, 828, "One feature of the Lex Aquilia is ... that it granted an action in damages for the unlawful killing of ... the slave of another man."Inst., 413, pr; Gaius 3, 210.II. 829, " ... the owner had his option either of suing the culprit for damages under the lex Aquilia or of causing him to be criminally prosecuted."Inst., 4, 3, 11 Gaius 3, 213.II, 935, "A free person called as a witness could not be subjected to torture, but a slave could be tortured."

[1]For example in Garneau'sHistoire du Canada(1st Edit) Vol. 2, p. 447 after speaking of correspondence of 1688-9 referred to in the text he says of the answer of the authorities in Paris:"C'était assez pour faire échouer une enterprise, qui aurait greffé sur notre société la grande et terrible plaie qui paralyse la force d'une portion si considérable de l'Union Américaine, l'esclavage, cette plaie inconnue sous notre ciel du Nord"—"That was effective to strand a scheme which would have engrafted upon our society that great and terrible plague which paralyses the energies of so considerable a part of the American Union, Slavery, that plague unknown under our northern sky."

[1]For example in Garneau'sHistoire du Canada(1st Edit) Vol. 2, p. 447 after speaking of correspondence of 1688-9 referred to in the text he says of the answer of the authorities in Paris:

"C'était assez pour faire échouer une enterprise, qui aurait greffé sur notre société la grande et terrible plaie qui paralyse la force d'une portion si considérable de l'Union Américaine, l'esclavage, cette plaie inconnue sous notre ciel du Nord"—"That was effective to strand a scheme which would have engrafted upon our society that great and terrible plague which paralyses the energies of so considerable a part of the American Union, Slavery, that plague unknown under our northern sky."

[2]He was sold by David Kertk or Kirke the first English Conqueror of Quebec. England held her conquest only from 1629 to 1632, if it be permissible to call Kirke's possession that of England when he was repudiated by his country.Relations des Jesuites, 1632, p. 12: do. do. 1633, p. 25. Much of the information which follows concerning slavery in Quebec is taken from a paper in theMemoirs of the Historical Society of Montreal, 1859,De L'esclavage en Canada, written by M. Jacques Viger and Sir L.H. Lafontaine. I have made an independent investigation and am satisfied that the facts are truly stated. This general acknowledgment will prevent the necessity of particular reference.In a local history of MontrealMemoirs de la Société Historique de Montreal1869, p. 200, there is a reference to Panis slaves in Montreal in 1670.

Relations des Jesuites, 1632, p. 12: do. do. 1633, p. 25. Much of the information which follows concerning slavery in Quebec is taken from a paper in theMemoirs of the Historical Society of Montreal, 1859,De L'esclavage en Canada, written by M. Jacques Viger and Sir L.H. Lafontaine. I have made an independent investigation and am satisfied that the facts are truly stated. This general acknowledgment will prevent the necessity of particular reference.

In a local history of MontrealMemoirs de la Société Historique de Montreal1869, p. 200, there is a reference to Panis slaves in Montreal in 1670.

[3]"Mais il est bon de leur faire remarquer qu'il est à craindre que ces nègres, venant d'un climat si différent, no périssent en Canada et le projet serait alors inutile." "Il est à craindre" that the prospect of "le projet" being "inutile" was more alarming than that of "ces nègres" perishing in frozen Canada.

[4]The name Pani or Panis, Anglicized into Pawnee, was used generally in Canada as synonymous with "Indian Slave" because these slaves were usually taken from the Pawnee tribe. It is held by some that the Panis were a tribe wholly distinct from the tribe known among the English as Pawnees—e.g., Drake'sHistory of the Indians of North America. Those who would further pursue this matter will find material in theWisconsin Historical Collections, Vol. XVIII, p. 103 (note); Vigor and Lafontaine,L'Esclavage en Canadacited above n. 2;Michigan Pioneer and Historical Collections, Vol. XXVII, p. 613 (n); Vol. XXX, pp. 402, 596; Vol. XXXV, p. 548; Vol. XXXVII, p. 541. From Vol XXX, p. 546, we learn that Dr. Anthon, father of Prof. Anthon of Classical Text-book fame, had a "Panie Wench" who, when the family had the smallpox "had them very severe" along with Dr. Anthon's little girl and his "æltest boy"—"however they got all safe over it and are not disfigured." Thwaites, an exceedingly careful writer, in his edition ofLong's Travels, Cleveland, 1904, says in a note on page 117; "Indian Slavery among the French was first practised in the Illinois Country." He gives no authority and I know of none.

[5]Referred to in Chalmers'Collection of Treaties between Great Britain and Other Powers, London, 1790, p. 328: Pap. Off. B. 25.

[6]We shall see later in this work that by the English law, the "villein" was real property and in the same case as land: also that when Parliament came to legislate so as to make lands in the American Colonies liable for debts, "Negroes" were included in "hereditaments" and therefore "real estate."

[7]Thus early do we find the Abolitionist getting in his fiendish work—the enemy of society, of God and man!

[8]This ordinance is quoted (Mich. Hist. Coll., XII, p. 511, 517) and its language ascribed to a (non-existent) "wise and humane statute of Upper Canada of May 31, 1798"—a curious mistake, perhaps in copying or printing.In Kingsford'sHistory of Canada, Vol. 2, p. 507, we are told: "In 1718, several young men were prosecuted on account of their relations with Albany carried on through Lake Champlain. One of them, M. de la Découverte, had made himself remarkable by bringing back a Negro slave and some silver ware. One of the New York Livingstones resided in Montreal and was generally the intermediary in these transactions. The author adds in a note: "This negro must have been among the first brought to Canada."

In Kingsford'sHistory of Canada, Vol. 2, p. 507, we are told: "In 1718, several young men were prosecuted on account of their relations with Albany carried on through Lake Champlain. One of them, M. de la Découverte, had made himself remarkable by bringing back a Negro slave and some silver ware. One of the New York Livingstones resided in Montreal and was generally the intermediary in these transactions. The author adds in a note: "This negro must have been among the first brought to Canada."

[9]"A peine d'amende arbitraire et de plus grande peine si le cas y escheoit."

[10]Canada was at this time divided into three Jurisdictions or Districts—those of Quebec, Trois Rivières and Montreal.

[11]There are trifling variations in the English text in the several versions in theCapitulations and Extracts of Treaties relating to Canada, 1797;Knox's Journal, Vol. 2, p. 423:Documents relative to the Colonial History of the State of New York, Vol. 10, p. 1107. That in the text is from Shortt & Doughty'sConstitutional Documents 1759-1791, Canadian Archives Publication, Ottawa, 1907. There is no substantial difference in terminology and none at all in meaning. I give the French version, as to which there is no dispute: "Les Nègres et panis des deux Sexes resteront En leur qualité d'Esclaves, en la possession des françois et Canadiens à qui Ils apartiement; Il leur Sera libre de les garder à leur Service dans la Colonie od de les vendre, Et Ils pourront aussi Continuer à les faire Elever dans la Religion Romaine."

[12]The Province of Ontario is the proud possessor of many of Paul Kane's sketches.

[13]Now the Royal Canadian Institute. The paper appears in Series II of theTransactions, Vol. 2, p. 20 (1857).The use by the Indians of Slaves is noted very early: for example in Galinée'sNarrativeof the extraordinary voyage of LaSalle and others in 1669-70 the travellers are shown to have obtained from the Indians, slaves as guides. See pp. 21, 27, 43 of Coyne's edition, 4Ont. Hist. Soc. Papers(1903). These Indians were accustomed to take their slaves to the Dutch.Ibid., p. 27.Still there is not very much in the old authors about slavery among the Indians: the references are incidental and fragmentary and the institution is taken for granted. Thus in Lescarbot'sHistory of New France, published in 1609, the only reference which I recall is on pp. 270, 449 of The Champlain Society's edition, Toronto, 1914; speaking of the Micmacs the author says: " ... the conquerors keep the women and children prisoners ... herein they retain more humanity than is sometimes shown by Christians. For in any case, one should be satisfied to make them slaves as do our savages or to make them purchase their liberty."

[13]Now the Royal Canadian Institute. The paper appears in Series II of theTransactions, Vol. 2, p. 20 (1857).

The use by the Indians of Slaves is noted very early: for example in Galinée'sNarrativeof the extraordinary voyage of LaSalle and others in 1669-70 the travellers are shown to have obtained from the Indians, slaves as guides. See pp. 21, 27, 43 of Coyne's edition, 4Ont. Hist. Soc. Papers(1903). These Indians were accustomed to take their slaves to the Dutch.Ibid., p. 27.

Still there is not very much in the old authors about slavery among the Indians: the references are incidental and fragmentary and the institution is taken for granted. Thus in Lescarbot'sHistory of New France, published in 1609, the only reference which I recall is on pp. 270, 449 of The Champlain Society's edition, Toronto, 1914; speaking of the Micmacs the author says: " ... the conquerors keep the women and children prisoners ... herein they retain more humanity than is sometimes shown by Christians. For in any case, one should be satisfied to make them slaves as do our savages or to make them purchase their liberty."

[14]It will be remembered that the ancient law of Rome, the Twelve Tables, authorized creditors to take an insolvent debtor, kill him and divide his body amongst them, a real execution against the person more trenchant if not more effective than thecapias ad satisfaciendumdear to the English lawyer.

[15]Everyone has shuddered at the awful picture drawn by Juvenal in his Sixth Satire of the fashionable Roman dame who had eight husbands in five years and who ordered her slave to immediate crucifixion. When her husband mildly ventured to suggest that there should at least be some evidence of guilt and that no time should be considered long where the life of a man is in question he was snubbed, just as the Roman lady who was expostulated with for taking her bath in the presence of man slaves asked "An servus homo?" The horrible but pithy dialogue reads:"Pone crucem servo." "Meruit quo crimine servusSupplicium? Quis testis adest? Quis detulit? AudiNulla umquam de morte hominis cunctatio longa est""O demens, ita servus homo est? Nil fecerit, estoHoc volo, sic jubeo, sit pro ratione voluntas."—Juvenal, Sat., VI, ll. 219-223."The cross for the slave!" "What is the charge? What is the evidence? Who laid the information? Hear what he has to say—No delay is ever great where the death of a man is in question." "You driveller! So a slave is a man! Have it your own way—he did nothing. I wish it, that is my order, my wish is a good enough reason."The natural death for a Roman slave was on the cross or under the scourge.

"Pone crucem servo." "Meruit quo crimine servusSupplicium? Quis testis adest? Quis detulit? AudiNulla umquam de morte hominis cunctatio longa est""O demens, ita servus homo est? Nil fecerit, estoHoc volo, sic jubeo, sit pro ratione voluntas."—Juvenal, Sat., VI, ll. 219-223.

"The cross for the slave!" "What is the charge? What is the evidence? Who laid the information? Hear what he has to say—No delay is ever great where the death of a man is in question." "You driveller! So a slave is a man! Have it your own way—he did nothing. I wish it, that is my order, my wish is a good enough reason."

The natural death for a Roman slave was on the cross or under the scourge.

[16]Constantine also by his Constitution No. 319 provided for slaves becoming free: the Constitution referred to in the text is No. 326. The best short account of slave legislation in Rome which I have seen is in a paper read by the late Vice Chancellor Proudfoot of the Ontario Court of Chancery, February 7, 1891, before the Canadian Institute.Trans. Can. Ins., Series IV, Vol. 2, p. 173. Many of the judgments of Vice Chancellor Proudfoot (venerabile nomen) show a profound knowledge and appreciation of the Civil Law.The following is taken from Prof. Sherman's great workRoman Law in the Modern World, Boston, 1917. The learned author has laid philosophical lawyers of all countries under heavy obligations by this splendid book, as noted for its lucidity as for its learning.Vol. I, 69. "To inflict unnatural cruelty upon—and finally to kill—a slave was prohibited by Augustus Claudius and Antoninus Pius. Moreover, because by natural law all men were born free and equal (see Digest, 50, 17, 32) the Emperor often restored to slaves the status of a freeborn person."I, 146. "Constantine ... abolished crucifixion as a punishment; encouraged the emancipation of slaves...."I, 150. " ... It is regrettable that Christianity did not change other parts of the Roman law of persons which ought to have been reformed. The chief example of this failure is slavery, which the law of Justinian fully recognized. The inertia of past centuries as to slavery was too great to be overcome. St. Paul's attitude towards slavery was to recognize thestatus quo, and he did not counsel wholesale emancipation. But Christianity continued the progress of the pagan law along the lines of mercy and kindness,e.g., to poison a slave or brand him was treated in later Imperial Roman law as homicide, and manumission was made easier; but the Church did not recognize the marriage of slaves until over 300 years after Justinian's death."II, 434, "In Roman law ... the slave was a thing or chattel—nothing more legally. Slaves could no hold property—slaves could not marry, their actual unions were never legally recognized."II, 436, "With the advent of Greek culture and Christianity the harsh manners of ancient Rome became greatly altered."II, 828, "One feature of the Lex Aquilia is ... that it granted an action in damages for the unlawful killing of ... the slave of another man."Inst., 413, pr; Gaius 3, 210.II. 829, " ... the owner had his option either of suing the culprit for damages under the lex Aquilia or of causing him to be criminally prosecuted."Inst., 4, 3, 11 Gaius 3, 213.II, 935, "A free person called as a witness could not be subjected to torture, but a slave could be tortured."

The following is taken from Prof. Sherman's great workRoman Law in the Modern World, Boston, 1917. The learned author has laid philosophical lawyers of all countries under heavy obligations by this splendid book, as noted for its lucidity as for its learning.

Vol. I, 69. "To inflict unnatural cruelty upon—and finally to kill—a slave was prohibited by Augustus Claudius and Antoninus Pius. Moreover, because by natural law all men were born free and equal (see Digest, 50, 17, 32) the Emperor often restored to slaves the status of a freeborn person."

I, 146. "Constantine ... abolished crucifixion as a punishment; encouraged the emancipation of slaves...."

I, 150. " ... It is regrettable that Christianity did not change other parts of the Roman law of persons which ought to have been reformed. The chief example of this failure is slavery, which the law of Justinian fully recognized. The inertia of past centuries as to slavery was too great to be overcome. St. Paul's attitude towards slavery was to recognize thestatus quo, and he did not counsel wholesale emancipation. But Christianity continued the progress of the pagan law along the lines of mercy and kindness,e.g., to poison a slave or brand him was treated in later Imperial Roman law as homicide, and manumission was made easier; but the Church did not recognize the marriage of slaves until over 300 years after Justinian's death."

II, 434, "In Roman law ... the slave was a thing or chattel—nothing more legally. Slaves could no hold property—slaves could not marry, their actual unions were never legally recognized."

II, 436, "With the advent of Greek culture and Christianity the harsh manners of ancient Rome became greatly altered."

II, 828, "One feature of the Lex Aquilia is ... that it granted an action in damages for the unlawful killing of ... the slave of another man."Inst., 413, pr; Gaius 3, 210.

II. 829, " ... the owner had his option either of suing the culprit for damages under the lex Aquilia or of causing him to be criminally prosecuted."Inst., 4, 3, 11 Gaius 3, 213.

II, 935, "A free person called as a witness could not be subjected to torture, but a slave could be tortured."

When Canada passed under the British flag by conquest there was for a time confusion as to the law in force. During the military regime from 1760 to 1764 the authorities did the best they could and applied such law as they thought the best for the particular case. There was no dislocation in the common affairs of the country. When Canada was formally ceded to Britain by the Treaty of Paris, 1763,[1]it was not long before there was issued a royal proclamation creating among other things a "Government of Quebec" with its western boundary a line drawn from the "South end of Lake Nipissim"[2]to the point at which the parallel of 45° north latitude crosses the River St. Lawrence. In all that vast territory the English law, civil and criminal, was introduced.[3]It is important now to see what was the law of England at the time respecting slavery.

The dictum of Lord Chief Justice Holt: "As soon as a slave enters England he becomes free,"[4]was succeeded by the decision of the Court of King's Bench to the same effect in the celebrated case of Somersetv.Stewart,[5]when Lord Mansfield is reported to have said: "The air of England has long been too pure for a slave and every man is free who breathes it."[6]

James Somerset,[7]a Negro slave of Charles Stewart in Jamaica, "purchased from the African coast in the course of the slave trade as tolerated in the plantations," had been brought by his master to England "to attend and abide with him and to carry him back as soon as his business should be transacted." The Negro refused to go back, whereupon he was put in irons and taken on board the shipAnn and Marylying in the Thames and bound for Jamaica. Lord Mansfield granted a writ of habeas corpus requiring Captain Knowles to produce Somerset before him with the cause of the detainer. On the motion, the cause being stated as above indicated, Lord Mansfield referred the matter to the full court of King's Bench; whereupon, on June 22, 1772, judgment was given for the Negro.[8]The basis of the decision and the theme of the argument were that the only kind of slavery known to English law was villeinage, that the Statute of Tenures enacted in 1660, expressly abolished villeins regardant to a manor and by implication villeins in gross. The reasons for the decision would hardly stand fire at the present day. The investigation of Paul Vinogradoff and others have conclusively established that there was not a real difference in statusbetween the so-called villein regardant and villein in gross, and that in any case the villein was not properly a slave but rather a serf.[9]Moreover, the Statute of Tenures deals solely with tenure and not with status.

But what seems to have been taken for granted, namely that slavery, personal slavery, had never existed in England and that the only unfree person was the villein, who, by the way, was real property, is certainly not correct. Slaves were known in England as mere personal goods and chattels, bought and sold, at least as late as the middle of the twelfth century.[10]However weak the reasons given for the decision, its authority has never been questioned and it is good law. But it is good law for England, for even in the Somerset case it was admitted that a concurrence of unhappy circumstances had rendered slavery necessary[11]in the American colonies; and Parliament had recognized the right of property in slaves there.[12]Consequently so long as the slaves, Panis or Negro, remained in the colony they were not enfranchised by the law of the conqueror but retained their servile status.

The early records show the use of slaves. General James Murray, who became Governor of the Quebec Fortificationsand adjoining territory immediately after the fall of Quebec and in 1763 the first Captain General and Governor in Chief of the new Province of Quebec,[13]writing from Quebec, November 2, 1763, to John Watts in New York speaks thus of the promoting of agriculture in the Province:

"I must most earnestly entreat your assistance, without servants nothing can be done, had I the inclination to employ soldiers which is not the case, they would disappoint me, and Canadians will work for nobody but themselves. Black Slaves are certainly the only people to be depended upon, but it is necessary, I imagine they should be born in one or other of our Northern Colonies, the Winters here will not agree with a Native of the torrid zone, pray therefore if possible procure for me two Stout Young Fellows, who have been accustomed to Country Business, and as I shall wish to see them happy, I am of opinion there is little felicity without a Communication with the Ladys, you may buy for each a clean young wife, who can wash and do the female offices about a farm. I shall begrudge no price, so hope we may, by your goodness succeed."[14]

From time to time slavery makes its appearance in official correspondence. Moreover, there are still subsisting records which show the prevalence of slavery in the province.[15]In January, 1763, there took place at Longueuil the marriage of Marie, slave of baroness de Longueuil, with Jacques César, slave of M. Ignace Gamelin. From 1763 to 1769 there are found records of the baptism of thechildren of slaves in the registers of the Parish of Lachine. In the first issue of theGazetteof Montreal, June 3, 1778, there is an advertisement by the widow Dufy Desaulniers, offering a reward of six dollars for the return to her of a female slave who had run away on the 14th. She was thirty-five years old and she was dressed in striped calico of the ordinary cut and was of "tolerable stoutness."

Alexander Henry writing from Montreal, October 5, 1778, to the Governor Sir Frederick Haldimand, says that he had obtained a Judgment in the Court of Common Pleas against one Gillelande in the colonies who owed him a considerable sum of money. "Hearing that a Negro of his had deserted from him," said Henry, "and was lurking in this Province I obtained an execution upon that judgment and got the negro apprehended—who is still in gaol." General Powell who was the Commander there sent to Mr. Gray the Sheriff desiring him to postpone the sale until such time as the Governor should be made acquainted with the matter. Mr. Gray thereafter informed Mr. Henry that he mentioned the affair to Sir Frederic Haldimand, who likewise ordered the sheriff to postpone the sale until the Governor could confer with the Attorney-General. The Attorney-General thereafter informed Mr. Henry that he had spoken to the Governor, who was of the opinion that the civil law should take its course.... Mr. Gray thought he should have some definite authority to sell.... He said: "There are some gentlemen from the Upper Countries[16]whom I presume will give more for him than any person resident here and ... they are now on their return." He asked that an order for sale should be sent before the departure of these gentlemen.[16]The higherprice which the gentlemen from the "Upper Countries" would pay indicates the objection of those in the old settled parts of the province to Slavery.

An official report made in 1778 by James Monk, Attorney General at Quebec, to the Governor, Sir Guy Carleton, (afterwards Lord Dorchester) gives a sufficiently full account of an occurrence the subject of much controversy and correspondence showing the significance of slavery at that time. The Attorney General examined the several papers, making a case of complaint, by Joseph Despin of St. Francois Merchant a trader against Major de Barner Commanding a Regiment of Light Infantry Chasseurs of Brunswick Troops. Despin complained to Brigadier General Ehrenkrook, Commander of the Brunswick Troops at Trois Rivieres, that Major de Barner by his orders or otherwise at Midnight of the first of the previous June, occasioned forcibly to be taken from said Despin a Negro-woman slave, Despin's property and suffered her to be carried out of the province. He therefore prayed Brigadier General Ehrenkrook, that Major de Barner might either return to him the said slave with damages or pay to Despin the value thereof.

Upon this complaint an inquiry was made. In the course of this inquiry Joseph Despin did not support his complaint and charge with those legal proofs which could entitle him to recover from Major de Earner thereupon; "or induce a Court of Justice to consider Major de Barner as having either given any others for the taking of, or even had any knowledge touching the intended escape of the Slave." The complaint of Despin was then deemed very justly dismissed.

Upon the dismission of this complaint Major de Barner requested of the Governor satisfaction and punishment upon the accuser, and a notary, one Robin, who prepared notarial acts, in an unbecoming affrontive manner. This request was made under three heads: first, that Despin might be exemplarily punished, not merely for a false dishonoringaccusation of Major de Barner, a commanding officer and injurious to his whole battalion, but punishment for the personal insults to Major de Barner and his character; second, that Despin might pay the expenses of preparing and making out writings; and third, that the said Robin, the notary, may be equally punished for using expressions in his acts hurtful and indecent to persons of honor and character.

The Attorney General asserted that there is reason to conclude from the several testimonies appearing in the case, that Despin had lost his slave by means of some soldiers belonging to the Battalion of Chasseurs which Major de Barner Commanded,though not in the least by the orders or with the knowledge or consent of Major de Barner as charged.

One of the most extraordinary stories of the time is told by William Dummer Powell afterwards Chief Justice of Upper Canada, but in 1780[17]and later practising as a barrister in Montreal. "Meeting in the Street of Montreal an armed Party escorting to the Provost Guard several female prisoners and Children," says Mr. Powell, "curiosity was excited and upon engaging the Non-Commissioned Officer commanding the Escort, Mr. Powell was informed that they were Prisoners of war, taken in the Kentucky Country and brought into Detroit by a Detachment of the Garrison and now arrived from thence. Further Enquiry after procuring necessary relief to the first wants of the party, drew from Mrs. Agnes La Force the following Narrative:

"That her husband was a loyal Subject in the Province of North Carolina,[18]having a good Plantation well stocked and a numerous family. That his political Sentiments exposedhim to so much Annoyance from the governing Party, that he determined to retire into the wilderness, that he accordingly mustered his whole family, consisting of several Sons and their Wives and Children, and Sons-in-law with their Wives and Children, a numerous band of select and valuable Slaves Male and female, and a large Stock of Cattle, with which they proceeded westward, intending to retire into Kentucky.

"That after" the accidental death of the father they pursued their route to the westward and settled with their Slaves in the wilderness about five hundred miles from any civil establishment. After a residence of three years, a party of regular Troops and Indians from the British Garrison at Detroit appeared in the plain and summoned them to surrender.[18]"Relying upon British faith," says Mr. Powell, "they open'd their Gate on condition of Protection to their Persons and property from the Indians; but they had no sooner surrendered and received that promise than her sons and sons-in-law had to resort to arms to resist the Insults of the Indians to their wives and Slaves.[19]Several lives were lost and the whole surviving Party was marched into Detroit, about six hundred Miles, where the Slaves were distributed among the Captors and the rest marched or boated eight hundred miles further to Montreal and driven into the Provot Prison as Cattle into a Pound."[19]

This story will be credited with difficulty but accident some time after put into the hands of Mr. Powell a document of undeniable credit, which, however, was unnecessary: for on Mr. Powell's representation of the case to SirF. Haldimand the most peremptory orders to the Commandant at Detroit to find out the slaves of Mrs. La Force in whose ever possession they might be and transmit them to their mistress at Montreal. But Detroit was too far distant from headquarters and interests prompting to disobedience of such an order too prevalent for it to produce any effect; and the commandant acknowledged in answer to a reiterated order that the slaves could not be produced, although their names and those of their new masters were correctly ascertained and the following list transmitted with the order.

List of slaves formerly the property of Mrs. Agnes La Force and in possession of others:

NegroScipioin possession ofSimon Girty[20]doTim"Mr. Le Duc.doIshener"do dodoStephen"Captn. Graham.doJoseph"Captn. Elliot.doPeggy"do dodoJob"Mr. BabydoHannah"Mr. Fisher.doCandis"Capt. McKee.doBess—Grace Rachel—and Patrick-Indians"13

The case of Mrs. La Force and some similar cases led Haldimand to require Sir John Johnson, the Superintendentof Indian Affairs, to report. He wrote from Quebec, July 16, 1781, "Several complaints having been made upon the subject of selling negroes brought into this Province (Quebec) by scouting parties—who allege a Right to Freedom and others belonging to Loyalists who are obliged to relinquish their properties or reclaim them by paying the money for which they were sold, I must desire that you upon the most minute enquiry give in to Brigadier General Maclean a Return of all Negroes who have been brought into the Province by Parties in any Respect under your Directions whether Troops or Indians, specifying their names, their former masters, whether Loyalists or Rebels, by whom brought in and to whom sold, at what price and where they are at present. I shall direct Cols. Campbell and Clans to do the same by which it will be in my Power to reduce the Grievances now complained of and to make such arrangements as will prevent them in future."

Johnson sent a return of Negroes to Maclean and Maclean July 26, 1781, and they sent it on to Haldimand: Clans and Campbell made returns direct to Haldimand in August of the same year. Fortunately the covering letters are extant as are the reports. There is also one Negro, Abraham, reported in a Return of Rebel Prisoners in and about Montreal as having been taken June 18, 1781; and, therefore, about a year after Mrs. La Force's capture.[21]

"Of the fifty or more slaves named in this list," says Dr. T. W. Smith, "nearly half were sold at Montreal, a few being carried by the Indians and Whites to Niagara. The others were handed to their former owners. 'Charles' 'taken at Balls Town making his escape out of a window in Col. Gordon's house' was sold to the Rev. David C. DeLisle,the Episcopal rector at Montreal, for £20 Halifax currency; Samuel Judah, Montreal, paid £24 for 'Jacob' also a slave of Col. Gordon, a rebel master, but for a Negro girl of the same owner he gave £60; Nero, another of Col. Gordon's slaves, captured by a Mohawk Indian, Patrick Langan sold to John Mittleberger of Montreal for £60; 'Tom' was sold by Captain Thompson of Col. Butler's Rangers for £25 to Sir John Johnson who gave him to Mr. Langan; and William Bowen, a Loyalist owner, sold his recovered slave 'Jack' for £70 to Captain John McDonell of the Rangers. 'William,' who was also sold for £30 to Mr. McDonell and afterwards carried to Quebec, had been taken from his master's house by Mohawk Indians under Captain John the Mohawk with a wagon and horses which he had got ready to convey his mistress Mrs. Fonda wife of Major Fonda to Schenectady ... another Negro man, name unknown, was sold 'by a soldier of the 8th Regiment to Lieutenant Herkimer of the Corps of Rangers, who disposed of him to Ensign Sutherland of the Royal Regiment of New York.'"

Negroes were not the only victims of Indian raids. In 1782 Powell had another experience, which is indicative of the practices of the Indians during the Revolutionary War.[22]In his letter to the Commissary of Prisoners at Quebec he wrote:

Montreal, 22 August, 1782.,"SirI should make an Apology for the Liberty I take but that I consider it a public Duty.When you were here some time since, I am informed that mention was made to you of a young female slave bought of the Indians by a Mr. Campbell, a Publican of this Town, and that whenyou learned that she was the Daughter of decent family in Pensilvania[23]captured by the Indians at 10 years of age, your Humanity opposed itself to the barbarous Claim of her Master and you Promised that she should be returned to her Parents by the first Flag with Prisoners."In consequence of such a Promise," continued he, "the Child had been taught to expect a speedy release from her Bondage, and, finding that her Name was in the List permitted by his Excellency to cross the Lines with a flag from St. Johns,[24]she imagined that there could be no Obstacle to her Return; but, being informed that Mr. Campbell had threatened to give her back to the Indians, she eloped last Evening, and took refuge in my House from whence a female Prisoner, (sometime a nurse to my children) was to sett off this Morning for the Neighborhood of the Child's Parents. Upon Application from Mr. Campbell to Brigadr. Genl. De Speht setting forth that He had furnished her with money, an order was obtained for the delivery of the Child to her Master and there was no time for any other Accommodation than an undertaking on my part to reimburse Mr. Campbell the Price he paid for her to the Indians. This I am to do on his producing a Certificate from some Military Gentleman, whom he says was present at the Sale. I have no objection to an Act of Charity of this Nature, butall Political Considerations aside, I am of opinion that the national Honor is interested, that this Redemption should not be the Act of an Individual. As Commissary of Prisoners I have stated the Case to you, Sir, that you may determine upon the propriety of reimbursing me, or not, the sum I may be obliged to pay on this occasion."That all may be fairly stated I should observe that the Child was never returned a Prisoner,[25]nor has drawn Provisions as such—although there can be no doubt of her political character, having been captured by our Savages."

Montreal, 22 August, 1782.,

"Sir

I should make an Apology for the Liberty I take but that I consider it a public Duty.

When you were here some time since, I am informed that mention was made to you of a young female slave bought of the Indians by a Mr. Campbell, a Publican of this Town, and that whenyou learned that she was the Daughter of decent family in Pensilvania[23]captured by the Indians at 10 years of age, your Humanity opposed itself to the barbarous Claim of her Master and you Promised that she should be returned to her Parents by the first Flag with Prisoners.

"In consequence of such a Promise," continued he, "the Child had been taught to expect a speedy release from her Bondage, and, finding that her Name was in the List permitted by his Excellency to cross the Lines with a flag from St. Johns,[24]she imagined that there could be no Obstacle to her Return; but, being informed that Mr. Campbell had threatened to give her back to the Indians, she eloped last Evening, and took refuge in my House from whence a female Prisoner, (sometime a nurse to my children) was to sett off this Morning for the Neighborhood of the Child's Parents. Upon Application from Mr. Campbell to Brigadr. Genl. De Speht setting forth that He had furnished her with money, an order was obtained for the delivery of the Child to her Master and there was no time for any other Accommodation than an undertaking on my part to reimburse Mr. Campbell the Price he paid for her to the Indians. This I am to do on his producing a Certificate from some Military Gentleman, whom he says was present at the Sale. I have no objection to an Act of Charity of this Nature, butall Political Considerations aside, I am of opinion that the national Honor is interested, that this Redemption should not be the Act of an Individual. As Commissary of Prisoners I have stated the Case to you, Sir, that you may determine upon the propriety of reimbursing me, or not, the sum I may be obliged to pay on this occasion.

"That all may be fairly stated I should observe that the Child was never returned a Prisoner,[25]nor has drawn Provisions as such—although there can be no doubt of her political character, having been captured by our Savages."

The reply to this communication was:

"I am favored with your's by Saturday's post and have since layed it before His Excellency the Commander in Chief, and I have the Pleasure to inform you that he approves much of your Conduct and feels himself obliged for your very humane Interposition to rescue the poor unfortunate Sarah Cole from the Clutches of the miscreant Campbell; and I am further to inform you that your letter has been transmitted by his Secretary to the Judges at Montreal, not only to make Campbell forfeit the money he says he paid for the Girl, but if possible to punish and make him an example to prevent such inhuman conduct for the Future; but in any Event you shall be indemnified for the very generous Engagement you entered into."

It has been established that Mr. Powell had redeemed his word the day it was given and paid Mr. Campbell Twelve Guineas[26]on production of a string of Wampum delivered by the Indians with the girl and the money paid by Campbell. A cartel went forward August 22, 1782, and in the list of prisoners sent south appears the name "Sarah Coal."[27]Haldimand gave Mr. Justice Mabane, the man of all work of his administration, instructions to see to it that Campbell did not profit by his inhumanity and also to take such steps that the practice should not prevail for the future.[27]

A petition presented to Haldimand in 1783, however,discloses another transaction with the Indians.[28]Jacob Adams presented the petition December 13 of that year from Carleton Island. He said:

"I have taken a Yankee Boy (by name Francis Cole)[29]with a party of Messesagee Indians—afterwards when I arrived at Carleton Island with the said party of Indians and said Yankee Boy, the Commanding Officer (Captain Aubrey) demanded the Prisoners Vizt. this Boy and an old man[30]the Indians refus'd giving them up on which Capt. Aubrey gave me Liberty to purchase them and so I did by paying sixteen Gallons Rum for the Boy which cost me at this place twenty shillings, York Currency, pr. Gallon,[31]and he the said Yankee Boy was to serve me the term of four years (with his own lawfull consent) for my redeeming him. As for the old man I likewise bought him for two Gallons Rum but Capt. Aubrey requested I should send him Prisoner to Your Excellency. I acted accordingly. I likewise gave a shirt apiece to each of the two Chiefs who belonged to said party in like manner I lost twenty-four shillings York Currency by four Keggs which the above Rum was put into.[32]"Now, may it please Yr Excellency this said Yankee Boy remained very peaceably and quietly with me for the space of twomonths during which Time I took him several Journeys to Fort Stanwix and Oswego and whilst I was absent he got acquainted with some of the soldiers on this Island who persuaded him to get off from me and accordingly he got off in the manner following: when Lieut. Peppin of the 5th Regiment and his Party were embarking on board the Haldimand to go to Niagara, he privately got on board and remained there Incog. for one Day and a Night on which I made an application to Mr. Peppin to make a search for him and accordingly he did and found him and likewise brought him before the Commanding Officer who asked the Boy his Reasons for Running away from me: he replied He did not chuse to live with me on which Capt. Aubreay has sent him down as Prisoner to Yr. Excellency."May it please Your Excellency I expect your Excellency will please to take my Case into consideration by granting me the Request of being paid for what I have lost by said Prisoner or the Yankee Boy, to be returned to me...."[33]

"Now, may it please Yr Excellency this said Yankee Boy remained very peaceably and quietly with me for the space of twomonths during which Time I took him several Journeys to Fort Stanwix and Oswego and whilst I was absent he got acquainted with some of the soldiers on this Island who persuaded him to get off from me and accordingly he got off in the manner following: when Lieut. Peppin of the 5th Regiment and his Party were embarking on board the Haldimand to go to Niagara, he privately got on board and remained there Incog. for one Day and a Night on which I made an application to Mr. Peppin to make a search for him and accordingly he did and found him and likewise brought him before the Commanding Officer who asked the Boy his Reasons for Running away from me: he replied He did not chuse to live with me on which Capt. Aubreay has sent him down as Prisoner to Yr. Excellency.

"May it please Your Excellency I expect your Excellency will please to take my Case into consideration by granting me the Request of being paid for what I have lost by said Prisoner or the Yankee Boy, to be returned to me...."[33]

There were not wanting at this time or later instances of those convicted of crime buying their lives by enlistment for life. One case of a mulatto, a slave, may be here mentioned. A mulatto called Middleton was convicted atMontreal in 1781 of a felony (probably larceny) which carried the sentence of death. He was an expert mechanic of a class of men much in demand in the army and he was given a pardon conditioned upon his enlisting for life. He chose the Second Batallion of Sir John Johnson's Royal American Regiment then in Quebec and was handed over by Sheriff Gray to the officers of that corps after having taken the oath of allegiance administered to all recruits.[34]

Many slaves were employed as boatmen, laborers, and the like, in the army. We find a letter from headquarters at Quebec to Captain Maurer who was at Montreal, dated October 6, 1783, which reads:

"Having had the Honor to communicate to His Excellency, the Commander-in-Chief, your intimation that applications have been made by the Proprietors of some Negro's Serving Capt. Harkimer's (Herkimer) Company of Batteau Men to have them restored to them and desiring to receive His Excellency's Pleasure therein, I am directed to signify to you His Excellency's Commands that all such Negro's to be given up on the Requisition of their owners, provided they produce sufficient Proofs of their Property and give full acknowledgments or Receipts for them which must be taken in the most ample manner to prevent future claims and to have the necessary recourse to those Persons who receive them should different applications be made for the above Negro's."[35]

Peace had come[36]and there was no more need for a large army. But it was some years before the Indians of the western country ceased from their practice of making prisoners.[37]

Return of Negroes and Negro Women Brought into the Province by Parties under the Command and Direction of Lieut. Col. Sir John Johnson, Bart 1783

NamesFormer MastersProperty of LoyalistsRebel PropertyBy Whom Brought InTo Whom SoldPrice Sold ForWhere They Are at PresentHalifax Curry.TomConyneLoyalistCanada IndiansJacob Jordon£12-10Montreal with Mr. Jordon.Charles[1]SmythRebelRev. Mr. DeLisle20—Montreal with Mr. DeLisle.Nero[2]Col. GordondittoMohawk IndiansJohn Mittleberger60—Montreal in Provost Gaol.Jacob[3]dittodittoMohawk IndiansSaml. Judah24—Quebec.A Negro Wench[4]dittodittoMohawk Indiansditto60—Montreal with Mr. Judah.BettyCapt. CollinsdittoMohawk IndiansJohn Gregory45—Montreal with Mr. Gregory.Tom[5]Col. FisherdittodittoCaptn. Thomson25—Montreal with Mr. Tangen.JackBarney WimpledittoRoyal Rt., N. Y.Montreal with Capt. Anderson.DianaAdam Fondadittodittoditto dittoWilliam[6]Major FondadittoMohawk IndiansMr. McDonell30—Quebec.CombwoodJ. WimpledittodittoCapt. Sherwood12-10St. James with Capt. Sherwood.CatharineDora FondadittoCanada IndiansJohn Grant12-10St. Genevieve with Capt. A. McDonell.Simon[7]Niagara with A. Wimple.BoatswainLewis ClemontdittoCanada IndiansNiagara with his former master.Janedittodittodittoditto dittoDickCol. ButlerdittoMohawk Rangersditto with his former master.Jack[8]Wm. BowendittoRoyal Rt., N.Y.Captn. J. McDonell70—ditto with Captn. McDonell.PeggyMr. Youngdittodittoditto with her former master.Mink[9]Capt. HarkemawdittoCoteau du Lac with his former master.

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