Chapter IV: The Royal Adventurers and the Plantations (9)

[25] The Buxton Mission in the County of Kent is well known. The Wilberforce Colony in the County of Middlesex was founded by free Negroes; but they had in mind to furnish homes for future refugees. See Mr. Fred Landon's account of this settlement in the recent (1918) _Transactions of the London and Middlesex Hist. Soc._, pp. 30-44. For an earlier account see A. Steward's _Twenty Years a Slave_, Rochester, N. Y., 1857.

[26] Ross in his _Memoirs_ gives, on page 111, 40,000, but he may be speaking for all Canada. The number is rather high for Upper Canada alone.

[27] "The Kingdom of heaven suffereth violence and the violent take it by force." There can be no doubt that the Southern Negro looked upon Canada as a paradise. I have heard a colored clergyman of high standing say that of his own personal knowledge, dying slaves in the South not infrequently expressed a hope to meet their friends in Canada.

[28] These being merely traditional and not supported by contemporary documents are more or less mythical and I do not attempt to collect the various and varying stories.

There are several stories more or less well authenticated of masters bringing slaves into Canada with the intention of taking them back again as Charles Stewart intended with his slave James Somerset and the slaves successfully asserting their freedom, resisting removal with the assistance of Canadians. Of one of the most shocking cases of wrong, if not quite kidnapping, a citizen of Toronto was the subject. John Mink, a respectable man with some Negro blood, had a livery stable on King Street, Toronto. He was also the proprietor of stage-coach lines and a man of considerable wealth. He had an only daughter of great personal beauty, and showing little trace of Negro origin. It was understood that she would marry no one but a white man, and that the father was willing to give her a handsome dowry on such a marriage. A person of pure Caucasian stock from the Southern States came to Toronto, wooed and won her. They were married and the husband took his bride to his home in the South. Not long afterwards the father was horrified to learn that the plausible scoundrel had sold his wife as a slave. He at once went South and after great exertion and much expense, he succeeded in bringing back to his house the unhappy woman, the victim of brutal treachery.

There have been told other stories of the same kind, equally harrowing, and unfortunately not ending so well, but I have not been able to verify them. The one mentioned here I owe to the late Sir Charles Moss, Chief Justice of Ontario.

[29] The same rule obtained in Lower Canada; (1827) re Joseph Fisher, 1 Stuart's L. C. Rep. 245.

[30] This is the Act (1833), 3 Will IV, c. 7 (U. C.). This came forward as cap. 96 in the Consolidated Statutes of Upper Canada 1859, but was repealed by an Act of (United) Canada (1860), 23 Vic., c. 91 (Can.).

[31] To his people he seems to have been known as Hubbard Holmes; he is always called a yellow man, whether mulatto, quadroon, octoroon or other does not appear.

[32] The contemporary accounts of this transaction, _e. g._, in the _Christian Guardian_ of Toronto, and the _Niagara Chronicle_, are not wholly consistent. The main facts, however, are clear. Although there was some doubt as to the time, the military guard were ordered to fire. Miss Janet Carnochan has given a good account of this in _Slave Rescue in Niagara, Sixty Years Ago, Niag. Hist. Soc._, Pub. No. 2. It is said that "the Judge said he must go back," the fact being that the direction was by the executive and not the courts. The _Reminiscences_ of Mrs. J. G. Currie, born at Niagara in 1829 and living there at the time of the trouble, are printed in the _Niagara Hist. Soc._, Pub. No. 20. Mrs. Currie gives a brief account (p. 331) and says that one of the party, one MacIntyre, had a bullet or bayonet wound in his cheek. In Miss Carnochan's account, her informant, who was the daughter of a slave who had escaped in 1802 and was herself born in Niagara in 1824, says that "the sheriff went up and down slashing with his sword and keeping the people back. Many of our people had sword cuts in their necks. They were armed with all kinds of weapons, pitchforks, flails, sticks, stones. One woman had a large stone in a stocking and many had their aprons full of stones and threw them too." Mrs. Anna Jameson, in her _Sketches in Canada_, ed. of 1852, London, on pp. 55-58, gives another account. She rightly makes the extradition order the governor's act, but errs in saying that "the law was too expressly and distinctly laid down and his duty as Governor was clear and imperative to give up the felon" as "by an international compact between the United States and our province, all felons are mutually surrendered." There was nothing in the common law, or in the statute of 1833 which made it the duty of the governor to order extradition, and there was no binding compact between the United States and Upper Canada such as Mrs. Jameson speaks of. No doubt the reason given by her for the order was that in vogue among the official set with whom she associated, her husband being vice-chancellor and head (treasurer) of the Law Society. The _Christian Guardian_, _Niagara Reporter_ and _Niagara Chronicle_ and _St. Catharines Journal_ of September, October and November, 1837, contain accounts of and comments upon the occurrences, and sometimes attacks upon each other.

Deputy Sheriff Alexander McLeod was a man of some note if not notoriety. During the rebellion of 1837 and 1838 he was in the Militia of Upper Canada. He took a creditable part in the defence of Toronto against the followers of Mackenzie in December, 1837, and was afterwards stationed on the Niagara frontier. There he claimed to have taken part in the cutting out of the Steamer _Caroline_ in which exploit a Buffalo citizen, Amos Durfee, was killed. McLeod, visiting Lewiston in New York State, in November, 1840, was arrested on the charge of murder and committed for trial. This arrest was the cause of a great deal of communication and discussion between the governments of the United States and of Great Britain, the latter claiming that what had been done by the Canadian militia was a proper public act and they demanded the surrender of McLeod. This was refused. McLeod was tried for murder at Utica, October, 1841, and acquitted, it being conclusively proved that he was not in the expedition at all.

[33] Concluded at Washington, August 9, 1842, ratification exchanged at London, October 13, 1842, proclaimed November 10, 1842; this treaty put an end to many troublesome questions, amongst them the Maine boundary which it was found impracticable to settle by Joint Commissions or by reference to a European crowned head, William, King of the Netherlands. It will be found in all the collections of treaties of Great Britain or the United States, and in most of the treaties on extradition, amongst them the useful work by John G. Hawley, Chicago, 1893 (see pp. 119 sqq.).

[34] It was held in this province that the Act of 1883 was superseded by the Ashburton Treaty in respect to the United States, but that it remained in force with respect to other countries (Reg. _v._ Tubber, 1854, 1, P. R., 98). Since the treaty, our government has refused to extradite where the offense charged is not included in the treaty. In re Laverne Beebe (1863), 3, P. R., 273--a case of burglary.

The provisions of the treaty were brought into full effect in Canada (Upper and Lower) by the Canadian Statute of 1849, 12, Vic., c. 19, C. S. C. (1859), c. 89.

[35] Chief Justice Sir John Beverley Robinson, Mr. Justice McLean (afterwards Chief Justice of Upper Canada) and Mr. Justice Burns.

[36] The seat of the Superior Courts in Toronto, the Palais de Justice of the Province.

[37] Mr. Samuel B. Freeman, Q.C., of Hamilton, a man of much natural eloquence, considerable knowledge of law and more of human nature; he was always ready and willing to take up the cause of one unjustly accused and was singularly successful in his defences.

I have heard it said that it was Mr. M. C. Cameron, Q.C., who so addressed the gathering, but he does not seem to have been concerned in the case in the Queen's Bench.

[38] The case is reported in (1860), 20 Up. Can., Q. B., pp. 124-193. The warrant is given at pp. 192, 193.

[39] The case is reported in (1861), 3, Ellis & Ellis Reports, Queen's Bench, p. 487; 30, _Law Jour._, Q. B., p. 129; 7, _Jurist_, N. S., p. 122; 3, _Law Times_, N. S., p. 622; 9, _Weekly Rep._, p. 255.

It was owing to this decision that the statute was passed at Westminster (1862) 25, 26, Vic., c. 20, which by sec. 1 forbids the courts in England to issue a writ of habeas corpus into any British possession which has a court with the power to issue such writ. The court was Lord Chief Justice Cockburn, and Justices Crompton, Hill and Blackburn, a very strong court. The Counsel for Anderson was the celebrated but ill-fated Edwin James. The writ was specially directed to the sheriff at Toronto, the sheriff at Brantford and the jail-keeper at Brantford. Judgment was given January 15, 1861.

[40] Common law, of course, not chancery.

[41] The court was composed of Chief Justice William Henry Draper, C.B., Mr. Justice Richards, afterwards Chief Justice successively of the Court of Common Pleas, of the Court of Queen's Bench, and, as Sir William Buell Richards, of the Supreme Court of Canada, and Mr. Justice Hagarty, afterwards Chief Justice successively of the Court of Common Pleas, of the Court of King's Bench, and, as Sir John Hawkins Hagarty, of Ontario.

Mr. Freeman was assisted in this argument by Mr. M. C. Cameron, a lawyer of the highest standing professionally and otherwise, afterwards Justice of the Court of Queen's Bench, and afterwards, as Sir Matthew Cameron, Chief Justice of the Court of Common Pleas. Counsel for the crown on both arguments were Mr. Eccles, Q.C., a man of deservedly high reputation, and Robert Alexander Harrison, afterwards Chief Justice of the Court of Queen's Bench, an exceedingly learned and accurate lawyer.

The case in the Court of Common Pleas is reported in Vol. 11, Upper Can., C. P., pp. 1 sqq.

DOCUMENTS

NOTES ON SLAVERY IN CANADA[1]

The following Notes received from the Canadian Archives Department, Ottawa, have more or less bearing upon the question of slavery in Upper Canada:

1. General James Murray, the first Governor of the new Government of Quebec, writing to John Watts, of New York, from Quebec, November 2, 1763, and speaking of the promoting of the improvement of agriculture, says:

"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," (_Can. Arch._, Murray Papers, Vol. II,
p. 15.)

2. D. M. Erskine, writing from New York, May 26, 1807, to Francis Gore, Lt. Governor of Upper Canada, says:

"I have the honour to acknowledge the receipt of your letter of
the 24th ult enclosing a Memorial presented to you by the
Proprietors of Slaves in the Western District of the Province of
Upper Canada.

"I regret equally with yourself the Inconvenience which His
Majesty's subjects in Upper Canada experience from the Desertions
of their slaves into the Territory of the United States, and of
Persons bound to them for a term of years, as also of His
Majesty's soldiers and sailors; but I fear no Representation to
the Government of the United States will at the present avail in
checking the evils complained of, as I have frequently of late
had occasion to apply to them for the Surrender of various
Deserters under different circumstances, and always without
success--

"The answer that has been usually given, has been. 'That the
Treaty between Great Britain & the United States which _alone_
gave them the Power to surrender Deserters having expired, it was
impossible for them to exercise such an authority without the
Sanction of the Laws--'

"I will however forward to His Majesty's Minister for Foreign
Affairs, the Memorial above mentioned in the Hope that some
arrangements may be entered into to obviate in future the great
Losses which are therein described." (_Can. Arch._, Sundries,
Upper Canada, 1807.)

3. John Beverley Robinson, Attorney General, Upper Canada, giving an opinion to the Lt. Governor, York, July 8, 1819, says the following:

"May it please Your Excellency

"In obedience to Your Excellency's commands I have perused the
accompanying letter from C. C. Antrobus Esquire, His Majesty's
Chargé d'affaires at the Court of Washington and have attentively
considered the question referred to me by Your Excellency
therein--namely--'Whether the owners of several Negro slaves from
the United States of America and are now resident in 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." (_Can. Arch._, Sundries,
Upper Canada, 1819.)

4. At a meeting of the Executive Council of the Province of Lower Canada held at the Council Chamber in the Castle of St. Lewis, on Thursday, June 18, 1829, under Sir James Kempt, the Administrator of the Government, the following proceedings were had:

"Report of a Committee of the whole Council Present The Honble.
the Chief Justice in the Chair, Mr. Smith, Mr. DeLery, Mr.
Stewart, and Mr. Cochran on Your Excellency's Reference of a
Letter from the American Secretary of State requesting that Paul
Vallard accused of having stolen a Mulatto Slave from the State
of Illinois may be delivered up to the Government of the United
States of America together with the Slave.

"May it please Your Excellency

"The Committee have proceeded to the consideration of the subject
matter of this reference with every wish and disposition to aid
the Officers of the Government of the United States of America in
the execution of the Laws of that Dominion and they regret
therefore the more that the present application cannot in their
opinion be acceded to.

"In the former Cases the Committee have acted upon the Principle
which now seems to be generally understood that whenever a Crime
has been committed and the Perpetrator is punishable according to
the Lex Loci of the Country in which it is committed, the country
in which he is found may rightfully aid the Police of the Country
against which the Crime was committed in bringing the Criminal
to Justice--and upon this ground have recommended that Fugitives
from the United States should be delivered up.

"But the Committee conceive that the _Crimes_ for which they are
authorized to recommend the arrest of Individuals who have fled
from other Countries must be such as are _mala in se_, and are
universally admitted to be _Crimes_ in every Nation, and that the
offence of the _Individual_ whose person is demanded must be such
as to render him liable to arrest by the Law of Canada as well as
by the Law of the United States.

"The state of slavery is not recognized by the Law of Canada nor
does the Law admit that any Man can be the proprietor of another.

"Every Slave therefore who comes into the Province is immediately
free whether he has been brought in by violence or has entered it
of his own accord; and his liberty cannot from thenceforth be
lawfully infringed without some Cause for which the Law of Canada
has directed an arrest.

"On the other hand, the Individual from whom he has been taken
cannot pretend that the Slave has been stolen from him in as much
as the Law of Canada does not admit a Slave to be a subject of
property.

"All of which is respectfully submitted to Your Excellency's,
Wisdom." (_Can. Arch._, State K, p. 406.)

5. At a meeting of the Executive Council for Upper Canada, held at York, on Thursday, September 12, 1833, under Sir John Colborne, Lieutenant Governor, the following proceedings were had:

"Received a Letter from the Governor of the State of Michigan
dated Detroit August 12th 1833 with a new requisition for the
delivery up of Thornton Blackburn and other fugitives from
Justice which was read in Council on 27th August 1833 with the
following opinion of the Attorney General, as referred to him
13th July 1833.

"'ATTORNEY GENERAL'S OFFICE
"'12th July 1833

"'_Sir_

"'I have the Honour to return the various papers relating to the
subject of the requisition from the acting Governor of Michigan
demanding that Thornton Blackburn and others who are stated to
have fled from the justice of that country and taken refuge
within this Province and now in custody at Sandwich should be
given up, upon which His Excellency required my opinion whether
the Law of this Province authorized him in complying with such
demand or not. Had His Excellency been confined to the official
requisition and the deposition that accompanied it he might I
think have been warranted in delivering up those persons inasmuch
as there is thereupon evidence on which according to the terms of
our act (3 Wm 4th, C. 8) a magistrate would have been "warranted
in apprehending and committing for trial" persons so charged who
is convicted of the offence alleged viz: riot and forcible rescue
and assault and battery would, if convicted, have been subject
according to the Laws of this Province to one of the several
punishments enumerated in the act as applicable to felonies and
misdemeanors.

"'That the Governor and Council are not confined to such evidence
is clear since though limited in their authority to enforce the
provisions of the act against fugitives from foreign States by
the condition above mentioned viz: being satisfied that the
evidence would warrant commitment for trial etc. yet in coming to
that conclusion they are I think bound to hear no ex parte
evidence alone but matter explanatory to guide their judgment;
for even tho' satisfied with their authority so to do, they are
not required "to deliver up any person so charged if for any
reason they shall deem it inexpedient so to do.'

"In the present case I think the evidence on oath as to facts not
alluded to in the official Communication and as to the law of the
United States upon the subject becomes extremely important; I
mean that of Mr Cleland and Mr Alexander Fraser the Attorney for
the City of Detroit. The case appears to be this--Two coloured
persons named Thornton a man and his wife were claimed as slaves
on behalf of some person in the State of Kentucky; that they were
arrested and examined before a magistrate in Detroit and he 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; that the Sheriff took them into
custody in consequence and that when one of them, (the man) was
on the point of being removed from prison in order to be restored
to his owner he was with circumstances of considerable violence
rescued and escaped to this Province. There appears to be an
error in the deposition accompanying the requisition, the wife
of Thornton is there charged with being one of the persons
assisting in the riot and rescue, whereas it appears that
previous to the day of her husband's rescue she had eluded the
Gaoler in disguise and she was then within this Province; she
therefore does not appear to come within the class of offenders
which the Act contemplates--viz: 'Malefactors who having
committed crimes in foreign Countries have sought an asylum in
this Province.'

"With regard to Thornton himself, the Attorney of Detroit who has
favoured His Excellency with a certified Copy of the Law of the
United States upon the subject, declares,--that the commitment to
the custody of the Sheriff was illegal--and this is urged
strongly as an equitable consideration against His Excellency's
interference that the Sheriff detained Thornton in custody not as
Sheriff but as agent for the Slave owner and that the law does
not authorize _commitments_ under such circumstances to the
Sheriff, but merely that 'the owner, agent, or attorney may seize
and arrest the fugitive (slave) and take him before the Judge
etc: who upon proof that the person seized owes service to the
claimant &c shall give a certificate thereof to such claimant,
his agent or Attorney which shall be sufficient Warrant for
removing the said fugitive from labour &c.'

"To this argument as to the illegality of the custody I do not
attach much weight, for admitting that Thornton was not committed
to the custody of Mr. Wilson as Sheriff of Wayne County, still as
we may presume that the Judge's Certificate was properly given,
he might not be the less legally in the custody of Mr Wilson _as
agent to the claimant_ in Kentucky; for the next section of the
act of congress enacts that anyone who '_shall rescue such
fugitive from such claimant or his agent &c shall forfeit and pay
the sum of five hundred dollars &c._' That the custody was legal
according to the law of the United States I have little doubt;
the legality there is officially recognized by the requisition
and it is not a subject for His Excellency's enquiry. Upon this
view of the case and considering that His Excellency in Council
can only restore fugitives charged upon evidence of crimes which
if proved to have been committed in this Province would subject
the offender to 'Death, Corporal punishment by Pillory or
whipping or by confinement at hard labour' and considering this
as a Penal Act which must not be strained beyond the literal
import towards those against whom it is intended to operate; the
result is that our law recognizes no such custody as that of an
agent acting under a warrant for removing a fugitive slave to the
Territory from which he fled, this is an offence which could not
be committed within this Province in any case and therefore that
His Excellency in Council is not by the Act of this Province
either required or authorized to deliver up the persons demanded.

"I have the Honor to be, Sir, &c.,
"(Signed) ROBERT S. JAMESON, _Attorney General_."

"The Council having again had before them the requisition of the
Governor of the State of Michigan relative to the escape of
certain offenders into this Province deem it mainly important to
their full consideration of the question that besides his opinion
upon the propriety of giving up the persons alluded to the
Attorney General should be requested explicitly to state whether
if a similar outrage had been committed in this Province the
offender or offenders would be liable to undergo any of the
punishments in the act passed last Session.

"(Signed) JOHN STRACHAN, P.C."
(_Can. Arch._, State J, p. 137.)

6. At an Executive Council for Upper Canada held at York, Tuesday, September 17, 1833, under the presidency of the Rev. Dr. Strachan, the following proceedings were had:

"The Council assembled agreeably to the desire of His Excellency
the Lieutenant Governor to take into consideration the
requisition of his Excellency the Governor of Michigan.

"Read the following letter.

"'ATTORNEY GENERAL'S OFFICE
"'14th September, 1833

"_'Sir_

"'To the question which the Executive Council have done me the
honor to submit to me in relation to the requisition from the
Governor of Michigan dated 12th August, 1833, whether if a
similar outrage had been committed in this Province the offender
would be liable to undergo any of the punishments stated in the
Act (3 Wm 4, Cap 7) passed at the last Session I have the honor
to answer that a forcible rescue from the custody of the Sheriff
of this Province attended with the aggravated circumstances
detailed in the affidavit of John M. Wilson and Alexander
McArthur accompanying the requisition would undoubtedly subject
the offender and those actively aiding and abetting him to the
gravest punishment in the act, death alone excepted.

"'I have the honor to be, Sir, &c.,
"'(Signed) ROBERT S JAMESON,
"'_Attorney General_.

"'To John Beikie, Esquire,
"'Clerk, Executive Council,'"

"'The Council took the same into consideration and were pleased
to make the following minute thereon.

"'The Council having had under consideration the requisition of
His Excellency the Governor of Michigan together with the various
papers relative thereto beg leave respectfully to state that as
the question involves matters of great importance in our
relations with a neighbouring state it would be satisfactory to
them if the opinion of the Judges were obtained for their
information,'" (_Can. Arch._, State J. p. 148.)

7. At an Executive Council for Upper Canada held at York, September 27, 1833, under the presidency of Peter Robinson, the following proceedings were had:

"Resumed the consideration of His Excellency G.B. Porter,
Esquire, Governor of Michigan's Letter of the 12th Ultimo which
was read in Council on the 27th and again on the 12th and 17th
Instant.

"Read also the Attorney General's opinion of the 20th Instant and
the Judges' Report of this date as follows:

"'ATTORNEY GENERAL'S OFFICE
"'20th September, 1833
"'_Sir_

"'To the question which the Executive Council have done me the
Honor to submit to me in relation to the requisition from the
Governor of Michigan dated 12th August, 1833, whether if a
similar outrage had been committed in this Province, the offender
or offenders would be liable to undergo any of the punishments
stated in the Act (3 Wm. 4 c. 7) passed last Session: my opinion
is that a forcible rescue from the custody of the sheriff in this
Province attended with the aggravated circumstances detailed in
the Affidavits of John M. Wilson and Alexander MacArthur though
by the law of England it would subject the offender and those
actively aiding and abetting him to severe corporal punishment,
by the law of the Province as it now stands could not be visited
by a graver punishment than fine and imprisonment which is not
one of those enumerated in the act.

"'I have the Honor to be, Sir, &c.,
"'(Signed) ROBERT S. JAMESON,
"'_Attorney General._

"'To
"'John Beikie, Esq.,
"'Clerk, Executive Council.'

"'JUDGES' REPORT.

"'York, 27th September, 1833.

"'May it please Your Excellency

"'We have the Honor to report to Your Excellency that we have
deliberated upon the reference made to us by Your Excellency's
Command on the 17th September Instant in respect to an
application addressed to Your Excellency by the Government of the
Territory of Michigan requesting that certain persons now
inhabiting this Province may be apprehended and sent to that
country to answer to a charge preferred against them for
assaulting and beating the Sheriff of the County of Wayne and
rescuing a prisoner from his custody. We observe that the recent
act of the Legislature of this Province intituled "An Act to
provide for the apprehending of fugitive offenders from foreign
countries and delivering them up to Justice" (a copy of which we
annex to this report) gives a discretion to the Governor and
Council in carrying into effect its provisions declaring in
express terms that it shall not be incumbent upon them to deliver
up any person charged if for any reason they shall deem is
inexpedient so to do." We take it for granted however
notwithstanding the general terms in which the reference is made
to us, that we are not expected to express our opinion upon what
would or would not be a proper exercise of this discretion. It
does not, indeed, occur to us than any question of political
expediency is presented by the case and if any were, we should
abstain from offering an opinion upon it.

"'It is to the legal considerations connected with the case that
we have confined ourselves; and in this view of it we beg
respectfully to state that these prisoners having been once
already apprehended and in custody in this Province upon this
same charge and liberated by the decision of the Governor and
Council after a consideration of the case upon an application
made by the Government of Michigan, we should not think fit that
the Governor and Council should authorize a second apprehension
of the parties and exercise a second time the power and
discretion given by the Act--This course we think could not be
approved of unless, in the case of some atrocious offender, new
and strong evidence should be discovered which it was not in the
power of the foreign Government to produce upon a previous
application and for the want of which the prisoners were upon
such first application discharged, or perhaps in a case where
some official or legal formality had by mere accident been
overlooked on the first occasion.

"'Independently of the consideration that this case has been
already acted upon by the Government, the documents before us
place it in this light: the prisoners with the exception of
Blackburn and his wife are charged with assaulting and beating
the sheriff of Wayne and rescuing a prisoner from his custody,
Blackburn being the prisoner alluded to is charged with joining
in the riot and battery of the Sheriff and with unlawfully
rescuing himself--The wife of Blackburn we cannot find to be
sufficiently charged with any offence known to our laws which do
not acknowledge a state of slavery; for the imputation of
conspiring with the rioters and contriving the rescue is
supported by no evidence and seems to rest on conjecture--The
prisoner Blackburn it appears from the Documents before us was
not committed for felony nor for any crime nor imprisoned for any
cause which by our laws could be recognized as a justification of
imprisonment. We mention this not from any doubt that the
prisoner was in legal custody according to the laws of Michigan
but because the rescue of a prisoner constitutes by our law a
greater or less offence according to the degree of the crime for
which he was committed and this prisoner being committed for no
crime and certainly not for any felony his rescue would according
to our law be a misdemeanor only and a misdemeanor of that kind
that the persons convicted of it would be punished by fine and
imprisonment or either of them and not by any other description
of punishment--The Statute referred to provides in explicit
terms that the persons subject to be delivered up under it to the
justice of a foreign country are those only who shall be charged
"with murder, forgery, larceny or other crime committed without
the jurisdiction of this Province which crimes if committed
within this Province would _by the laws thereof_ be punishable by
_death corporal punishment_ by _pillory_ or _whipping_ or by
confinement at _hard labour_." We are not aware whether the laws
of the Territory of Michigan do or do not authorize the giving up
of offenders charged with crimes not embraced in the above very
comprehensive description; but however that may be, it is evident
that the conduct of this and of other Governments in respect to
the delivery up of offenders can be no further reciprocal towards
each other than the laws of each will allow. We express no
opinion except in reference to the statute recently passed here
for regulating this particular matter--We consider the
Legislature to have declared in that Statute their will in what
cases fugitives from foreign countries should be surrendered; and
we have therefore considered whether the persons in question as
they are not charged with murder forgery or larceny could upon
the facts before us be convicted of any other offence punishable
at hard labour--We apprehend they could not be but that the
offence of which they might be convicted would be punishable by
fine and imprisonment merely without adding "hard labour" to the
sentence. Riot, a Battery of the Sheriff in the execution of his
duty, and the rescue of a person legally in his custody but not
charged with felony or other crime are the offences with which
upon the statements before us they are liable to be charged:--and
all these are offences which in the known and ordinary
administration of the law in this Province would be punished in
no other manner than by fine and mere imprisonment. Instances we
doubt not may be brought from distant times, in which one or
other of the above offences has been punished in England by
Pillory or whipping or by other unusual or disgraceful
punishments and we do not say that these cases altho' they may be
old are so decidedly void of all authority that a judgment which
should now be passed in conformity to them would certainly be
held to be erroneous and bad. But we conceive that in England
such punishments have long ceased to be assigned to the offences
in question; that in this Province they have never been assigned
to them and that recent Statutes which have been passed in
England tend strongly to show that Parliament did not regard them
as punishments which in later times could be properly attached
to such offences without express Legislative sanction. We observe
that there is evidence of one of the persons charged having
pointed a loaded pistol at the Sheriff. If it had been further
stated that he had pulled the trigger or otherwise attempted to
discharge the pistol the act would have been one which in England
is felony, having been first made so by Lord Ellenborough's Act
passed in 1803; but that Act does not extend to this Province and
was never adopted or in force here and if it were otherwise,
still this case upon the facts stated is not within it. Looking
upon the act of pointing or presenting the pistol as one for
which all the rioters were equally responsible it forms an
aggravation of their riot and assault but it does not change the
legal character of their crime it would probably lead to a higher
fine or a longer imprisonment but not to a punishment of another
kind. The riot as it is described was an outrageous one and the
battery of the sheriff appears to have been violent and
cruel--the direct object and intent however seems to have been
the rescue of the Prisoner rather than to take the life of the
sheriff; and even supposing the facts would well support a
conviction for an assault on the Sheriff with an intent _to
murder him_ still by our law such intent would be merely an
aggravation of the riot and assault; it would not alter the
technical character of the crime or the description of punishment
however much it might enhance the fine or lead to increasing the
term of Imprisonment.

"'The conclusion therefore which we have come to is that these
parties are not charged with any of the offences enumerated in
the statute annexed and consequently that the Lieutenant Governor
and council are not authorized by its provisions to send them out
of the Province. 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. Among the Documents before us
we perceive there are papers which have been delivered to the
Government in behalf of the alleged rioters in which this
inevitable consequence is urged as a reason against their being
sent back to Michigan and in which it is intimated that to place
the slaves again within the power of their masters is the
principal object and that the Government of Michigan in making
application for them is rather influenced by the interest and
wishes of the slave owners than by any desire to bring the
parties to trial for the alleged riot. No consideration of this
kind has had any weight with us, for in the first place as
regards the insinuation against the motives of the Government of
Michigan if we had any thing to do with them we should consider
(as no doubt this Government would consider in any similar case)
that courtesy towards the Government of a foreign country
requires always to assume that it has no motive or design on
these occasions which is not just and fair and in short none but
such as is openly avowed. And in the next place as to the
consequence spoken of--If it would follow in course from the laws
of the United States it is not probable that the Executive
Government there would prevent the slave masters from asserting
their rights under those laws and it is therefore reasonable to
suppose that the consequence may really follow which the parties
concerned have represented. Still if in this case the black
people whose arrest is applied for had been shown to have fled
from a charge for any such offence as would clearly come within
our Statute, we do not conceive that we could on that account
have advised a course to be pursued in regard to them different
from that which should be pursued with respect to free white
persons under the same circumstances. When we say this we should
desire it to be understood that we are so clearly of opinion on
the other hand, that the withdrawing from a state of Slavery in a
foreign Country could not here be treated as an offence with
reference to our statute already alluded to so that any person
could be surrendered up under that statute upon such a ground
merely. We beg leave to express to Your Excellency our regret for
the delay that has occurred in answering the reference which Your
Excellency and the Honorable the Executive Council have thought
fit to make to us. Among other causes which have led to it was a
doubt at first entertained among us whether we could properly
give an opinion upon a matter which under possible circumstances
might give rise to a judicial proceeding in which the same
question would come before us or some one of us for decision. An
examination of this subject has removed this doubt and we now
submit our opinion to Your Excellency with such explanations as
seemed to us to be material.

"'We have the Honor to be
"'Your Excellency's Most obedient
"and humble Servants
"'(Signed) "'JOHN B. ROBINSON, C. J.
"'L. P. SHERWOOD--J.
"'J. B. MACAULEY--J.'"

"Upon which the council were pleased to make the following
Report.

"'_To His Excellency_, Sir John Colborne, K.C.B., Lieutenant
Governor of the Province of Upper Canada and Major General
Commanding His Majesty's Forces therein--&c----&c &c

"'May it please Your Excellency

"'The Council have had under consideration the papers relating to
the requisition of the acting Governor of Michigan, together with
evidence furnished by His Excellency the Governor of that
Territory accompanied by a further requisition for the delivery
of the fugitives--they have also had before them the opinions of
the three Judges and of the Attorney General with which they
concur and have been led to the conclusion that the fugitive
Slaves named in the requisitions are not charged with an offence
which would have rendered them liable to any of the punishments
enumerated in the Provincial Statute and consequently that the
Lieutenant Governor and Council are not authorized by its
provisions to send them out of the Province.'" (_Can. Arch._,
State J, p. 155.)

8. At an Executive Council for Upper Canada held at Toronto, Saturday, September 9, 1837, under the presidency of the Honourable William Allen, the following proceedings were had:

"Read the Attorney General's Report of the 8th instant on
Documents for the surrender of Jesse Happy, a fugitive from
Justice in the United States charged with horse stealing--upon
which the Council made the following Report

"'The Council have taken into serious consideration the Documents
with the Reports of the Attorney General

"'A similar application referred for the Report of the Council on
the 7th Instant--In that case as in the present it was suggested
that the fugitive was a slave, and that the real object of the
application was not so much to bring him to trial for the alleged
Felony as to reduce him again to a state of Slavery--In that case
however it appeared that the Offence had been recently committed
viz: in May last--That an early occasion, probably the first, was
taken to have him indicted--that process for his apprehension
immediately issued and that shortly after the return of the
Sheriff to that process the requisition from His Excellency the
Governor of the State of Kentucky was obtained and promptly
brought to this Province. Under these circumstances the Council
were of opinion that in the exercise of a sound discretion they
were called upon to recommend to Your Excellency to comply with
the requisition--The facts appearing upon the Official Documents
in this case are widely different--The Alleged Offence purports
to have been committed more than four years ago. When the
Indictment was preferred is not shown (as it was in the former
case) but the earliest date which shows its existence is 1st June
1835 when the certificate of the Clerk of the Court is given. No
process seems to have been issued in the State of Kentucky nor is
any other step shown to have been taken until the middle of last
month. There also it is suggested that the fugitive is a slave
that the real object of his apprehension is to give him up to his
former owners and so to deprive him of that personal liberty
which the laws of this country secure him. If this be conceded in
the present instance after a lapse of four years, no argument
could be consistently urged against the delivery up (on the usual
application) of persons who have been still longer resident in
this Province.

"'The delivery of a Slave under these circumstances to the
authorities claiming him would it is clear subject him to a
double penalty, the one of punishment for a crime, the other of a
return to a state of Slavery, even if he should be acquitted. The
former in strict accordance with our Statute, the other in direct
opposition to the genius of our institutions and the spirit of
our Laws. For this cause the Council feel great difficulty in the
course which they would advise Your Excellency to adopt, were
there any law by which, after taking his trial and if convicted
undergoing his sentence he would be restored to a state of
freedom, the Council would not hesitate to advise his being given
up but there is no such provision in the Statute.

"'On the other hand the Council feel that it cannot be permitted
that because a man may happen to be a fugitive slave he should
escape those consequences of crime committed in a foreign country
to which a free man would be amenable. This would be equally
contrary to the Law and to the spirit of mutual justice which
gave origin to it, in this Province as well as in the United
States. Considering however the circumstances of this case and
also the difficulty that might arise from it as a precedent the
Council respectfully recommend that time should be given to the
accused to furnish affidavits of the facts set forth in the
Petition presented on his behalf in order to a full understanding
of the whole matter.

"'The Council would further respectfully submit to Your
Excellency the propriety of drawing the attention of Her
Majesty's Government to this question with a view of ascertaining
their views upon it as a matter of general policy.'" (_Can.
Arch._, State J, p. 597.)

FOOTNOTES:

[1] For these documents Mr. Justice Riddell is indebted to Mr. William Smith of the Department of Archives, Ottawa, Canada.

ADDITIONAL LETTERS OF NEGRO MIGRANTS OF 1916-1918[1]

LETTERS STATING THAT WAGES RECEIVED ARE NOT SATISFACTORY

BROOKHAVEN, MISS., April 24, 1917.

_Gents:_ The cane growers of Louisiana have stopped the exodus
from New Orleans, claiming shortage of labor which will result in
a sugar famine.

Now these laborers thus employed receive only 85 cents a day and
the high cost of living makes it a serious question to live.

There is a great many race people around here who desires to come
north but have waited rather late to avoid car fare, which they
have not got. isnt there some way to get the concerns who wants
labor, to send passes here or elsewhere so they can come even if
they have to pay out of the first months wages? Please dont
publish this letter but do what you can towards helping them to
get away. If the R. R. Co. would run a low rate excursion they
could leave that way. Please ans.

JACKSONVILLE, FLA., April 4, 1917.

_Dear Sir:_ I have been taking defender for sevel months and I
have seen that there is lots good work in that section and I want
to say as you are the editor of that paper I wish that you would
let me know if there is any wheare up there that I can get in
with an intucion that I may get my wife and my silf from down
hear and can bring just as miney more as he want we are suffing
hear all the work is giveing to poor white peples and we can not
get anything to doe at all I will go to pennsylvania or n y state
or N J or Ill. or any wheare that I can surport my wife I am past
master of son of light in Mass. large Royal arch and is in good
standing all so the good Sancer large no. 18. I need helpe my
wife cant get any thing to due eather can I so please if you can
see any body up there that want hands let me no at once I can get
all they need and it will alow me to get my wife away from down
hear so please remember and ans. I will apreshate it.

Looking for ans at once. Please let me no some thing thease
crackers is birds in south

NASHVILLE, TENN., April 22, 1917.

_Sir:_ I am in Nashville and I have a job but is not satisfied
with the money that I am getting for my work and I ask of you to
please give me a good job working any place I am a expirence fire
man and all so some expirence in engineer and please answer soon
and let me know what you can find for me to do.

ALEXANDRIA, LA., June 6, 1917.

_Dear Sirs:_ I am writeing to you all asking a favor of you all.
I am a girl of seventeen. School has just closed I have been
going to school for nine months and I now feel like I aught to go
to work. And I would like very very well for you all to please
forward me to a good job. but there isnt a thing here for me to
do, the wages here is from a dollar and a half a week. What could
I earn Nothing. I have a mother and father my father do all he
can for me but it is so hard. A child with any respect about her
self or his self wouldnt like to see there mother and father work
so hard and earn nothing I feel it my duty to help. I would like
for you all to get me a good job and as I havent any money to
come on please send me a pass and I would work and pay every cent
of it back and get me a good quite place to stay. My father have
been getting the defender for three or four months but for the
last two weeks we have failed to get it. I dont know why. I am
tired of down hear in this ---- / I am afraid to say. Father seem
to care and then again dont seem to but Mother and I am tired
tired of all of this I wrote to you all because I believe you
will help I need your help hopeing to here from you all very
soon.

ATLANTA, GA., April 29, 1917.

SIR: I am a young man 25 years of age. I desire to get in some
place where I can earn more for my labor than I do now, which is
$1.25 per day. I do not master no trade but I have finished a
correspondence course with the practical auto school of New York
City and with a little experience I would make a competent
automobile man, but I do not ask for your assistance on this
line of business only. I am willing to do anything for better
wages.

P.S. I would like if you knows if there is an auto school any
where where colored men can go to and learn the automobile
industry to give me their address.

JACKSONVILLE, FLA., April 30, 1917.

_Kind sir:_ In reading the Chicago Defender I saw where laborers
are wanted and of course not knowing whether you would send
transportation this far or not I would like a good job in the
north where I can earn more for my labor and would like for you
to help me out if you would. I am now working at the Clyde Line
and they are cutting off help every day of course I dont know
about this moulding work but am very quick to learn any thing
most any kind of work for a laboring man, dont play on the job.
all I ask of you is a trial, willing and ready to go to work any
time I hear from you. Please ans soon. willing to Detroit
Michigan or any part of the north.

_Sirs:_ I am writing to find out if there is any way that you
could find me a job. I would be very glad for you to do so and I
will see that you wont loose nothing if I can get the job. work
no good here for a black man. And I want to leave this place. But
I cannot make the money to leave on and I hope you will do all
you can in the way of helping me to secure a job and I hope you
will let me here from you in short.

WILMINGTON, N. C., May 4, 1917.