The Journal of Negro History, Volume 4, 1919

An inquest was held on the bodies of Holmes and Green. The jury found "justifiable homicide" in the case of Holmes; "whether justifiable or unjustifiable there was not sufficient evidence before the jury to decide" in the case of Green. The verdict in the case of Holmes was the only possible verdict on the admitted facts. Holmes was forcibly resisting an officer of the law in executing a legal order of the proper authority. In the case of Green the doubt arose from the uncertainty whether he was bayoneted while resisting the officers or after Mosely had made his escape. The evidence was conflicting and the fact has never been made quite clear. No proceedings were taken against the deputy sheriff; but a score or more of the people of color were arrested and placed in prison for a time. The troublous times of the Mackenzie Rebellion came on, the men of color were released, many of them joining a Negro militia company which took part in protecting the border.

The affair attracted much attention in the province and opinions differed. While there were exceptions on both sides, it may fairly be said that the conservative and government element reprobated the conduct of the blacks in the strongest terms, being as little fond of mob law as of slavery, and that the radicals, including the followers of Mackenzie, looked upon Holmes and Green as martyrs in the cause of liberty. That Holmes and Green and their fellows violated the law there is no doubt, but so did Oliver Cromwell, George Washington and John Brown. Every one must decide for himself whether the occasion justified in the courts of Heaven an act which must needs be condemned in the courts of earth.612

In 1842 the well-known Ashburton Treaty was concluded613 between Britain and the United States. This by Article X provides that "the United States and Her Britannic Majesty shall, upon mutual requisitions … deliver up to justice all persons … charged with murder or assault with intent to commit murder, or piracy or arson or robbery or forgery or the utterance of forged paper.... Power was given to judges and other magistrates to issue warrants of arrest, to hear evidence and if "the evidence be deemed sufficient … it shall be the duty of the … judge or magistrate to certify the same to the proper executive authority that a warrant may issue for the surrender of such fugitive."

It will be seen that this treaty made two important changes so far as the United States was concerned: (1) It made it the duty of the executive to order extradition in a proper case and took away the discretion, (2) it gave the courts jurisdiction to determine whether a case was made out for extradition.614 These changes made it more difficult in many instances for a refugee to escape: but as ever the courts were astute in finding reasons against the return of slaves.

The case of John Anderson is well known. He was born a slave in Missouri. As his master was Moses Burton, he was known as Jack Burton. He married a slave woman in Howard County, the property of one Brown. In 1853 Burton sold him to one McDonald living some thirty miles away and his new master took him to his plantation. In September, 1853, he was seen near the farm of Brown, when apparently he was visiting his wife. A neighbor, Seneca T. P. Diggs, became suspicious of him and questioned him. As his answers were not satisfactory he ordered his four Negro slaves to seize him, according to the law in the State of Missouri. The Negro fled, pursued by Diggs and his slaves. In his attempt to escape the fugitive stabbed Diggs in the breast and Diggs died in a few hours. Effecting his escape to this province, he was in 1860 apprehended in Brant County, where he had been living under the name of John Anderson, and three local justices of the peace committed him under the Ashburton Treaty. A writ of habeas corpus was granted by the Court of Queen's Bench at Toronto, under which the prisoner was brought before the Court of Michaelmas Term of 1860.

The motion was heard by the Full Court.615 Much of the argument was on the facts and on the law apart from the form of the papers, but that was hopeless from the beginning. The law and the facts were too clear, although Mr. Justice McLean thought the evidence defective. The case turned on the form of the information and warrant, a somewhat technical and refined point. The Chief Justice, Sir John Beverley Robinson, and Mr. Justice Burns agreed that the warrant was not strictly correct, but that it could be amended: Mr. Justice McLean thought it could not and should not be amended.

The case attracted great attention throughout the province, especially among the Negro population. On the day on which judgment was to be delivered, a large number of people of color with some whites assembled in front of Osgoode Hall.616 While the adverse decision was announced, there were some mutterings of violence but counsel for the prisoner617 addressed them seriously and impressively, reminding them "It is the law and we must obey it." The melancholy gathering melted away one by one in sadness and despair. Anderson was recommitted to the Brantford jail.618 The case came to the knowledge of many in England. It was taken up by the British and Foreign Anti-Slavery Society and many persons of more or less note. An application was made to the Court of Queen's Bench of England for a writ of habeas corpus, notwithstanding the Upper Canadian decision, and while Anderson was in the jail at Toronto, the court after anxious deliberation granted the writ,619 but it became unnecessary, owing to further proceedings in Upper Canada.

In those days the decision of any court or of any judge in habeas corpus proceedings was not final. An applicant might go from judge to judge, court to court620 and the last applied to might grant the relief refused by all those previously applied to. A writ of habeas corpus was taken out from the other Common Law Court in Upper Canada, the Court of Common Pleas. This was argued in Hilary Term, 1861, and the court unanimously decided that the warrant of commitment was bad and that the court could not remand the prisoner to have it amended.621 The prisoner was discharged. No other attempts were made to extradite him or any other escaped slave and Lincoln's Emancipation Proclamation put an end to any chance of such an attempt being ever repeated.

W. R. Riddell.

DOCUMENTS

NOTES ON SLAVERY IN CANADA 622

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.