The Journal of Negro History, Volume 4, 1919

In the report by Col. John Butler of the Survey of the Settlement at Niagara, August 25, 1782 (Can. Arch., Series B, 169, p. 1), McGregor Van-Every is named as the head of a family. He was married, without children, hired men or slaves, had 3 horses, no cows, sheep or hogs, 8 acres of "clear land" and raised 4 bushels of Indian corn and 40 of potatoes but no wheat or oats. His neighbor, Thomas McMicken, was married, had two young sons, one hired man and one male slave. He had two horses, 1 cow and 20 hogs, and raised ten bushels of Indian corn, 10 of oats and 10 of potatoes (no wheat) on his 8 acres of "clear land."

596

John White called to the Bar in 1785 at the Inner Temple (probably); he practised for a time but unsuccessfully in Jamaica and through the influence of his brother-in-law, Samuel Shepherd and of Chief Justice Osgoode was appointed the first Attorney General of Upper Canada. He arrived in the Province in the summer of 1792 and was elected a member of the first House of Assembly for Leeds and Frontenac. He was an active and useful member. It is probable, but the existing records do not make it certain, that it was he who introduced and had charge in the House of Assembly of the Bill for the abolition of slavery passed in 1793, shortly to be mentioned. In January, 1800, he was killed in a duel at York, later Toronto, by Major John Small, Clerk of the Executive Council. His will, drawn by himself after his fatal wound, is still extant in the Court of Probate records at Toronto. One clause reads: "I desire to be rolled up in a sheet and not buried fantastically, and that I may be buried at the back of my own house." Buried in his garden at his direction, his bones were accidentally uncovered in 1871 and reverently buried in Toronto. His manuscript diary is still extant, a copy being in the possession of the writer.

597

The statute is (1793) 33 Geo. III, c. 7, (U. C.). The Parliament of Upper Canada had two Houses, the Legislative Council, an Upper House, appointed by the Crown and the Legislative Assembly, a Lower House or House of Commons, as it was sometimes called, elected by the people. The Lieutenant Governor gave the royal assent. The bill was introduced in the Lower House, probably by Attorney General White, as stated in last note, and read the first time, June 19. It went to the committee of the whole June 25, and was the same day reported out. On June 26 it was read the third time, passed and sent up for concurrence. The Legislative Council read it the same day for the first time, went into Committee over it the next day, June 28, and July I, when it was reported out with amendments, passed and sent down to the Commons July 2. That House promptly concurred and sent the bill back the same day. See the official reports; Ont. Arch. Reports for 1910 (Toronto, 1911), pp. 25, 26, 27, 28, 32, 33, Ont. Arch. Rep. for 1909 (Toronto, 1911), pp. 33, 35, 36, 38, 41, 42.

The first Fugitive Slave Law was passed by the United States in 1793. Three years afterwards occurred an episode, little known and less commented upon, showing very clearly the views of George Washington on the subject of fugitive slaves, at least, of those slaves who were his own.

A slave girl of his escaped and made her way to Portsmouth, N. H. Washington, on discovering her place of refuge, wrote concerning her to Joseph Whipple, the Collector at Portsmouth, November 28, 1796. The letter is still extant. It is of three full pages and was sold in London in 1877 for ten guineas (Magazine of American History, Vol. 1, December, 1877, p. 759). Charles Sumner had it in his hands when he made the speech reported in Charles Summer's Works, Vol. III, p. 177. Washington in the letter described the fugitive and particularly expressed the desire of "her mistress," Mrs. Washington, for her return to Alexandria. He feared public opinion in New Hampshire, for he added

"I do not mean however, by this request that such violent measures should be used as would excite a mob or riot which might be the case if she has adherents; or even uneasy sensations in the minds of well-disposed citizens. Rather than either of these should happen, I would forgo her services altogether and the example also which is of infinite more importance."

In other words, "if the slave girl has no friends or 'adherents'" send her back to slavery—if she has and they would actively oppose her return, let her go—and even if it only be that "well-disposed citizens" disapprove of her capture and return, let her remain free.

There may be some difficulty in justifying Washington's course by the opinion of Thomas Aquinas (Summa Theologics, 1 ma., 2 dae., Quaest. XCVI, Art. 4), who says that an unjust law is not binding in conscience "nisi forte propter vitandum scandalum vel turbationem." Aquinas is speaking of an unjust law which may be resisted unless scandal or tumult would result from resistance. Washington is speaking of a law which he considers right, but which he would not enforce if it should occasion such evils. The analogy does not hold as the editor of Charles Sumner's Works seems to think (Vol. III, p. 178, note).

Whipple answered from Portsmouth, December 22, 1796:

"I will now, Sir, agreeably to your desire, send her to Alexandria if it be practicable without the consequences which you except—that of exciting a riot or a mob or creating uneasy sensations in the minds of well disposed persons. The first cannot be calculated beforehand; it will be governed by the popular opinion of the moment or the circumstances that may arise in the transaction. The latter may be sought into and judged of by conversing with such persons without discovering the occasion. So far as I have had opportunity, I perceive that different sentiments are entertained on the subject."

Whipple made enquiry. Public opinion in Portsmouth was adverse to the return of the fugitive. She was unmolested and lived out a long life in Portsmouth and Kittery.

Nothing more clearly and impressively shows the veneration felt by his countrymen for George Washington than the praise the fearless, outspoken, uncompromising hater of slavery, Charles Sumner, of the conduct of the President in this transaction. Sumner considered the poor slave girl "a monument of the just forbearance of him whom we aptly call Father of his Country.... While a slaveholder and seeking the return of a fugitive, he has left in permanent record a rule of conduct which if adopted by his country will make slave hunting impossible." With almost any other man, Sumner would have no praise or reverence for a desire to force a fugitive back into slavery unless prevented by fear of mob or riot or adverse public opinion.

In the same letter Washington gives what may be considered a reason or excuse for his demand. "However well disposed I might be to a gradual abolition, or even to an entire emancipation of that description of people, if the latter was itself practicable at this moment, it would neither be expedient nor just to reward unfaithfulness with a premature preference and thereby discontent beforehand the minds of all her fellow servants who by their steady attachment are far more deserving than herself of favour."

This is the familiar pretext of the master, private or state. Those who rebel against oppression and wrong are not to be given any relief—that would be unjust to those who tamely submit. That very argument was advanced by the ruler across the sea against the proposition to come to terms with Washington and his party who had ventured to oppose the would-be master.

And it is to be noted that Washington did not free those "who by their steady attachment are far more deserving … of favour" till he had had all the advantage he could from their services—he did indeed free them by his will, but only after the death of his wife.

Sumner cannot be said to minimize his merits when he says "He was at the time a slaveholder—often expressing himself with various degrees of force against slavery, and promising his suffrage for its abolition, he did not see this wrong as he saw it at the close of life." (Sumner's Works, Vol. III, pp. 759 sq.)

598

Vermont excluded slavery by her Bill of Rights (1777), Pennsylvania and Massachusetts passed legislation somewhat similar to that of Upper Canada in 1780; Connecticut and Rhode Island in 1784, New Hampshire by her Constitution in 1792, Vermont in the same way in 1793: New York began in 1799 and completed the work in 1827, New Jersey 1829; Indiana, Illinois, Michigan, Wisconsin and Iowa were organized as a Territory in 1787 and slavery forbidden by the Ordinance, July 13, 1787, but it was in fact known in part of the Territory for a score of years. A few slaves were held in Michigan by tolerance until far into the nineteenth century notwithstanding the prohibition of the fundamental law (Mich. Hist. Coll., VII, p. 524). Maine as such, never had slavery having separated from Massachusetts in 1820 after the Act of 1780, although it would seem that as late as 1833 the Supreme Court of Massachusetts left it open when slavery was abolished in that State (Commonwealth v. Aves, 18 Pick. 193, 209). (See Cobb's Slavery, pp. clxxi, clxxii, 209; Sir Harry H. Johnston's The Negro in the New World, an exceedingly valuable and interesting work but not wholly reliable in minutiæ, pp. 355 et seq.)

599

Simcoe was almost certainly the prime mover in the legislation of 1793. When giving the royal assent to the bill he said: "The Act for the gradual abolition of Slavery in this Colony, which it has been thought expedient to frame, in no respect meets from me a more cheerful concurrence than in that provision which repeals the power heretofore held by the Executive Branch of the Constitution and precludes it from giving sanction to the importation of slaves, and I cannot but anticipate with singular pleasure that such persons as may be in that unhappy condition which sound policy and humanity unite to condemn, added to their own protection from all undue severity by the law of the land may henceforth look forward with certainty to the emancipation of their offspring." (See Ont. Arch. Rep. for 1909, pp. 42-43.) I do not understand the allusion to "protection from undue severity by the Law of the land." There had been no change in the law, and undue severity to slaves was prevented only by public opinion. It is practically certain that no such bill as that of 1798 would have been promoted with Simcoe at the head of the government as his sentiments were too well known.

600

Ont. Arch. Rep. for 1909, pp. 64, 69, 70, 71, 74; ibid. for 1910, pp. 67, 68, 69, 70.

The bill was introduced in the Lower House by Christopher Robinson, member for Addington and Ontario, Ontario being then comprised of the St. Lawrence and Lake Ontario Islands, and having nothing in common with the present County of Ontario. He was a Virginian loyalist, who in 1784 emigrated to New Brunswick, and in 1788 to that part of Canada later Lower Canada and in 1792 to Upper Canada. He lived in Kingston till 1798 and then came to York, later Toronto, but died three weeks afterwards. He was one of the lawyers who took part in the inauguration of the Law Society of Upper Canada at Wilson's Tavern, Newark, in July, 1797, and was an active and successful practitioner. His ability was great, but his fame is swallowed up by that of his more famous son, Sir John Beverley Robinson, the first Canadian Chief Justice of Upper Canada, and of his grandson, the much loved and much admired Christopher Robinson, Q.C., of our own time. Accustomed from infancy to slavery, he saw no great harm in it—no doubt he saw it in its best form.

The chief opponent of the bill was Robert Isaac Dey Gray, the young solicitor general. John White was not in this the second house. The son of Major James Gray, a half-pay British Officer, he studied law in Canada. He was elected member of the House of Assembly for Stormont in the election of 1796 and again in 1804. He was appointed the first Solicitor General in 1797 and was drowned in 1804 in the Speedy disaster. An Indian, Ogetonicut, accused of a murder in the Newcastle District, was captured on the York Peninsula, now Toronto or Hiawatha Island, in the Home District, and had to be sent to Newcastle, now Presqu' Isle Point near Brighton, in the Newcastle District, for trial. The Government Schooner Speedy sailed for Newcastle with the Assize Judge Gray; Macdonell, who was to defend the Indian; the Indian prisoner, Indian interpreters, witnesses, the High Constable of York and certain inhabitants of York. It was lost, captain, crew and passengers—spurlos versenkt.

The motion for the three months' hoist in the Upper House was made by the Honorable Richard Cartwright seconded by the Honorable Robert Hamilton. These men, who had been partners, generally agreed on public measures and both incurred the enmity of Simcoe. He called Hamilton a Republican, then a term of reproach distinctly worse than Pro-German would be now, and Cartwright was, if anything, worse. But both were men of considerable public spirit and personal integrity. For Cartwright see The Life and Letters of Hon Richard Cartright, Toronto, 1876. For Hamilton see Riddell's edition of La Rochefoucault's Travels in Canada in 1795, Toronto, 1817, in Ont. Arch. Rep. for 1916; Miss Carnochan's Queenstown in Early Years, Niagara Hist. Soc. Pub., No. 25; Buffalo Hist. Soc. Pub., Vol. 6, pp. 73-95.

There was apparently no division in the Upper House although there were five other Councillors in addition to Cartwright and Hamilton in attendance that session viz.: McGill, Shaw, Duncan, Baby and Grant; and the bill passed committee of the whole.

601

Slaves were valuable even in those days. A sale is recorded in Detroit of a "certain Negro man Pompey by name" for £45 New York Currency ($112.50) in October, 1794; and the purchaser sold him again January, 1795, for £50 New York Currency ($125.00). (Mich. Hist. Coll., XIV, p. 417.) But it would seem that from 1770 to 1780 the price ranged to $300 for a man and $250 for a woman (Mich. Hist. Coll., XIV, p. 659). The number of slaves in Detroit is said to have been 85 in 1773 and 179 in 1782 (Mich. Hist. Coll., VII, p. 524).

The best people in the province continued to hold slaves. On February 19, 1806, the Honourable Peter Russell, who had been administrator of the government, and therefore head of the State for three years, advertised for sale at York "A Black woman named Peggy, aged 40 years, and a Black Boy, her son, named Jupiter, aged about 15 years," both "his property," "each being servants for life"—the woman for $150 and the boy for $200, 25 per cent off for cash. William Jarvis, the secretary, two years later, March 1, 1811, had two of his slaves brought into court for stealing gold and silver out of his desk. The boy "Henry commonly called prince" was committed for trial and the girl ordered back to her master. Other instances will be found in Dr. Scadding's very interesting work, Toronto of Old, Toronto, 1873, at pp. 292 sqq.

602

A number of interesting wills are in the Court of Probate files at Osgoode Hall, Toronto. One of them only I shall mention, viz.: that of Robert I.D. Gray, the first solicitor general of the province, whose tragic death is related above. In this will, dated August 27, 1803, a little more than a year before his death, he releases and manumits "Dorinda my black woman servant … and all her children from the State of Slavery," in consequence of her long and faithful services to his family. He directs a fund to be formed of £1,200 or $4,800 the interest to be paid to "the said Dorinda her heirs and Assigns for ever." To John Davis, Dorinda's son, he gave 200 acres of land, Lot 17 in the Second Concession of the Township of Whitby and also £50 or $200. John, after the death of his master whose body servant and valet he was, entered the employ of Mr., afterwards Chief, Justice Powell; but he had the evil habit of drinking too much and when he was drunk he would enlist in the Army. Powell got tired of begging him off and after a final warning left him with the regiment in which he had once more enlisted. Davis is said to have been in the battle of Waterloo. He certainly crossed the ocean and returned later on to Canada. He survived till 1871, living at Cornwall, Ontario, a well-known character. With him died the last of all those who had been slaves in the old Province of Quebec or the Province of Upper Canada.

603

Mich. Hist. Coll., XIV, p. 659.

604

A fairly good account of the Underground Railroad will be found in William Still's Underground Railroad, Philadelphia, 1872, in W.M. Mitchell's Underground Railway, London, 1860; in W.H. Siebert's Underground Railway, New York, 1899; and in a number of other works on Slavery. Considerable space is given the subject in most works on slavery.

One branch of it ran from a point on the Ohio River, through Ohio and Michigan to Detroit; but there were many divagations, many termini, many stations: Oberlin was one of these. See Dr. A. M. Ross' Memoirs of a Reformer, Toronto, 1893, and Mich. Hist. Coll., XVII, p. 248.

605

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.

606

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.

607

"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.

608

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.

609

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

610

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.).

611

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.

612

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.

613

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.).