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\:, 
 
 Sbction II., 1898. 
 
 [137] 
 
 R 
 
 97/.04/ 
 
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 ^z-/y' 
 
 / 
 
 Trans. R. S. C. 
 
 IX. — The Loyalists and Slavery in New Brunswick. 
 By I. Allen Jack, Q.C, D.C.L., of St. John, N.B. 
 
 (Communicated by Sir J. Bourinot, and read May 26, 1898.) 
 
 Any one who studies the history of the struggle for independence by 
 the old British Colonies in North Araericta cannot fail to wonder why no 
 serious effort was then made to secure liberty for slaves. One would 
 suppose that amongst those who not only protested, but fought against 
 taxation without representation as a monstrous evil, at least some would 
 have sought to eradicate a system which denied the semblance of freedom 
 to a class of inoffensive beings, or would have strongly objected to the 
 continuance of a glaring inconsistency. Perhaps, indeed, the slaves had 
 sympathizers and friends among the revolutionists, who withheld from 
 action, or even expression of sympathy from a fear of creating dissension 
 among those whose strength depended on their unity. But if this was 
 the case, how was it that these sympathizers and friends were not indeed 
 voiceless, but nationally ineffective for so long a period after the war of 
 independence was over ? It was indeed little short of a century after the 
 commencement of the revolution, and then rather as a matter of policy 
 than of righteousness, that slavery was abolished in the United States. 
 
 To English-speaking people of to-day, excepting perhaps a few of 
 those who reside in the former slave-holding states of North America, 
 slavery generally seems to be so wholly indefensible that they find it hard 
 to believe that it not only existed, but was approved by many of British 
 descent within the present centuiy. 
 
 We are disposed to regard it in the samt way as we regard drunken- 
 ness and profanity in which our ancestors too often indulged, and not 
 always privately, without public censure ; to abandon any effort to fathom 
 such anomalies ; and to congratulate ourselves upon our disapproval and 
 entire or partial renunciation of these evils. 
 
 Now those who believe that North Americans, a hundred years ago, 
 owned and employed slaves either without or against ethical reason are in 
 error. Without doubt many slave-ow^ners never seriously considered the 
 questions involved, and were content to accept the conclusions, without 
 following the arguments of their fellows. But those who resorted to reason, 
 although perhaps influenced by personal considerations, were supplied with 
 arguments which had little or no semblance of being baseless, and which, 
 if not baseless, fairly supported the maintenance of slavery. 
 
 Every student of social institutions, sooner or later, is sure to discover 
 that, without some knowledge of the history and principal features of 
 Roman law, he is placed at a serious disadvantage. The present Archbishop 
 
' 
 
 188 
 
 ROYAL SOCIETY OF CANADA 
 
 of Canterbury, in one of a series of compositions written by him and others, 
 which attracted much attention and some hostility when published) 
 forcibly suggests the utility of such knowledge. Treating of the prepara- 
 tion of the world for the introduction of Christianity, he credits the Jews, 
 the Greeks and the Eomans each as playing an important part ; the first 
 contributing to humanity morals ; the second, love for the beautiful in 
 nature and art ; the third, respect and aptitude for order and law. 
 
 Both before and for centuries after the dawn of the Christian era, the 
 only systemaiic law demanding close attention was thai of Rome and, 
 down through the centuries, it has influenced nearly every scheme of 
 national jurisprudence, in some instances wholly, in others partially or 
 indirectly, until to-day. 
 
 In a brief but necessary reference to the Eoinan system, it should be 
 noted that the courts and processes of law wore at first only available to 
 Roman citizens or for police purposes. With the extension of the empire) 
 however, and the appearance in the capital of persons of almost every 
 nationality, the necessity arose for providing methods whereby their 
 wrongs should be righted and their right secured. In consequence, a 
 special official, the Pnctor Periyrinus, was appointed, whose functions were, 
 in part, to investigate and determine such matters as related to resident 
 aliens, and demanded judicial intervention. As a result of the researches 
 of this functionary, a great deal of knowledge was obtained of what 
 related to the laws prevailing among many and divers peoples. Perhaps 
 among the results of his investigations, which when digested were known 
 as the Jus Gentium, the most important was the appearance, sometimes in 
 several and occasionally in all, of common features. Among those in the 
 latter class may be mentioned slavery which seems to have prevailed, 
 although in some instances under more or less equitable regulations, among 
 practically all the primitive races. Now it is generally admitted that, at 
 least occasionally, injustice follows a persistent adherence to the teaching 
 deducible from cox populi vox DeL quod semper quod ubique and other 
 classical or quasi classical commonplaces, and no one need be surprised to 
 learn that such teaching is largely responsible for the maintenance of the 
 institution under consideration. It is probable that the developments in 
 connection with the administration of law for foreigners, at first, attracted 
 little notice, but eventually they aroused a warm interest, and largely 
 served to originate or support striking theories and methods. It should 
 always be borne in mind that the Romans were very practical people, and 
 that even their lawyers evinced but little tendency to draw upon the 
 imagination to aid them in argument. 
 
 When, however, the Greeks, as is vrell-known, owing to their higher 
 culture and acumen, led their conquerors into voluntary captivity in the 
 realms of art and science, the Roman lawyers did not resist, or resisted 
 inefiectually. Hence it followed that, thereafter, there appears in the 
 
' 
 
 [jack] 
 
 SLAVERY IN NEW BRUNSWICK 
 
 139 
 
 history and record of the evolution of theoretical and applied law in Rome, 
 clear and not unabundant evidence of the intluenco of Greek philosophy. 
 Now of all the philosophical systems emanating from Greece, that of the 
 Stoics appealed moat strongly to the best of tho Eomans, not merely by 
 reason of its excellence, but because of what may, not inaptly, be termed 
 its manliness. There is no reason to doubt that it was from the Sioics 
 that the juriscon^ults derived that conception of natural law which, 
 directly or indirectly, in their day and through succeeding ages, has 
 influenced both individual and national conduct to no inconsiderable extent. 
 It is therefore necessarj' for the ])resent ])urpose, to ascertain what was 
 the creed of the Koman lawyers alter they had accepted the doctrines 
 indicated. 
 
 In common with other educated persons not of their profession, they 
 seem to have considered that man was capvible, by his unaided reason, 
 to determine between absolute right and wrong ; that when he did 
 what was wrong, he consciously put himself in opposition to natuie ; and 
 that, if he did not weaken his power by repeated acts of rebellion against 
 nature, he was and always would be capable of acting and thinking in 
 accordance with the terms of a perfect standard of excellence. 
 
 With such a premise as this, it is easy to conceive that some such 
 syllogism as the following might be constructed. Man was originally 
 created with a knowledge of the ditference between right and wrong, and 
 that the former was pi'oferabie to the latter, and with a perfect capacity, 
 requiiing effort, to follow the one or the other. Through a continuous 
 failure to avail himself of hi.s knowledge and power, although capable of 
 regaining what he has lost, he has deprived himself of the benefit of loth. 
 Therefore that which was done or thought by man, px'ior to the com- 
 mencement of his degenei'ation. was right. 
 
 Pride in his nationality would doubtless occasionally lead a Roman 
 to hesitate before appi'oving an ancient law or custom unknown to his 
 most remote ancestora. But when plac^ed upon the same level as legal 
 fictions and equity, one aiding the i)rocedure, the other claiming to 
 smoothe or dissipate the aspeiities of law the new theory was generally 
 readily accepted. This brief statement may serve to explain the origin and 
 nature of the Jus Gentium and of the Jus Katurit; and so make it mani- 
 fest that, notwithstanding their occasional use as convertible terms, they 
 wei'e quite distinct from each other. It may, however, be observed that 
 slavery, from the fact that it was an ancient and general, if not universal, 
 usage was recognized and apjiroved by both the Jus Gentium and the Jus 
 Natunv. 
 
 For hundreds of yeare, the principles of the Jus Xatunv had little or 
 no influence upon civilization, and received but scant consideration. But 
 at length, when the fii-st half of the eighteenth century had passed, they 
 were brought to light from their obscurity and exhibited for new purposes 
 
140 
 
 ROYAL SOCIETY OF CANADA 
 
 and with fresh tvssociation and adornment, not to lawyers forming a 
 limited class, but to the world. Roussfiau, the prime evangelist in the 
 movement, soon secured a large following of ardent disciples to whom he 
 expounded his gospel. This comprised not only the law of nature as 
 determined by research, but his own picturesque conception of conditions 
 jissumed to have prevailed among human beings living in a state of nature 
 and subject only to her oi'dinances. Careful and thorough historical in- 
 vestigation, which would liave exposed the fallacies in his teachings, us 
 may well be supposed, found no portion of his method. Partly from 
 antipathy to the Jews, but partly because it was approved by the clergy 
 for whom they had no love, ho and his fellows ignored even the pentateuch, 
 notwithstanding its valuable rules for conduct, ft is needless to state that 
 such a work as the Civiias Dei was not consulted by them ; and that the 
 a&serlion of Christians that perfect government canuot be secured till 
 human hearts are made wholly subservient to God's will was vigorously 
 denied by the memboi's of this French school of thought. The retention 
 of the Roman Jus JVatui'w, based as it was upon facts, as a foundation for 
 the new philosophy was, at the same time, a source of strength and weak- 
 ness ; of strength, because it imparted to it that flavour of antiquity which 
 always helps to render a claim authoritative ; of weakness, because the 
 results of historical inquiry often conflict with the conclusions of daring 
 theorists. If freedom and equality, for instance, are desirable and demand- 
 able, what becomes of the ancient and once general institution slavery ?' 
 
 It seems strange to us, who have heard much of evolution in the vis- 
 ible, if not invisible, world, that a system based upon so opposite a prin- 
 ciple, and reflecting so superciliously and severely as it did upon the 
 efforts and methods of society past and present, should meet with favour. 
 That it did cannot be gainsaid, and although its bright garnishment and 
 brighter promises probably attracted those who were guided by emotions 
 rather than by knowledge or by reason, it did not fail to captivate many 
 a thoughtful, educated man. Even to-day, the not infrequent application 
 of the term unnatural, or contrary to nature, to an act or thought incon- 
 sistent with what is right, indicates that Rousseau's influence, though 
 probably feeble, is not extinct. 
 
 But yet, while making allowance for the temporary ascendancy of 
 the picturesque over the symmetrical, of phantasy over logic, it is hard 
 to believe that people generally so religious as the people of the colonies 
 in America who shook off the British yoke, should accept instruction 
 from the French doctrinaires, embodied in the theory of a state of nature 
 which if not wholly fantastic, was contrary to reason and, if not entirely 
 irreligious, was certainly anti-christian. 
 
 1 It may not be necessar}', but it is only proper, to state that much of what is 
 set forth above, as to the history and character of the laws of nation.s and nature 
 and of Roman system of philosophy has been obtained from Sir Henry Main's most 
 valuable and interesting treatise on Ancient Law. 
 
[jack] 
 
 SLAVERY IN NEW BRUNSWICK 
 
 141 
 
 That such was the case is evident from the reported utterances and 
 writings of their leadei-s and, above all, from the declarations made on 
 behalf of the entire body of the revolutionists. A inong these declarations) 
 that relating to the equality of man is incomprehensible without glosses; 
 and that which asserts his right to freedom, notwithstanding the ball 
 given for the negroes of Boston by Governor Hancock, before the close of 
 the eighteenth century, was ]»ractically deuied by the permitted continu- 
 ance of slavery. 
 
 The revolution of the old British colonies having been successful, 
 two forms of government were thencetbrth brought into contrast with 
 each other ; and a line divided two peoples largely of the same descent, 
 and with the same language, common law and religious faith. On the 
 one side of this line, however, were the professed champions of equality 
 and freedom for mankind, on the other the supporters of the British 
 connection with America. But, notwithstanding the assertions to the 
 contrary of their excited and prejudiced neighbours, there was nothing in 
 the principles or status of the king's American friends to preclude them 
 from attaining the highest social rights and privileges. 
 
 The incident hereafter related which forms the motive of this paper, 
 maj' be regarded as a partial proof of the propriety of this assertion. 
 
 The province of New Brunswick, now forming a part of the Domin- 
 ion of Canada, was mainly peopled by loyalists, among whom were many 
 families and representatives of families who had occupied most prominent 
 positions, socially and politically, in the leading colonies before the war. 
 In 1800, only seventeen years after their arrival on its shores, New Bruns- 
 wick was but sparsely populated, and even its commercial metropolis 
 contained but a few thousand souls. None of the inhabitants were 
 wealthy and most of them were extremely poor, 'and it is quite certain 
 that the hardest problems of material life demanded the time, attention, 
 and energy of all of them. 
 
 The existing conditions would suggest the conclusion that any one in 
 the province who possessed a slave, might then and there obtain the 
 fullest benefit of the unremunerated labour of that slave without interfer- 
 ence or protest. It so happened, however, that at this time, and in this 
 place, a few of the tories supposed by their republican neighbours to favour 
 all kinds of oppression, put their heads together and resolved that, God 
 helping them, thei-e should be no more slaves in New Brunswick. Before 
 stating the results consequent upon their resolve, it is only fitting to give 
 some account of the chief actors in this drama which, although enacted in 
 a then unimportant locality and before a limited number of persons, 
 deserves more attention than it has ever received. 
 
 Of the individual chiefly concerned little or nothing is known, except 
 that she was a black woman named Nancv Morton. There is, however, 
 recorded at the office of the registrar of 'ieeds. Saint John, N. B., in accor- 
 
142 
 
 ROYAL SOCIKTY OK CANADA 
 
 dance with tlio idcnthat slaves snvour of the realty, on the twelfth day of 
 Janmiry, 17'JI, abill ofwiloof a slave bearin/^ her Christian name, who may, 
 perhaps, have been she. The instrunient is dated the thirteenth day of 
 November, 1778,, and executed liy one John Johnson, of the town.ship of 
 Brooklyn, in Kind's Covinty, Lonf< Island, province of New York, wlio 
 thereby < onveyed, with a covetiant to warrant and det'end tiio sale, to 
 Samuel iJuHy, inn-keeper, in consideration of forty pounds of current 
 money of that province, " a certain negro female abought fourteen years 
 of age and goes by tlie name of Nancy." The highly original effort to 
 spell about (abought) and other peculiarities in the document, indicate 
 that it was ])robably the work of a rural justice of the peace. 
 
 Isaac Allen was the judge under whoso tiat the proceedings on 
 behalf of the slave were instituted. His grandfather, an Englishman by 
 birth, came to America and became a judge of the Supreme Court of New 
 Jersey, where Isaac was born in 1741. He was educated for and admitted 
 to the bar, practised law in Philadelphia and ut Trenton, N. J., and in 
 1769, married a Miss Campbell whose parents were Irish. He served 
 during the rebellion under the Crown, as lieutenant-colonel of the New 
 Jersey volunteers, and was present at the battles of King's Mountain and 
 p]utaw Springs. lie was possessed of valuable property in Pennsylvania 
 of which he was deprived on account of his political course, and at the 
 termination of the war he and his family went to Nova Scotia, subse- 
 quently removing to New Brunswick. When the supremo court of the 
 latter province was established he was appointed one of the ]niisne judges, 
 his commission bearing date the twenty-fifth day of November, 1784. 
 Ho selected for his place of residence, a tract of land some seven miles 
 above Fredericton on the River Saint John, on a part of which was an 
 Indian village called Aucpaque, meaning tide head or tide level, this 
 being the ])oint at which the downward current was supposed to tirst 
 encounter the influence of the Bay of Fundy. in 178(1, when Judge Allen 
 and his family wei'o residing at this place, an incident occurred which 
 caused them much anxiety, an Indian having been shot by one of the 
 recent settlers. The very prompt trial, conviction and execution of the 
 culprit, however, apparently satisfied the members of the tribe; and as 
 the judge treated them with marked consideration, always remembering 
 the interference of the pale faces with their rights, he soon acquired their 
 entire confidence. As a matter of fact the exceedingly great friendliness 
 of the tribes-men eventually became somewhat oppressive, especially as 
 they deemed it necessary to prove their atfection by very frequently, but 
 not always conveniently, becoming his guests. The Indians, however, did 
 not monopolize the interest which ho was disposed to manifest in ill-used 
 persons, and the condition of the iiegro slaves occupied his attention to a 
 marked extent. Ho corresponded with Wilberforce, the distinguished 
 abolitionist, and manumitted his own slaves, of whom some of the descen- 
 
[jack] 
 
 SLAVERY IN KEW BRUNSWICK 
 
 143 
 
 this 
 
 first 
 
 len 
 
 uch 
 
 the 
 
 the 
 
 id as 
 
 ly as 
 but 
 did 
 used 
 to a 
 shed 
 •cell- 
 
 
 dunts roHido to-day, iieivr the site of the jud/^e's mansion which was 
 hunied to the ground many yours ago. With it, unfortunately, his letters 
 and manuscripts and much that would aid in writing of his life and char- 
 acter were forever lost. Family tradition pictures liim as a jusl, l)ut kind 
 hearted man, and dwells upon the fact that 'lo insisted upon the members 
 of liis household living econorriically and without ostentation, so that less 
 fortunate neighbours should have no reason to ct)mplain of marked ditter- 
 ences in the condition of persons who were all at that time sutlering by 
 reason of their loyalty. lie died, in his sixty-sixth year, in 180G, at his 
 residence at Aucpaque, leaving one son and several daughters, most of 
 whom lived to an extreme old age. A number of his descendants are 
 now living in J^ew Brunswick, among them Sir John C. Allen, the late 
 respected chief justice of the province.' 
 
 Sampson Salter Blowei-s, although taking no i)art in the argument or 
 hearing, was interested in the result, and assisted co«insel lor the slave 
 with advice and authorities. Mr. Blowers was the son of a gentlenmn 
 who had served as a lieutenant in the j)rovincial forces raised for the 
 first siege of Louisbourg, and was born in Boston, Massachusetts, in 1742. 
 He graduated from Harvard College in 17(j3, and after studying law with 
 James Otis, the somewhat famous anti-British pamphletier, according to 
 Campbell in his history of Nova Scotia, or, as is more probable, with 
 Thomas Hutchinson, the last governor of Massachusetts under the Crown, 
 as Sabine states, was admitted to the bar in 1707. He practised law in 
 Boston until 1774, when, to avoid political controversy, he sailed for 
 England with his recently married wife who, Sabine thought, was a 
 daughter of Benjamin Kent, of Massachusetts, at first a Whig, but after- 
 wards a loyalist and refugee. Sabine states that in 1770 Mr. l^lowers 
 was associated with 3Iessrs. Adams and Quincy as counsel on behalf of 
 the British soldiers who were tried for their agency in the Boston mass- 
 acre, so termed, in that year. He reached New York in 1778 and resided 
 there or in lihode Island, acting in various civil cupacities under the 
 Crown until the close of the war when he removed with his family to 
 Halifax, Nova Scotia. He wn^ appointed in 1785 attorney-general, in 
 1788 a member of the council, and in 179" cliief justice and president of 
 the council of that province. Ho retired from public life in IS'S'ii, and 
 died in 1841, in the ninety-ninth j-ear of his age. He received a visit 
 a year before his death, from ex-Presideni Adams and his son Charles 
 Francis, and is described by the latter in his diary, probably correctly, as 
 " the last of the loyalists." Campbell, from whose history this abstract 
 of the life of this striking jjorsonage is chiefly drawn, quotes the Honour- 
 able Joseph Howe for the statement that the chief justice never wore an 
 overcoat in his life. This, in itself, suggests that he was a remarkable 
 man physically, even if his mental and intellectual gifts and acquirements 
 
 1 Sir John C. Allen died subsequent to the reading of this paper. 
 
144 
 
 ROYAL SOCiKTY OF CANADA 
 
 liftd not Hocurod for liiin, us they did, n first place uinon^ tlie many 
 worthies lo8t to the now republic, but j^uiiiod for the loyal provinces, lie 
 died childlcHS. 
 
 Ward Chipniun, who acted as attorney and connsel for the slave, was 
 the son of John C'hi|)tnan, a menilier of the Massachusetts bar, and was 
 born in B(>8ton in 175.'{. After <^raduatin<; at Harvard, he studied law, 
 was duly admitted and ])ractised as a lawyer in Boston until 177(». 
 Before the evacuation of New York, he was employed as secretary of a 
 conimission to adjiulicate ujion claims for supplies for the Crown. That 
 ho was fairly remunerated for this .service appeals from the following 
 extract from a letter to him from Jonathan Sewall the elder, who had 
 ably controverted the jtolitical writinijs of Jamos Otis, written at Bristol, 
 England, the lifteenth of March. 1780: "Till you become a father, my 
 dear Chipman, you will never realize the pleasure I received from your 
 account of your situation at Mr.-. Ogi Ivies. Lodging and board with a 
 servant and horse at £IS0 per annum, and your income £300 per an.uan 
 — how much better this than to visit in Hngland upon £100." When 
 New York was evacuated Mr. Chipman went to England, whence, in the 
 summer of 178'4, he sailed for New Brunswick, receiving the honorary 
 appointment of solicitor-general of that province and that of recorder of 
 the city of Saint John. There is reason to bclievo that he had not then, 
 or perhaps later, learned the art of living within his means, and, although 
 his income at this time appears to liave been limited to bis half-pay, £91 
 per annum, before his embarkation, be expended £3 : 15 : (Jd upon a dress- 
 ing-box, 16 pounds of French iiair powder and other toilet accessories. 
 He commenced the practice of law in the spring of 1783, his office hours 
 being from 8 a.m. till 3 p.m. Jonathan Sewall the younger, who after- 
 wards became attorney-general aiid chief justice of Lower Canada, 
 entered as Mr. Chipman's student at this time and was admitted an 
 attorney from his ottice. Stephen Sewall, brother of the embryo chief 
 Justice, also studied law till be became an attorney, under the solicitor- 
 general, and the parents of the young men came to reside in Saint John, 
 whore their father died in 17!>6. Jn 1785, Mr. Chipman was selected as 
 one of tho government candidates for the city at the first general election 
 for the provincial legislature, and, after an exciting and even riotous 
 contest, he and his fellow-nominees for the city and city and county of 
 Saint John were duly returned. 
 
 On the l.'4th of October, 178tJ, he married Elizabeth, the eldest 
 daughter of William llazen, one of the first grantees of St. John, and in 
 residence there before the landing of tho loyalists. Shortly after his 
 marriage, Mr. Chipman purchased a plot of ground on Union street, at 
 the northerly end of Prince William street, on which he erected a 
 commodious house, in which he subsequently I'esided. This building is 
 still standing, and possesses interest not only as the home of a leading 
 
[jack] 
 
 HLAVERY IN NEW BRUNaWICK 
 
 UB 
 
 ,ng IS 
 
 loyiilinl iiikI hiHHon during; thoir lives, hut uh tlio tomporury abiding-pluco 
 ot tho Duke of Kent and uIho ol" the Priiiee of Wales. Whether Mr. 
 Clii|iinaii failed in courting popularity or lUitlenMl from supporting 
 ineasuroH not generally approved by his constituents is not apparent, but 
 at tho second general election he was returned for J^orthuniberland 
 county instead of the city of Saint John. He does not appear lo have 
 had a leaning to political life, and in a letter written about this time, he 
 jdainly intimates that he had sought election partly from deference to 
 the wishes of his friends, and partly in the unfulfilled ht)])ethat he might 
 secure the speaker's chair. Jle, tor a short time, acted as attorney- 
 general, but hin appointment to tho ottice by the governor was not 
 confirmed by the Crown. In 179(1, however, his services and abilities 
 were substantially recognized by his being seleciod as agent and counsel 
 for the Crown before the commission created to determine tho true 
 boundaiT between the United Slates and New Brunswick, and was paid 
 £9(J0 sterling per annum for his services. As tho labours of this commission 
 were continued for two years and nine months, and he was allowed 
 to draw his half-pay as deputy muster nuister-general during this period, 
 one would suppose that ho fared bettor than most of his contemporary 
 lawyers in the province. Yet in his letters he complains of poverty, 
 although he liad managed to incroaeo the area of land about his dwelling 
 to such an extent that it comprised a substantial block. On tho other 
 hand, as in 1802 he strongly protested, on behalf of himself and his 
 brother practitionei's, against tho passage of an act which increased tho 
 jurisdiction of justices' courts from £3 to £5, which deprived lawyers of 
 costs under tho scale of the supremo court where amounts to be collected 
 were under the latter sum, it certainly would seom that the practice of 
 law in New Brunswick was not then remunerative, indeed, from a state- 
 ment in a letter from Mr. Chipman in 1808, it appears that his annual 
 income did not then exceed £200. In ISOtJ he was made a member of 
 the council, and in 1809, although somawhat disappointed in not being 
 appointed chief justice, he became a puisne judge of the supremo court. 
 It is a somewhat striking tribute to his capacity and tidolity, that ho was 
 again, in 1814, employed by the Crown in the same capacity as before, 
 and appeared before tho second commission to settle the interruvtional 
 boundary, under the terms of the treaty between Great Britain and the 
 United Slates of America. 
 
 In 1823 Judge Chipman, alleging as reasons his age and physical 
 intirmity, applied for leave to retire from public service, but before any 
 action was taken upon his request an event occurred which directly 
 att'ected his intentions. 
 
 On tho 2'7th of March, in tho last-mentioned year, Majoi -(jreneral 
 Smyth, lieutenant-governor of New Brunswick, after a short illness, 
 died, and on the first of April following, a meeting of the council was 
 
146 
 
 ROYAL SOCIETY OF CANADA 
 
 held to consider what should be done under the circumstances. The 
 Honourable George Leonard, the senior member, was not present, but a 
 letter from him was read in which he stated that, owing to his age and 
 feeblei'oss, he declined to act as administrator. The Honourable Christo- 
 pher Billop, then in his eighty-sixth year, the next in seniority, wrote 
 claiming the right, and summoning the members to attend before him at 
 Saint John, but failed to appear at this meeting, which took place at 
 Fredericton. Those who were present, while not disputing this claim, 
 came to the conclusion that it was necessary to act promptly, and, with 
 Judge Chipman's concurrence, selected him, as the senior member pres- 
 ent, to administer the affairs of the province. A somewhat lively conflict 
 ensued between Mr. Billop and the administrator de facto, and proclama- 
 tions were issued ty each, but the British government, while acknowl- 
 edging the right of the former, declined to interfere with the action of 
 the council. 
 
 Mr. President Chipman presided at a session of the legislature, which 
 opened on the twenty- tirst of January, 1824, when ho must have been 
 greatly gratified, not only on account of his personal honoui-s, but from 
 the fact that his son, who subsequently distinguished himself as Chief 
 Justice of New Brunswick, was presented for approval as speaker of the 
 House of Assembly. 
 
 It is not improbable that the mental and physical labours of the last 
 year of his life were too great for one who really needed rest, but, be 
 that as it may, the end came' on the linth of February following his 
 happy experience last mentioned. 
 
 Judge Chipman possessed an interesting and pleasing personality 
 and abundance of natural and acquii'ed powei-s. His abilities were per- 
 haps greater than his contemporaries always perceived, and greater than 
 posterity, specially attracted by the attainments of his brilliant son, has 
 thouglit pro])er, as a rule, to concede. 
 
 All the data for the foregoing biographical sketch of Judge Chipman, 
 most of the facts relating to Judge Allen, and the account of Nancy 
 Morton's case and the immediate results, with the letters hereafter set 
 forth have been collated from manusciipt notes made by the late Joseph 
 W. Lawrence of Saint John, N.B. It gives the present writer great 
 pleasure to express his thanks to the representatives of this most worthy 
 gentleman for the permission to make these extracts from this very val" 
 uable and important collection. Mr. Lawrence although unable to claim 
 a loyalist ancestor, devoted all his energies for many years, to the task of 
 gathering and recording all available material in relation to the loyalists, 
 with far more enthusiasm than their descendants have generally exhibited. 
 The remainder of the story does not require many words. 
 Mr, Chipman, neither expecting nor receiving remuneration, and 
 Kimply and solely as a labour of love, undertook to devote all his know- 
 
 
[jack] 
 
 SLAVERY IN NEW BRUNSWICK 
 
 147 
 
 ledge and mental energies to help to obtain liberty for the slave Nancy 
 Morton, and faithfully fulfilled his undertaking. His Brief, as it may be 
 called, although it is rather his speech written in advance, was acquired 
 by Mr. Lawrence and presented by him to the writer of this paper some 
 years ago. As a remarkable example of the result of steady indefatigable 
 and well directed ettbrt, if for no other reason, it deserves to be made 
 public and is thei'efore printed herewith. It forms a conspicuous proof 
 of the standard of knowledge of law attainable by American colonists, 
 and in a department somewhat outnide the routine of an ordinary prac- 
 titioner. Moreover, considering the paucity of authorities which may be 
 imagined to have been, and which, if Mr. Chipman's statement is correct, 
 there was in the newly created, struggling province, the number, charac- 
 ter, and variety of the citations, apart from their use and arrangement, 
 are simply amazing. Surely had Shakespeare ever heard of so large and 
 excellent a piece of gratuitous work by a member of the bar, he would 
 never even have insinuated that " the breath of an unfee'd lawyer " is 
 valueless. 
 
 It is most probably safe to state that the burthen of preparation for 
 argument on behalf of the slave rested on Mr. Chipman's shouldei-s, 
 although hlr. Samuel Denny Street was his associate counsel and Chief 
 Justice Blowers rendered valuable assistance. 
 
 Mr. Bliss, attorney-general for New .Brunswick, and four other 
 members of the bar of that province, appeared for the master on the 
 argument. The atlorney-general's speech was divided into thirty-two 
 heads, s;nd in all probability fully presented his case for the consideration 
 of the court. It is not necessary, however, to refer to his reasoning, nor 
 to set out in detail the arguments at one time advanced in favour of 
 slavery, of which one only has been mentioned ; the intention of this 
 paper being principally to show in what manner the loyalists dealt with 
 the claim of the enslaved to be free. 
 
 The proceedings on behalf of Nancy Morton were commenced by 
 habeas corpus addressed to one Caleb Jones, and the argument took place 
 on its return. Why Jones was luiined is not clear, but he may have 
 acted in some capacity on behalf of Stair Agnew, the real master of the 
 slave. This gentleman was a captain in the Queen's Eangers, settled 
 opposite Fredericton, for thirty years representetl York county in the 
 House of Assembly, and died in 1821, aged si.xty-thrce years. 
 
 The four judges, constituting the court, were divided in opinion after 
 the argument, Chief Justice Ludlow and Judge Upham holding that the 
 return to the writ was sufficient, and Judges Allen and Saunders main- 
 taining a contrary view and in favour of granting liberty to the slave. 
 
 The following are the letters jnentioned above, and having a direct 
 bearing upon the matter discussed. It is scarcely necessary to state that 
 the Mr. Strange, mentioned in the letter from Chief Justice Blowers, was 
 
 Sec. II., inyn. 10. 
 
f 
 
 148 
 
 ROYAL SOCIETY OF CANADA 
 
 his predecessor in office yvuo had been removed to the chief justiceship of 
 Bombay. The suppressio veri, acknowledged by Mr. Chipman, may be 
 viewed ditferently by diii'erent persons, but no lawyer would be likely to 
 condemn him, though opposing counsel might be censured for not 
 discovering that which was apparently in favour of their contention. 
 
 St. John, N.B., December 16th, 1799. 
 Dear Blowers, 
 
 The occasion of this letter is a subject which has from time to time 
 been under judicial discussion here, but has never yet received any final 
 determination on principle. 
 
 At length an habeas corpus has been brought upon which the broad 
 question is to be decided. It stands for argument at the next term of the 
 supreme court, and 1 am a volunteer for the rights of human nature. 
 The court is divided. The chief justice undertakes to vindicate the right 
 of slavery, and Judge Allen as strenuously insists that it is beyond the 
 power of human nature to justify it. I do not know that the opinion of 
 the other judges is made upon the point, but I do not think it impossible 
 that they will also be divided. 
 
 I do not mean to enter into the merits of this question in this letter, 
 nor should I have troubled you on this occasion were it not that our 
 chief justice grounds himself principally upon what he calls the "Com- 
 mon Law of the Colonies," by which, he says, this doctrine has been 
 uniformly recognized and established without any act having ever passed 
 in any one of them, directly authorizing slavery. How this fact is as 
 it regards the other colonies and islands, I know not, but it becomes of the 
 first importance to ascertain the law of Nova Scotia on this head, as, if 
 there is any such principle of our Common Law, we must derive it imme- 
 diately from you. 
 
 I confess the idea of any such Common Law in the colonies, not only 
 unknown, but repugnant to the Common Law of England, it appears to me 
 to be rather fanciful. I write, therefore, for information what the law 
 and practice are with you. Whether the question has ever been judi- 
 cially determined, whether there was ever any act of Assembly in your 
 province upon the subject, and upon what ground the right of the master 
 is supported, if slaver}' is recognized at ail among you. 
 
 "With respect to the question at large, we are very deficient here in 
 any treatises upon it, having no public library and but inditterent private 
 ones, and these very much scattered. 
 
 I have now only to beg you will forgive the freedom I have taken 
 and to present my most affectionate regards to Mrs. Blowers and other 
 friends at your fireside, permit me to assure you that I am 
 
 Most faithfully your devoted friend. 
 
 Ward Chipman. 
 Hon. S. S. Blowers, 
 
 Halifax. 
 
[jack] 
 
 SLAVERY IN NEW BRUNSWICK 
 
 149 
 
 sticeship of 
 an, may be 
 be likely to 
 3(1 for not 
 ention. 
 
 15th, 1799. 
 
 ime to time 
 d any final 
 
 1 the broad 
 ;erm of the 
 lan nature, 
 e the right 
 beyond the 
 opinion of 
 impossible 
 
 this letter, 
 t that our 
 ;he "Com- 
 3 has been 
 iver passed 
 i fact is as 
 mes of the 
 lead, as, if 
 e it imme- 
 
 s, not only 
 lears to me 
 it the law 
 
 jeen judi- 
 in your 
 
 he master 
 
 it here in 
 nt private 
 
 xvti taken 
 and other 
 
 'MAN. 
 
 Halifax, December 22nd, 1799. 
 My Bear Ciiipman, 
 
 Yesterday I received yours of the 15th nst. by post. I often think 
 j with pleasure on the days we laboured together in our vocation at New 
 ■ York, when we lived in habits of friendly intercourse ; and although we 
 have been so long separated, still chen'sh with great warmth my affec- 
 tionate esteem for you. 
 
 The question respecting the slavery of negroes has been often agitated 
 here in different ways, but has not received a direct decision. 
 
 My immediate predecessor dexterously avoided an adjudication of 
 the principal point, yet as he required the fullest proof of the master's 
 claim in point of fact, it was found generally very easy to succeed in 
 favour of the negro, by taking some exceptions material to the general 
 question, and therefore that course was taken. 
 
 The right to hold a negro by this tenure is supposed by us to be 
 maintainable, either by the Common Law of England, the Statute Law 
 of England and the Colony, or upon adjudged cases, and such seemed 
 H always to be Mr. Strange's opinion. 
 
 Xo lawyer ever talked with us of Common Law of the Colonies, as 
 distinguished from that of England, nor would our late chief justice have 
 countenanced a position of that kind. 
 
 The Common Law of England has been claimed and recognized as 
 the birthright of every British subject in the colonies and has been 
 so considered by the most eminent lawyers in England, as well as by 
 the supreme court of judicature in most, if not all, the British colonies in 
 America before the Eevolution. 
 ': The Act of Federation, which establishes the present constitution of 
 
 the United States recognizes th^ Common Law of England as the basis 
 ofit. 
 
 Agreeable to the practice which formerly obtained in case of Villen- 
 age in Eiiglantl, a summary decision of the question of slavery between 
 master and negro here has always been resisted, and the party claiming the 
 slave has been put to his action ; and several trials nave been had in 
 which the jury has decided against the master, which has so discouraged 
 them that a limited service by Indenture has been generally substituted 
 b}' mutual consent. Mr. Strange always aimed to effect this, and gener- 
 ally succeeded. 
 
 We have no Act of the province recognizing the slavery of negroes 
 as a statute right. An attempt was once made in the House of Assembly 
 to introduce a clause of the kind in a Bill for the regulation of servants, 
 but it was rejected by a great majority. 
 
 Some years ago I had determined to prosecute one for sending a 
 negro out of the province against his will, v»^ho had found means to get 
 back again, but the master being willing to acknowledge his right to 
 freedom nothing further was done. 
 
180 
 
 ROYAL SOCIETY OF CANADA 
 
 On that occasion I made a few short notes which 1 send you enclosed 
 in their very rough state. They will shew you the ground on which I 
 intended to proceed. When you have done with them be so good as to 
 send them back to me. 
 
 Since I have been Chief Justice, a black woman was brought before 
 me on Habeas Corpus from the gaol at Annapolis. The return was 
 defective and she was discharged, but as she was claimed as a slave I 
 intimated that an action should be brought to try the right, and one was 
 brought against a person who had received and hired the wench. 
 
 At the trial, the plaintiff proved a purchase of the negro in New 
 York as a slave, but as he could not prove that the seller had a legal 
 right so to dispose of her, I directed the jury to find for the defendant 
 which they did. 
 
 Though the question of slavery was much agitated at the Bar, I did 
 not think it necessary to give any opinion upon it. I had frequent con- 
 versations with Mr. Strange on the question, and always found that he 
 wished to wear out the claim gradually, than to throw so much property 
 as it is called into the air at once. I have wrote fully and hope what I 
 have sent you may be of use. 
 
 God bless you, 
 
 1 am ti uly yourjj, 
 
 S. S. Blowers. 
 Ward Chipman, Esq , 
 
 St. John, N.B. 
 
 St. John, N.B., 27th February, 1800. 
 Dear Sir, 
 
 Accept my best thanks for jour letter of 7th ult., which came to 
 hand in season for me to avail myself of all the valuable information con- 
 tained in it. I had proposec. to argue the cause upon the same general 
 grounds stated in your notes you enclosed, but they were of great assis- 
 tance to me. 
 
 The cause was very fully argued, and lasted two whole days. The 
 Court was finally as I anticipated, divided. The Chief Justice and Judge 
 TJpham supported the master's right. Judge Allen and Judge Saunders 
 being against the sufficiency of the return, so that no judgment or order 
 was entered and the master took back his slave. 
 
 Our Chief Justice is very strenuous in support of the master's rights, 
 as being founded on immemorial usages and customs in all parts of 
 America ever since its discovery, he contends that customs in all countries 
 are the foundation of laws and acquire their force. 
 
 The principal difficulty seemed to be the not finding any Act of 
 Assembly of your province recognising the condition of slavery there. 
 
 1 
 
[jack] 
 
 SLAVERY IN NEW BRUNSWICK 
 
 ISl 
 
 ou enclosed 
 n which I 
 • good as to 
 
 ight before 
 return was 
 as a slave I 
 ad one was 
 ch. 
 
 gro in New 
 I ad a legal 
 } defendant 
 
 Bar, I did 
 equent con- 
 id that he 
 ;h property 
 Dpe what I 
 
 Jlowers. 
 
 •uary, 1800. 
 
 ich came to 
 nation con- 
 me general 
 great assis- 
 
 days. The 
 
 and Judge 
 
 B Saunders 
 
 nt or order 
 
 ter's rights, 
 ill parts of 
 ,11 countries 
 
 any Act of 
 A'ery there. 
 
 Had the counsel for the master stumbled upon your Act passed in 1762, 
 as revised in 1783, in the second section of which negro slaves are men- 
 tioned, the conclusiveness of their reasoning on their principles would 
 have been considered as demonstrated. In searching your laws upon 
 this occasion, I found this clause, but carefully avoided mentioning it. 
 
 Eespectfully yours, 
 
 Ward Chipman. 
 Hon. S. S. Blowers, 
 
 Halifax. 
 
 Freedom and equality have been so linked together, that anything 
 relating to the latter may, without impropriety, be mentioned in the dis- 
 cussion of slavery. There are many letters extant which prove that the 
 American loyalists when temporarily in England were impatient of 
 English social conditions, and longed to bo back in the land where class 
 distinctions were not defined by very rigid lines. The following extract 
 from a letter, in the possession of the writer of this paper, from Mr. 
 Blowers, when Attorney-General of Nova Scotia, to Jonathan Bliss, 
 Attorney-General of New Brunswick, in January, 1795, apropos of the 
 presence of certain personages not named but guessable, is sufficiently 
 democratic and unexpected when it is remembered that both the writer 
 and i-ecipient of the missive were aristocrats. " You are right in sup- 
 posing we do not enter into the fashions of this place. We have not vis- 
 ited the great Lady and are not (of course) in favour with the great 
 Man. 1 have often thought one of the best consolations in a new country 
 is the equality of condition which prevails among the inhabitants ; and 
 1 own I think it much against a residence in the British colonies that 
 high rank and title swarm so much in England that it has become neces- 
 sary to spread them over the Dominions abroad." It is instructive to 
 compare this expression of opinion with the statements of Joseph T. 
 Buckingham in " Specimens of Newspaper Literature." Referring to the 
 Massachusetts Spy, when under the management of Isaiah Thomas, he 
 observes : — " Its editor was strenuous in favor of the use of titles. For a 
 year or two after the organization of the Federal government, it seldom 
 spoke of the President, but as " His Highness George Washington " or " His 
 Highness the President General." (Vol. I., p. 243). Again the same author 
 informs us (Vol. II., p. 57) that Benjamin Russell, editor of the Massa- 
 chusetts Centinel, in that paper, yielded his cordial assent to a proposal 
 that the President should be addressed as " His Majesty the President of 
 the United States" and proposed that the address of the Vice-President 
 should be " His Excellency," that of a Senator " Most Honorable," and 
 that of a Representative " Honorable." 
 
 It may be assumed that the discussion before the court on the return 
 of the habeas corpus was not without some flights of oratory, and it is 
 
182 
 
 ROYAL SOCIETY OF CANADA 
 
 not unlikely that members of the bar and even the bench may then have 
 felt warmly and not always spoken guardedly. Siair Agnow, at all 
 events, with or without a cause, was so deeply offended with what was 
 said that he seems to have fairly thirsted for blood. lie first sent a 
 challenge by John Murray Bliss, one of his counsel, to Jui ,,a Allen, mid 
 when it was, with the truest courage, declined, invited Mr. Streot,'who 
 was associate counsel with Mr. Chipman, to meet him in mortal combat. 
 The latter accepted, and he and Mr. Agnew fought, but without fatal 
 result. They and their seconds were indicted, but the case never came 
 to trial, the proceedings being quashed for some irregularity. 
 
 Mr. Agnew reconveyed Nancy Morton to William Bailey from whom 
 he had purchased her, and she bound herself to the latter for fifteen 
 years and disappeared from history. 
 
 Although the argument in her case was not followed by a judicial 
 conclusion, slavery thereafter practically ceased to exist, not only in New 
 Brunswick, but in the maritime provinces, leaving behind it a memory 
 so faint, that the mere suggestion that there ever was a slave in either of 
 these provinces is very generally received with surprise, if not with 
 incredulity. 
 
 !i 
 
 
 <ii!i 
 
[jack] 
 
 SLAVERY IN NEW BRUNSWICK 
 
 183 
 
 y then havt 
 now, at all 
 what was 
 Krst .sent a 
 I Allen, and 
 l>trot't, who 
 tal combat, 
 thout fatal 
 never caino 
 
 rom whom 
 for fifteen 
 
 }• a Judicial 
 
 uly in ]S'ew 
 
 a memory 
 
 n eithei* of 
 
 not with 
 
 NOTE. 
 
 As t«ome evidence of the real existence of slavery in the place and 
 time mentioned in the foregoing paper, the following fiacsimiles of adver- 
 tisements are presented, of which the originals appeared, at the dates 
 stated, in the St. John Gazette and Weekly Advertiser : 
 
 ^ 
 
 FOR S A L ]?, 
 ^Hout, likely and very adive " 
 
 Yoiii^ BLACK WOM/VI>J^ 
 
 irbperty' of John H, Carey j' 
 •i£ej-cd for any faplt, but is 
 fberaqd diligent. ' 
 
 AMES HaYT. 
 
 late t 
 Shp| ^^ 
 ;fingutaii 
 
 <;• 
 
 OMer% t2^^i^i^■:-^^^^ 
 
 '- ^--"-«'>'srst> 
 
 
 Five Pounds Reward^ 
 
 RUN-AWAlf 
 (romku MaRer zi 
 
 \: 1V«ftnioc|siHi» a Ifegra 
 Mu •Jimed N -B JH Q* 
 
 Sfjt 
 
 ^.r. 
 
 tiJm 
 
 
 'i=i:^'. 
 
 tiatM 
 
 
I > 
 
 llll 
 
^ 
 
 4 
 
 BRIEB\ 
 
 SUPREME COURT, New Brunswick, Hilary Term, 1800, 40, George III. 
 The case af Nancy, a black woman, claimed as a aJave ; upon Habeas 
 Corpus against the master. 
 
 For the writ and return see Fol. 42 (Ptig'e 204). 
 
 1. What are the grounda upon which the right of slavery la supported, aa 
 a general question ? 
 
 2. The utility of Us Introduction, if this were a matter in the discretion 
 of the Court. 
 
 3. Hoiw far slavery has ai any time been tolerated in England ? 
 
 4. What is the law of England at thia day upon the subject ? 
 
 5. What is the condition of slavery in the Colonies where It Is tolerated 
 and in what manner and how far has It been recognized by Acts of 
 Parliament ? 
 
 6. What is the law of this Province respecting slavery ? 
 First Point. 
 
 Slavery, properly so called, is the establishment of a right which gives ^!'i5''c''i.^''"'" 
 to one man such a power over another as renders him absolutely master of his 
 life and fortune. 
 
 Another definition of slavery is, " A service for life for fbare necessaries." 
 " Hars'h and terrible to human nature, as even such a condition Is, slavery isLofffi Rep.: a. 
 very insufficiently described by these ciroumst»nce»— it includes not the 
 power cil the master over the slave's person, piroperty and limbs, life only 
 excepted ; It Includes not the right over all acquirements af the slave's 
 labor ; nor includes the alienation of the unhappy object from his original 
 mcster to whatever absolute lord. Interest, caprice, malice, may choose to 
 transfer him ; it includes not the descendible property from l?ather to son, 
 and in like manner continually of the slave and all hJs descendants." Yet 
 soich a state of servitude or slavery as is contended for, by the return to the 
 present writ, involves most, if not all, these cruel and inhunian ,consequiences. 
 
 Montesciuieu very forcibly observes that one would never have imagined B. 15. C. a. 
 that slavery should owe its birth to pity, and that this should have been 
 excited three different ways. 
 
 1. The law of nations to prevent prisoners being put to death has 
 allowed them to be made slaves. 
 
 2. The civil law of the Romans empowered debtors who were subject to 
 be ill-used by their creditors, to sell themselves. 
 
 3. The law of nature requires that children whom a father in a state of 
 servitude. Is no longer able to maintain, should be reduced to the same stcne 
 as the father. 
 
 Or, as It is expressed in the Institutes :— i m. Com. 4, 23. 
 
 Sert-i autfiunt, aut naacuntur ; fiunt jure gentium, aut jure citHli : nascuntur 
 ex ancillis noatris. 
 
 These reasons Montesquieu, and Judge Blackstone after him, nearly in 
 the same words, observe, are all of them built upon false foundations. It is 
 an untrue position when taken generally, that by the law of nature or 
 nations, a man may kill his enemy, he has only a right to kill him in particular 
 
1B6 
 
 UOYAL SOCIETY OV CANADA 
 
 Salk. 667. 
 Lofft, 3. 
 
 Montesq. 6 
 
 C 2. 
 
 1 Bl. Com. 
 
 ,15. 
 424. 
 
 Salk. 667. 
 
 Monteaq. 
 
 cases ; In case.s of absolute netc»slty for aelf-deifenico, niid it Is plain this 
 absolute necessity did not »ul>Hlfit, -^ince the vlt'tor did not actually kill him 
 but made him priaoner. War is Itself justifiable only on principles of aelf- 
 preservatlon ; and, therefore, jt gives no other right ovfi- prisoners, but 
 merely to dlsa-ble them fnvm doing harm to us, by confining their per>'on;a, 
 much leFB can It givo a right to kill, torture, abuse, plunder or even to 
 enslave an (^lumy when the war Is over. Since, therefore, the right of making 
 slaves by cxptlvlty depends on a supposed right of slaughter, that 
 foundation failiner, the consequence drawn from it must fail likewise. 
 
 From this origin alone, slavery, as known in England, seems to have been 
 derived. The word "slave", Dr. Johnson, in his diotionary, tells us "Is said 
 to have Its original from the 'Slavl' or 'Sclavonlans,' subdued and sold by the 
 Venetians," and Guthrie, In his geographical grammar, observes — " The 
 Sclavonlans formerly gave so much work to the Roman Arms that it is 
 thought the word slave took its original from them, on ■ ccount of the great 
 numibers of thejn who were carried into bondage so late as the relgrn of 
 Charlemagne." 
 
 And "Vlllenag«," In Eng-land, arose from captivity. Villains were originally 
 ca/ptlves at the Conquest or troubles before. 
 
 2. With regard to the second ground — that slavery may begin " Jure 
 clvlll," by one man's selling himself to another : " Neither Is this true — sale 
 Implies a price, now, when a person sells-' himself h.s whole 8ul)Stance 
 Immediately devolves to his master — the master, therefore, in that case gives 
 nothing, and tlie slave receives nothing. You will say he has a peculium. But 
 this pi'culium goes along with his person. If it is not lawful for a man to kill 
 himself because he robs his country of his person, for the same reason he la 
 not allowed to barter his freedom. The freedom of every citizen constitutes 
 a part of the puibllc liberty. To sell one's freedom in the sense of modern 
 slavery is so repugnant to all reason as can scarcely be supposed in any man. 
 If liberty may be rated with respect to the buyer, it is beyond all price to 
 the seller. The Civil Ijaw whloh authorizes a division of goods among men, 
 cannot be thought to rank among such goods, a part of the men who were to 
 make this division." And it is laid down In our books: "That mem may be 
 the owners, and cannot, therefore, be the subject of property." " TTie same 
 law," Montesquieu gioeg on to observe, " annuls all iniquitous oontracta • 
 surely then It cffords redress In a contract where the giievance is most 
 enormous." " If it is only meant," says Judge Blackstone, " of coratracta 
 to serve or work for another, It is very just, but when applied to strict slavery 
 It is Impossible. What equivalent can be given for life and liberty, both of 
 which (in absolute slavery) are held to be in the master's disposal. His 
 property also, the very price he seems to receive devolves ipso facto to his 
 master, the instant he ibecomes his slave. Nothing is given or received, of 
 what validity then oan a isale be which destroys the very principles upon which, 
 all sales are founded ? " 
 
 3. The third way, la birth, which falls with the two former, for if a man 
 could not sell himisetf, much less could he sell an unborn Infant. If a prisoner 
 of war Is not to be reduced to slavery much less are his children. 
 
 The lawfulness of putting a malefactor to death arises from this circum- 
 stance; tihe law by ■whidi he is punished was mode for his security. A mur- 
 derer, for instanoe, has enjoyed the benefit of the very law which condemns 
 him ; it has been a continual protection to him ; he cannot, therefore, object 
 
 («:?*■?"'. ■ •. ■ 
 
 illiilii 
 
[jack] 
 
 SLAVKUY IN NKW HIlUNSWICK 
 
 187 
 
 Is plain this 
 lally kill him 
 Iples of Helf- 
 )rlaontrs, but 
 their persons, 
 or even to 
 rht of making 
 ughter, that 
 ewlse. 
 
 to have been 
 s us "1« said 
 d sold by the 
 erves — " The 
 IS that It is 
 
 of the great 
 i»e reign of 
 
 ere originally 
 
 begin " Jure 
 
 lis true — B&le 
 
 le substance 
 
 at case gives 
 
 'culium. But 
 
 a man to kill 
 
 reason he la 
 
 n constitutes 
 
 J of modern 
 
 in any man. 
 
 all price to 
 
 among men, 
 
 who were to 
 
 tnemi may be 
 
 ' The same 
 
 contracts • 
 
 ice is most 
 
 af conitracta 
 
 strict slavery 
 
 ;rty, both of 
 
 (posal. His 
 
 facto to his 
 
 received, of 
 
 ! upon whloh. 
 
 or if a man 
 
 f a prisoneo* 
 
 1. 
 
 this clrcum- 
 
 Ity. A mur- 
 
 h condemns 
 
 efore, object 
 
 apainst It. Hut It Is not so with th.' .slave. The law of 8lav<»i-y ctin never be 
 benefUlnl to him— it Is In all cases CBaln.xt him, witiliout ♦•ver livliiK for his 
 advantage ; and, therefon-, this law Is contrary to ihi- fundamental prlncip'.es 
 of all societies. 
 
 " If It be pretended that It .has been beneflc-lal to him, as his master has 
 provided for his sulvsistence ; slavery at this rate sihould be llmltcil to Iho.'W! 
 who are lncapa.l)lo of earning their livelihood. But who will take up with such 
 slaves ? As to infants, nature who hat' sup.jlied their moth rs with milk, 
 had provided for their sustenanc>i ; and the remainder of th 'Ir childhood 
 approaehes so near the uKf in whicli they are niont capable of iieiiin of 
 service, that he who supports them cann it b^- said t) give them an equivalent 
 which can entitle him to be their master." 
 
 " Nor is slavery less oppoislte to the Civil Law than to that of nature. 
 What Civil Law c in restrain a slave frwm running awa,y, since he Is not a 
 member of society, and, conHcquenlly, has no Interest In any civil 
 Institutions?' But if it should be contended that th? Negr(K\s upon the 
 Coast of Guinea, from whence slaves are imported into America, are of 
 dispositions so fierce and barbarous that they wooild put their prisoners to 
 death did they not from their intercnurso with th_' nations of Euiroi>e, derive MiUm- on Rmikg 
 great advantages from sparing the lives of their enemies, and that on this''"' 
 account their wars are rendered less bloxiy ; it cannot at the exme time be 
 doubted that they have been rendered more f ri quent — from the greajt demand 
 for slaves to supply the European market they have the same ntiotives to 
 seize the person of their neighbors, whloh may excite the inhabitants of other 
 countries to rob one another of their property. 
 
 "Slavery In Christendom", says Molloy, "is now become obsolete, and In Molloy ile juro 
 these latter ages the minds of princes and States have, as It were, undversally ^l;*"'''.3, C, i, 
 agreed to esteem the words. Slaves, bondman, or villain, l>arbarous, and not 
 to be used, and that such as are taken in war between Christian prlnoes should 
 not become 8er%-ants, nor be sold or forced t > work, or otherwise eiibjected to 
 such servile things, but remain till an exchange o«f prisoners happen or a 
 ransom paid." 
 
 Thus the social origins of slavery not only appear to be built upon false 
 foundations, but to be exploded among the civilized nations of the world at 
 this day. 
 
 Montesquieu very justly considers as an equally well-founded origin of jj. 15^ c. 3. 
 slavery with any of the foi-egoing " the contempt of one nation for another 
 founded on a difference in customs," and tells us that Lopez de Gamar, a 
 Spanish writer, after relating that th? Spaniards found, near St. Martha 
 several baskets full of crabs, snails, grasbhoppers and locusts, which proved 
 to be the ordinary provision of the natives, owns that this, with their 
 smoking and trimming their beards, in a different manner, gave rise to the 
 law by whloh the Americans became slaves to the Spaniards. To this account 
 the Baron subjoins the following beautiful remark : — 
 
 " Knoweldge humanizes mankind, and reason inclines to mildness, but 
 prejudices eradicate every tender disposition." 
 
 The same enlightened author adds another origin of the right of slavery — 
 in his opinion as tenable as those he has refuted. " I would," he proceeds, 
 " as soon say that religion gives its profesBors a right to enslave those wtho 
 dissent from It, in order to render its propagation more easy." " This was the 
 notion that encouraiged the ravagers of America In their inquity, ujuier the 
 
 
 A 
 
n 
 
 1B8 
 
 UOYAl. SOCIETY OF CANADA 
 
 'llllll 
 
 B. 16, C. li. 
 
 Millar on Rank'< 
 p. 25U. 
 
 Ex. xx!., 20. 
 
 Intluence of thla Idea they founded tlielir rlRht of cnalavlaK »o many natluna ; 
 for these rotoberB, who would art>Bolutely be bHh robben* and Chirlstluns, were 
 ■uperlatlvely devout." 
 
 " LoulH XIII. wuH extremely uneasy at a law by which all the Negroes of 
 hli8 Colonies were to l>e made slaves, bu'. It beinx strongly urged to him as the 
 readiest meaiw for their convershm, he acquiesced without further seruple." 
 To such mlseraible pretexts have the advoc-ales of slavery ait different 
 times been reduced to Justify a measure so subversive of the natural unalien- 
 able lights of mankind. 
 
 Montesquieu goes on In an Incompxraible vein of satire to ridicule the 
 grounds upon which the slavery of Negroes lis Justified. 
 
 " Were I," says he, " to vindicate our right t'> make slaves of the 
 Negroes, these should be my arguments : " The Eurnpeajis having extirpated 
 the Americans, were obliged to miake slaves of the Africans for clearing suoh 
 vast tracts of land." "Sugar would be too dear, if th;^ plants which produce 
 it WHO cultivated by any other than slaves." What Is here ludicrously sug- 
 gested, seems to have l>een seriously adopted by the British Legislature as a 
 Justifiable ground of slavery in the Colonies, vid. post. 29.6. Preamble to 
 Sta,t. 23 a. 2, C. 31 (1750). Montesquieu, I believe, wrote after this, if bo 
 and he had seen this Stat, he might have intended to satirize it. 
 
 "These creatures are all over black, and with such a flat nose that they 
 can scarcely be pitied. It is hardly to be believed that God, Who is a wise 
 being, should place a soul, esipeclally a gw>d soul. In such a l>lack ugly 'body." 
 " The negroes prefer a glass nocklaoe to thait gold which polite nations so 
 highly value, can there be a greater proof oif their wanting common sense?" 
 "It Is Impossible for us to suppose these creatures to 'be men, because, 
 allowing them to be men, a suspicion would follow that we ourselves are not 
 Christians." 
 
 " Weak mlndB exaggerate too mucih the wrong done to itJhe Africans, for 
 were the case as they state it, would the European powers who make so many 
 needless conventions among themselves, have failed to enter Into a general 
 one, in behalf of humanity and oompassion ? " 
 
 These, with other writings, have at length so much exposed the iniquity 
 of this traffic In human flesh that the greatest exertions are making In the 
 civilized world, and particularly In Great Britain, to effect Its utter aboUtiom, 
 and I trust that we shall not In this province, whose pride It Is to copy the 
 example of the Parent State, Introduce Into our political system a practice 
 so derogatory to every principle of law and Justice. 
 
 It surely will not be pretended that the estaibllshiment of slaveiy among 
 the nations of antiquity — among the FJigrptians, the Phoenicians, the Jews, 
 the Babylonians, the Persians, the G'.eeks, and the Romans, will render the 
 practice more Justifiable, as well mig'ht we avail ourselves of their example, 
 1o introduoe and vindicate all the other enormities in their civil and religious 
 institutions. 
 
 From the example of the Jews we might as well Introduce the severity 
 (if their law in the treatment of their slaves, as vindicate the eatablisihment 
 of slavery. By the law of Moses, "If a man struck his servant so that he 
 dlied under his band, he was to be punished ; but If hie survived a day or 
 two, no punishment ensued, because be was his money. Strangle, says Mon- 
 tesquieu, "that a civil institution sihouid thus relax the law of nature." 
 
 ill I 
 
IjalkJ 
 
 SLAVERY IN NEW BHUNSWICK 
 
 1B9 
 
 ■iny iiatiK)nii ; 
 iBllanti, were 
 
 e Negroes of 
 :<> him a,» the 
 hi-r soruple." 
 mt different 
 ural unialien- 
 
 ridicule the 
 
 aves of the 
 \g extirpated 
 L'learing such 
 hleh produce 
 Icroualy sug- 
 islature as a 
 Preamble to 
 r this, if BO 
 
 >se that they 
 'ho ia a wise 
 c ugly body." 
 te nations so 
 imon sense?" 
 nen, because, 
 elves are not 
 
 Africans, for 
 ake so many 
 .to a general 
 
 the iniquity 
 laking in the 
 ter abolltlom, 
 s to copy the 
 m a practice 
 
 aveiy among 
 the Jews, 
 11 render the 
 leir example, 
 and religious 
 
 the severity 
 jstablishment 
 t so thjat he 
 ^ed a day or 
 e, says Mon- 
 lature." 
 
 Uut amiong the Utimanw during the eonnmonwealth, and afterwarda among cii. j. b1ow«m 
 Ihe emi)eror», no free citizen was allowed by contract to become the slave of 
 another, for the law did not support thiise unequal contracts. And, therefore, 
 a tiiaii could niit be inbilgenl to fulfill a bargain by which he had surrendered 
 all his rlKhts to a maator without any r»'turn, but at the will of his master. 
 ThouM'h, If a man fraudulently w)ld, nr suffered himself to be Bold, in order 
 lo s^hare in the price, he then became the slave of the purchaser who was 
 defrauded. 
 
 Millar on Hanks, cites Helneccius synitagma. antlquitatum Romanum ? 
 
 II. Hut supposing this \v*re a matter In the discretion of the court, to 
 adoipt or reject, whJoh Is a point I shall presently speak of, it may not bo Mlllor, p. jiiii. 
 anil8« to Inquire into the utility of the establishment of slavery in this 
 Pntvlnce. " In computing th<» price of the labour which is performe<l by those 
 who live in a state of servitude, not only the charge of their maintenance, 
 but also the expense of their first acquisition, together with all the hazard to 
 which their life Is exposed, must necessarily be taken Into the account. When 
 these circumstances are duly considered. It will be found that the work of a 
 clave who receives nothing but a bare subsistence, la really dearer than that 
 of a free man to whom constant wages arc given in proportion to his 
 Industry." 
 
 " A slave who receives no wages in return for his labour, can never \>e 
 supposed to exert much vigour or activity in the exeixiae of any employment. 
 He obtains a livelihood at any rate, and by his utmost assiduity he is able to 
 produice no more, as he works merely in consequence of the- le-iTor in which 
 he is held ; lit may be imagined he will <be idle a« often as he can with 
 Impunity." 
 
 "In whatever light we regard the Institution of slaverj', it appears equally ,, ,„„ 
 Inconvenient and pernicious. No conK:lusion aeema more certain than ihis, that 
 men will comnuonly exert more activity when they work for their own 
 benefit than when they are compelled to labour for the benefit merely of 
 another. The introduction of personal liberty has, therefore, an Infallible 
 tendency to render the inhabitants of a country more industrious." 
 
 " But slavery is not more hurtful to the Industry than to the good morals 
 of a people. To cast a man out from the privileges, of society and to mark 
 his condition with infamy, is to deprive him of the most powerful incitements 
 to virtue, and very often to render him worthy of that contempt with which 
 he is treated. What a painful and humbling comparison, what mortifying 
 rellecti'ons does this afford to those wretches who are reduced into a state of 
 Ixind'ag-e ! Reflections that cannot fa.ll to sour their temper, to inspire them 
 with malevolent dispositions, and to produce an untoward and stubborn 
 behavio^ur. A more severe discipline Is ihua rendered necessary in order to 
 conquer their oljstlnacy, and dblige thom to labour in their employments— it 
 becomes requisite that they should be strictly watched and kepi in the utmost 
 subjection, in order to prevent those desperate attempts to which they are 
 frequently instigated in revenge of their sufferings." 
 
 " What effects, on the other ha.nd, may we expect that this debasement 
 of the servants will produce on the temper and disposition of the master ? 
 In how many different waj-s is it possible to ajbuse that absolute power with 
 which he is invested, and what vicious habits may be contracted by a train 
 of such abuses,' unrestrained by the laws, and palliated by the influence of 
 example." 
 
160 
 
 ROYAL SOCIETY OF CANADA 
 
 Montesq., B. 
 
 C M 
 
 Millar, 310. 
 
 hoBt. a. These effects are thus summed up by Mr, Hargrave In his argument In 
 
 the case of Somerset: " Corruption O'f mianners in the master, from the 
 entire subjection of the slaves he possesses t» his sole will ; fram whence 
 spring' forth luxury, pride, cruelty, with the infinite enormities appertaining 
 to their train. The danger to the master fro^mi the revenge of his much- 
 inj'jred and unredressed dependent ; delmi»enient of the mind of the slave 
 for \\iant of meana and motives of improvement ; and peril to the 
 Constitution, under which the slave cannot but suffer, and which he will 
 naturally endeavour to subvert, as the only means of retrieving comfort and 
 security to hijnself." " The humanity of ni'odern times," he adds, " has much 
 mitigated this extremte rigour of slavery — shall an attempt to introduce 
 perpetual servitude to this island," and I will, in my turn, on this occasion, 
 say to this province, " hope for countenance ? Will not all these other mischiefs 
 of mere servitude i-evive, if once the idea of aJbsolute property under the 
 immedilate sanction oif the laws, extend itself to those who muy be claimed 
 as slaves in this Province, which, I must contend in this insta.noe, partakes 
 of the nature of the soil of England, whosi air is deemed too pure for slaves 
 to breathe In." 
 
 Were it necessary on this occasion, it might be easily shewn that there 
 never was any such necessity as is pretended for the introduction of slavery 
 intto any part of Ameriaa, or the West Indies. Be that however as it may, 
 none of the reasons which have operated to establisjh it there, exist at all 
 in thia country, and, therefore, its introduction here should be resisted upon 
 the same grounds that it has been so successfully opposed in the Parent 
 State. 
 
 The practice of slavery being once introduced, it will, with us, as in 
 Millar, 260. other countries, be afterwards " regarded with that blind prepossession which 
 is comimonly acquired in favour of established usages, the inconveniences of 
 it will be overlooked, and every 'nnovation be CLinsidered as a dangerou." 
 measure. We find, accordingly, that this institution, however inconsistent 
 with the right of humanity, however pernicious and contrary to the true 
 interest of the master, has generally remained in those countries where it was 
 onoe established, iid has been handed down from one generation to another, 
 during a,ll the successive improvements of society, in knowledge, arts and 
 manufactures." 
 
 " It affords a curious spectacle," says Mr. Millar, " to observe that the 
 inhabitants of the British plantations in America who talk in so high a strain 
 of politioal liberty, and who consider the privileges of imposing their own 
 taxes as one of the unalienable rights of mankind, should make no scruple 
 of reducing a great proportion of the inhabitants into circumstances by 
 wihiich they are not only deprived o.f property, but almost of every right 
 whatsoever. Fortune, perhaps, never produced a situation more calculated 
 to ridicule a grave and even a liberal hypothesis, or to know how little the 
 conduct of men is at the Iwttom directed by a,ny philosophical principles." 
 
 I come now under the third point of my argument, to inquire : 
 
 III. How far slavery has at any time been tolerated in England. 
 
 And here It is to be o4>served that strict, absolute slavery in the sense of 
 the laws of Old Rome, or modern Barbary, or as it was established among 
 the ancient German nations who invaded the Roman Provinces, never did 
 exist in Bngland. 
 Millar, p. 274. " When these latter nations invaded the Roman Empire and settled In the 
 
 different provinces, they were enabled by their repeated victories to procure 
 
 Page 312. 
 
■w- 
 
 [jack] 
 
 SLAVERY IN NEW BRUNSWICK 
 
 161 
 
 s argrument in, 
 ster, from the 
 
 from whence 
 
 s appertaining 
 
 of his much- 
 
 1 of the slave 
 
 peril to the 
 which he will 
 ig comfort and 
 ds, " has much 
 t to introduce 
 1 this occasion, 
 other mischiefs 
 jrty under the 
 luy be claimed 
 :a.n'?e, partakes 
 pure for slaves 
 
 ewn that there 
 tlon of slavery 
 ;ver as it may, 
 re, exist at all 
 e resisted upon 
 in the Parent 
 
 rt'ith us, as in 
 
 >ssession which 
 
 ?onveniences of 
 
 a dangerou? 
 
 er Inconsistent 
 
 y to the true 
 
 s where it was 
 
 on to another, 
 
 edge, arts and 
 
 erve that the 
 
 h;gh a 9tra.in 
 ing their own 
 
 alte no scruple 
 umstances by 
 f every right 
 lore calculated 
 how little the 
 ,1 principles." 
 quire : 
 gland. 
 
 n the sense of 
 .bilshed among 
 ces, never did 
 
 1 settled in the 
 les to procure 
 
 an imimense number of ca-ptlves, whom they reduced Into servitude, and by 
 whose assistance they occupied landed estates )f proportionable extent. From 
 the manners which prevail universally among rude people, their domestic 
 business was usually performed by the members of eiai li family, and their 
 slaves, under the absolute dominion of the master, were occupied In the 
 various branches of husbandry which he had occasion to exercise. As the 
 numerous servants l>elonging to a single person could not conveniently be 
 maintained in his house, so the nature of their employment required that 
 they should be sent to a distance and have a fixed residence upon those parts 
 of the estate which they were obliged to cultivate. Separate habitations 
 were, therefore, assigned them, and particular farms were oomimltted to the 
 care of different individuals, who frequently rlsidlng In the neighbourhood of 
 one another, and forming pmall villages or hamlets, received the appellation 
 of Villanl, Villains, or Villagers." 
 
 And Bracton tells us: Finnt etiam servi libcri homines captivita*e f?eB. i, C. o. 
 jure gentium. We read in Blackstone that " There were, under the Saxon ' *""'' 
 Government, a sort of people in a condition of downright sei-vitude, uised and 
 employed in the most servile works, and belonging, both they, their children 
 and effects, to the lord of the soil, like the rest of the cattle or stock upon 
 it. Tihese seem to have been those who held what was called the Folkland, 
 from which they were removable at the Lord's pleasure. On the arrival of the 
 Romans here It seems not improljable, that they who were sitrangers to any 
 other than a feudal state, might give some sparks of enfranchisement to such 
 wretched persons as fell to their .'share, by admitting them, as well as others, to 
 the oath of fealty ; which conferred a right of protection, and ra4sed the tenant 
 to a kind of estate superior to downright slaver>', but inferior to every other 
 condition. This they called Villenage. and the tenants Villeins, either from 
 the word vilis, or else, as Sir Edward Coke tells us, a Villa, because they lived 
 chiefly In villages. 
 
 These Villeins, belonging principally to lords of manors, were either 
 villeins regardant, that is, annexed to the manor or land ; or else they were 
 In gross or at largo, that is annexed to the person of the lord, and tiansferrable 
 by deed from one owner to another.'" 
 
 " These villeins were origiiially captives at the conquest, or troubles Lofft, 3. 
 before." And it is laid down by the court, in the case of Smith v. Gould, oHgin"^'^""''* 
 that "Villenage arose from captivity." Sulk, uuT. 
 
 But Villenage could commencf nmvhere but in England ; it was necessary i-offt, 3. 
 to have prescription for it. And the lord had not such an absolute property rfiamiVerlyne 
 over hiiS slave but that in some cases that very slave might have an action ^•. ,. 
 
 againsit his lord, as an appeal for the death of his father, so when the lord - HI- <-'<""■ "i- 
 was indebted to the testator of his villein, he might bring an action against '' ' ° ' ''' ' 
 him as eyecutor. The lord had no power over his life, nor could he send a 
 villein ir gross out of the kingdom, so careful was the law of the llbeitles 
 of men under its protection. 
 
 Thuis, altho the law of England at that time did not wholly disregard 
 the right of slavery, as recognized by the law of nations in cases of captives 
 made in war, yet it admitted it with many qua:ificationi<!, In the first instance, 1 LI, Com., 93, 
 and Judge Blackstone tells us: " That If the lord became bound to his 
 villein— if he granted him an annuity or gave him an estate, either in fee 
 for life or years, or Ijrought an action against him, or In any Instance dealt 
 with his villein on the footing of a free man— he was at once enfranchised— 
 
f 
 
 162 
 
 ROYAL SOCIETY OF CANADA 
 
 Dr. A Stud. 
 2,0.43. 
 
 D. 
 
 2 Bl.Com., ft.'). 
 
 LoITt, 8. 
 
 Co. Lit. 117, (i. 
 
 Hargrave's 
 
 Notes. 
 
 Fitz. Nat. l?reT 
 
 77 c.n. 
 
 Diiil. 1. 0. ■!. 
 
 the law being always ready to catcth at anything in favor of liberty." "Also 
 If a villein enter into religion tibe lord may not seize his body nor put him 
 to no majiner of labour, but must suffer him to abide in his religion 
 as other religious persons do that be not bond men." That by these 
 and many other mea.ns, villeins, in process of time, gained consider- 
 able ground on their lords, and in particular strengthened the tenure of their 
 estates in that degree that they came to have in them an Interest, In many 
 places full as good ; in others better, than their lords ; at length began to 
 be called tenants by copy of Court Roll, and their tenure Itself a copyhold 
 which subsists at this day in the manors in every part of the Kingdom. 
 These encroachments grew to be so universal that when tenure in vlllenage 
 was virtually abolished (though copyholds were reserved) by the Stat, of Ch. 
 2, there was hardly a pure villein left in the nation. For Sir Thomas Smith 
 testifies that in all his tiime (and he was Secretary to Edwa.rd 6) he never 
 knew any villein In gross throughout the realm." Lord Mansfield mentions 
 an assertion, but does not recollect the author, ,that only two villeina regardant 
 ■were in England in the time of CJharles II., at the time of abolition of 
 tenures. 
 
 This vlllenage is the only gipeciea of slavery that was ever tolerated in 
 England, in consequence of the jiis gentium recognized as law by Bracton, 
 but this differed, as we have seen, very essentially, froim the domestic slavery 
 of modern times. 
 
 But in whatever degree vlllenage may have resenmbled the kind of slavery 
 mow contended for, it has not only expired in England, but expired never to 
 revive, as that very law of nations upon wiiich it was founded is become 
 obsolete, and the principles upon which that law rested are declared by Judge 
 Blackstone, as well as all other modern writers, to be built upon false foun- 
 dations. 
 
 Fit etiam sermia liber homo per confessionem in curio regis fact : " From 
 our law (says Mr. Hargrave), thus permlttinig a person to be a villein by 
 acknowledgment in a court of record, seme have argued that it is a legal 
 mode of creating personal bondage, with a view to prove that there Is not 
 anything so repugnant in our la,w to domestic slavery as Is generally 
 imagined, and thence to lay a foundation for more easily inferring the law- 
 fulness of importing slavery from our Colonies. But in another place we have 
 had occasion to object to this way of considering the acknowledgment, and 
 to explain why it should be deemed merely a confession of that immemor- 
 ial antiquity In the villein's slavery, which was otherwise necesary to be 
 proved." See the editor's argument in the case of Somerset, ,a Negro, 60 to 
 65, and Hob. 99, agreably hereto. 
 
 So carefully in old times ,did the law regard the liberty of the subject 
 that if the lord sued out his writ de nutivo hnbendo. and .shewed tlie sheriff 
 his slave, he could not touch him if he only claimed his freedom, but in that 
 ca.sf» the lord was obliged to count or declare againsit him, and state his title 
 and prove it before he could take him. 
 
 I come naturally now to the fourth point (rf the argument : 
 
 IV. What is the law of England at this day upon the subject of slavery ? 
 
 In St. Germin's treati'se, inlitlcd " Doctor and Student," a book of great 
 learning and a.pprt>ved authority, written expressly to inquire into the grounds 
 and reasons of the common law of England, it is laid down that the la.w of 
 reason or nature is the first ground of the law of England ; and the law of 
 
 ■II % ill:' 
 
[jack] 
 
 SLAVEliY IN NEW IJRUNSWICK 
 
 163 
 
 iberty." "Also 
 y nor put him 
 1 his religion 
 rhat by these 
 Lined consider- 
 tenure of their 
 [erest, in many 
 ;n.g-th began to 
 elf a copyhold 
 
 the Kingdom, 
 ire in vlllenage 
 :he Stat, of Ch. 
 
 Thomas Smith 
 ,rd 6) he never 
 isfleld mentions 
 llelns regardant 
 of abolition of 
 
 irer tolerated In 
 aw by Bracton, 
 lomestlc slavery 
 
 kind of slavery 
 expired never to 
 .nded is become 
 clared by Judge 
 ipon false foun- 
 ts fact : " From 
 be a villein by 
 lat it is a legal 
 lat there is not 
 as is generally 
 ferrins the law- 
 er place we have 
 ►wledgment, and 
 that immemor- 
 necesary to be 
 ;, ,a Negro, 60 to 
 
 of the subject 
 K'wed tlie sheritr 
 do.m, but in that 
 id state his title 
 
 ject of slavery ? 
 
 a l)ook of great 
 
 into the grounds 
 
 that the la.w of 
 
 and the law of 
 
 nature, says this treatise, " specially considered, which is also called the law 
 of reason, pertaineth only to creatures reasonable, because it is written in the 
 heart, therefore, it may not be put away, nor It is never changeable by no 
 diversity of time nor place. And, therefore, against ,this law, prescription, 
 statute nor custom, may not pi-evail, and if any be broug*ht In against It, 
 they be not prescriptions, statutes nor customs, but things void and against 
 justice." 
 
 "Every man's law must be consonant to the law of God, and therefore the 
 laws of princes, the commandments of prelates, the statutes of commonal- 
 ties, nor yet the ordinance nf the Church is not righteous n<>r obligatory, but 
 it be consonant to the law of God." 
 
 "By the law of nature or reason primary, be ^rohibned In. the laws of 
 England, murder (that is, the death of him that is innocent), perjury, deceit, 
 breaking of the peace and many other like. And by the same law also It Is 
 lawful for a man to defend himself against an unjust power, so be keep due 
 circumistance, and also if any promise be made by man as to the body, It is 
 by the law of reason, void in the law of England." 
 
 " If any generul custom were directly against the law of God, or if ar; 
 statute were made directly against it ; as if it were ordained that no alms 
 should be given for no necessity, the custom and statute were void." " The 
 third ground of the law of England, standeth upon divers general customs 
 of old times, used through all the I'ealm, which have been accepted and 
 approved by our Sovereign Lord the King and his progenitors, and all his 
 subjects. And Ijecause the said customs be neither against the law of God 
 nor the law of reason, and have been always taken to be g'ood and necessary 
 for the commonwealth of the realm, therefore they have obtained the strength 
 of a law insomuch that he that doth against them doth against justice ; 
 and these Ije the custoims that properly be called the Common Law." 
 
 By the old custom of the realm, no man shall be taken, imprisoned, 
 disseized, nor otherwise destroyed, but he be put to answer by the law of the 
 land. And this ctistom is confirmed by the statute of Magna Charta, C. 26. 
 
 L/ord Chief Justice Hobart has also advanced that even an Act of 
 Parliament made against natural justice, as to make a man judge in his own 
 cause, is void in itself, for Jura naturtr aunt Innnutdliiliii, and they are linus lenitm. 
 
 And Judge Blackstone tells us " this law of nature being oo-eval with 
 mankind, and dictated l^y God Himself, is, of course, superior in obligation to 
 any other, it is binding over all the glotoe, in all oountiles, and at all times, 
 no human laws are of any validity if contrary to this ; and such of them 
 as are valid derive all their force and all their authority from this original." 
 
 And again : " Upon these two foundations, the law of nature ami the 
 law of revelation, depend all human laws ; that is to say, no human law 
 should be suffered to contradict these. In the case of murder, if any human 
 law should allow or enjoin us to ci>mmit it, we are bound to transgress that 
 human law, or else we must offend both the natural and the divine." 
 
 "Those rights which God and Nature have established, and are, therefore, 
 called natural rights, such as are life and liberty, need not the aid of human 
 laws to be more effectually Invested in any man than they are, neither do 
 they receive any additional strength when declared by the municipal law to 
 be inviolable. On the contrary, no human legislature has power to abridge 
 or destroy them, unless the owner shall himself commit some act that amounts 
 tc. a forefuture." " On the whole, the declaratory part of the municipal law 
 
 Sec. n.. ISiW. II. 
 
 Dial : 1, c. 4. 
 
 II). c. 5. 
 
 111., C. li. 
 
 11)., c. 7. 
 
 Hoi.., S7. 
 
 1 111. Com., 40. 
 
 II... p. 12. 
 
 lb.. V, V». 
 
164 
 
 ROYAL SOCIETY OF CANADA 
 
 1 Bl. Oom., 121 
 
 lb., 126. 
 
 has no force or operation at all, with regard to actions that are Intrinsically 
 right or wrong." 
 
 " The principal aim of society, and,' ih& first and primary end of human 
 law«, is to maintain and regulate the absolute rights of iindividiials, which 
 were vested in them by the immutalbie laws of nature, and to protect them in 
 the enjoyment of those rigtits." 
 
 " The absolute righta of mian, considered as a free agent, are usually 
 summed up in one general appellation and denominated the natural 
 liberty of mankind ; which consists properly in a power of acting as one 
 thinks fit, without any restraint or control, unle.sis by the law of nature." 
 
 " Political or civil liberty is no other than natural liberty, so far restrained 
 by human lalws (and no farther) as Is necessary and expedient ,for the general 
 advantage of the pulblic." 
 
 Professor Christian, in his edition of the Commentaries, in a very learned 
 note upon this part of the text, very properly and forcibly reonark.^ that "in 
 the definition of civil liberty it ought to hi understood, or, rather, expressed, 
 that the restraints introduced by the law should be equal to all, or as much so 
 as the nature of things will admit." 
 
 "This spirit of li'berty," Judge Biackstone goes on to sa,y, "is so deeply 
 implanted in our Constitution, and rooted, even in our very sodi, that a slave 
 or a Negro, the moment he lands in England, falls under the protection of 
 the laws, and so far becomes a free man." 
 
 It is indeed added in this place : "Though the master's' right to hisi ser- 
 vice may possil>ly still continue." But Professor Chrisitian denies this, in his 
 notes he says : " I don ot see how the master's right to the service can 
 possibly continue ; it can only arise from contract which the Negro, in a 
 state of slavery, is incapable of entering into with his miaster. It is not to 
 the soil or to the air of England that Negroes are indebted for their liberty, 
 but to the efficacy of the writ of Habeas Corpus, Which can only be executed 
 by the sheriff of an English county." 
 
 Judge Biackstone, in a subsequent part of the same volume, says : — 
 
 " And now it is laid down that a slave or Negro, the inptant he lands in 
 England, becomes a free man, that is, the law will protect him in the enjoy- 
 ment of his person and his property. Yet, with regard to any right which 
 the master may have lawfully acquired to the perpetual service of John or 
 Thomas, they will remain exactly in the same state as before, for this is no 
 more th£.n the tame state of subjection for life which every apprentice 
 sutomits to for th3 space of seven years, or, sometimes, for a longer time." 
 Upon this Mr. Christian observes : " The meaning of this sentence is not 
 very intelligible. If a right to pei"petual service can be acquired lawfully at 
 all, it must be acquired by a contract with one who is free, who is sui juris 
 and competent to contract. Such a hiring may not, perhaps, be illegal and 
 void. If a man can contract to serve for one year, there seems to be no 
 'of ScotTand'aiZ i-eason to prevent his contracting to serve for one hundred years, if he 
 
 P. 424. 
 
 nula the cou. p^ould SO long live, tho' in general, the courts would be inclined to con- 
 tract to serve 
 
 sider it as an improvident engagement, and would not be very strict in en- 
 
 f or life. 
 Lofft, p. 5. 
 
 forcing it. But there could be no doubt but sucih a contract with a person in 
 a state of slavery would be aJbsolutely null and void." 
 
 The sentence of Judge Biackstone appears to me to bs very Intelligible. 
 He says that the right which the master may lawfully acquire to the perpetual 
 service, of John or Thomas is the same state of isulbjection for life which every 
 
[jack] 
 
 SLAVERY IN NEW BRUNSWICK 
 
 163 
 
 ire intrinsically 
 
 end of human 
 Ividuals, %vhtoh 
 protect them in 
 
 nt, are usually 
 i the natural 
 acting as one 
 f of nature." 
 3 far restrained 
 .for the general 
 
 a very learnert 
 narks that "in 
 Lher, expressed, 
 , or as much so 
 
 , "is so deeply 
 1, that a slave 
 e protection of 
 
 ght to hia ser- 
 ies this, in his 
 le service can 
 e Negro, in a 
 r. It is not to 
 r their liberty, 
 ily be executed 
 
 e, says :— 
 
 nt he lands in 
 
 in the enjoy- 
 y right which 
 ;e of John or 
 
 for this is no 
 ry apprentice 
 
 longer time." 
 
 ntence is not 
 ed lawfully at 
 10 is sui Juris 
 be illegal and 
 eems to be no 
 I. years, iif he 
 
 lined to con- 
 strict in en- 
 th a person in 
 
 ry Intelligible. 
 
 the perpetual 
 
 e which every 
 
 apprentice aubmits to for seven years. Now apprentices are no otherwise A case is to to 
 
 bound than by contract, they cannot ibe said to submit in any other way, it hu'tory'ot {hi' 
 
 must therefore be here Intended by Judge Blaokstone that the right to per- d o c i b i o n s 
 
 petual service must be acquired by contract, as the only lawful way of ac- of yeois wub 
 
 ciuiring it ; this reconciles the expression he ha<l before made use of. " The' cxceed'iMy'* th" 
 
 the master's right to his service may possdbly still continue," meaning that it is ,">'"»i ''""'» °' 
 
 liiiiimn lili'. 
 scarcely possible to suppose that a man would voluntarily contract to serve lii. 
 
 another for life ; and, perhaps, to express the same doubt that Professor 
 
 Christian entertains, whether such a contract would not be set aside as an 
 
 improvident engagement, tiho not ipso facto, illegal and void. And that 
 
 this is Judge Bla-kstone's meaning is evident from what follows in the same 
 
 paragraph : "The slave is entitled to the same protection in England, before 
 
 as after baptism, and whatever service the heathen Negro owed of right to 
 
 hip American master by general, not by local, law, the same, wha.tever it be, 
 
 Is he bound to render when brought to England and made a Christian." 
 
 Hero Judge Elackstone evidently disclaims all authority or right derived 
 to the master from local law ; that is, the laws of the place from whence he 
 was brought, or where he was made a slave, and confines the right of the 
 master to such service as he is entitled to by the principles of general law, 
 by virtue of which the right can be founded upon or supported by contract 
 only. There is peculiar caution in .Judge Blackstone's expressions upon this 
 fiiubject, perhaps because at the time he wrote, there had been no siolemn 
 decision of the law upon it, and he feared to excite such an alarm as might 
 have been occasioned by declaring in unqualified terms that Negroes were 
 free upon their coming into England ; for, in Somerset's case, which happened 
 a few years afterwards (in the year 1772), Lord Mansfield seemed at first to 
 entertain some doubt, and expressed great reluctance at c iming to 
 a decision upon the point. He said, in the course of the oause: " The dis- 
 tinction was difflcult as to slavery, which could not bs resumed after emanci- j^^j g 
 pation, and yet the condition of slavery in its full extent could not be' 
 tolerated here. Much consideration was necessary to define how far the point 
 should be carried. The court must consider the great detriment to proprie- 
 tors, there being so great a number in the ports of this Kingdc^m, that many 
 th( usands of pounds would be lost to the owners by setting them free." Mr. 
 Dunning, in his argument in that cause, states that about 14,000 slaves, from 
 the most exact intelligence he was able to procure, were then in Hngland. 
 
 I.,ord Mansfield, in giving the judgment of the court, says : " In five or 
 Pix rases of this nature. I have known it to I>e a':'commodated by asjreement 
 liptween the parties ; on its coming before me I strongly recommended it 
 here. But if the parties will have it decided, we must give our opinion. 
 Compassion will not, on the one hand, nor inconvenience on the other, be to 
 decide, but the law. The setting 14,000 or l."),000 men at once free by a solemn 
 opinion is much dis-agreable in the effects it threatens. If the parties will 
 have judgment, flat Jusfifia, mat ciilum. l^et justice he done, whatever be 
 the consequence." He then goes on to say: "I think it right the matter 
 should stand over ; and if we are called on for a decision, proper notice 
 shall be given." 
 
 Can it be wondered then, that Judge Blackstone should speak In the very 
 cautious manner he does on this .subjec.:, when he uses the expression above •■» 
 
 cited : " Tho' the master's right to his service may possibly still 
 continue ? " But when we look to the case cited by Judge Blackstone in 
 
166 
 
 ROYAL SOCIETY OF CANADA 
 
 2 L.'V., 201. 
 i Kfb.; 785. 
 
 '. Mod., 187 
 
 Lofft, 4. 
 
 2 1.(1 Raym. 
 
 Holt, 49.J. 
 S.lllc, liU(J. 
 
 -< Mtd., 18(! 
 1 l.a.Kayiii 
 
 support of this doctrine, Salk. 666, we And that the expression was, In fact, 
 maJe use of in this place merely because there had been no solemn decision 
 of the question. In that case, which was an action of Trover for a Negrro, 
 which it was adjudged would not lie. The Council for the Pit. insisted : " If 
 I imprison my Ne^ro, a Habeas Corpus will not lie to deliver him for by 
 * Magna Cbarta,' he must be liber homo, 2 Inst. : 45. Sed curia contra, men may 
 be the owners, and, therefore, cannot be the subject, of property. Villeinage 
 arose from captivity, and a man may have trespass quare captivutn suuni 
 cepit, but cannot have Trover de galllco sua. And the court seemed to thinlt 
 that in trespass quare captivum suiim cepit, the plaintitT might give in 
 evidence that the party was bis Negro and he bought him." All, therefore, that 
 Judge Blackstone could mean by this expression was that possibly when the 
 question should be settled by a solemn decision at law, it might be decided 
 that the master's right to the service of the Negro should continue after his 
 being brought to EJngland. 
 
 This, however, did not happen, for when the question was solemnly decided 
 in the case of Somerset, as we shall presently see, It ^v'as determined that 
 this right of the master did not continue. 
 
 But Judge Blackstone, In considering the question, upon principles at large, 
 in the subsequent part of his book, wlhich has been so fully remarked 
 upon, most clearly gives it as his opinion in conformity to the doctrine he 
 had advanced upon the subject of laws in general, and. agreabiy to the 
 fundamental principles of the common law of England, that the freedom of 
 the Negro upon his being brought into England, was one of those rights 
 which God and Nature had established, which needed not the aid of human 
 laws to be more effectually invested in hiim, and which could not be abridged 
 or destroyed by any human legislation unless he should himself coonmit some 
 act that amounted to a forfeiture ; or, l)cing sui Juris, and competent to 
 contract, had voluntarily engaged to serve or work for the master claiming 
 his service, in the manner that apprentices are I>ound. 
 
 And here I presume I might safely rest the cause before this court, in full 
 confidence that they would declare, in the judgment they may give, that it is 
 beyond the power of human laws to establish that condition of slavery which 
 is contended for on the present occasion. 
 
 But I shall not stop here. It shall now l>e my ibusi.ness to inquire hi>w 
 the law has been solemnly settled upon the subject in England. The llrst case 
 that is to be foimd in the books upon this point, is in Trinity Term, 9 Car. 2 
 (16.57) — Butts vs. Penny, when it was held that Trover would lie for a Negro, 
 but no judgment was entered in that case. It is said there was another case 
 of the same kind in that reign, but in a subsequent case, Easter, 5, Ann (1706.) 
 The court denied the opinion in the case of Butts and Penny to be law. 
 
 The next case is Smith vs. Brown & Cooper, in which Lord Holt. Cli. Jus- 
 tice, says : " As soon as a Negro comes into England, he becomes free ; and 
 one mar be a villein in England, but not a slave. Powel. J. In a villein the 
 nwner ha,s a property, but an inheritancL. The law takes no notice of ;i 
 Negro." 
 
 The next case is Chamberline vs. Harvey, Easter, 8 W. 15 (1697). which 
 .140 was — trespass for taking a Negro slave of the value of £100. Upon not 
 guilty pleaded, tlho jury found a, sipecial verdict ait the Guildhall, in London. 
 
 That the father of the plaintiff was possessed of this Negro, and of such 
 a manor in Barbadoes, and that there is a law in that country making the 
 
 1274 
 
 I 
 
 ^il;'^, 
 
■KiMiinoc 
 
 [.IA(K] 
 
 SLAVERY IN NEW BRUNSWICK 
 
 167 
 
 n was, in fact, 
 solemn decision 
 r for a Negro, 
 
 Insisted : " If 
 r him for by 
 rntra, men may 
 irty. Villeinage 
 captivuin suum 
 seemed to think 
 
 might give in 
 , therefore, that 
 islbly when the 
 Ight be decided 
 ntinue after his 
 
 >lemnly decided 
 letermined that 
 
 nciples at large. 
 Cully remarked 
 Che doctrine he 
 rreably to the 
 the freedom of 
 ►f those rights 
 aid of human 
 \ot be abridged 
 if ooimmit some 
 I competent to 
 naster claiming 
 
 Js court, in full 
 
 give, that it is 
 
 ' slavery which 
 
 to inquire how 
 The lirst case 
 
 Term, 9 Car. 2 
 lie for a Negro, 
 ais another case 
 er, 5, Ann (1706.) 
 r to be law. 
 L Holt. Cli. Jas- 
 mines free ; and 
 In a villein the 
 
 nn notice i>f a 
 
 3 (1697), which 
 too. Upon not 
 ill, in London. 
 TO, and of such 
 try making the 
 
 Xi'Si'ifs part of the real estate— that the father died seized, whereby the 
 manor descended to the plaintiff, as son and heir— that he endowed his mother 
 of this Negro and one-third of ths- manor— th.it the mothei- married Watkins, 
 who brought the Negro to Ensland, where he wa.s baptized, without the 
 knowl'lge of the mother ; that Watkins and his wife aiv^ dead, and that the 
 Negro continued several years in Kngland, and at the time when the tre.-spaas 
 v>a.s supposed to be commit t"d, was in the service of the defendant, and had 
 for his wages £6 per annum. Hut wht^iher, upon th ■ whole matter, the 
 defendant be guilty of the trespass they refer to the court. 
 
 Three questions were made upon this verdict: 1. Whether upon this finding 
 there was any legal property vested in the plaintiff. 
 
 2. If any such property be vested in him, then whether the bringing 
 this Negro into England be not a manumission, and the property thereby 
 divested. 
 
 ,''■. Whether an action of trespass will lie for taking a man, of the price 
 of £100 ? 
 
 In support of the first point, the doctrine of villenage was insisted upon — 
 also the Act of Assembly of the Island of Barbadoes, which makes these 
 slaves part of the real estate, and that thi.s Negro was born of Negro 
 parents there : That this ordinance being made in Barbadoes, a place subject 
 to the Crown of KIngland, has the same force there as an Act of Parliament 
 here. And the case of Butts and Penny, which had not then been over-ruled, 
 was acted upon. • 
 
 On the second, it was insisted that nothing was found that amounted to a 
 maniimission. It was argued upon the ground of villenage that a villein could 
 in no case be enTranchised, but when the lord is an actor — that nothing of the 
 lord's consent was found in this verdict, but the contrary ; that the bringing 
 him into England by Watkins will not make him free, because he was a 
 trespasser in so doing, for he ought not to have removed h;m from the 
 plantation to ^^'h,ich he was resardant. If, therefore, taking him from the 
 plantation was tortioii.--, then th • fin.iina: th;;t he continued in his service, and 
 that he afterwards tui-ned him away, will not amount to a manumission. 
 
 It was argued on the other side— "That it is against the law of Nature for 
 one man to be a slave to another. It i» true that a man may lose his liberty 
 by a particular la;w of his country, or by being taken in war, for'then he owes 
 his life to those who preserve him, or when a man voluntarily sells himself 
 for sustenance or alimony, but no such thing is found in this verdict, and 
 nothing- shall be presumed but what is in favour of liberty. It is by the con- 
 stitution of nations, and not by the law of nature, that the freedom of 
 mankind has hecn turned into slavery. But our law.s are called Libertalis Ayujlice 
 Ijccause they made men free. 
 
 " If slavery in Barbadoes and Villenage here were the same sort 
 of servitude, the plaintiff may be seized of this Negro, as a 
 villein in gross, or as regardant to the plantation, for there were 
 but two sorts of villeins here, either in gross or regardant, to particular man ins. 
 Now tills cannot be a villein regardant to the plantation, for then the plain- 
 tiff and his ancestors must be seized of this Negro, and his ancestors, time 
 out of the memory of man, which could not be, because Earl>adoes was 
 acquired to the English within time of memory, and he cannot be a villein 
 in gross because it is found he was born of parents Ijelonging to the plantation. 
 But if the plaintiff have any property in this Negro, he must either have an 
 
168 
 
 ROYAL SOCIETY 01< CANADA 
 
 ill I 
 
 ibsolule or qualified property In him at the time of the trespass supposed to 
 be com:nlUed. He could not have an absolute or general property, because 
 by '.Magna '^'harta' and the laws of England no man can have such a property 
 over :„nother. And If he had only a quia.lifled property, then an action of 
 trespass will not lie, but an action per quod servitium amisit." 
 
 ' But if the plaintiff had any right to the servitude of this Negro, that right 
 Is now divested by his coming into England ; for the ordinance made In 
 Barbadoes shall not make him so regardant to the plantation there, as to go 
 to the heir, because that is only lex foci, and adajited to that particular jiliice 
 (as the law of Stannaries in Cornwall) and extends only to that country, so 
 long as he Is occupied In servioe on that plantation ; and If he be brought 
 into another country, where that law has no effect, that amounts 
 to a manumission, so that the bringing him Into England discharges him of 
 all servitude or bondage." " If the lord have still an absolute property over 
 him, then he might send him Into any other country, but the law Is so careful 
 of the liberties of men under its protection that the King himself, who has 
 so great a right to the duty and service of his subjects, cannot send anyone 
 out of England agajnst his will to serve in any other place, even In his own 
 dominions, for this My Lord Colce says would l)e perdcrc pnfrinn), and there- 
 fore, the lord could not send a villein in gross out of the Kingdom, because 
 the King had a right to him. Thus It is also in the case of apprentices, 
 who, though they voluntarily submit to serve their masters for a certain 
 number of years, yet they cannot be sent out of the Kingdom, though it 
 be to their mia.ster's house, and in his service, unless it be the agreement, or 
 the nature of the apprenticeship is such. " Agreably to this doctrine, 
 Blackstone tells us that " nio power on earth, except the authority of Parlia- 
 ment, can send any subject out of the land against his will ; no, not even 
 a criminal." In this case the court avoided giving any opinion upon the two 
 first points made In the cause, but determined It upon the third point, that 
 the bill should abate ; for the court were of opinion tha^t no action of trespass 
 would lie for taking a man generally, but that there might be a special action 
 ~ "rtheroof trespass for taking his servant j}<'r quod serviflum amisif, and per Holt 
 might haT" Chief Justice, Trover will not lie for a Negro— Contra to 3, Keble, 785, 2 Lev., 
 
 1 Bl. Com. l;7. 
 
 itytiK 
 ha" 
 been an action 
 per quod, etc.. 201, Butts VS. Penny, 
 in le case ) - ^^ ^^.^^ case, as reported in Lord Raymond, is the following note: 
 
 Hill, 5 
 
 B., between Selly and Cleve, adjudged that Trover will lie for a 
 
 1 Bl. Com. 425. 
 
 fore them, but 
 
 that thereby o ^^ 
 
 might be aiicli "^ ' '^ ^" 
 
 an action when Negro boy, for they are heathens, and, therefore, a man may have property 
 
 support *ir°" ' in them, and that the court, vvithout averment made, will take notice that 
 they are heathens." Ex relatione M. place. 
 
 This note has occasioned a very severe reprehension of the practice it 
 gave rise to by Judge Blackstone, in the following words : " The infamous 
 and unchristian practice of withholding baptism from Negro servants lest they 
 shoniri thereby gain their liberty. Is totally without foundation, as well as 
 without excuse." Upon whiioh Profeseor Christian observes : "We might have 
 been surprised that the learned commentator should condescend to treat this 
 ridiculous notion and practice with so muoh seriousness, if we were not 
 apprized that the Court of Common Pleas, so late as the 5 W. & M. hel I that 
 a man might .lave a property in a Negro boy, and might bring an action of 
 trover for him, because Negroes are heathens. A strange principle to found 
 a right of property upon ! " 
 
 2 MRaym.1274 The next case upon this point is in Easter Term, 5 Anne (1706), Smith vs. 
 Gould. 
 
 J 
 
[jack] 
 
 SLAVEUY IN NKW BRUNSWICK 
 
 169 
 
 ss auippoaed to 
 
 perty, because 
 
 ucb a property 
 
 an action of 
 
 igro, that right 
 ance inadc In 
 here, as to go 
 .articular i)lace 
 at countrj", so 
 he be broug-ht 
 hat amounts 
 harges him of 
 
 property over 
 iv Is so careful 
 iself, who has 
 t send anyone 
 '©n in his own 
 1711, and there- 
 gdom, because 
 f apprentices, 
 
 for a certain 
 om, though it 
 agreement, or 
 this doctiine. 
 ity of Parlia- 
 
 no, not even 
 
 upon the two 
 rd point, that 
 on of trespass 
 
 special action 
 and per Holt 
 
 le, 785, 2 Lev., 
 
 note: Hill, 5 
 
 will lie for a 
 
 have property 
 
 te notice that 
 
 he practice It 
 The infamous 
 rants lest they 
 n, as well as 
 e might have 
 , to treat thla 
 we were not 
 M. hel 1 that 
 an action of 
 :iple to found 
 
 06), Smith vs. 
 
 In an action of trover tm- a. Negro, and several goods, the defindant let 
 Juilgniont go l)y default, a.nd, the writ (vf inquiry of damages wa.s exeiuted 
 before the Lord Ch. Justice Holt, at Guildhall In London. Upon which 
 the jury gavt» several du,mapes as to the goods, and the Negro, and a motion 
 as to the Negro was made In arrest of judgment that trover could not lie 
 for it, because one could not have such a property in another, as to maintain 
 this action. 
 
 Mr. Salkeld, for the plaintiff, argued that a Negro wa.s a chattel by the 
 law of the plantations, and, therefore, trover would lie for him. That l)y the 
 Levitical law, the master had power to kill his slave, and In Bxodus 20, v. 
 21, it Is said he is but the master's money, that if a lord confines his villein 
 the court cannot set him at liberty— and he relied on the case of Butts vs. 
 Penny. Sr<l mm nllocatiir, for ])ir totiim ri(CiV»Hi -this action does not lie for 
 a Negro no more than for any other man, for the comimon law takes no notice 
 of Negroes being different from other men. By the common law no man can 
 have a property in another, but in special cases, as in a villein, etc. There Is no 
 such thing as a slave by the law of England, and if a man's servant Is taken 
 from him, the master cannot maintain an action for taking him, unless it is 
 laid pvr (/nod strrUiiim amitiif. And the court dented the opinion in the case 
 of Butts vs. Penny. 
 
 It may, indeed, be safely contended that the very bringing an action of 
 trespass per (/noil servifiuni (iminif is incompatible with the condition of 
 slavery insisted upon in the present case— for Judge Blackstone tells us. "that j jd, com. 420. 
 the reason and foundation upon which all this doctrine Is built, seems to be 
 the property that every man has in the service of his domestics, a.cquired by 
 the contraot of hiring, and purchased by giving them wiages." And to support 
 such an action the plaintiff, I apprehend, must declare upon and prove the 
 contract, whether parol or written, by which he is entitled to the stivice 
 of the servant in question, and damages for the loss of sudh service. Unless 
 in the instance of master and servant commencing without contract, and 
 that of apprentices, against the will of the parties, both which are provided 
 by special statutes of municdpal law. In the case, then, of a Negi^o the plain- 
 i.ff in such an action miust fa.il, for default of proving a legal retainei- (^f him 
 in his service. 
 
 The niext case is one mentioned In the case of Somerset, Stanley and 
 Hervey, which must have been between 1761 and 1765, while Lord Northington 
 was Ohahcellor. On a bequest to a slave, by a person whom he had served l«fft» *■ 
 some years by his former master's permission, the master claims the bequest; 
 Lord Northington decides for the ■'lave and gives him costs. 
 
 We now come to the celebrated case of Somerset, decided in the Court of 
 King's Bench in the year 1772, in which, says Professor Christian, " it was 
 decided that a heathen Negro, when brought to England, owes no service to 
 an American, or any other master." " The case was this: James Somerset 
 had been made a slave in Africa, and was sold there ; from thence he was 
 carried to Virginia, where he was bought, and brought by his master to 
 England ; here he ran aw"ay from his master, who seized him and carried 
 him on board a ship, where he was confined, in order to be sent to Jamaica to 
 be sold as a slave. While he was thus confined. Lord Mansfield granted a 
 Habeas Corpus, ordering the captain of the ship to bring up the body of 
 James Somersett, with the caUkSe of his detainer. The above-mentioned 
 circumstances being stated upon the return to the writ, after much learned 
 
17(J 
 
 ROYAL S0CIP:TY OF CANADA 
 
 Mr. Alleync. 
 
 dl.«iu«sloii in the Ci>urt of KltiR'H Bonch, the Oowrt were unanimously of 
 (ijiiiilon thai the rt^turn \\i\,» inyiitllcinnt, nn<l that HmmerHott oiiffht to bo 
 dlft'hargfj." 
 
 Muih may l»f Icarnctl of the grounds and prlnciplea of thi.'- 
 decision from the arguments made use of tho counsel In the cause. It Is 
 but indifferently reported by Lofft, and I have not been able to obtain Mr. 
 Harprave'a learned arpumenL for the Nc-grn, printed in 11 State Trials, 340, 
 From the report, howevei-, many Important observations may be collected. 
 " Domestic slavery," says Mr. Harg-rave, " took its origin very early among 
 tho barl>arous nations, continued In the state of the Jews, Qreeks, Romans 
 and CermanB, was propagated by the last over the numerous and extensive 
 countries they subdued. Incompatible with the mild and humane precepts of 
 Christianity, It began to be abolished In Sp.ain, as the Inhabitants grew en- 
 llghti ned and civilized in the eighth century, its decay extended over Hurope 
 in the fuurleenth, was pretty well perfected in the beginning of the sixteenth 
 c< utury. Soon after that period, the discovery of America revived those 
 tyrannje doatrines of servitude with theii' wretched consequences. There Is 
 now at last an attempt to introduce It Into England. Long and uninterrupted 
 usiige friMn the common law stands to oppose its revival. All kinds of 
 domestie slavery were prohibited, except Villenage. A new species has never 
 arisen till now ; for had it, remedies and poAVers there would ha.ve been at 
 law. Therefore, the most vlolenl presumption a^'aln&t it is the silence of the 
 laws, were there nothing more. 'TIs very doubtful whether the laws of 
 England will permit a man to bind himself by contract to serve for life ; 
 certainly will not suffer him to invest another mian with despotism, nor prevent 
 his own right to dispose of property, if disallowed, when by consent of 
 parties, much more when 'by force ; if made void when commenced here, 
 much more when imported." 
 
 " What power ca.n there be in any man to dispose of all the rights vested 
 by iialui-e and society In him and his descendants ? He cannot oonisent to 
 part with them without ceasing to be a man, for they Immediately flow from 
 him and are essential to his condition as such. They cannot be taken from 
 him, for they are not his, as a citizen or a member of society mei^ly ; and 
 are not to be resigned to a power Inferior to that which gave them." 
 
 "Slavery is not a natural, 'tis a municipal relation, an institution, therefore 
 confined to certain places and necessarily dropt by a passage into a country 
 where such municipal regulations do not subsist. The Negro making choice 
 of his habitation here has subjected himself to the penalties, and is therefore 
 intitled to the protecition of our laws." 
 
 "The Court approved of Mr. Alleyne's opinion of the distinction how far 
 municipal laws were to be regarded, instanced the right of marriage ; which, 
 properly solemnized, was in all places the same, but the regulations of power 
 over children from it and other circumstances, very various ; and advised, If 
 the merchants thought it so necessary, to apply to Parliament, who could 
 make laws." 
 
 Lord Mansfield.—" Contract for the sale of a slave Is good here. The 
 eal ' is a matter to which the law properly and readily attacheis, and wui 
 maintain the price according to the agreement. But here the persooi of the 
 slave himself is immediately the object of enquiry, which makes a very 
 material difference. The now question is, whether amy dominion, authority, 
 or coercion can be exercised in this country on a slave according to tho 
 
 i 
 
 III I 
 
(.lACKJ 
 
 SLAVERY IN NKW HIIUNSWICK 
 
 171 
 
 unanimously of 
 
 t oUffht to 1)0 
 
 clplea of ttiif- 
 ■ cause. It Is 
 
 to obtain Mr. 
 tate Trials, .140, 
 i.y be collected, 
 'y early among: 
 Jreeks, Romans 
 < and extensive 
 iint- precepts of 
 itantH grew en- 
 cd over Hurope 
 f the sixteenth 
 
 revived those 
 >nces. There Is 
 i uninterrupted 
 
 All kinds of 
 e«ies has never 
 J have boon at 
 : silence of the 
 r the laws of 
 serve for life ; 
 3m, nor prevent 
 by consent of 
 mmoncwl here, 
 
 o rights vested 
 not coni.sent to 
 itely flow from 
 
 be taken from 
 ^ merely ; and 
 :hem." 
 ution, therefore 
 
 into a country 
 
 making choice 
 md is therefore 
 
 lotion how far 
 rrlagre ; which, 
 tlons of power 
 and advised, If 
 mt, who could 
 
 od here. The 
 ches, and w.il 
 persoai of the 
 nakes a veiry 
 lion, authority, 
 cordiner tio the 
 
 AiiKMii^n law ? Thi- dlfliculty of adopting the relation, without adopting" 
 It ill all It.s con.««equenw.s Is Indeed extreme ; and yet many of those 
 coiisiMjuonceii are absolutely contrary to the munlciixil law of Eng- 
 liiiid. We have no authority to regulate conditions In whloh law ahnll 
 operate." "( )ii the other hand," (by whK-h must be Intended, we have author- 
 ity), "should we think the cLerelve power cannot be exerrised." "Mr. Stewart 
 advances no cliilni »n contract. He re«t8 his whole denvand on the right to 
 the Nesro as a slave, and mentions the purpose of detatnure to be the 
 sending o-f him over to l)e sold In Jamiica. If th • parties will have Judgment 
 fliil JK.sfitiii riitif roluiii." "An appliciition to I'lirlliinient. if the inercliantsthink 
 tlK> (luestion of great commercial concern. Is the 1>est, and, i>erhaps. the only 
 nl^thod of settling the point for the future." "The only question before us 
 is, whether the cause on the return Is sufficient ? If It Is, the Negro must l>e 
 remanded : II' it is not, h-- must b;- discharged. Accordingly, the return 
 st.ibes that the slave departed and refused to » Tve ; whereupon he wa.s kept 
 to be sold abroad. So high an net of .lomlnlon must be recognized by the 
 law of the country where it is useil. The power of a master over a slave 
 huLs been extremely different in different countries. The state of slavery Is 
 of such a nature that it is Incapable of being Introuuced upon any reasons 
 iii'Jial or |)olitical ; l>ut only potiitlve law which prest"\'es Its ton-v long after 
 the reasons, occasion and time itself from whence it wa« creatwl, are erased 
 from memory. It's so odious that nothing can be suffered to support It but 
 positive law. Whatever inconvenience, therefore, may follow from a decision 
 I cannot say this case Is allowed or approved by the I>aiw of England, and, 
 tlieiefore, the black must be discharged." 
 
 Frf>m this decision may be collected : — 
 
 1st. That the "ourt had no powei- to modify tlie condition of the slave — 
 that is, to recognize him anil his master under the known i-elation of master 
 and servant, by the municipal law of England, but they were bound to remand 
 him as a slave a' cording to th«' American Laws, or di.-?'i'harge him. 
 
 " We have no aiitlinritv' to regulat • the c miditlons in whicii law shall 
 operate." 
 
 Jly. Tliat .such a state of slavei-y is so odii>us, that it can only be supported 
 by the p<xsitive law of the place where the right is exercised. 
 
 lily. That if any inconveniences resulted from this decision, "an application 
 to Parliament was the only method of settling the point for the future." 
 
 Xo application, however, has been made to Parllamefnt, in consequence of 
 this decision, a,nd England still remains the happy country in whosie very soil 
 the spirit of liberty is so deeply rooted that a slave or Negro, the moment 
 he lands upon It, fails under the protection of the laws and becomes a free 
 man. 
 
 In consequence of this d(»cisi(m, says the learned Pix)fessor CJhrlstlan, "if 
 a ship loaden with slaves was obliged to put into an Englisih harbour, all the 
 slaves on l)oard might and ought to be set at liberty. Though there arc some 
 acts of Parliament which recognize and regulate ihe slavery of Negroes, yet 
 it exists not in the contemplation of the common law ; and the reason why 
 they are not declared free before they reach an English harbour. Is only because 
 their complaints cannot l)e sooner heard and redressed by the process of an 
 English Court of Justice." 
 
 " Liliberty by the Englisih law depends not upon the complectlon; and what 
 was said, even in the time of Queen Elizabeth, Is now substantially true, that 
 tre air of England is too pure for a slave to breathe In." 2 Rushw. 468. 
 
172 
 
 UOYAh SOCIEIY OK CANADA 
 
 Oh. Juat. mow- 
 en. 
 
 Miliar on Ranki 
 
 AlKl In a liUt r dfclHlon In Scuiianil, In 177s. KnlKht vh. W«'<ltlt'r- 
 l)urn<', IL \\a« cU-clarcil ihwl ihc dnniininii a.'<siiMu'il ovi-i' ihr Nckio uiidrr thi> 
 law of Jamaica, bt-lnK uiiijust, im)uI(1 not be »uppnit«?<l In Scotland to any 
 extent ; that, therefort-, ihu maHter had no riKht to the Ni-Kro'H hitvIco for 
 any Hpace of time, nor to send him out of thi- country agaJnut hlJ» conHent. 
 Millar on KankH. 
 
 N.B.— This must be a later edition than mine, which was published In 1773. 
 
 V. The (Ifth point of Uur ari^umont Is — What Is the (onditloii of slavery in 
 the Colonics where It 1» tolerated, and In what manner and how fai' has it 
 been recognized by Aots of Parliament ? " After domestic liberty," Bays Prof. 
 Millar, "had been, in a trrimt measure established in thosi- European nations 
 which had made the preatesl lmpri>vementH in affrliulture, America was 
 discovered ; the first settlers of which, from their dlstanice, and from the 
 llfttle attention that W"a9 jxtld to them by the frovernmeiit of their Mother 
 Countries, were under no neces*<ay of c<jnfurmln« to the laws and customs of 
 Europe. The acquisition of gold and silver was the great object by which the 
 Si)aniards were directed in the settlements which they made upon that continent; 
 and the native inha'bllants, whcm they had coaciuend, were reduced into 
 slavery and put to work In the mJnes. But belnK either exhiiusited by the 
 severity with which they were treated, o.r not being thouRht sufllciently robust 
 for that kind ol' lailjuur, Negro slaves were afterwards purchased for this 
 purpose from the Portuguese settlememts on the Coast of Africa. When sugar 
 planta.tli)ns were erected, the same people were employed In these, and in 
 mot^t other kinds of work wihich came to be performed in that part of the 
 world. Thus, the praicUce of slavery was no socmer extinguisihed by the 
 inhaibltants In one quarter of the globe, than it was revived by the very 
 some people in another, where It has remained ever since, without being much 
 regarded by the pu'ljlic, or exciting any effectual regulations in order to sup- 
 press it." 
 
 " Considering the many advantages which a country derives from the 
 freedom of the laliouring people, it is^ maitler of regret that any species of 
 slavery should still remain in the dominions of Great Britala, in which 
 lll>erty is generally so veil under&toud and so highly valued." 
 
 " The first importation of Negro slaves into His^panlola wa»« in the >ear 
 1508." Anderson's History of Oommerce, vol. 1. p. 336. 
 
 " The Negroes in the plantations are subsisted at a very easy rate. This 
 Is generally by allotting to each family of them a simall portion of land, and 
 allowing them two days in the week, Saturday and Sunday, to cultivate it. 
 Some are subsisted In this manner, but others find their Negroes a certain 
 portion of guln.ia and Indian corn, and to some a salt herring or a small 
 portion of bacon or salt pork, a day. All the rest of the charge consists in a 
 cap, a shirt, a pair of breeches and a blanket ; and the profit of their labor 
 yields £10 or £12 anniuaJly." 
 
 " The EJngllsh landed lin Barbadoes about the year 1625. In 1650 it contained 
 more than 50,000 whites, and a much greater numiber of Negroes and Indian 
 slaves, the latter they acquired 'by means not at all to their honour, for they 
 seized upon all those unhappy men without any pretense, in the neighbouring 
 islands, and carried them into slavery, a practice which has rendered the 
 Oarlbbee Indian irreconcilable to us ever since." 
 
 " The Negroes In our colonies endure a slavery more compleat, and 
 ■^uTopeairUu attended with far worse circumstances than what any people In their condition 
 
 P. 300. 
 
 Onthrie'g Geo. 
 Orammar W. 
 Indies. 
 
 lb. 
 
[mck] 
 
 tiLAVKRY IN NEW BKUNSWICK 
 
 173 
 
 VH. Wfdilcr- 
 ;iii under lhi> 
 lutiil to any 
 
 M Hi'I'Vllc for 
 
 hirt c'onHLMit. 
 
 llHhed In 1773. 
 
 cil' Hliivi'fy in 
 >\v far hoH it 
 y," Buys ITof. 
 jpean nation* 
 America was 
 md ti\nn the 
 
 their Mother 
 ul customa of 
 i)y which the 
 toit continent; 
 
 reduced into 
 usted by the 
 cleat) y robust 
 ascd for this 
 When sugar 
 these, and in 
 t part of the 
 shed by the 
 by the very 
 it being much 
 
 order to sup- 
 
 ves from the 
 niy species of 
 ain, in which 
 
 I', in the year 
 
 sy rate. This 
 of land, and 
 
 > cultivate It. 
 
 oes a certain 
 
 ig or a smiall 
 consists in a 
 
 )f their labor 
 
 iO it contained 
 i& and Indian 
 lour, for they 
 neighbouring 
 rendered the 
 
 wnpleat, and 
 heir condition 
 
 I 
 
 I 
 
 suffer In any otiur jmrt nf the world, or have RufToicd In any other periml \'„^Vm' " ' Vo' 
 of time, I'roofH of thlt) are not wanting," i. p U4 
 
 In the year 1068 an Act of Aasembly waH paiWid jn the Island of Uurba- , m,„i , ihj. 
 docH, dicUuinK the NcKto HlavcK^ of I hat iKlamI to l)e leal t'»tate8, by which 
 U was eniiicted that " all Negro slaves in all Court.s of Judicature, and other 
 places within that island, .'^hould be held, taken and adjudged to be eniates real, 
 anil tiot chattels, within that island, and should descend unto Iho heir or widow 
 of any jterson dying, aci'ording to tin- manor and custom of lands of 
 Inheritance held In fee simple." 
 
 "Slaves pans by desc« lit and dower as lands do, slaves as well as lands Moric>_ Aimr. 
 were entailable during the monarchy, but by an Act of the tlrst llopubllcan 
 Assembly, all dower, entail, present and future, were vested with tho absolute 
 dominion of the entalleil subject." 
 
 " In Octol>er, 17ti6, an act was passed by the Assembly, prohibiting the 
 importation of slaves into the Commonwealth, upon penalty of the 
 forfeiture of £1,000 for ea.ch slave, and the slave became free," 
 
 Hy a law of tho Province of New York, pass^-d In 1706, it waw enacted 
 that the l)aptlzlng a Negro, Indian, or Mulatto slave, should not make them 
 free, and that all and every Negiu, Indian, Mulatto anil mestic, bastard child 
 .ind (bildreii, who is, are and shall be born of any Negro, (ndian, Mulatto or 
 Mestic, shall follow the state and condit|.)n of the mother, and he esteemed and 
 adjudged a slave and slaves to all intents and purposes whatsoever. And that 
 no slave should be admitted a witness for or against any freo man In any 
 cause whatever, civil or criminal. By another Act, passed in ITIiO, any master 
 or mistress might punish his, her or their slave or slaves for their crimes and 
 offences, at discretion, not extending to life or limb. 
 
 Every town to appoint a common whipper for slaves, who was not to be 
 allowed above 3s a head for whipping. , 
 
 Thi.s Acit afterwards declaring that slaves are the property of Christiana 
 or Jews, and that they cannot, without great loss to their owners, oe sub- 
 jected in all cases criminal to the strict rules of the laws of Etngiand, enacts 
 that if a slave shall, by theft or other trespass, damnify any person to the 
 value of £5, or under, the owner of such slave shall make satisfaction to the 
 party injured, and the slave shall be whipped at the dis'iretion of a Justice 
 of the Peace, and the owner paying the charge* of isiuch punishment, shall 
 receive his slave again without further punishment. It is then enacted that 
 no slave shall be admitted an evidence in any causp, except In cases of 
 Iilotting among themselves to run away, kill or destroy their master, 
 miPtress, or some other person ; or burning of houses, barns, barracks, or 
 ptackes of hay or corn, or killinf;: (htir master or mis-itresses cattK- or hoises, 
 and that only against one another, in which cases the evidence of one slave 
 shall be good against another slave. 
 
 The Act then proceeds to declare that if any Negro, Indian or Mulatto slave 
 shall l>e guilty of murder, rape, arson, mayhem or conspiracy, one justice, upon 
 complaint, shall call to his aid two other justices, which three Justices shall 
 summon five freeholders to meet at the time and place they shall appoint, 
 when and where the justices shall appoint some person to accuse the person, 
 without the Intervention of a grand Jury— to which accusation the party ac- 
 i used shall Ik" ol)liged immediately to plead, <t receive sentence, as if convicted 
 by verdict or confession ; and upon pleading, the Justices and the five free- 
 holders to whom no peremptory challenge shall be allowed, shall proceed to 
 
 I 
 
m 
 
 ^ 
 
 174 
 
 HOYAL SOCIETY OF CANADA 
 
 trial (the freeholders being first si\vi>rn t) Judse according t" evideae). and if 
 they, or seven of them, shall find the party accused gruilty, shal! sivo sentence 
 of death and warrant for immediate execution. 
 
 The Act then provides .fur reimbursement t) th.' owner of the slave 
 executed, of the price, not to exceed £25, by assessment upon the county. 
 
 An Act of Assembly of the Province of Massach'U.sett.s Bay, passed in 
 1706, imposes a duty of £4 per head upon every Xegro imported, allowing a 
 dra,wback of the duty in case .«u:h Negro shall be re-expected within twelve 
 months, and bona fide sold in any other i)lantati(>n. In this Province there 
 were several other Acts of Assembly reapecling the Negro and Mulatto slaves 
 In it. 
 
 I have not had it in my power to procure the municipal laws of any other 
 of Hlg Majesty's Provinces, now included in the Tnilcd Slatc.-^ of America, or 
 of any other of His Majesty's islands in ihe ^^'l'st Indies, l)ul no doubt can 
 be entertained that local laws establishing or recognizing this sp ' it .-! of 
 slavery were passed in all of them in which this right was exercised. 
 
 It is abundantly clear that in all those islands and Provin.e.^, the 
 condition of slavery invested the master with the absoluit- an 1 unqualified 
 property in the slave, to all intents and purpo.-^es, not exlendinn to life, or 
 perhaps, in some places to limb ; that it Included the powc:- of the master 
 over the slave's person and property, the right of th.' m ist t over all 
 acquirements of the slave's labour, ;v right of alienation and transportation to 
 any other master and country ; -that i. in<?luded the descendible property from 
 parents to children, and in like manner continually of the slave and all his 
 descendamts. 
 
 The only distinction that appears to have taken place is that in some of 
 the Colonies they were considered as personal chattels, and in others were 
 made estates real, descendible to the heir or widow in like manner as lands 
 of inheritance, in fee simple. And the several Acts of Parliament which have 
 been made respecting it, have recognized the condition of slavery in the 
 plantations in which it was established, as attended with all the consequences 
 above stated. 
 
 The first Act that wo find in the Statute Book upon this BUl)ject is 
 the Act 5, Geo. II., c. 7, infilled " An Act lor the more easy recDVcry of 
 debts in His Majesty's plantations and Colonies in America," by which it is 
 enacted that the houses, lands, Negroes, and other hereditaments and real 
 estates, shall be liable to the payment of debts, and shall be subject to the like 
 remedies, proceedings and process in any court of law or equity, in any 
 of the said plantations respectively, for seizing, extending, selling or dispos- 
 ing of any such houses, lands, Negroes, and other hereditaments and real 
 estates towards the satisfaction of such debts, and in like manner as personal 
 estates in any of the said plantations respectively, are seized, extended, sold 
 or disposed of for the siatisfactlon of de'bts. This Act was meant only to 
 make lands, tenements and hereditaments equally liable to the payment of 
 debts due to British subjects, with goods and chattels, — and so fai' as it 
 respects Negroes, was probably made in consequence of the Acts of 
 Assembly above mentioned, in Barbadoes and Virginia, and probably Acts of 
 similar nature in other Islands a.nd Colonies where slavery was established. 
 by which Negroes were made estates real descendable as lands of inheritance 
 In fee simple. 
 
 But the Act by no means intimates or impII(^s an Idea that th ■ slavery 
 of Negroes was in practice in all or even generally in the Colonies ; on the 
 
 iHi 
 
'*«* 
 
 [jack] 
 
 SLAVERY IN NEW BRUNSWICK 
 
 178 
 
 ■ideae). and if 
 1! givi' sentence 
 
 • of the slave 
 n the county. 
 Bay, passed in 
 ted, allowing a 
 1 within twolve 
 Province there 
 Mulatto slaves 
 
 •s of any other 
 
 i»t' America, or 
 L r.'i> doubt can 
 
 this sp ' ics of 
 
 exercised. 
 
 Provinces, the 
 an 1 unqualified 
 dinn- to life, or 
 
 of the master 
 iist;M' over all 
 ■an.iportatiiin to 
 e property from 
 ave and all hia 
 
 ihal 4n some of 
 in others were 
 lanner as lands 
 ,ent which have 
 slavery in the 
 le consequences 
 
 this BUl)ject is 
 sy recuvt'ry of 
 
 by which it is 
 ments and real 
 ject t(} tlie like 
 
 equity, in any 
 Uing: or dispos- 
 ments and real 
 iner as personal 
 , extended, sold 
 
 meant only to 
 the payment of 
 id so far as it 
 the Acts of 
 robab'.y Acts of 
 ivas ostalilished. 
 s of inheritance 
 
 hat th ' slavery 
 olonies : on the 
 
 contrary, the preamble of the Act states : " Whereas His Majesty's subject 4 
 trading to the British plantations in America lie under great difficulties for 
 want of more easy methodis of proving, recovering and levying of debts 
 due to them, than are now used in some of the said plantations." And the 
 enacting part, as we have seen, limits the operation of it to the plantations 
 respectively, to which the different subjects of it apply. But no inference 
 can be drawn from it to extend the laws of slavery from colony to colony, 
 wherever the Negro may be found, any inore than to give operation to any 
 other law of Barbadoes or Virginia. 
 
 The next Act of Parliament respecting this subject isJ the Act of 23, George 
 II., c. 31 : " An Act for extending a.nd improving the trade to Africa." 
 
 There is no enacting clause respecting slaves in this Act, excepting the 
 first— the preamble is in the words following : " Whereas the trade to and 
 from Africa is very advantageous to Great Britain, and necessary for the 
 supplying the plantations and Colonies thereunto belo'^ing with a sufficient 
 numter < f Negroes at reasonable rates, a,nd for that purpose the said trade 
 ought to be free and open to all Hie Majesty's suibjects." The Act then pro- 
 ceeds to lay this trade open to all His Majesty's subjects. 
 
 This Act evidently refers to those Colonies and plantations where Negro 
 slaves were considered as necessary for the cultivation of the staple commo- 
 dities produced in them, and even in these it does not establish the condition 
 of slavery, but supposes it to exist by the provision of their municipal laws. 
 These Acts of Parliament evidently recognize the condiition of sla.very 
 in the plantations in which it was tolerated to be attended with all the 
 consequences above enumerated, and accordingly Mr. Dunning In his 
 argument in the case of Somersett, says: " That his condition was that of 
 servitude in Africa ; the law of the land of that country disposed of him as 
 property, with all the consequences of transmission and alienation ; the 
 statutes of the British Legislature confirm this condition, and thus he was 
 slave both in law and fact." 
 The only remaining Act of Parliament relating to the question is the 
 Act of the 30th of the present reign, entitled " An Act for encouraging new 
 settlers in His Majesty's Colonies and plantations in America," which 
 is in the following words : " Whereas it is expedient that encourage- 
 ment shall be given to persons that are disposed to come and 
 settle in certain of His Majesty's Culonies and plantations in 
 America and the West Indies Be it therefore enacted by the Kings 
 most excellent majesty, by and with the advice and conisent of the 
 Lords spiritual and temporal and commons in this present parliament 
 assembled and by the authority of the same That from and after the first 
 day of August one thousand seven hundred and ninety if any 
 person or persons being a subject or subjects of the territories 
 or countries belonging to the United States of America .shall 
 come from thence together with his or their family or familie- to any of the 
 Bahama, Bermuda or Somers Islands or to any part of the Province of 
 Quebec or Nova Scotia, or any of the Territories belonging to his Majesity 
 in North America for the purpose of residing and .<i(=ttling there it sha.ll be 
 lawfull for any such person or persona having fiist obtained a licence for 
 that purpose from the Governor or in his absence the Lieutenant Governor of 
 the said Islands, Colonips or Provinces respectively to import into the same 
 in British ships, owned by his Majesty's subjects and navigated according to 
 
 Lofft, 11. 
 
 Ill fr(o. in., c 
 a7. 
 
 1 
 
176 
 
 ROYAL SOCIETY OF CANADA 
 
 Lofft, IJ 
 
 law, any Negroes, household furniture, utensils of husbandry and clothing, free 
 from duty. Provided aUvays that such household furniture, utensils of hus- 
 bandry and clothing shall not in the whole exceed the value of fifty pounds 
 for every wihite person that sihall belong to such family and the value of 
 forty shilllnga for every NegrO' brought by such white person, and if any 
 dispute shall arise as to the value of such household furniture, utensils of 
 husbandry or clothing the saime shall be heard and delermdned by the Arbi- 
 tration of three British merchants at the port the sams sha,ll be imported, 
 one of siuch british merchants to be appointed by the Governor, or in his 
 absenoe the Lieutenant Governor of such Island or Province, one by the 
 Clollactor of the Customs of such port, and one by the person so coming with 
 his family. 
 
 " II. And be it further ena:ctcd. That all sale.s or bargains for the sale of 
 any Negro, household furiture, utensils of hustoandry or clothing so imported, 
 which shall be made within twelve calender months after the Importation of 
 the same (except in causes of the >l>ankrupitcy or death of the owners Ihere-of) 
 shall be null and void to all intents and purposes whatsoever. 
 
 " III. And be it further enacted that every white person so coming to re- 
 side if above the age of fourteen years shall and he is hereby required 
 immediately after his arrival to take and subscribe the oath of allegiance 
 to his Majesty his heirs and tuccesisors, before the Governor, Lieutenant 
 Governor or Chief Magistrate o'' the place where suoh person shall arrive, 
 and at the same time swear that it is his intention to reside and settle in such 
 Island or Province for which oaths such Governor Lieutenant Governor or 
 Chief Magistrate &hall receive the same fee and no more as is payable by 
 law on administratinig the Oath of Allegiance, in cases whe;e the same is now 
 by law required." , 
 
 This Act does not establish s'lavery in any Colony in which it did not exist 
 antecedently thereto, nor does it convey an idea that slavery was established 
 in all the Colonies mentioned in it— on the contrary, the clause requiring a 
 license to be obtained from the Governor, for the importation of the articles 
 mentioned in it, may be fairly considered as bair.g inserted, with a view to 
 guard against any difficulty that might arise from bringing Negroes into a 
 Province where slavery was not sanctioned by law. 
 
 This brings me to the last and principal point of the argument : — 
 
 VI. What is the law of this Province respecting the slavery of Negroes ? 
 
 And here it must be premised that they are either free or absolute slaves, 
 with all the consequences of transmission and alienation, and incapacity to 
 acquire any property of their own. 
 
 For it was very strenuously and ably contended in the case or Somersett 
 by the Counsel for his master, that the Court had a right to qualify the 
 terms and conditi-»ns upon Which he should be held as a servant. Mr. Dunning 
 agreed to Mr. Alleyne's oibservation, that the municipal regulations of one 
 country are mot binding on another, but goes on to say : " Does the relation 
 cease where the modes of creating it, the degrees in w' ich it subsists vary?" 
 " I have not heard, nor, I fancy, is there any intenii jn, to affirm the relation of 
 master and servant ceases here. I understand the municipal relations differ 
 in different colonies, according to humanity and otherwise." "Contract is not 
 the only means of producing the relation of master and servant ; Che 
 Magistrates are empowered to oblige persons under certain circum- 
 stances to serve." "Vlllena^e has existed in this country— and a.re not the 
 
 'I* 
 
SLAVERY IN NEW BRUNSWICK 
 
 177 
 
 lothing. free 
 
 nsils of hus- 
 
 fifty pounds 
 
 !he value of 
 and if any 
 
 I, utensils of 
 
 by the Arbi- 
 
 be Imported, 
 
 >r, or in his 
 one by the 
 coming with 
 
 jr the sale of 
 
 so imported, 
 
 iiportation of 
 
 rners ther€>of) 
 
 coming to re- 
 reby required 
 
 of allegiance 
 r, Lieutenant 
 1 shall arrive, 
 
 settle in. such 
 [ Governor or 
 is payable by 
 ,e same is now 
 
 t did not exist 
 as established 
 se requiring a 
 of the articles 
 ith a view to 
 •Jegroes into a 
 
 inient : — 
 
 of Negroes ? 
 i,bsolute slaves, 
 
 incapacity to 
 
 or Somersett 
 o qualify the 
 Mr. Dunning 
 ilations of one 
 es the relation 
 ubsists vary?" 
 the relation of 
 elations differ 
 Contract is mt 
 servant ; the 
 rtain circum- 
 ,d are not the 
 
 I jack] 
 
 laws existing by which it was created ? " " Whichever way it was formed, 
 the consequences, good or ill, follow the relation, not the manner of 
 producing it. I may ol^serve there is an establishment by which Magistrates 
 compel idle or dissolute persons of various ranks aJid denominaUons to serve. 
 In the case of apprentices bound out by the parish, neltlher the trade is left 
 to the choice of those who are to serve, nor the consent of parties necessary ; 
 no contract, therefore, is made in the former instance, none in the latter ; 
 the duty remains the same. The case of contract for life, quoted from the 
 Year Books, was recognized as valid ; the solemnity only of an instrument 
 judged requisite. Your L<ord&hips (this variety of service, with divers other 
 sorts, existing by law here), have the option of classing him amongst those 
 servants which he most res»embles in condition : Therefore (it seems to me) are 
 by law authorized to enforce a service for life in U*e slave, that l>eing a part 
 of his situation before his coming hither, which is not incompatible, but 
 agreeing with our laws, may Justly subsist here, I think, I mig'ht say, must 
 necessarily subsisit as a conisequen'oe of a previous right in Mr. Stewart, which 
 our in.ititutions not dissolving, confirm. I don't insist o.\ all the consequences 
 of villenage, enough is established for our cause by suppo.-'ting the continuance 
 of the s( rvice." " Our Legislature, when it finds a relation existing, supports 
 it in all suitable consequences, without using to iuquiirt; how it commenced. 
 A man enlists for no specified time ; the contract, in construction of law, is 
 for a year. The Legislature, when once the man is enlisted, interposes 
 annually to continue him in the service as long as the puiblic has need of 
 him, etc." " The opinion cited to prove the Negroes free on coming hither, 
 only declares them not saleable, does not take away their service." In answer 
 to this reasoning, Sergeamt Davy, in the course of his argument, among other 
 things, mentions the case of Thorn & Watkims — as follows : — 
 
 " In the case of Thorn and Wa.tkins, in which Your Lordship was counsel, 
 determined before Lord Hardwicke. a man died in England with effects in 
 Scotland, having a )>rother of the whole and a sister of the half blood, the 
 latter by the laws of Scotland could noit take. The brother applies for 
 administration to take the whole estate, real and personal, into his own hands, 
 for his own use; the sister files a bill in Chancery, the then Attorney- General 
 puts in an answer for the defendant and afflrms the estate as being in Scotland 
 and descending from a Scotchman, should be governed by that law. Lord 
 Hardwicke over-ruled the olijection against the sister's taking, declared there 
 was no pretense for it. and spoke nearly in the following words : Suppose a 
 foreigner has effects In our stockes and dies abroad, they must be distributed 
 according to the laws not of the place where his effects were, but of that to 
 which, as a suljject, he belonged at the time of his death. All relations gov- 
 erned by municipal laws must be so far dependent on them, that if the parties 
 change their country, the municipal laws give way, if oonitradictory to the 
 political regulations of that other country. In the ca,se of master and slave 
 being no moral obligation, but fo'unded on principles and supported by prac- 
 tice, utterly foreign to the laws and customs of this country, the law cannot 
 recognize such relation." 
 
 Lord Mansfield, in giving the opinion of the Court, says, as we have seen, 
 " The difficulty of adopting the relation, without adopting it In all Ita 
 omsequenccs, is indeed extreme." " We have no authority to regulate the con- 
 ditions in which law shall operate." (Vide Ante, p. 23, b. 24.) 
 
 The question, therefore, before this Court is simply this : Whether any 
 . dominion, authority or coercion cvin be exercised in this province on a slave. 
 
178 
 
 ROYAL SOCIETY OF CANADA 
 
 Cowp., .>i]4. 
 Campbell v. 
 Hall. 
 
 according to the municipal laws of those plantations in which slavery ia 
 established as lanvful. 
 
 This will necessarily lead us into an Inquiry. By what laws is this Province 
 governed, or to what laws is it subjeot ? And to facilitate this inquiry it 
 must first be determined whether it is to oe considered in the light of a colony 
 claimed by right of oceupajicy, by finding it desart and uncultivated, and 
 peopling It from the Mother Country— or as gained by conquest or cedied by 
 treaty. 
 
 There is, in Cowper's reports, an elaiborate and learned argument by Lord 
 Mansfield, to prove the King's legislative authority by his prerogative alone 
 over a ceded or conquered country, frum which I think It may be fairly de- 
 duced that this Province is not to be considered in that light. In the course 
 of the argument Lord Mansfield says : — 
 
 " The authority of two great names has been cited, who take the propo- 
 sition for granted. In the year 1722, the Assembly of Jamaica being refrac- 
 tory, it was referred to Sir Philip Yorke and Sir Clement Wearge, to know 
 what could be done if the Assembly should obstinately continue to withhold 
 all the usual supplies." They reported thus : " If Jamaica was still to be con- 
 sidered as a coihiU'Ted island, the King had a right to levy taxes upon the in- 
 habitants ; buit if it was to be considered in the same light as the other Colonies, 
 no tax could be imposed on the inhaibitants, but by an Assembly of the Island 
 or by an act of Parliament. They considered the distinction in law as clear, 
 and an indisputable consequence of the Island being in the one state or the 
 other. Whether it remained a conquest or was made a colony, they did not 
 ex'amine. I have, upon foi-mer occasions traced the Constitution of Jamaica as 
 far aa there are papers and records in the ofl^ces, and cannot find that any 
 Spaniard remained uipon the Island so late as the Restoration; if any, there 
 were very few. To a question I lately put to a person well-informed and ac- 
 quainted with the country, his answer was, there were no Spanish names 
 among the white inhabitants, there were among the Negroes. King Charles 
 the Second by proclamation invited settlers there, he made grants of lands. 
 He appointed at first a Governor and Council only; afterwards he granted a 
 commission to the Governor to call an Assembly." 
 
 '• The Constitution of every Province immediately under the King has 
 arisen in the same manner, not from grants, but from commissions to call 
 Assemblies ; and therefore all the Spaniards having left the Island, or heen 
 driven out, Jamaica from the first settling, was an English Colony, who, 
 under the authority of the King planted a vacant island belonging to him 
 in right of his crown— like the cases of the Island of St. Helena and St. John, 
 mentioned by Mr. Attorney-General." 
 
 If the Islands of Jamaica and St. John are to be considered in the light 
 of vacant or uninhaibitcd countries discovered and planted by English sub- 
 jects, there can remain no doubt that this Province is to be considered in the 
 same light. 
 
 Judge Blackstone says : " If an uninhabited country be discovered and 
 „, „ nlanted by English subjects, all the English laws then in being, which are 
 
 1 HI. Com. p liKi ' 
 
 the birthright of every subject, are immediately then in force." He cites Salk. 
 411, where it is laid down per Holt, Chief Justice and Cur ; in case of an 
 uninhal)ited country, newly found out by English subjects, all laws in for^ e 
 in England are in force there. " But this," says Juilei- Blackstone. " must l>e 
 understood with vei-y many and very great restrictions. Such colonists carry 
 
 ■ '» 
 ■^ 
 
 Salk., 411. 
 
I slavery is 
 
 rtis Province 
 ! inquiry it 
 of a colony 
 tlvated, and 
 or ceded by 
 
 Lent by Lord 
 gative alone 
 l>e fairly de- 
 n the course 
 
 e the propo- 
 jeing refrac- 
 :ge, to know 
 
 to withhold 
 ill to be con- 
 upon the in- 
 ther Colonies, 
 of the Island 
 law as clear, 
 
 state or the 
 they did not 
 if Jamaica as 
 and that any 
 if any, there 
 -med and ac- 
 lanish names 
 King Charles 
 nts of lands. 
 
 le granted a 
 
 le King has 
 ons to call 
 and, or Iteen 
 IColony, who, 
 ping to him 
 :uul St. John, 
 
 in the light 
 lEnglish suta- 
 iidered in the 
 
 ^covered and 
 J. which are 
 cites Salk. 
 case of an 
 iws in for.e 
 f. •' must be 
 llonists carry 
 
 [jack] 
 
 SLAVERY IN NEW BRUNSWICK 
 
 179 
 
 " Every general custom of the realm is a part of the Common ("o- '■'' ' ■'■ •'' 
 
 lb. 
 
 with them only so much of the English law as is aj)plica.ble to their own 
 situation, and the condition oif ai» infant colony, such, for instance, as the 
 general rules of inheritance and of protection from personal injuries." The 
 common law of England has bet- n claimed and recognized :i,s the birthright of 
 every Uritish sul)ject in the colonies, and has been so considered, as well by 
 the most eminent lawyers in BnKland as by the Supreme Court of Judicature 
 in most, if not all, the British Colonies in North America, before the Revolu- 
 tion. ?yi*' Act of Federation which established the present Constitution of the 
 United States, recognizes the Common Li:iw of England as the basis of it. 
 It will not then be contended but thai the Inhabitants of this Province are 
 subject to and intitled to the iH-netits and privileges of the Common Liiw 
 (if England. 
 
 If .t!o. the same judgment must l>e given in this ease as in the oa,se of 
 Somei-set in England, unless slavery 1.=! established by some municipal law in 
 force here. 
 
 It will not be contended that any of the local laws passed by the L«egisla- 
 tures of the different Colonies and Islands are binding here. 
 
 Perhaips it may be .saiid that the custom of tolerating slavery in many of D.a st.p. i,c.7 
 the Colonies is binding in this Province. Let us examine this position. "By the 
 old custom of the realm." says St. G-ermin, " no man shall be taken, im- 
 prisoned, desseized, noi- otherwise destroyed, but ho be put to answer by the 
 law of the land, and this custom is confirmed by the stat. of Magna Charta, 
 Cap. 26." 
 Law." 
 
 It u ill not lie denied ;hat this part of ihic c-omTnon law extends to thi.s pro- 
 vince as an English Colony, planted by English subjects. It is equally clear that 
 this law cannot be altei'od. but by s-oine direct positive law of a Legislature 
 having authority for that purpose, either the Parliament of Great Britain or 
 the (ieneral Assembly of the Province. " The Common Law," says Lonl 
 Coke, '• hnth no controller in any part of it, but the High Court of Parliament, 
 .and if it lie not abrogated or altered by Parliament, it remains still as 
 ]:.ittletoii sailh." "The Common Law appeareth in the Statute of 'Magna 
 Charta,' and other ancient statutes, which, for the most parts, are afflrTnati<ins 
 of the Common Law." 
 
 It is true that particular custom.; or laws which affect only the inhabitants j ii].(,,„i, 74. 
 of iiarticular districts, are als(» a branch of the unwritten laws of ICngland. 
 
 Coitmwfudo e.c certa cniisd mtionnhiii usifafa prircit roiiimniioti leijijii. QuinCo. i.it.n:ia. 
 consucludo contra rationcm hitroducfrt. potius usurpatio, (/neon coxsuefiifla appil- 
 lari fhbrt. Coiisuctudo pr<v<scripta rt lnjithnn ihicrf Iri/eiii. 
 
 AW particular customs must lie particularly pleaded, and as well the 1 
 existence ivt such customs must be shewn as that the thing in dis;iiute is 
 wiiliin the custom alledged. 
 
 " When a custom is actually iirovtd to exist, the next in(iuiry is into the 
 legality of it ; for if it is n<it a good custom, it (Risbt to be no longer used. 
 Mains iisus (iholvufhis rsf is an established maxim of the law. " 
 
 ^^■ith regard to the existence 1 f the custom of slavery in this Province, 
 it is presumed it never has existed, ami that of course n<i proof lan be 
 ]irodiiced of it. 
 
 That some masters have brought slaves here is true, anl thit the slaves 
 iKive. in some instances, continued wita their masters without disputing the 
 ri^lit of their masters to their service, is also true. But it must also be 
 
 Sec. II., IHilS. 12. 
 
 .1. Coin. "!■. 
 
ISO 
 
 ROYAL SOCIETY OF CANADA 
 
 admitted that the slaves have in mi. ay instances controverted this rigrht, and 
 have l>een manumitted, or Indented themselves voluntarily to serve for a 
 term of years upon condition of being discharged at the expiration of it. 
 
 The question is now for the first time brought forward for a legal decision 
 in this Court. 
 
 It's merits have never yet been discussed nor any determioation had upon 
 it. No Act of Assembly has ever passed in this Province in the smallest 
 degree recognizing any such custom, or condition as slavery. On the Other 
 hand, the general opinion. If that were of any consequence, I believe I may 
 venture to assiert, is agains^ its admission or toleration here. 
 
 Will it be contended because Indians and Negroes were made slaves In 
 
 Barbadoes and Virginia, in the last century and laws were made thei"© 
 
 establishing this ctmdition, that that custom and these laws are binding here ? 
 
 Will the existence of such a custom and such laws in any other of the 
 
 English Colonies, render them binding here ? 
 
 It may as well be asserted that the local laws and customs of those 
 Colonies in every o'ther Instance, and respecting every- other object, are in 
 force here. 
 
 But perhaps it will be said that the laws and customs of Nova Scotia are 
 binding here, and that slavei-y is recognized by the laws of that Province. 
 
 I deny their existence in that Province. There is no Act of Assembly 
 of that Province recognizing any such state or condition there, nor do we 
 know of any decision of their Supreme Judicial Court upon the point. The 
 presumption is violent that there has been none, and that the practice there 
 has been the same that has obtained in this Province. 
 
 But it must be observi|^ that whatever number of slaves may have been 
 brought to that or this Province, and continued in a state of servitude, this 
 will not affect the right, any more than the same practice in England, before 
 the case of Somersett was determined ; at the time of which decision there 
 were 14,000 or 15,000 slaves of the same description in different parts of the 
 Kingdom. 
 
 Had the condition of slavery been recognized as lawful in that Province, 
 there would have been regulations, remedies and powers provided by Acts of 
 Assembly, as in the other Colonies, when slavery was eetabll'Shed or recognized. 
 Therefore, as was said by Mr. Hargrave, in the case of Somersett, " The 
 most violent presumption against it is the silence of the laws, were there 
 noching more." 
 
 But, even admitting there had been a decision of the Supreme Court of 
 Nova Scotia in support of slavery, such a decision could be no more binding 
 iiere than any other decision they may have made upon any other question. 
 
 If, however, the existence of the custom of slavery In Nova Scotia is 
 material to the establishment or support of slavery in this Province, it Is 
 indispensably necessary it should be proved. 
 
 When this shall be proved, the next Inquiry will be into the legality of it. 
 Upon inquiry, I am well informed that an atteimipt was once made in the 
 House of Assembly of Nova Scotia to introduce a clause of the kind into a 
 bill for the regulation of servants, but that it was rejected by a great 
 majority. That agi-eably to the practice which formerly obtained in cases of 
 villenage in England, a summary decision of the question of slavei'y In that 
 Province has always been resisted, and the party claiming the slave has been 
 ■px ' to his action, and that several trials have been had in which the jury has 
 decided against Vhe masters, which have so discouraged them that a limited 
 
[jack] 
 
 SLAVKRY IN NKVV BRUNSWICK 
 
 181 
 
 right, and 
 rve for a 
 >n of it. 
 a,l decision. 
 
 n had upon 
 
 le smallest 
 
 the other 
 
 leve I may 
 
 ; slaves III 
 nade thei-e 
 iding here ? 
 ther of the 
 
 s of those 
 ject, are in 
 
 a, Scotia are 
 Province. 
 
 ri Assembly 
 nor do we 
 point. The 
 
 ractlce there 
 
 ly have ijeen 
 rvltude, this 
 jland, before 
 scision there 
 parts of the 
 
 lat Province. 
 d by Acts of 
 r recognized, 
 ersett, "The 
 were there 
 
 E^me Court of 
 more binding 
 er question, 
 ova Scotia is 
 rovince. it Is 
 
 legality of it. 
 made in the 
 e kind into a 
 
 by a grea-t 
 ^d in cases of 
 avery in that 
 lave has been 
 
 the jury has 
 hat a limited 
 
 service by indenture has Ijcon very generally substituted by mutual consent. 
 That the general question resiiecting the slavery of Negroes has been often 
 agitated there in different ways, but has never received a direct decision ; 
 that althu the Court there ha.s avoided an adjudication of the principal point, 
 yet as they required the fullest proof of the master's claim in point of fact, 
 it has been generally found vor>' easy to succeed in favor of the Negro, by 
 taking- some exception collateral to the general question, and, therefore, that 
 tourse has loeen taken. 
 
 In a late case in that province, a black woman was brought before the 
 Court on Ilahean (:<>ri)iis, from the Jail at Annapolis, the return beinji defective 
 she was discharged, but as she was claimed as a slave, the Court Intimated 
 that an action should be brought to try the right, and one was brought against 
 a iiersun who had received and hired the wench. At the trial the plaintiff 
 lu-oved a purchase of the Negro in New York as a slave, ibut as he could 
 not prove that the seller had a legal right to dispose of her, the Coart 
 directed the jui-y to find for the defendant, which they readily did. 
 
 But let us inquii-e into the legality of the custom of slavery where it does 
 exist. 
 
 To make a particular custom good, the following requisites, says Judge j lu.com.Tc. 
 Blackstone, are necessary: — 
 
 "1. That It hav? been used so long that the memory of man runneth not be 
 the contrary, so that if anyone can shew the beginning of it within legal 
 memory, that la within any time since the first yea.r of the r^ign of King 
 Richard I., it is no good custom." 
 
 Now, as no English Colonies were in existence in America till since the 
 commencemenit of the seventeenth oentui*y. the custom contended for must 
 have commenced since that time, and must, therefore, be void. 
 
 " 2. It must have continued. As the custom in question conld have had no 
 legal commeneement, it can have had no legal continuance." 
 
 "3. It must have l^een i>eaceable and acquiescetl in, for as customs owe 
 their original to common consent, there being immemorially disputed, either 
 at law or otherwise, is a proof tha.t suoh consent was wanting." 
 
 The custom in the present instamce never obtained, and, of course, never 
 had continuance in the Province of Nova Sootia, the Inhabitants of which 
 equally with us, claim the Common Law of England ajs their birthright, and 
 it has been disputed, and has not been acquiesced In, In this Province, from 
 its erection to the present day. 
 
 4. Customs must be reasonable, or ratner taken negatively they must 
 not be unreasonable, (/utVf consuff udo cont ra rafiotirin infrodurfa, poflK.t Kfiur/xtfiu 
 (jitatn consuetudo nppcllari debet. 
 
 " Now, this custom of American slavery," says Lord Mansfield. " is of L,,fYt. I'j. 
 such a nature that it is incapable of being introduced on any reasons, moral 
 or political. It is so odious that nothing can 1k' suffered to support it but i)Osi- 
 tive law." And, I may add, it Is such an usurpation upon the natural rights 
 of mankind that no human laws oa,n justify or support it. 
 
 0. CustoniB must be conslistent. Now the custom insisted upon, even if 
 good im other i-espects, is utterly Inconsistent with the ancient and immemorial 
 customs of the Comimon Law, which are a part of the law of tliis land. 
 
 If it shall be said that a decision in favor of the Negroes in this Province 
 wiiuld do great Injustice to their masters, who have brought them here in full 
 faith in the Government of the country, that they should be protected in the 
 cnjoymenit of this as well as their other property. 
 
182 
 
 ROYAL SOCIETY OF CANADA 
 
 l,,if, ,7 The snnif ulij ctioii, as \vi' have seen, was made in England in thi- case 
 
 (pf SdnitTselt but what siaid the Cnurt U* it '.' "The -ettiiiK 14,00(1 or l,j,000 mon 
 at ome fret- Ijy a solemn opinion is much disagrealjle in the efft-c:ts it 
 threatens. £50 a head may not in- ,1 high price ; then follows a loss to the 
 proprielfM's of above C700,000 sterling. But if the parties will have judgment, 
 Jiuf JiiHtiliii rudf rtiiuin. Let Justice be dout', wliatever i)e the conHe(|uence. 
 An application to Parliament, if the merchants think the question of great 
 commercial concern, is the best and perhaps thi- only method of settling the 
 question for the future." 
 
 Now thi.s has 'been a ((uestion agitated from the very origin of this 
 I'rovince, and if there were anything like a general acquiesi'enee in the tol- 
 eration oif slavery here, is It not to be presumed that some Act of Assembly 
 would have been passed, or at least l>een attempted, Ijy which the rights of 
 the niH.ster would have l)een recognized and regulated ? I>oes not the silence 
 on this subject affoird a violent ipresunxpLion, that there is no such acquiescence 
 in it, except of the very few who are the owners of slaves in the I'rovince ? 
 And will this Court, under these ciicumstances, declare slavery to ))e a part 
 of the law of the land ; declare it to be an immemorial usage, of uniform, 
 uninterrupted continuance, just and reas(jnctble in itself, and consistent with 
 the immemorial customs and usages of the Common Law, which are our 
 birthright ? Should this be the case, we shall have little reason to brast of 
 the Constitution in the defence of which we pride ourselves in having done 
 and suffered. so much. Will not the Court rather say, in the words of Lord 
 Mansfield : " Whatever inconveniences may follow frf.m a decision we cannot 
 say this ease is allowed by the law of this Provinice, and, therefore, the black 
 must be discharged." 
 
 There is not even the plausible ground in supimrt O'f th^ practice in this 
 Province which has been adduced in its justiflcatioii in other plantations, 
 where the culture of su.Ta.r and other products oif th ■ ti'opical climates Is 
 said to make the use of slaves necessary. Under a conviction of this 
 truth, in addition to the other much more impurtant reasons which have been 
 suggested in the course of this argument ; slavery has lie\ n abolished in all 
 the Ea.«tern States of the United States of America since their independence, 
 and even in Virginia, a law was passed so long ago as the year 1786, forbidding 
 the future importation of slaves into that State. Self-preservation rendered 
 it inexpedient in Ihiit State immediately to abolish it altogether : and may, 
 perhaifs, justify it's continuance for some time longer in other pai'ts of America 
 and the West Indies, where the same reason operates on account O'f the number 
 of the slaves. But when efforts a:!-i> making in every country where it has lieen 
 introdnc 'd for it's eventual a.bolition ; shall it be adniitted here as a neeessa.ry 
 part of the original constitution of an English Colony, without any reason, 
 moral or political, to justify it 'i 
 
 Were we for a moment to place ourselves in the situation of the unhappy 
 Africans and suppose ourselves kidnapped and transported and sold as slaves 
 by the subjects of another nation, and there is a nation whose strides to uni- 
 versal domination, if not successfully cheeked may not. perhaps, terminate 
 less fatally for us ; would all the reasoning and pretenioep Avhlch we hea.r 
 urged in favor of the slavei-y of this unfortunate people reconcile us to our fate? 
 Let every man's reason and feelings give an aiiswer to this question. 
 
 But, perhaps, it will be said, the liberty of these slaves has been originally 
 forfeited by the crimes they h.ive committed in their own country, in the same 
 
[.iackI 
 
 SLAVKKY IN NKW IIUI'NSWICK 
 
 183 
 
 II th.' caae 
 
 l.'i.ooti men 
 
 em-(ts it 
 
 loss to the 
 judgment, 
 
 )iiHe(iuence. 
 
 n of great 
 
 fcettling the 
 
 in of this 
 in the tol- 
 
 Asseinbly 
 
 f rights of 
 
 the silence 
 
 cciulf&cence 
 
 Provinice ? 
 ) 1)e a part 
 )f uniform, 
 iistent with 
 ,ch are our 
 to Ijrast of 
 ia.ving (lone 
 •els of Liord 
 1 we cannot 
 e, the blaok 
 
 L'ti'te in this 
 plantations, 
 climates is 
 Ion of this 
 h have lieen 
 isht'il in all 
 dependence, 
 , forbidding 
 m rendered 
 and may, 
 of America 
 the number 
 it has been 
 a necessa:ry 
 any reason, 
 
 the unhappy 
 Id as slaves 
 
 rides to uni- 
 
 iH, terminate 
 eh we hear 
 
 s to our fate? 
 
 ition. 
 
 ;Ln oiiginally 
 in the same 
 
 manner an foi' offences in otlier countries, labnui' for u ct-rlaiii peiiod I.h iiii- 
 lK>»e<l, and in sonic phu'cs lu'ipetual lalndir, and ilviis a ligtit to liieir seivitude 
 is aci|U'red. 
 
 This, if trut- in any instance, is very rarely the case, Ijut adi dtting it were 
 t!(), it is ail acltnowledged principle of general law, " that the laws of one 
 civuntry liave not whereby to <'ondemii offences supposed to be committed i/iftt. r,. 
 anainst those of another ; agreably to which we have the aceount cited in tlio 
 case of Somergiett of some criminals who, h^ivin:;- cscapi'd execution in Spain, 
 wt re Set free In Pranc^^e — upon which it is fcux'ilily oil>ser\ cd by S'ci'jeant Davy: 
 "To punish n<>! even a c riniiiuil for offences awainxt the laws of anotlier coun- 
 ti-y. to set free a galley slave, who is a slave by his crime, and make a slave of 
 a. Negro who is one by his complexion, is a cruelty and absurdity, which, I 
 trust, will never take place here, such as. if |i-ri»nuilged, would make lOngland a 
 disgrace to all the nations upon earth for rcducintt a man gulltlessi of any 
 offence aga.inst the laws, to the condition of slaveiv. tihe worst and most 
 abject state of human nature." 
 
 The only cjuestion then that can remain is whether the condition of slavery 
 is establislied by jjositive law, by piovisions binding for this purpose in any 
 Acts of the Kritith Parliament ? The only Acts that have bi-en 
 pas-sed relating to the subject are those that have been already cxb- 
 sierved upon, and upon these the inciuiiy is, whether those Acts recognizing the 
 slavery of Negroes as existing in some of the i)laintations, or to put the case 
 in the strongest terms, consiidering it as existing in all o^f them by the local 
 ai.d municipal laws, will c>stablish that condition in each and every colony 
 and plantation, wlunhei- forbidden, abolished or recognized i>y the muidcipal 
 laws of such plantations or not ? 
 
 The establishment of slavery is most certainly local, it's conseciuenoes 
 local, and it is the law only of such plantations in ■which it has been estab- 
 lished by local laws. 
 
 To make a bare recognition of the existence of such laws in tlie plantations 
 in the preaml)le of an Act of Pai'iiament as tantamount to the establish- 
 ment of those laws in all the plantations, whether such laws existed oi' not, 
 indei>endently of such act, would be violating every legal principle of con- 
 struction. This consequence would inevitably follow, that in ease the local 
 laws of any of the plantations forbad the introduction of slaves, nr declared 
 them free upon their importation, the Act of Parliament would operate as a 
 repeal of those laws, and thus it would b' out of th • power of the local 
 Legislature to prevent the condition of slavery b'ing established in any 
 colony : or even to amelioiate it's condition, as thi- Act of Parliament recog- 
 nizes the state of slavery, with all its consequences of transmission and 
 alienation. An adventurer from Great Britain to the Coast of Africa might 
 bring a cargo of slaves into such colony and sell them as slaves in defiance 
 of all the municipal laws made to declare them free. 
 
 It would be reversing every principle of English Law to say that the 
 presumption is in favor of slavery, when by that law it is declared to l>e so 
 odious that nothing but positive law can be suffered to support it. 
 
 " It was one of the laws of the twelve tables of Home that whenever there 
 
 was a question between liberty and slavery, the presumption should be 
 
 1 i.i.i'dia. p. SK. 
 
 on the side of liberty." "This excellent principle," says Professor Christian. . 
 
 t'hrHtiun'R 
 "our law has adopted in the construction of penal statutes, wherein the de- Xotis. 
 
 cision must be on the side of lenity and mercy in favor of natural light 
 
 and liberty." 
 
\l» 
 
 184 
 
 ROYAL t^OCIETY OF C:aNA1»A 
 
 'i 111. Com. 13. 
 
 I 1)1. Com. uj. 
 
 i 
 
 And Jmlsf Hlackstanje tells uh in his tivatisf on vlllenagc tenures, " thai 
 tho law Is ready tn catch at anything in favnr of liberty," and a,monK the 
 rules for the construction of statutes, it is laid down. " If there arise 
 any alifurd consequen'M-s nia.nlfestly contradictory to conimon reason, out of 
 Acts of Parliament, they a.re. with regard ti> those consequences, void." 
 Upon which Mr. Chrlstin.u remarks : " If the expression will admit of 
 douH't, it will not then lie pre«uined that that eonstructioTi can be aRieabie 
 to the intent of the Lepisiature, the consequence.^ of >vhlch are unieaaoiiable." 
 
 What can he more contradictory to reason and to every i>rinelpie of Justice 
 than to make the Acts of Parliament In the present instance operate* to 
 estal)lish and inllict so severe a condition and penalty as slavery, in any 
 part of the dominions wheif no such condition existed when the word.- can 
 be so fairly construed to extend to those plantations only, where slaver\ was 
 established by law, and where the nature of the climate and of its prdducts 
 was thought to render the use of slaves necessary ? 
 
 With regard to the late Act of Parliament, passed in the year 1790, it does 
 not apply to the present case, as it is not i)retended that the Negro in question 
 was brought here under the authority of that Act, nor is it to be suiipo.sed 
 that any ease will ever arise- in this Province under it, as no NesToes have 
 ever been, or (I trust tha.t the decision in this cause will determine) ever can 
 be, imported here as slaves under that Act. 
 
 But the same rule of ecmstruction would apply to that Act that has been 
 contended for with regard to the others, more especially as It authorizes the 
 importation Into the British Provinces of any Negroes fro-m any of the 
 territories belonging to the United States, when, in fact, at the time the 
 Act iiassed, the slavery of Negroes was abolished in severiil of those States. 
 As the Act, therefore, could apply only to those States in which this slavery 
 was established by law, as places from whence such Negroes might be 
 bi'ought. So it can reasonably be supposed to apply only to such of the British 
 rlantatitms as had adopted and recognized this condition of slavery as places 
 into which they might be legally Imported under the Act. 
 
 RECAPITULATION. 
 
 (li.S.) 
 
 This cause was argued at the Supreme Court at Prederlcton, at the Hilary 
 Term, in Feoruary, 180''. Mr. Street, Mr. Chipman, for the slave ; the Attor- 
 ney-Genei-al Mr. Bliss, Mr. T. Wetmore, Mr. J. M. Bliss, Mr. Peters, and Mr. 
 Botsforci f c r the master. The Court divided — the Chief Justice and Judge 
 Upham in support of the return ; Judge Allen and Judige Saunders against 
 Its sufficiency. No judgments entered. 
 
 The writ and return were as follows : — 
 
 George the Third, by the Grace of God of Great Britain, Franc*- and Ire- 
 ,laJKl King Defender of the Faith, etc. To Ca.leb Jones of the Parish of Saint 
 Marys in the County of York Esquire, Greeting : We command you that you 
 ha.ve the body of Ann otherwise called Nancy a black woman detained in 
 your custody as It Is said together with the cause of her being detained before 
 our Justices of our Supi-eme Court at the Court House In Prederlcton on 
 Thursday the eighteenth of July instant at twelve o'clock in the forenoon of 
 the same day to do and receive all and sing'ular those things which our said 
 Justices shall then and there consdder of her in this behalf and have then there 
 
[jack] 
 
 SLAVERY IN NF:VV BRUNSWICK 
 
 185 
 
 thia writ. Witnts^i (ionrRi' Dunt^n Ludlow HHquIre at Frederlcton the 
 sixteenth flny of July in th.- thirty ninth y«ir >>{ our rolffn. 
 
 SIsrned ODBLL Junr. 
 
 Caluli JdiicK within namod in ()l)«<Vlen<;t' to the within writ of the Lurd 
 the King brings here into Court the body nf thi- wlthln-named Ann or 
 Nancy a lilack wnmaii aiwl hci-cunilo (ci'tillt'S that tho cau.H*- of dctalninK the 
 said Ann O'r Nancy, ai)r>far8 in the sihodule tn this writ annexed. 
 
 Signed CAL.BB JONBS. 
 
 Caleb Jones of the Parish of Saint .Marys in the County of Yorlt E.siiuire 
 In obedienice to the King's writ of " H iIkms Corpus" to him directed and 
 hereunto annexed humbly showa cause to the Court of the Lord the King 
 why the said Caleb Jones detains thr XeRro a black woman Ann 
 otherwise called Nancy in the same wiit, named as follows. That long 
 before the coming of the King's writ aforesaid to him, the said Caleb 
 Jones there were and still aj-e 8la%-es to a great number in Africa and the 
 trade in them between the Africa Coast and the Colonies planiatloii.s and 
 islands now and heretofore belonging to the Crown of Great Britain was 
 and is authorized and sanctioned by a variety of statutes of the Klugdom of 
 Great Britain in that case ma.de and ])rovided That the said Caleb Jones for- 
 merly and before and during and after the war between Great Britain and 
 tnp thirteen United Colonies, which terminated In the seperatlou of the same 
 Colonies from the .Mother Country the said Caleb Jones was an inhabitant 
 and freeholder of and in the late Piwlme, now State of Mary Land, then one 
 of the Colonies belonging to the Crown of Great Britain aforesaid. That the 
 said Ann or Naney was. at the time of her birth and ever since hath Ijcen a 
 female Negro slave or servant for life born of an African Negro slave, and 
 before the removal of the said Caleb Jones from Mary Land to New Brunswick 
 was and became by purchase the lawful and proper Negro slave or ser- 
 vant for life of him the said Caleb Jones a.nd so being by the laws of Mary- 
 land, and consistently with the laws of all his Majesty's Colonies and plan- 
 tations in America the pi-oper Negro slave or servant for life of him the 
 said Caleb Jones. That the said Caleb Jones, In the year of our Lord one 
 thousand seven hundred and eighty five brought and Imported the said Ann 
 or Nancy his Negro slave or servant for life into the Pro\'ince of New 
 Brunswick as it was lawful fwr him to do and has always hitherto held the 
 said Ann or Nancy as his proper Negro slave or servant for life In the said 
 Province of New Brunswick as by law he has good right and authority to 
 do and the said Caleb Jones now renders her the saM Ann or Nancy to the 
 orders of the Court, as by the said writ he is commanded. 
 
 Signed CALEB JONES.