[11] Penn, The Afro-American Press, pp. 43-46.
[12] From papers in the possession of Ray's family.
[13] These letters are in the possession of the author.
THE SLAVE IN UPPER CANADA[A]
The dictum of Lord Chief Justice Holt: "As soon as a slave enters England he becomes free"[1] was succeeded by the decision of the Court of King's Bench to the same effect in the celebrated case of Somerset v. Stewart[2] where Lord Mansfield is reported to have said: "The air of England has long been too pure for a slave and every man is free who breathes it."[3]
James Somerest,[4] a Negro slave of Charles Stewart in Jamaica, had been brought by his master to England "to attend and abide with him and to carry him back as soon as his business should be transacted." The Negro refused to go back, whereupon he was put in irons and taken on board the ship Ann and Mary lying in the Thames and bound for Jamaica. Lord Mansfield granted a writ of habeas corpus requiring Captain Knowles to produce Somerset before him with the cause of the detainer. On the motion, the cause being stated as above indicated, Lord Mansfield referred the matter to the Full Court of King's Bench; whereupon, on June 22, 1772, judgment was given for the Negro. The basis of the decision, the theme of the argument, was that the only kind of slavery known to English law was villeinage, that the Statute of Tenures (1660) (12 Car. 11, c. 24) expressly abolished villeins regardant to a manor and by implication villeins in gross. The reasons for the decision would hardly stand fire at the present day. The investigation of Paul Vinogradoff and others have conclusively established that there was not a real difference in status between the so-called villein regardant and villein in gross, and that in any case the villein was not properly a slave but rather a serf.[5] Moreover, the Statute of Tenures deals solely with tenure and not with status.
But what seems to have been taken for granted, namely that slavery, personal slavery, had never existed in England and that the only unfree person was the villein, who, by the way was real property, is certainly not correct. Slaves were known in England as mere personal goods and chattels, bought and sold, at least as late as the middle of the twelfth century.[6] However weak the reasons given for the decision, its authority has never been questioned and it is good law. But it is good law for England, for even in the Somerset case it was admitted that a concurrence of unhappy circumstances had rendered slavery necessary[7] in the American colonies: and Parliament had recognized the right of property in slaves there.[8]
When Canada was conquered in 1760, slavery existed in that country. There were not only Panis[9] or Indian Slaves, but also Negro slaves. These were not enfranchised by the conqueror, but retained their servile status. When the united empire loyalists came to this northern land after the acknowledgment by Britain of the independence of the revolted colonies, some of them brought their slaves with them: and the Parliament of Great Britain in 1790 passed an Act authorizing any "subject of ... the United States of America" to bring into Canada "any negroes" free of duty having first obtained a license from the Lieutenant Governor.[10]