The petition on motion of Messrs. Papineau and Black was referred to a committee of five, Papineau, Grant, Craigie, Cuthbert and Dumas. The committee reported and Cuthbert introduced on April 30, 1800, a bill to regulate the condition of slaves, to limit the term of their slavery and to prevent further introduction of slavery in the province. The bill passed the second reading and was referred to the Committee of the Whole, but got no further. The next year Cuthbert introduced a similar bill with the same result, and again in 1803. The reason for the failure of these attempts was that any legislation on slavery would in view of the decisions of the courts be reactionary and change for the worse the condition of the slave.
The most celebrated of these decisions was in the case of Robin, alias Robert, a black. James Fraser, a Loyalist of the colony of New York, became the owner of Robin a Negro man in 1773, before the American Revolution. The colonies were successful and provisional articles of peace were signed November 30, 1782. Congress proclaimed them April 11, 1783 and it was almost inevitable that they would become a permanent and definitive treaty. Article VII provided for the speedy evacuation by the British forces of territory to be allotted to the United States of America "without carrying away any negroes or other property of the American inhabitants." There was allowed full time for everyone who desired to live under the British flag to leave New York. James Fraser made up his mind to go to Nova Scotia and obtained a pass from William Walton, the Magistrate of Police of the city, for his slave Robin and another, Lydia, September 23, 1783.[15] Fraser went to Shelborne, Nova Scotia, and the following year in September he went to "the Island of St. John,"[16] accompanied by Robin who was and acknowledged himself to be Fraser's property. Afterwards Fraser brought him to the Current of Saint Mary near the city of Montreal where Fraser became a farmer. Robin, infected with the pernicious doctrines of freedom then rather prevalent left Fraser, March 19, 1799, and went to live with Richard, a tavern keeper in Montreal. Fraser laid an Information before Charles Blake, a justice of the peace, and January 31, 1800, Charles Blake, Robert Jones and James Dunlop, justices of the peace of the District of Montreal committed Robin to the "Common Gaol and House of Correction at Montreal" with a warrant to Jacob Kuhn "Keeper of His Majesty's Jail and House of Correction" to receive "a negroman named Robert who refuses to go home to his owner and him safely to keep till he may be discharged or otherwise dealt with according to law."
In the February Term 1800 of the Court of King's Bench for the District of Montreal[17] Mr. A. Perry, his advocate, obtained a writ of habeas corpus and on the tenth of February the black was produced in court. Mr. Perry for the black and Mr. Kerr for James Fraser presented their arguments upon this day and on the thirteenth of February, and after consideration and consultation the court five days later ordered the discharge of Robin alias Robert from his confinement under the warrant.[18]
The decision proceeded on the ground that the Act of 1797 which repealed the provision for the sale of Negroes to answer a judgment had revoked all the laws concerning slavery. Remembering that the Act of 1732 was intended to change the common law of England which did not allow the sale of land under a writ of execution, fieri facias, it should probably be considered that the sole effect of the repeal of the act as regards Negroes was to exempt them from sale under fieri facias, without affecting their status. And it is well known that slavery continued in the West India Islands and in Upper Canada long after the Act of 1797.
The effect of the decisions while not technically abolishing slavery rendered it innocuous. The slave could not be compelled to serve longer than he would, and the burden of slavery was rather on the master who must support his slave than on the slave who might leave his master at will. The legislature refusing to interfere, the law of slavery continued in this state until the year 1833 when the Imperial Parliament passed the celebrated act which forever abolished slavery in British Colonies from and after August 1, 1834.[19]
As Lower Canada passed no legislation on slavery, the extradition of fugitives was made impossible and Canada became therefore an asylum for the oppressed in the United States. Before the Act of 1833 there was one instance of a request from the Secretary of State of the United States for the delivery up of a slave. The matter was referred to the Executive Council by Sir James Kempt, the Administrator of the Government.[20] The report of the Executive Council shows the view held that "the Law of Canada does not admit a slave to be a subject of property."
At a meeting of the Executive Council of the Province of Lower Canada held at the Council Chamber in the Castle of St. Lewis, on Thursday, June 18, 1829, under Sir James Kempt, the Administrator of the Government, the following proceedings were had:
"Report of a Committee of the whole Council Present The Honble. the Chief Justice in the Chair, Mr. Smith, Mr. DeLery, Mr. Stewart, and Mr. Cochran on Your Excellency's reference of a letter from the American Secretary of State requesting that Paul Vallard accused of having stolen a Mulatto Slave from the State of Illinois may be delivered up to the Government of the United States of America together with the Slave.
"May it please Your Excellency,
"The Committee have proceeded to the consideration of the subject matter of this reference with every wish and disposition to aid the Officers of the Government of the United States of America in the execution of the laws of that dominion and they regret therefore the more that the present application cannot in their opinion be acceded to.
"In the former cases the Committee have acted upon the principle which now seems to be generally understood that whenever a crime has been committed and the perpetrator is punishable according to the Lex Loci of the country in which it is committed, the country in which he is found may rightfully aid the police of the country against which the crime was committed in bringing the criminal to justice—and upon this ground have recommended that fugitives from the United States should be delivered up.
"But the Committee conceive that the crimes for which they are authorized to recommend the arrest of individuals who have fled from other Countries must be such as are mala in se, and are universally admitted to be crimes in every nation, and that the offence of the individual whose person is demanded must be such as to render him liable to arrest by the law of Canada as well as by the law of the United States.
"The state of slavery is not recognized by the law of Canada nor does the law admit that any man can be the proprietor of another.
"Every slave therefore who comes into the province is immediately free whether he has been brought in by violence or has entered it of his own accord; and his liberty cannot from thenceforth be lawfully infringed without some cause for which the law of Canada has directed an arrest.
"On the other hand, the Individual from whom he has been taken cannot pretend that the slave has been stolen from him in as much as the law of Canada does not admit a slave to be a subject of property.
"All of which is respectfully submitted to Your Excellency's Wisdom."[21]