Salter Sampson Blowers, the Attorney General, fully agreed with the Chief Justice's plan. On one occasion he threatened to prosecute a person for sending a Negro out of the province against his will.[14] The Negro managed to get back and the master acknowledged his right, so that no proceedings were necessary. After a number of verdicts for the alleged slaves, masters were generally very willing to enter into articles whereby the slave after serving faithfully for a fixed number of years was given his freedom.
After Blowers became Chief Justice, 1797,[15] he continued Chief Justice Strange's practice with marked results. In one case of which he tells where he had discharged a black woman from the Annapolis gaol on habeas corpus and an action had been brought, the plaintiff proved that he had bought her in New York; but the Chief Justice held that he had not proved the right of the seller so to dispose of her and directed the jury to find for the defendant which they promptly did.
Slavery continued, however. Almost every year we find records of sales, advertisements for runaway slaves, bequests of slaves, &c., till almost the end of the first decade of the 19th century, the latest known bill of sale is dated March 21, 1807 and transfers a "Negro Woman named Nelly of the age of twenty five or thereabout." It was, however, decadent and from about the beginning of the 19th century was quite as much to the advantage of the Negro in many cases as that of the master.
A final effort to legalize slavery in Nova Scotia was made in 1808. Mr. Warwick, member for Digby Township, presented a petition from John Taylor and other slave owners setting up that the doubts entertained by the courts rendered their property useless and that the slaves were deserting and defying their masters. They asked for an act securing them their property or indemnifying them for their loss. Thomas Ritchie member for Annapolis introduced a bill to regulate Negro servants within the province. The bill passed its second reading January 11, 1808, but failed to become law; and the attempt was never renewed.
New Brunswick was separated from Nova Scotia in 1784. The Chief Justice of that province was not as averse from slavery as his brother of Nova Scotia. One of the most interesting and celebrated cases came before the Supreme Court of New Brunswick in Hilary Term, February 1800. Captain Stair Agnew who had been an officer in the Queen's Rangers settled opposite Fredericton. He was a man much thought of as is shown by his being chosen for thirty years to represent York County in the Legislature. He owned a slave Nancy Morton[16] who claimed her freedom and whom apparently he had put in charge of one Caleb Jones. A writ of habeas corpus was obtained directed to Jones and the matter was arranged to be argued before the full court of four judges. For the applicant appeared Ward Chipman[17] and Samuel Denny Street for the master, Jonathan Bliss, Attorney General of the province, Thomas Wetmore, John Murray Bliss, Charles J. Peters and Witham Botsford, all men of ability and eminence. On the Bench were Chief Justice Ludlow and Puisne Justices Allen, Upham and Saunders.
The addresses of the Attorney-General and Mr. Chipman are extant. The former divided his speech into thirty-two heads; the latter took eighty pages of foolscap for his. The arguments were extremely able and exhaustive,[18] everything in history, morals and decided cases being brought to bear. The case took two full days to argue and after careful consideration the court divided equally, the Chief Justice and Mr. Justice Upham affirming the right of the master and Mr. Justice Allan and Mr. Justice Saunders held for the alleged slave.
The return of Jones to the writ was that Nancy "was at the time of her birth and ever since hath been 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 servant for life of him the said Caleb Jones ..., that the said Caleb Jones in the year of our Lord 1785 brought and imported the said ... Nancy his Negro slave or servant for life into the Province of New Brunswick ... and has always hitherto held the said ... Nancy as his proper Negro slave or servant for life ... or by laws he has good right and authority to do...."[19]
The Chief Justice based his opinion on what he called the "Common Law of the Colonies"—and although that expression was ridiculed at the time and has been since, there is no difficulty in understanding it. He meant custom recognized as law not contained in an express legislative enactment. In that sense a modern lawyer will agree that he was right. Practically all the English colonies had slavery thoroughly recognized and often without or before legislation; and all the well known legal maxims asserted the cogency of such custom.[20] Mr. Justice Allen considered that no human power could justify slavery—and his brother Saunders agreed with him. It would seem that these judges were concerned with what the law should be, the others with what it actually was.[21]