I have not been able to trace such a decision and cannot think that it has been correctly reported. Dr. Smith is wholly justified in his statement "there is good ground for the opinion that this baneful system was never actually abolished in the present Canadian Provinces until the vote of the British Parliament and the signature of King William IV in 1833 rendered it illegal throughout the British Empire."
[16] J. Allen Jack, Q. C., D. C., L., of St. John, New Brunswick, gives a full account of this case from which (and similar sources) most of the facts are taken. In a paper read before the Royal Society of Canada May 26, 1898, Trans. R. S. Can., 1898, pp. 137 sqq., Dr. Jack conjectures that Nancy Morton is the Negro female slave conveyed by bill of sale registered in the office of the Register of Deeds, St. John's, N. B. Slaves were treated as realty as regards fieri facias under the Act of 1732 (see ante, p. —) and at least "savoured of the realty." The bill of sale registered January 31, 1791, was dated November 13, 1778, and was executed by John Johnson of the Township of Brooklyn in King's County, Long Island, Province of New York. It conveyed with a covenant to warrant and defend title to Samuel Duffy, Innkeeper for £40 currency (say $100) "a certain negro female about fourteen years of age and goes by the name of Nancy," pp. 141, 142. However that may be, Stair Agnew bought Nancy from William Bailey of the County of York in the Province of New Brunswick for £40 with full warranty of title as a slave.
[17] He was born in Boston in 1753, the son of John Chipman, a member of the Bar. Graduating at Harvard, he joined the Boston Bar and practised in that City until 1776. After the Peace he went to England and in 1784 sailed for New Brunswick of which he was appointed Solicitor General. After a quarter of a century of successful practice he was appointed 1808 a puisne judge of the Supreme Court. He died in February, 1826.
His services to Nancy Morton were given without fee or hope of reward.
[18] That of Mr. Chipman is given in Trans. R. Soc. Can., 1898, pp. 155-184.
[19] It will be seen that the return sets up that Jones bought and owned the slave and the case was argued on that hypothesis, but the historians say that Captain Stair Agnew was the owner. The point is not of importance.
[20] Mos regit legem, Mos pro lege, Leges moribus servient, Consuetudo est optimus interpres legum, custom is the life of the law, custom becomes law, &c., &c. That slavery was necessary and therefore legal in the American Colonies was admitted in the Somerset case.
[21] The modern lawyer, in my opinion, would find no difficulty in coming to the same conclusion as the Chief Justice.
Mr. Chipman in his interesting correspondence with Chief Justice Blowers (Trans. R. Soc. Can., 1898, pp. 148 sqq.) admits that if his opponents had hit upon the Nova Scotia Statute of 1762 as revised in 1783 "the conclusiveness of their reasoning on their principles would have been considered as demonstrated." He adds: "In searching your laws upon this occasion I found this clause but carefully avoided mentioning it," which raises a curious question in legal ethics.
[22] The reconveyance to Bailey, a quit claim deed, is witnessed by George Leonard and Thomas Wetmore and is dated February 22, 1800. The indenture by which Nancy bound herself for fifteen years is dated February 23, 1800.