slave had at least some rights in the later civil law, few and slight as they were, and these he had under the Coutume de Paris, the law of French Canada.

II, 436, "With the advent of Greek culture and Christianity the harsh manners of ancient Rome became greatly altered."

II, 828, “One feature of the Lex Aquilia is... that it granted an action in damages for the unlawful killing of . . . the slave of another man. Inst., 413, pr; Gaius 3, 210.

II. 829, "... the owner had his option either of suing the culprit for damages under the lex Aquilia or of causing him to be criminally prosecuted.”’ Inst., 4, 3, 11 Gaius 3, 213.

II, 935, "A free person called as a witness could not be subjected to torture, but a slave could be tortured."'

CHAPTER II

THE EARLY BRITISH PERIOD

When Canada passed under the British flag by conquest there was for a time confusion as to the law in force. During the military regime from 1760 to 1764 the authorities did the best they could and applied such law as they thought the best for the particular case. There was no dislocation in the common affairs of the country. When Canada was formally ceded to Britain by the Treaty of Paris, 1763,1 it was not long before there was issued a royal proclamation creating among other things a "Government of Quebec" with its western boundary a line drawn from the "South end of Lake Nipissim' to the point at which the parallel of 45° north latitude crosses the River St. Lawrence. In all that vast territory the English law, civil and criminal, was introduced. It is important now to see what was the law of England at the time respecting slavery.

2

The dictum of Lord Chief Justice Holt: "As soon as a slave enters England he becomes free," was succeeded by the decision of the Court of King's Bench to the same. effect in the celebrated case of Somerset v. Stewart," when 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.""

1 See this Treaty which was concluded at Paris, February 10, 1763 " au Nom de la Très Sainte & indivisible Trinité, Pere, Fils & Saint Esprit'' Shortt & Doughty, Constitutional Documents, 1759-1791, pp. 73 sqq.

2 What we now call Lake Nipissing.

3 See the Proclamation, Shortt & Doughty, Const. Docs., pp. 119, sqq.

4 Per Hargrave, arguendo, Somerset v. Stewart (1772), Lofft 1, at p. 4; the speech in the State Trials Report was never actually delivered. (1772) Loftt, 12 Geo. III, 1; (1772) 20 St. Trials 1.

These words are not in Lofft or in the State Trials, but will be found in Campbell's Lives of the Chief Justices, Vol. II, p. 419, where the words are

James Somerset, a Negro slave of Charles Stewart in Jamaica, "purchased from the African coast in the course of the slave trade as tolerated in the plantations," 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.s The basis of the decision and the theme of the argument were that the only kind of slavery known to English law was villeinage, that the Statute of Tenures enacted in 1660, 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 added: "Every man who comes into England is entitled to the protection of the English law, whatever oppression he may heretofore have suffered and whatever may be the color of his skin. Quamvis ille niger, quamvis tu candidus esses and certainly Vergil's verse was never used to a nobler purpose. Verg. E. 2, 19.

William Cowper in The Task, written 1783–1785, imitated this in his well-known lines:

"Slaves cannot breathe in England; if their lungs
Receive our air, that moment they are free.

They touch our country and their shackles fall."

7 I use the spelling in Lofft. The State Trials and Lord Campbell have "Somersett" and "Steuart.''

8 This was in direct opposition to the opinion of Sir Philip Yorke, Attorney General (afterwards Lord Chancellor Lord Hardwicke) and Sir Charles Talbot, Solicitor General (afterwards Lord Chancellor Lord Talbot) who had pledged themselves to the British planters for all the legal consequences of Slaves coming over to England. The law of Scotland agreed with that of England.

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. Moreover, the Statute of Tenures deals solely with tenure and not with status.

9

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.10 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 necessary11 in the American colonies; and Parliament had recognized the right of property in slaves there.12 Consequently so long as the slaves, Panis or Negro, remained in the colony they were not enfranchised by the law of the conqueror but retained their servile status.

The early records show the use of slaves. General James Murray, who became Governor of the Quebec Forti

See e.g., Vinogradoff, Villeinage in England, passim. Hallam's Middle Ages (ed. 1827), Vol. 3, p. 256; Pollock and Maitland, History of English Law, Vol. 1, pp. 395, sqq. Holdsworth's History of English Law, Vol. 2, pp. 33, 63, 131; Vol. 3, pp. 167, 377-393.

10 See Pollock and Maitland's History Eng. Law, Vol. 1, pp. 1-13, 395, 415; Holdworth's Hist. Eng. Law, Vol. 2, pp. 17, 27, 30-33, 131, 160, 216. 11 So spake the fiend and with necessity,

The tyrant's plea, excused his devilish deeds."'

Paradise Lost, Bk. 4, 11. 393, 394. Milton a true lover of freedom well knew the peril of an argument based upon supposed necessity. Necessity is generally but another name for greed or

worse.

12 For example, the Statute of (1732) 5 Geo. II, c. 7, enacted, sec. 4, "that from and after the said 29th September, 1732, the Houses, Lands, Negroes and other Hereditaments and real Estates situate or being within any of the said (British) Plantations (in America) shall be liable" to be sold under execution. Note that the Negroes are "Hereditaments and Real estate,'' as were the villeins-a rule wholly different from that of the French law.

fications and adjoining territory immediately after the fall of Quebec and in 1763 the first Captain General and Governor in Chief of the new Province of Quebec,13 writing from Quebec, November 2, 1763, to John Watts in New York speaks thus of the promoting of agriculture in the Province:

"I must most earnestly entreat your assistance, without servants nothing can be done, had I the inclination to employ soldiers which is not the case, they would disappoint me, and Canadians will work for nobody but themselves. Black Slaves are certainly the only people to be depended upon, but it is necessary, I imagine they should be born in one or other of our Northern Colonies, the Winters here will not agree with a Native of the torrid zone, pray therefore if possible procure for me two Stout Young Fellows, who have been accustomed to Country Business, and as I shall wish to see them happy, I am of opinion there is little felicity without a Communication with the Ladys, you may buy for each a clean young wife, who can wash and do the female offices about a farm. I shall begrudge no price, so hope we may, by your goodness succeed."'14

From time to time slavery makes its appearance in official correspondence. Moreover, there are still subsisting records which show the prevalence of slavery in the province.15 In January, 1763, there took place at Longueil the marriage of Marie, slave of baroness de Longueuil, with Jacques César, slave of M. Ignace Gamelin. From 1763 to 1769 there are found records of the baptism of the

13 His Commission is dated November 28, 1763, Shortt & Doughty, Constitutional Documents, 1759-1761, pp. 126, sqq.

14 Canadian Archives, Murray Papers, Vol. II, p. 15: the Quebec Act mentioned immediately below is (1774) 14 George III, c. 83.

In 1774 the well known Quebec Act reintroduced the former French Canadian law in civil matters while it retained the English law in criminal matters; but the change made no difference in the condition of the slave.

15 The three which follow I owe to the interesting paper of Mr. E. Z. Massicotte, Archivist of Montreal published in Le Bulletin des Recherches Historiques for November, 1918, pp. 348 sqq.-the advertisement in the Gazette is to be found in Terrill's Chronicles of Montreal. The paper was 21 Spanish dollars per annum, 10 sous per copy, published every Wednesday.