Note 17 — THE SLAVE IN UPPER CANADA[A]

The statute is (1793) 33 Geo. III, c. 7, (U. C.). The Parliament of Upper Canada had two Houses, the Legislative Council, an Upper House, appointed by the Crown and the Legislative Assembly, a Lower House or House of Commons, as it was sometimes called, elected by the people. The Lieutenant Governor gave the royal assent. The bill was introduced in the Lower House, probably by Attorney General White, as stated in last note, and read the first time, June 19. It went to the committee of the whole June 25, and was the same day reported out. On June 26 it was read the third time, passed and sent up for concurrence. The Legislative Council read it the same day for the first time, went into Committee over it the next day, June 28, and July I, when it was reported out with amendments, passed and sent down to the Commons July 2. That House promptly concurred and sent the bill back the same day. See the official reports; Ont. Arch. Reports for 1910 (Toronto, 1911), pp. 25, 26, 27, 28, 32, 33, Ont. Arch. Rep. for 1909 (Toronto, 1911), pp. 33, 35, 36, 38, 41, 42.

The first Fugitive Slave Law was passed by the United States in 1793. Three years afterwards occurred an episode, little known and less commented upon, showing very clearly the views of George Washington on the subject of fugitive slaves, at least, of those slaves who were his own.

A slave girl of his escaped and made her way to Portsmouth, N. H. Washington, on discovering her place of refuge, wrote concerning her to Joseph Whipple, the Collector at Portsmouth, November 28, 1796. The letter is still extant. It is of three full pages and was sold in London in 1877 for ten guineas (Magazine of American History, Vol. 1, December, 1877, p. 759). Charles Sumner had it in his hands when he made the speech reported in Charles Summer's Works, Vol. III, p. 177. Washington in the letter described the fugitive and particularly expressed the desire of "her mistress," Mrs. Washington, for her return to Alexandria. He feared public opinion in New Hampshire, for he added

"I do not mean however, by this request that such violent measures should be used as would excite a mob or riot which might be the case if she has adherents; or even uneasy sensations in the minds of well-disposed citizens. Rather than either of these should happen, I would forgo her services altogether and the example also which is of infinite more importance."

In other words, "if the slave girl has no friends or 'adherents'" send her back to slavery—if she has and they would actively oppose her return, let her go—and even if it only be that "well-disposed citizens" disapprove of her capture and return, let her remain free.

There may be some difficulty in justifying Washington's course by the opinion of Thomas Aquinas (Summa Theologics, 1 ma., 2 dae., Quaest. XCVI, Art. 4), who says that an unjust law is not binding in conscience "nisi forte propter vitandum scandalum vel turbationem." Aquinas is speaking of an unjust law which may be resisted unless scandal or tumult would result from resistance. Washington is speaking of a law which he considers right, but which he would not enforce if it should occasion such evils. The analogy does not hold as the editor of Charles Sumner's Works seems to think (Vol. III, p. 178, note).

Whipple answered from Portsmouth, December 22, 1796:

"I will now, Sir, agreeably to your desire, send her to Alexandria if it be practicable without the consequences which you except—that of exciting a riot or a mob or creating uneasy sensations in the minds of well disposed persons. The first cannot be calculated beforehand; it will be governed by the popular opinion of the moment or the circumstances that may arise in the transaction. The latter may be sought into and judged of by conversing with such persons without discovering the occasion. So far as I have had opportunity, I perceive that different sentiments are entertained on the subject."

Whipple made enquiry. Public opinion in Portsmouth was adverse to the return of the fugitive. She was unmolested and lived out a long life in Portsmouth and Kittery.

Nothing more clearly and impressively shows the veneration felt by his countrymen for George Washington than the praise the fearless, outspoken, uncompromising hater of slavery, Charles Sumner, of the conduct of the President in this transaction. Sumner considered the poor slave girl "a monument of the just forbearance of him whom we aptly call Father of his Country.... While a slaveholder and seeking the return of a fugitive, he has left in permanent record a rule of conduct which if adopted by his country will make slave hunting impossible." With almost any other man, Sumner would have no praise or reverence for a desire to force a fugitive back into slavery unless prevented by fear of mob or riot or adverse public opinion.

In the same letter Washington gives what may be considered a reason or excuse for his demand. "However well disposed I might be to a gradual abolition, or even to an entire emancipation of that description of people, if the latter was itself practicable at this moment, it would neither be expedient nor just to reward unfaithfulness with a premature preference and thereby discontent beforehand the minds of all her fellow servants who by their steady attachment are far more deserving than herself of favour."

This is the familiar pretext of the master, private or state. Those who rebel against oppression and wrong are not to be given any relief—that would be unjust to those who tamely submit. That very argument was advanced by the ruler across the sea against the proposition to come to terms with Washington and his party who had ventured to oppose the would-be master.

And it is to be noted that Washington did not free those "who by their steady attachment are far more deserving ... of favour" till he had had all the advantage he could from their services—he did indeed free them by his will, but only after the death of his wife.

Sumner cannot be said to minimize his merits when he says "He was at the time a slaveholder—often expressing himself with various degrees of force against slavery, and promising his suffrage for its abolition, he did not see this wrong as he saw it at the close of life." (Sumner's Works, Vol. III, pp. 759 sq.)