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HABEAS CORPUSAND SLAVERY in NOVA SCOTIA: R. V. HECHT EX

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HABEAS CORPUSAND SLAVERY in NOVA SCOTIA: R. V. HECHT EX HABEAS CORPUS AND SLAVERY IN NOVA SCOTIA: R. v. HECHT EX PARTE RACHEL, 1798 Barry Cahill* “Few or no Negro slaves are given up. My chief errand to town [New York] was to look up one of mine, and I saw the rogue, but found he had formed such connections with a certain great personage that I could no longer look upon him as my own. He told me he was going to Novy Koshee.” - Anon., August 1783 “Be so good to attend to the poor Blacks let them be considered as the human species (which by the by is not done every where).” - Governor John Parr, 1785 “they [the free Blacks] are in short in a state of Slavery.” - Lieutenant John Clarkson RN, 1791 “This [“practical civil liberty’] was fully recognized by the decision given many years ago at Annapolis, when the doctrine was acted upon that slaves brought into this country became free ipso facto on landing.” - Beamish Murdoch, 1832 “A detailed list of the slave owners in New Brunswick cannot be attempted, but it included leading individuals in nearly all parts of the Province.” - W.O. Raymond, 1903 “It can be accepted as a general rule that the ancestors of the present coloured population in Annapolis County [Nova Scotia] were slaves.” - Elizabeth Ruggles Coward, 1955 “Not that the Loyalists quarre[l]ed with the institution of slavery; many were able to carry their slaves away with them to St. Augustine [East Florida] or the West Indies, and others put slaves on board privateers in order to collect prize money.” - Wallace Brown, 1965 “The outcry against slavery was buried in the files.” - Ellen Gibson Wilson, 1976 * Archivist, Government Archives Division, Public Archives of Nova Scotia; Editor, Nova Scotia Historical Review. This article is for Dr Julian Gwyn, Professor of History at the University of Ottawa, who discovered the case which forms part of the title, and who made the author realize that he had altogether misidentified a contemporary reference to it: “Slavery and the Judges of Loyalist Nova Scotia” (1994) 43 U.N.B.LJ. 73 at 96. The author is grateful to Professor Philip Girard of Dalhousie University for a critique of the first draft of the present article. “Slavery was probably never a major economic or historical force in Nova Scotia. The reasons for its establishment and growth in the United States (primarily agricultural) did not exist in this rocky forested land.” — Joseph A. Mensah, 1982 “The notion of a Negro who was not a slave was a novelty in North America in the 1780s.” — D.G. Bell, 1983 “Not very long ago the very existence of slavery in Canada was denied or obscured in Canadian historical writing, and the black 10 per cent of the Loyalist migration was simply ignored.” -Jam es W.St.G. Walker, 1992 “Who owned slaves is an area for inquiry.” — Sylvia Hamilton, 1994 In January 1800 Sampson Salter Blowers, chief justice of Nova Scotia, commented on the first slave case he had adjudicated in a letter to his long-time friend, Solicitor-General Ward Chipman of New Brunswick. Chipman had initiated the correspondence in anticipation of a habeas corpus test case brought by the English anti-slavery attorney, Samuel Denny Street. Chipman, who had volunteered his services as junior associate counsel for the Black, expected - naively, as it turned out — that the broad question of whether slavery was a justiciable controversy would be decided.1 “Since I have been chief justice,” wrote Blowers, a black woman was brought before me on Habeas Corpus from the gaol at Annapolis. The return was defective and she was discharged, but as she was claimed as a slave I intimated that an action should be brought to try the right, and one was brought against a person who had received and hired the wench. At the trial, the Plaintiff proved a purchase of the negro in New York as a slave, but 1 This was the infamous, deadlocked R. v. Jones, ex parte Ann, alias Nancy (S.C.N.B., 1800), which has been brilliantly analysed by D.G. Bell: “Slavery and the Judges of Loyalist New Brunswick” (1982) 31 U.N.B.L.J. 9 at 19 et seqq. The Chipman-Blowers slavery correspondence, Dec. 1799-Mar. 1800, has been twice published: I A. Jack, “The Loyalists and Slavery in New Brunswick” in Proceedings and Transactions of the Royal Society of Canada, 2nd ser., vol. 4 (1898), sect. ii, 137, at 148-51; and J.W. Lawrence, The Judges of New Brunswick and Their Times (Fredericton, 1985 [repr. of 1905-07 ed.]), at 71-75. As neither of these editions is satisfactory, one is best advised to consult the originals in the Ward Chipman family fonds at the National Archives of Canada [hereinafter NA]: MG 23 D 1 vols. 4 & 6 (mfm at Public Archives of Nova Scotia [hereinafter PANS]). On slavery in Nova Scotia see further A.B. Robertson, “ ‘But calls herself Betty*: Afro-Nova Scotians in Print during the Eighteenth Century,” in Callaloo: A Journal of Afro-American and African Arts and Letters, forthcoming, 1995, from the University of Virginia; idem, “Bondage and Freedom: Apprentices, Servants and Slaves in Colonial Nova Scotia” (paper presented to the Royal Nova Scotia Historical Society, 16 Jan. 1992) [unpublished] as he could not prove that the seller had a legal right so to dispose of her, I directed the juiy to find for the Defendant which they did.2 chief justice Blowers referred to R. v. Hecht, ex parte Rachel, alias Bross alias Fair. The “black woman” who was brought before the chief justice in chambers in Halifax on a writ of habeas corpus was Rachel Bross [Mrs Charles Fair]; her putative master was Frederick William Hecht JP, a New York Loyalist settled at Digby, who was commissary of musters to the British Army in Nova Scotia; the action which Blowers indicated should be brought to test the right to hold a Black person in slavery was Hecht v. Moody, in the Supreme Court at Halifax, for trespass; and “the person who had received and hired the wench” was the Halifax “sole trader”, the widow Phebe Moody. The two Hecht cases epitomize the phenomenon of the Loyalists and slavery. To paraphrase Jack P. Greene’s articulation of slavery as the Anglo-American sodo-cultural norm, “the powerful presence, wide diffusion” and, especially in greater Nova Scotia (including New Brunswick), expanding use of slavery in the 1780s throughout Loyalist “British America provide a vivid reminder of just how fundamentally exploitive that society was.” Since Lord Chief Justice Mansfield’s decision in Somersett (1772),3 an application to the chief justice in chambers for habeas corpus had been the generally accepted method of delivering alleged slaves 2 Letter, S.S. Blowers to W. Chipman, 7 Jan. 1800, supra, note 1 at 141-143. 3 See generally CP. Bauer, Law, Slavery, and Sommersett’s Case in Eighteenth-Century England: A Study of the Legal Status of Freedom (Ph.D. thesis, New York University, 1973). chief justice Blowers and Solicitor-General Chipman sharply disagreed over the respective merits of the broad versus the narrow construction of England’s famous “Negro Case” - better to call it England’s “Great Evasion” - which had no legal significance beyond confirming the common-law generality of the prerogative mandatory writ of habeas corpus. The extent to which the legal effects of this decision have been misunderstood by earlier scholars of American Loyalism is clear from Wallace Brown: “There was never any question of the British freeing the Loyalists’ slaves except that after Somersett’s case any exile’s slave who reached the British Isles was automatically free”: W. Brown, The King’s Friends: The Composition and Motives of the American Loyalist Claimants (Providence RI, 1965) at 276; that was no more true than it would have been of refugees’ slaves reaching Nova Scotia. The most which can be said is that the freedom of a free Black in England was legally protected, as was the slavery of a enslaved Black. David Bell has rightly drawn attention to the salient fact that even the Lord Chief Justice of England, who handed down the decision, “himself died a slave owner twenty-one years later” supra, note 1 at 13. The import of R. v. Knowles, ex parte Somersett was to discourage transatlantic slave-trading, not slavery per se either in England or in the colonies. The “Negro Case” was therefore more a reference model than a precedent in the modem sense of the word. It was probably one of the “British precedents” to which J.M. Bumsted refers: “No colony in the [Atlantic] region abolished slavery through legislation, and it was gradually eliminated only through court extension of British precedents in the nineteenth century”: “Resettlement and Rebellion” in P. Buckner and J.G. Reid, eds., The Atlantic Region to Confederation: A History (Toronto & Fredericton, 1994) 182. There is nothing to object to in this generalization, except that the case-law was indigenous; Somersett, the usefulness of which both radical abolitionists such as Benjamin Franklin, and excellent practical lawyers such as Sampson Salter Blowers, took a decidedly dim view, played no part. from false imprisonment, and also of bringing a “slavery reference” into court. Indeed, if one examines the proliferation of habeas corpus applications in the first decade of the Blowers Court, 1797-1806, it appears that those which did not involve illegal imprisonment for debt involved Black people — alleged fugitive slaves who had been kidnapped by their masters and wrongfully imprisoned. Such was the character of the judicial war of attrition against slavery in Nova Scotia, which commenced under Blowers’s predecessor, chief justice Thomas A.L.
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