This is part 2 of our annual Black History Month blog series. Part 1 is available here.

It’s an exciting story that helps us feel connected to the great and sweeping narrative of the Underground Railroad: that (seemingly, any and all) tunnels, cellars, attics, barns, etc. of a certain age throughout the city were purpose-built for hiding Freedom Seekers after their arrival on the Underground Railroad.

It’s a common misconception that is often repeated through family lore. I hear it often shared as a family’s connection to an important narrative in our city.

As exciting as those stories are, there is no historical evidence to support the widespread hiding of Freedom Seekers in the basements, cellars, attics, etc. of St. Catharines.

In this four-part series, I’ll examine the many historical layers that perpetuate this myth. I’ll also examine the low number of ultimately unsuccessful legal and illegal attempts at removing Freedom Seekers from Canada and returning them to enslavement through 1830s-1860s. This meant that Freedom Seekers were confident enough in their legal and socio-political protections that they lived openly.

Why? This local lore distracts from the meaningful lives and contributions led by Freedom Seekers in our community. It detracts from and even tries to excuse the racism and prejudice faced and endured by Freedom Seekers when they arrived in St. Catharines. And it does a disservice to the thousands of Freedom Seekers, and the millions left behind in enslavement, to misuse a varied and complex 30-year political and societal struggle for good storytelling.

Part 2: Extradition

Patchwork of Protections

Westminster parliamentary tradition is set upon the foundation of precedence. The system waits for something to happen, deals with it, then uses it as the standard for the future. While my hope for Part 2 is not an exercise in constitutional history, it’s important for us to understand the context of how decisions about the law were made in Upper Canada in the timeframe I am exploring.

The institution of slavery was alive and well in Upper Canada in 1791 when the province was hived off from Quebec to better administer the growing number of settlers arriving to the new province.  Settlers had brought enslaved peoples with them, and others were purchased. This practice continued until 1793 when An Act to Prevent the further Introduction of Slaves and to limit the Terms of Contracts for Servitude was introduced in Upper Canada.

At the same time, the United States passed the first Fugitive Slave Act (1793), enshrining into law the right of slave owners to recover Freedom Seekers from across State lines. The contrasting legislation, separate jurisdiction, and relative distance helped to soft launch the Underground Railroad as Freedom Seekers moved to northern states, and sometimes into Canada through the 1820s and 1830s.

The Slavery Abolition Act, or the Emancipation Act, of 1833 abolished the practice of slavery across the British Empire, including British North America. The growth of the abolition movement across the Empire, and several well publicized instances of riot or revolt helped to push the government of Earl Grey to enact the legislation, effective August 1, 1834. Anyone who stepped foot on British soil, anywhere across the globe, was free.

The unintended (or was it intended?) consequence of emancipation was the increased flow of Freedom Seekers into Canada, and the increased petitioning for extradition of those same refugees back to the United States.¹ If for a moment we accept that petitioners had grounds for extradition, then sure, it sounds reasonable enough to expect the legal procedure to go through the courts. Except: Upper Canada / the British Government had no extradition treaty with the United States. And so, in cases of true criminality (such as if someone had actually committed a crime both jurisdictions agreed was a crime) extradition was decided case-by-case by the Lieutenant Governor (later, the Governor General) with advice from the Executive Council of Upper Canada and later Executive Council of the Province of Canada.

The Acts

Throughout the 1830s the Imperial government was aware of the Freedom Seekers entering Canada. Only a handful of these cases involved any request for extradition and with no official policies on how to handle these unique cases, the government (both in London and in Upper Canada) was forced to come up with some kind of policy to handle decisions, while simultaneously not stepping on the toes of the United States (foreign policy) and protecting the freedoms of refugees now living in their jurisdictions (social, domestic policy). They did not do so through one Act or Statute; but instead over a 30-year period and through a patchwork of legal precedent which manifested itself in testing each case individually in court.

They were helped along by several pieces of legislation:

• An Act to Limit Slavery, 1793, as previously discussed.

• The Slavery Abolition Act of 1833 abolished the practice of slavery in British jurisdictions, thus ensuring freedom to anyone living in that jurisdiction.
  
• Statute of 1833, 3 Will. IV, c.7 (U.C.),  a statute passed in Upper Canada that provided for the extradition of fugitive criminals from foreign countries. Anyone charged by a foreign country with murder, forgery, larceny, or other crimes, which if committed within the province would have been punishable with death, corporal punishment, the pillory, whipping, or confinement at hard labour, could be arrested, detained, and ultimately returned at the discretion of the Governor and his Executive Council.²
  
  It’s important to note that the act of escaping enslavement was not a criminal act in Upper Canada and so was not included in the list of crimes. Whereas the United States Fugitive Slave Acts assigned special criminality to those escaping enslavement.
  
• The Webster-Ashburton Treaty of 1842 was a high-level treaty between the United States and the British meant to settle several remaining disputes that arose from the 1783 Treaty of Paris (ending the Revolutionary War), the several minor treaties following the War of 1812, and several issues through the 1820s and 1830s (including the Rebellion of 1837) that placed a strain on the international relationship between the two countries. This included:
  
  • The settlement of several disputes of the southern border of Quebec, at Maine/New Brunswick, at Lake Superior/Lake of the Woods, and at the 49^th Parallel;
    
  • Agreement that the two parties would share the use of the Great Lakes;
    
  • Agreement that there should be an end to the trans-Atlantic slave trade;
    
  • And importantly for our story: Article 10 laid out the seven crimes subject to extradition: murder, or assault with intent to commit murder, or piracy, or arson, or robbery, or forgery, or the utterance of forged paper.
    
    Article 10 did not include any mention of slavery, escaping from slavery, slave revolt, or mutiny. Since a slave revolt/mutiny had accelerated the treaty negotiations in 1841, it’s fascinating and unexplained why U.S. Secretary of State Daniel Webster remained essentially silent on the question of returning some 12000 Freedom Seekers who had already crossed into Canada as a part of the treaty.^{3 4}
    
• An Act for better giving effect, within this Province, to a Treaty between Her Majesty and the United States of America, for the apprehension and surrender of certain Offenders, enacted in 1849 to spell out how the terms of the Webster-Ashburton Treaty in Article 10 would be applied in the Province of Canada. Since crimes listed in Article 10 did not include escaping enslavement, no further provision other than by following the established Acts of the Imperial government, relates to the condition of freedom for refugees.

It is against some or all these statutes that extradition requests were tested; and each time, the legal protections of formerly enslaved peoples who now resided in Canada were further enshrined.

The Tests

The Blackburns, 1833

In 1833, the Executive Council refused an extradition request submitted by the Governor of Kentucky for Thornton Blackburn and his wife. The Blackburns were captured in Detroit and confined for return to Kentucky according to the Fugitive Slave Act. On the day of transport, Thornton was rescued by a violent mob, and he escaped to Upper Canada (following his wife who used a disguise to escape the day before).

Extradition was requested because Blackburn had participated in a violent mob, against which the Attorney General of Upper Canada argued that he could not be charged, since he was merely trying to escape slavery and therefore could not be charged under the 1833 Statute for extradition. The government argued:

“That if they should be sent to Michigan and upon trial be convicted of the riot and punished, they would after undergoing their punishment be subject to be taken by their masters and continued in a state of slavery for life… [even if] acquitted, this consequence would equally follow.”⁵

This helped to establish a partial protection that the government would not extradite formerly enslaved peoples if they were certain to be returned to slavery.

Solomon Moseby, 1837

Solomon Moseby is our local example. Moseby stole his enslaver’s horse with the intention of escaping slavery and rode to Buffalo where he sold it, then escaped to Niagara. When his enslaver arrived with an arrest warrant and extradition papers, Moseby was detained while awaiting the decision.⁶

His lawyer attempted to argue what had been successful for the Blackburns: that the crime was committed in aid of his escape and therefore should not be considered a crime. He also noted “four men have travelled 1500 miles at the expense of at least $400 to bring to justice a slave charged with stealing a horse of only the value of $150.”⁷

In this case, since the crime was proven, and was measured against the 1833 Statute, the government approved the extradition request. This decision was helped along by an unsympathetic Chief Justice (and head of the Family Compact) John Beverley Robinson who thought “it undesirable to encourage [refugees] in their view of Canada as a place of safety.”⁸

Moseby was rescued by a violent mob – two men died during the riot – and escaped to England. It is noted that he did go into hiding after escaping, but as a direct result of the actions of Canadians in a particular case; not due to the fact that hiding in safe houses as on the Underground Railroad continued into Canada.⁹

Jesse Happy, 1838

Soon after Moseby’s case, the Governor of Kentucky was back again with another request for extradition for Jesse Happy. Happy had also escaped by stealing a horse but here’s the twist: he stole the horse and escaped in 1833. Since Happy left the horse and arranged for its recovering before crossing the border, and his former enslaver reclaimed the animal, no legal action was taken until 1835, and the request for extradition was not submitted until 1837. Happy was arrested and awaited trial in a Hamilton jail.¹⁰

Happy’s case received much more careful consideration by not just the Executive Council in Upper Canada, but also by the Foreign Secretary and the Prime Minister. This is likely due to the beginnings of the Webster-Ashburton treaty negotiations and the increasing frequency of extradition requests for formerly enslaved peoples by State governments as a test of the British and Canadian statutes, not to mention the violent result of the Moseby case.

The passage of time worked to Happy’s benefit but the case opened a discussion of the legal and moral responsibilities for refugees at all levels of government.

The Executive Council was troubled by the lack of evidence, the passage of time, and was concerned with the potential for the “Double Penalty” of ultimately being returned to slavery. In their report to the government, they state that:

“Were there any law by which after taking his trial and if convicted undergoing his sentence he would be restored to a State of Freedom – The Council would not hesitate to advise his being given up, but there is no such provision in the Statute of 1833.”

Meanwhile, Chief Justice Robinson weighed in on the philosophical challenges of offering asylum to people who commit crimes (including murder, which would be a part of a case a few years later):

“We have not the right to say, and certainly not the power to insist, that slavery shall not be tolerated in other countries; and since we cannot abolish slavery there, I do not think that we can properly proceed towards accomplishing such a result…by deciding that slaves who murder their masters, or burn their houses, or steal their goods, shall find a secure refuge in their Province – while the white inhabitants of the same Countries shall, under similar circumstances be surrendered, on the requestion of their Government.”¹¹

Lt. Governor Sir Francis Bond Head wouldn’t decide and sent the case to the Imperial government both for a decision and for a general policy and in doing so laid out the argument that was core to the protection of Freedom Seekers against American overreach with tools like extradition:

“…Because our laws grant him personal freedom, that he should moreover claim from [us] emancipation from trial for crimes for which even British-born subjects would be held responsible; yet on the other hand, it may be argued that a slave escaping bondage on his master’s horse is a vicious struggle between two parties of which the slave owner is not only the aggressor, but the blackest of criminal of the two – it is the case of the dealer in human flesh versus the stealer of horse-flesh.

…The clothes and even the manacles of a slave are undeniably the property of his master, and it may be argued that it is as much a theft in the slave walking away from slavery to liberty in his master’s shoes as riding on his master’s horse; and yet surely a slave breaking out of his master’s house is not guilted of the same burglary which a thief would commit who should force the same locks and bolts in order to break in.”¹²

Meanwhile, the Executive Council met again and heard witness that Happy had taken effort to ensure the return of the horse and ruled that “the horse may not have been stolen, but merely wrongfully used for the purpose of escape.”¹³ And that because there was such a lack of evidence, and that if Happy wasn’t enslaved in the first place, he wouldn’t have need to borrow the horse, the Council ordered his release.

When the Imperial Government agreed with the Council, it only cemented this protection for Freedom Seekers. They ruled that:

• Happy did not take the horse with felonious intention and did not appropriate the property permanently;
• That no legal action had been pursued for four years after the alleged crime;
• The punishments to which slaves are liable by law in the United States for offences of this nature are such as our own principles of jurisprudence compel us to regard as indefensible and disproportioned to the crime.

To Chief Justice Robinson’s disappointment, this seemed to settle the question of extradition of criminality associated with escaping enslavement. The ruling strengthened protections for refugees by clearly condemning the practice of slavery, which Robinson refused to do.¹⁴

Nelson Hackett, 1841

For crimes not associated with escaping enslavement, however, the decision was more straightforward as explained as such by the Governor General Sir Charles Bagot in deciding the case of Nelson Hackett.

The measurement of criminality in this case did not consider the “Double Penalty” but did uphold the idea that refugees who committed crimes directly associated with escaping enslavement would be protected.

Hackett had escaped enslavement from Arkansas in 1841 and on his way out stole a beaver overcoat, a racing horse, a gold watch, and a saddle, and fled to Canada West. The Governor General approved the extradition request and explained that he was under orders from the Colonial Office to restore good relations with the United States, and that stealing the watch was not necessary to Hackett’s escape. He explained further that he was unwilling for Canada to be “an asylum for the worst characters provided only that they had been slaves before arriving here.”¹⁵

Hackett was the first and one of the only formerly enslaved persons to be successfully extradited to the United States.

Jack Burton / John Anderson / William Jones, 1861

Jack Burton killed a white neighbour of his enslaver in 1853. He escaped to Canada West and on the way changed his name to John Anderson in Michigan, then William Jones when he arrived in Canada West. He was arrested in 1860 and brought before Chief Justice Robinson, who easily decided for extradition, despite a packed courtroom of supporters and an angry mob outside. Anderson’s counsel appealed and he was acquitted in 1861 on the technicality that the warrant for extradition didn’t match the text of the Webster-Ashburton Treaty.¹⁶

Additional Protections

Even with the advent of the second Fugitive Slave Act in 1850, which intensified the volume of those escaping enslavement to Canada, the principles enunciated in 1838 through the Jesse Happy case were prioritized.

Further legal actions also protected Freedom Seekers from being turned over to bounty hunters, former enslavers, and even American officials:

• In 1856 a refugee Archy Lanton, who had stolen two horses, was left in the care of his American pursuers by a careless constable and was kidnapped and returned to slavery in the United States. The Attorney-General John A. Macdonald dismissed from office the two magistrates who were responsible.
  
• In 1858 a refugee was taken prisoner in Hamilton by two policemen who gave him over to American authorities. Both pled guilty to assault and wrongful imprisonment.¹⁷

The Fear Remains

In almost every case in Upper Canada/Canada West, refugees charged for extradition were protected legally. Even those who had committed questionable crimes within the umbrella of escaping slavery were certainly also protected politically and popularly.

Though without declaring outright protection for Freedom Seeker refugees in an Act, several legal decisions over a 30-year period built the patchwork protection for refugees who had committed crimes, certainly for all Freedom Seekers, criminal or not.

Through that 30-year period, multiple levels of government had openly and loudly declared its disdain for the institution of slavery and had drawn out the legal exceptions to which refugees could be protected from extradition, which in turn must have encouraged Freedom Seekers to act as closely to that legal advice as possible: steal only what is necessary for escape.

Certainly, in both Part 1 and Part 2 of this series is the underestimated influence of the mob, as representing public opinion. In Solomon Moseby’s case, they physically provided him freedom. In Jesse Happy’s case, public opinion forced all levels of government to finally weigh in on the question. In Anderson’s case Chief Justice Robinson found proof of his earlier moral argument that refugees, regardless of crime, would be protected. Anderson had murdered someone and despite his best-efforts Robinson had failed to extradite him.

If even Anderson could be protected from extradition how were law-abiding refugees still so fearful that they remained in hiding in St. Catharines?

Or is it that they weren’t in hiding at all?

That’s in Part 3 of Hiding in Plain Sight coming on February 16.

Adrian Petry is a public historian and Visitor Services Coordinator at the St. Catharines Museum and Welland Canals Centre.

Part 2 Footnotes and Series Bibliography

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1. Alexander L. Murray. “The Extradition of Fugitive Slaves from Canada: A Re-evaluation.” The Canadian Historical Review, Vol. 43, No. 4. December 1962. 300-301. ↩︎
2. Jason H. Silverman. Kentucky, Canada, and Extradition: The Jesse Happy Case. Louisville: Filson Club, 1980. 52-53. ↩︎
3. Murray, 307-308. ↩︎
4. Robin W. Winks. The Blacks in Canada: a History. Montreal: McGill-Queen’s University Press, 1997. 174-175. ↩︎
5. Silverman, 53. ↩︎
6. Nancy Butler and Michael Power. Slavery and Freedom in Niagara. Niagara-on-the-Lake: Niagara Historical Society, 1993. 49-53. ↩︎
7. Silverman, 55. ↩︎
8. Murray, 304. ↩︎
9. Butler, 53. ↩︎
10. Silverman, 54-56. ↩︎
11. Ibid, 55. ↩︎
12. Ibid, 56. ↩︎
13. Ibid, 57. ↩︎
14. Ibid, 58-59. ↩︎
15. Winks, 172. ↩︎
16. Ibid, 174-175. ↩︎
17. Ibid, 174. ↩︎

Books and Peer Reviewed Articles

Butler, Nancy and Michael Power. Slavery and Freedom in Niagara. Niagara-on-the-Lake: Niagara Historical Society, 1993.

Dunlop, R. G., et al. “Records Illustrating the Condition of Refugees from Slavery in Upper Canada before 1860.” The Journal of Negro History, Vol. 13, No 2. April 1928, pp. 199-207.

Drew, Benjamin. A North Side View of Slavery – The Refugee: Narratives of Fugitive Slaves in Canada (1856). Toronto: Dundurn Press, 2008.

Halty, Nina. From Slaves to Subjects: Forging Freedom in the Canadian Legal System. Florida Atlantic University, 2017.

Howe, Samuel Gridley. Report to the Freedmen’s Inquiry Commission, 1864: The Refugees from Slavery in Canada West. New York: Arno Press and The New York Times, 1969.

Howe, Samuel Gridley. “Howe Commission Report Testimony 1863, St. Catharines Section and 1 Suspension Bridge Interviews.” As transcribed by Donna Ford. St. Catharines: St. Catharines Museum and Welland Canals Centre, 2014.

Pennee, Donna Palmateer. “Benjamin Drew and Samuel Gridley Howe on Race Relations in Early Ontario: Mythologizing and Debunking Canada West’s “Moral Superiority.” Journal of Canadian Studies, Vol. 56, No 1. Winter 2022, pp. 99-123.

Murray, Alexander L. “The Extradition of Fugitive Slaves from Canada: A Re-evaluation.” The Canadian Historical Review, Vol. 43 No. 3. December 1962, pp. 298-314.

Silverman, Jesse H. Kentucky, Canada, and Extradition: The Jesse Happy Case. Louisville: Filson Club, 1980.

Winks, Robin W. The Blacks in Canada: a History. Montreal: McGill-Queen’s University Press, 1997.

Newspapers

St. Catharines Constitutional, 1861-1867.

St. Catharines Journal, 1826-1860.

The Provincial Freeman, 1855.