Mary Charlotte, a woman of color v. Gabriel S. Chouteau
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legal sanction for its support; unlike LouisianaLouisiana in this respect, where
the Royal permision was given to traffic in slaves, and where the KingKing
not only sanctioned slavery by la loi del'Etat, but enacted the Edict of 1724
to regulate its police justice and administration in the Colony; Canada
possessed none of these, no authentic document can be found in her
archives or records which regulate the mode, or period or effects of servitude,
the extent of the Master's power, the period of the enforced subjection or
any of its incidents or consequences, either affecting the purchased person
himself or his offspring or any act of police justice or administration
connected with slavery. The reason is manifest, because the servitude,
such as it existed, was simply by the abuse of power, in those who
held the PanisPanis and negros, and from the fear of the penalty imposed upon
âcaux qui les debauchentâ Yet slavery was not a legal status established
par la loi de l'Etat or by royal sanction, and could have had
no legal force upon the person of the so called slave (esclave). The
difference between slavery legally established, and enforced service of longer
or shorter duration, must be so manifest, as respects CanadaCanada, as not to
require further observation.

Fifth: Did the capitulation of the Canadians to the British arms, in September 1760 effect any, and what, change in the legal status or condition of negroes,
or other persons, then held by the Canadians as slaves?

Answer. As I do not recognize the legal existence of a
slave status in CanadaCanadaprevious to the capitulation of 1760, because
that status could have been established by Royal enactment only,
and which was in fact never made for CanadaCanada, the only effect of
the particular stipulation in the Capitulation regarding PanisPanis
and negroes was, to leave them with the same natural rights that
they previously possessed. Even admitting the existence of an
abusive servitude de facto, as regarded that class of inhabitants, the
47th Article of the capitulation only stipulated, that the panis and
negroes should remain in the same quality of slaves, resterout dans
la meme qualite d'esclaves, in the possession of those who held them,
as they were before that stipulation; whilst, by other articles, all
the inhabitants remaining in the Colony became subjects of
the King of England and were no longer to be governed by the
[ laws ]

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laws and usages established for the Colony: thus the entire body of the
people, of every class, so remaining and conquered by the arms of the
Crown of England, became subjects of that Crown by act and operation
of law. In the well known case of CampbellCampbell and Hall, Lord MansfieldMansfield
says: âin the acquisition by conquest, it is limited by the constitution
to the King's authority to grant or refuse a capitulation; if he
refuse and put all the inhabitants to the sword, all the lands belong to
him; if he receive the inhabitants under his protection and grant
them their property, he has the power to fix the conditions: the conquest
virtually naturalizes the inhabitants by the act and operation
of law, and they become subjects of the Crown of England", It was
also well urged in that case that âit is not, as fomerly, when the
conqueror gained captives and slaves and absolute rights by the
law of nations, but now the conqueror obtains dominion and
subjects.â Hence the effect of the capitulation was to operate a
change from the abusive slavery by which that class of persons had
been constrained en qualite d'esclaves, to the possession by
them of personal and public rights as British subjects.

The capitulation of MontrealMontreal in September 1760 differed in this particular
from that of QuebecQuebec in september 1759; both were careful for the
full and entire protection of the inhabitants, in all their property & effects,
houses and Goods, and even protected those of the military and religious
Orders, and enabling all to dispose of their property, if they determined
upon returning to French; whilst in the former only was contained
the stipulation respecting PanisPanis & negroes, the latter not mentioning
these at all. The necessity for any mention of this particular &
class of persons could only have arisen from the unsatisfactory relation
subsisting between the purchasors and the purchased PanisPanis & negroes
had these been considered as legal property, no special reference to them
would have been made, but the fact is the traffic was chiefly local from
the intercourse subsisting between the French Indians and the residents
of MontrealMontreal where the Indian trade was carried on at certain regular periods. Sixth: Did the capitulation effect any, and what, change in the legal
status or condition of the Children of such negro, or other
slaves, born after the capitulation?

[ Answer ]