Published online by Cambridge University Press: 26 July 2013
Drawing on a series of criminal cases that took place in Hamilton in late 1852, this paper explores the operation of race in law during the period against the backdrop of Hamilton’s geography. The paper sheds light on the living conditions of a segment of the population that has left scarcely a trace in the historical records. As well, a close examination of Hamilton’s census records and physical space reveals that those found guilty in these trials were linked to a particular racially and ethnically charged, vice-prone space rather than the more respectable central part of the city. The author argues that the construction of Prince’s Island, which lay in the marshes just west of Hamilton, as a “den of vice” probably conditioned the findings of guilt and innocence in one of the trials while promoting the impression that justice was “colour-blind.”
S’inspirant d’une série d’affaires pénales qui se sont déroulées à Hamilton à la fin de l’année 1852, ce document retrace la manière dont la race a agi en droit pénal pendant cette période en fonction du lieu de résidence dans cette ville. Elle met à jour les conditions de vie d’un segment de la population qui n’a guère laissé de trace dans les archives. Aussi, en examinant soigneusement les relevés de recensement et l’espace physique d’Hamilton, on constate que les personnes jugées coupables lors de ces procès étaient associées à un espace particulier, à caractère racial et ethnique et porté au vice, plutôt qu’à la partie centrale et plus respectable de la ville. L’auteur soutient que la construction de Prince’s Island, qui était une zone marécageuse située tout juste à l’ouest d’Hamilton et « source de vice », déterminait vraisemblablement les déclarations de culpabilité ou d’innocence dans ces procès tout en cultivant l’impression que la justice était « sans couleur ».
1 I am indebted to Margaret Houghton of the Hamilton Public Library for her help with Hamilton’s geography, to Paul Leatherdale of the archives of the Law Society of Upper Canada for information about the lawyers involved in these cases, and to the staff at the Archives of Ontario. Thanks are also due to the Osgoode Society for Legal History for travel funding and to the anonymous reviewers of the Canadian Journal of Law and Society.
2 George Elliott Clarke rightly cautions Canadian readers to not read Drew’s text as proving that Canada was a paradise for people of African descent. Drew’s audience was American: “Introduction: Let Us Now Consider ‘African American’ Narratives as (African-) Canadian Literature,” in The Refugee: Narratives of Fugitive Slaves in Canada, by Benjamin Drew (Toronto: Dundurn Press, 2008 ), 10–24.
3 By way of introduction to this literature, see Afua Cooper, “The Fluid Frontier: Blacks and the Detroit River Region: A Focus on Henry Bibb” (2000) 30(2) Can. Rev. Amer. St. 129; Karolyn Smarz Frost, “Communities of Resistance: African Canadians and African Americans in Antebellum Toronto” (2007) 99 Ont. Hist. 44; Sharon A. Hepburn, “Following the North Star: Canada as a Haven for Nineteenth-Century American Blacks” (1999) 25(2) Mich. Hist. Rev. 91; Jason H. Silverman, “The American Fugitive Slave in Canada: Myths and Realities” (1980) 19(3) Southern St. 215; Jason H. Silverman, “‘We Shall Be Heard!’ The Development of the Fugitive Slave Press in Canada” (1984) 65(1) Can. Hist. Rev. 54; Silverman, Jason H., Unwelcome Guests: Canada West’s Response to American Fugitive Slaves, 1800–1865 (Millwood, NY: Associated Faculty Press, 1985); Simpson, Donald George, Under the North Star: Black Communities in Upper Canada Before Confederation (1867) (Trenton, NJ: African World Press, 2005); Walker, Barrington, ed., The History of Immigration and Racism in Canada (Toronto: Canadian Scholars’ Press, 2008); Walker, James W. St. G., “Race, ”Rights and the Law in the Supreme Court of Canada: Historical Case Studies (Waterloo, ON: Wilfrid Laurier Press for the Osgoode Society, 1997); Winks, Robin W., “‘A Sacred Animosity’: Abolitionism in Canada, ” in Duberman, Martin, ed., The Antislavery Vanguard: New Essays on the Abolitionists (Princeton, NJ: Princeton University Press, 1965); Robin W. Winks, “Negro School Segregation in Ontario and Nova Scotia” (1969) 50(2) Can. Hist. Rev. 164; Winks, Robin W., The Blacks in Canada: A History (New Haven, CT: Yale University Press, 1971).
4 See Hutchison v. St. Catharines (Town) Board of Education (1871), 1871 CarswellOnt 185, 31 U.C.Q.B. 274; Winks, “Negro School Segregation,” supra note 3, at 171–72, 176; Simpson, North Star, supra note 3, at 241–48.
5 J. Walker, “Race,” Rights and the Law, supra, note 3, at 122–81, esp. 144; Simpson, North Star, supra note 3, at 385–85, 392; Jacqueline, L. Tobin with Hettie Jones, From Midnight to Dawn: The Last Tracks of the Underground Railroad (New York: Doubleday, 2007), at 164–65. Contemporary accounts may be found in Samuel Ringgold Ward to George Brown (Jul. 27, 1852), in Peter Ripley, C., The Black Abolitionist Papers, Vol. 2: Canada, 1830–1865 (Chapel Hill: University of North Carolina Press, 1986), at 215–16; Peter Gallego to Thomas Rolph (Nov. 1, 1841), in Ripley, ibid., 87; Samuel Ringgold Ward to Henry Bibb and James Theodore Holly (Oct. 1852), in Ripley, ibid., 225; “Elevator,” “Negrophobia on Canadian Steamboats,” Provincial Freeman, Jun. 24, 1854; Valten [?] v. Babcock (Gore District, Sept. 1845) in benchbooks of Christopher Hagerman, Western Circuit, Autumn 1845, Archives of Ontario [“AO”], RG 22-390-3, box 40, file 2, 197–200.
6 Drew, Refugee, supra note 2, at 124.
7 Report by Samuel Ringgold Ward (Mar. 24, 1853), in Peter Ripley, C., ed., The Black Abolitionist Papers. Vol. 2: Canada, 1830–1865 (Chapel Hill and London: University of North Carolina Press, 1986) at 257.Google Scholar
8 Smith, Marcus, Map of the City of Hamilton in the County of Wentworth Canada West, 1850–1, 2nd ed. (New York, N.: Ferd. Mayer’s Lithography).
9 Toronto: Natural Heritage Books, 2010.
10 See the special issue of the Canadian Journal of Law and Society, edited by Sherene H. Razack: (2000) 15( 2) CJLS/RCDS. Most of these essays and two others appear in Razack, ed., Race, Space, and the Law: Unmapping a White Settler Society (Toronto: Between the Lines, 2002).
11 B. Walker, History of Immigration, supra note 3, at 67.
12 Richard Thompson Ford, “The Boundaries of Race: Political Geography in Legal Analysis” (1994) 107(8) Harv. L. Rev. 1841.
13 Anderson, Kay J., Vancouver’s Chinatown: Racial Discourse in Canada, 1875–1980 (Montreal: McGill-Queen’s University Press, 1991).Google Scholar
14 Jennifer Nelson, “‘Panthers and Thieves’: Racialized Knowledge and the Regulation of Africville” (2011) 45(1) J. Can. St. 121–42; Nelson, Jennifer J., Razing Africville: A Geography of Racism (Toronto: University of Toronto Press, 2008).Google Scholar
15 Census of the Canadas, 1851–52: Agricultural Produce, Mills, Manufactories, Houses, Schools, Public Buildings, Places of Worship, &c., vol. 1 (Quebec: Lovell and Lamoureux, 1855).
16 See Michael Wayne’s analysis in “The Black Population of Canada West on the Eve of the American Civil War: A Reassessment Based on the Manuscript Census of 1861” (1995) 48(56) Histoire Sociale / Social History 465.
17 Census of the Canadas, 1851–52, supra note 15 (the figure given is 99). On the individual census returns available online through the Library and Archives Canada database (www.collectionscanada.gc.ca), I counted 247: Census of 1851 (Canada East, Canada West, New Brunswick, and Nova Scotia), Hamilton [hereinafter Census of 1851]. Shadd gives a figure of 244: supra note 9, at 127. The Hamilton Public Library’s compilation seems to yield a figure of 260: email from Margaret Houghton, archivist, July 25, 2011.
18 Sixteen of St. Patrick’s total population of 3,128 (0.51 percent) were “coloured,” and they lived in seven of the 557 households (1.3 percent). In St. George’s, 25 of 2,223 people were identified as “coloured” (1.1 percent), and they lived in eight of 367 households (2.2 percent). In St. Mary’s, 22 of 2,978 people were “coloured” (0.74 percent), and they lived in five of 488 households (1.0 percent). The overall population figures come from Census of the Canadas, 1851–52, vol. 1, supra note 15.
19 City of Hamilton Directory: Containing a Full and Complete Street Directory [etc.] (Hamilton: C.W. Cooke, 1853).
20 Census of 1851, supra note 17, Hamilton, St. Andrew’s and St. Lawrence.
21 This conclusion comes from my analysis of Benjamin Drew’s numbers from his 1854 visit. His numbers accord well with the 1851 census for St. Patrick’s, St. Mary’s, and St. George’s wards. His combined total of 191 for St. Andrew’s and St. Lawrence is also highly plausible (I found 184 in 1851), but he significantly overstates the population of St. Andrew’s (140) and understates St. Lawrence’s (51): supra note 2, at 123. I suspect Drew misunderstood where the boundary lay between St. Lawrence and St. Andrew’s wards. An enormous agricultural tract almost split St. Lawrence. Most of the ward lay to the east of it, but a two-block-wide strip of it ran along the farm’s long western edge, between it and St. Andrew’s. A visitor could easily have assumed that this part of St. Lawrence belonged to St. Andrew’s. If Drew did so, then around 52 (140 minus 88) of those marked “coloured” in St. Lawrence lived in this area. About 140 of Hamilton’s total population of 247 “coloured” people would therefore have lived in the narrow stretch north of King.
22 Thomas Hutchinson, Hutchinson’s Hamilton Directory, for 1862–63 [etc.] (Hamilton: John Eastwood & Co., c1863), at 207. The locations were the same in 1852: email from Margaret Houghton, archivist, Hamilton Public Library, May 30, 2011.
23 Some census returns are unclear, but it seems that of the 86 or so people identified as “coloured” and under the age of 16 in Hamilton, 30 lived in in St. Andrew’s and about 33 lived in St. Lawrence: Census of 1851, supra note 17. The numbers in the other wards were very small: twelve “coloured” children lived in St. Mary’s and St. George’s, and 2 or 3 lived in St. Patrick’s. Four “coloured” children in St. Andrew’s and 6 in St. Lawrence attended school.
24 Donald Simpson finds reference to this area in Jessie Beattie’s John Christie Holland: Man of the Year (1956): North Star, supra note 3, at 397, 430. Bill Freeman mentions a black community on Concession Street “on the mountain,” which seems most likely to be the same place: Hamilton: A People’s History (Toronto: James Lorimer, 2001), at 44–45. Simpson also mentions a school on the mountain that began as a mission: North Star, supra note 3, at 397. I found a total of 42 individuals identified as “coloured” living in 14 households in this area: Census of 1851, supra note 17, Wentworth, Barton.
25 The individual census records for 1851–52 have not survived, but in the 1861 census, only 15 people out of a population of 2,852 were identified as “black” and none as “mulatto”: Barry Christopher Noonan, Blacks in Canada, 1861 (Madison, WI: n.p., 2000) at 544. The published report of the 1851 census says there were 8 people identified as “coloured” in Dundas, out of a population of 3,517 (Dundas’s population fell in the next decade): Census of the Canadas, 1851–52, supra note 15.
26 Gore-Hamilton Jail Register, 1850–57, AO, RG20-72-1.The records of the Hamilton jail disclose not only the charge, dates of committal and discharge, committing magistrate, and case outcome, but also the ages, birthplaces, level of literacy, drinking habits, marital status, conduct in jail, and number of previous jail committals for those who were housed in it. Unfortunately, they are silent on religion. In this paper, information about place of origin and age for the culprits and their friends comes from the jail register.
27 “Burglary,” Hamilton Gazette, July 22, 1852; Census of 1851, supra note 17, Hamilton, St Mary’s, Schedule A, at 232; email from Paul Leatherdale, archivist, Law Society of Upper Canada [“LSUC”], September 1, 2010; City of Hamilton Directory, supra note 19, at 136.
28 R. v. Oliver Dawsey (Hamilton criminal assize, fall 1852) in benchbooks of Robert Baldwin Sullivan, Oxford Circuit, Autumn 1852, Common Pleas and Criminal Cases, AO, RG22-390-5, box 45, file 4, 146–56 at 146–52 [“R. v. Dawsey”]; R. v. Oliver Dawsey, Thomas Cavill, Jesse Tillason and Joseph Butler (Hamilton criminal assize, fall 1852) in benchbooks of Robert Baldwin Sullivan, Oxford Circuit, Autumn 1852, Common Pleas and Criminal Cases, AO, RG22-390-5, box 45, file 4, 157–70 at 159 [“R. v. Dawsey et al.”].
29 R. v. Dawsey, supra note 28, at 151–52.
30 “Dreadful Murder,” Hamilton Gazette, Aug. 30, 1852. I did not find Windsor Prince in the Census of 1851.
31 “Burglary in Dundas,” Weekly Spectator, August 5, 1852.
32 The intersection of King and James was the centre of Hamilton for the purposes of address numbering. Sadleir lived about three blocks west of this intersection on the corner of King and Bowery/Bay. Sylvester’s tin shop appears to have been just over a block north of the King/James intersection: email from Margaret Houghton, archivist, Hamilton Public Library, June 2, 2010; City of Hamilton Directory, supra note 19, at 12, 32, 42, 136.
33 “Robbery,” Weekly Spectator, August 19, 1852.
34 “Another Burglary,” Hamilton Gazette, August 23, 1852. J. Carpenter’s hardware store was on King Street, just east of Hughson: City of Hamilton Directory, supra note 19, at 39.
35 “Robbery at Wellington Square,” Weekly Spectator, September 10, 1852.
36 R. v. Dawsey et al., supra note 28, at 156–70.
37 Roy Woodhouse, T., History of the Town of Dundas (Dundas, Ont.: Dundas Historical Society, 1965), at 33; Morgan, Henry J., The Canadian Parliamentary Companion: First Year (Quebec: Desbarats & Derbishire, ), at 35. Notman’s house, at 32 Cross Street, still stands.
38 R. v. Dawsey et al., supra note 28, at 157–58.
39 Ibid. at 162.
40 The general location of Cavill’s house can be gleaned from witness testimony: R. v. Dawsey et al., supra note 28, at 169. Cavill’s name does not appear on the map of Hamilton, in the 1853 Hamilton directory, or among the individual census returns.
41 R. v. Dawsey et al., supra note 28, at 160–62.
42 Ibid. at 164.
43 Ibid. at 158–60.
44 “Murder,” [Hamilton] Weekly Spectator, September 2, 1852; “Dreadful Murder,” supra note 30; R. v. George Foreman and Joseph Butler (Hamilton criminal assize, fall 1852) in benchbooks of Robert Baldwin Sullivan, Oxford Circuit, autumn 1852, Common Pleas and Criminal Cases, AO, RG22-390-5, box 45, file 4, 157–70 at 172 [“R. v. Foreman and Butler”].
45 R. v. Foreman and Butler, supra note 44; “The Queen vs. George Foreman and Joseph Butler—Murder,” [Hamilton] Weekly Spectator, November 4, 1852.
46 R. v. Foreman and Butler, supra note 44, at 172–74.
47 Ibid. at 172–83.
48 R. v. Dawsey, supra note 28, at 149–50.
49 R. v. Foreman and Butler, supra note 44, at 176–80; Census of 1851, supra note 17, Hamilton, St. George’s, Schedule A, at 109 (for the brickmaking establishment).
50 Jail Register, supra note 26; “Murder,” supra note 44; “Dreadful Murder,” supra note 30; “Assize Intelligence,” [Hamilton] Weekly Spectator, October 21, 1852; “The Queen vs. George Foreman and Joseph Butler—Murder,” supra note 45.
51 Nelson, “Panthers and Thieves” and Razing Africville, supra note 14.
52 Nelson, “Panthers and Thieves,” supra note 14, at 125.
53 “Dreadful Murder,” supra note 30.
54 “Murder,” supra note 44.
55 The brickmaking business was on the western outskirts of town. It was about halfway between Simeon Cline’s inn (supra note 45) and downtown Hamilton: Census of 1851, supra note 17, Hamilton, St. George’s, Schedule A, at 109.
56 Census of 1851, supra note 17, Hamilton, St. Mary’s, Schedule A, at 198. See “Murder,” supra note 44; R. v. Foreman and Butler, supra note 44, at 180; City of Hamilton Directory, supra, note 19, at 43, 51, 111.
57 Most of the participants in these events do not appear in the census, so one should not assume that Mary Ashby/Burns would either. The coincidence of names is interesting, though, and at the least, she was not in jail at the time of the census. The census record says she was sixteen and the jail register says she was twenty, but inaccuracies in either are possible.
58 Ford, “The Boundaries of Race,” supra note 12, at 1858.
59 Ibid. at 1859.
60 R. v. Dawsey et al., supra note 28 at 160–65, quotations at 162.
61 Ibid. at 159–69.
62 Ibid. at 160. The presence of defence witnesses and reasonably extensive cross-examinations in Dawsey’s trial for the Sadleir burglary suggest that he had counsel. I describe the proceedings in more depth in “Race and the Criminal Justice System in Canada West: Burglary and Murder in Hamilton, 1852–53” (2012) 37(2) Queen’s L.J. 477–522.
63 R. v. Dawsey et al., supra note 28, at 169–70.
64 Jervis, John, Archbold’s Summary of the Law Relative to Pleading and Evidence in Criminal Cases, 9th ed. (London: S Sweet, V & R Stevens & GS Norton, 1843), at 4–6. Sullivan’s notes for his charge to the jury state, “But if there were no assault to mitigate Foreman’s act and if the prisoner Butler returned with him, and both came around to commit an assault upon the deceased and his companion, and the deceased were killed by one, the other would be guilty of murder in the second degree”: R. v. Foreman and Butler, supra note 44, at 85. An 1865 Upper Canadian magistrates’ manual stated the law similarly: McNab, John, The Magistrates’ Manual [etc.] (Toronto: WC Chewett & Co, 1865), at 387. Butler was in fact not even charged for the assault on Kenny: Jail Register, supra note 26.
65 Exactly who represented Butler is somewhat unclear. Justice Sullivan’s notes refer to Read making this objection “as counsel for the prisoners”: R. v. Foreman and Butler, supra note 44, at 182. A newspaper noted, “Mr. D.B. Read appeared for Foreman, and M. Martin for Butler”: “The Queen vs. George Foreman and Joseph Butler—Murder,” supra note 45. However, although David Breakenridge Read appears on the rolls of the Law Society of Upper Canada, M. Martin does not: email from Paul Leatherdale, Archivist, Law Society of Upper Canada, 3 August 2011.
66 “Assize Intelligence,” supra note 50.
67 “The Queen vs. George Foreman and Joseph Butler—Murder,” supra note 45.
68 “The Queen vs. John Tipple—Murder,” [Hamilton] Weekly Spectator, November 4, 1852.
69 R. v. Dawsey, supra note 28; R. v. Dawsey et al., supra note 28, at 157; R. v. Foreman and Butler, supra note 44, at 172.
70 R. v. Dawsey et al., supra note 28, at 169; R. v. Foreman and Butler, supra note 44, at 174.
71 “Murder,” supra note 44.
72 Darian-Smith, Eve, Religion, Race, Rights: Landmarks in the History of Modern Anglo-American Law (Oxford: Hart Publishing, 2010), at 131–44. The reports of Oliver Dawsey’s later escape from jail echo this practice: a report that simply announced his escape and the reward being offered called him “a negro,” but a more admiring report labeled him with the more neutral-sounding term “a colored man”: “Escaped Convict” Hamilton Weekly Spectator, November 10, 1853; “Extraordinary Industry!” Dundas Warder, November 11, 1853.Google Scholar
73 An Act for the Consolidation and Amendment of the Laws Relative to Jurors, Juries and Inquests in that Part of this Province called Upper Canada, S Prov C 1850 (13 & 14 Vic), c 55, ss. 36–38. Also, after a case, the names were to be returned to the ballot box, but if there were no objections “on the part of the Queen, or any other party” (s. 38), all or part of the jury could be retained for the next case.
74 R. v. Ellen Cooper and Mary Ashby (Hamilton criminal assize, fall 1852) in benchbooks of Robert Baldwin Sullivan, Oxford Circuit, Autumn 1852, Common Pleas and Criminal Cases, AO, RG22-390-5, box 45, file 4, 89–90.
75 R. v. Dawsey, supra note 28, at 148–52.
76 Ibid. at 153–54
77 Ibid. at 155.
78 R. v. Dawsey et al., supra note 28, at 160–62.
79 Ibid. at 163–65.
80 R. v. Foreman and Butler, supra note 44, at 172–73.
81 Ibid. at 174.
82 Ibid. at 177, 180.
83 Ibid. at 178, 180, 182–83. Russell and Cooper spent a great deal of 1852 in jail for drinking and disorderly conduct, and Ashby did time as well: Jail Register, supra note 26.
84 Kenny did not recall saying, “You damned black niggers why are you here with white women?” R. v. Foreman and Butler, supra note 44, at 174, 182–83.
85 “The Queen vs. George Foreman and Joseph Butler—Murder,” supra note 45.
86 Dawsey, Tillason, Butler, and Foreman were recent arrivals to town, Tillason having come from Burford, and Dawsey and Butler from Brantford: R. v. Dawsey, supra note 28, at 152, 155. Foreman, Dawsey, and Butler were American-born.
87 Census of 1851, supra note 17, Hamilton, St. Andrew’s, at 516.
88 The census, the 1853 Hamilton directory, the Hamilton map, and the judge’s notes, put together, fail to provide a clear address for Harris, but he probably lived in St. George’s ward, one block south of St. Andrew’s, between Hughson and John Streets. See Census of 1851, supra note 17, Hamilton, St. George’s, Schedule A, at 122; City of Hamilton Directory, supra note 19, at 12, 48, 104; R. v. Dawsey et al., supra note 28, at 169.
89 R. v. Dawsey et al., supra note 28, at 169. The Dundas census records have not survived, and I can find no trace of George Notman.
90 Census of 1851, supra note 17, Hamilton, St. George’s, Schedule A, at 122.
91 I searched Library and Archives Canada’s naturalization records (www.collectionscanada.gc.ca/databases/naturalization/) for approximately 70 names of men of African descent in Hamilton who had been born in the United States.
92 Harris protested against two extradition attempts in 1837 and 1841. In 1838 he brought a complaint against two teenage boys who had harassed a group of black churchgoers: Shadd, supra note 9, at 99–103, 132.
93 “The Queen vs. George Foreman and Joseph Butler—Murder,” supra, note 45; Leatherdale email, supra note 65; Census of 1851, supra note 17, Wentworth, Barton, Schedule A, at 67; Paul Finkelman, “International Extradition and Fugitive Slaves: The John Anderson Case” (1992) 18 Brooklyn J. Int. L. 765 at 767; Robert C. Reinders, ‘Anderson, John’ in Dictionary of Canadian Biography, www.biographi.ca. The Library and Archives Canada website indicates that the Anti-Slavery Society of Canada, founded in 1851, was “the last of several short-lived anti-slavery societies in Canada”: Library and Archives Canada, “The Anti-Slavery Movement in Canada,” at www.collectionscanada.gc.ca.
94 Sentences (Hamilton criminal assize, fall 1852) in benchbooks of Robert Baldwin Sullivan, Oxford Circuit, autumn 1852, Common Pleas and Criminal Cases, AO, RG22-390-5, box 45, file 4, 208–209; “Assizes,” Hamilton Gazette, November 4, 1852; “The Murderers Reprieved,” Dundas Warder, December 10, 1852. I have not managed to find records pertaining to the commutation. Like the trial records for this particular year, those records seem not to have survived.
95 “Extraordinary Industry!” supra note 72. Cf. “Escaped Convict,” supra note 72; “Kingston Penitentiary—Warden’s Letterbook (D. E. MacDonell)” in Operational Records of the Penitentiary Branch 1848–1856, Library and Archives Canada, RG 13, D-1, vol. 1050; Province of Canada, Legislative Assembly, Journals (September 5, 1854–May 30, 1855), 18 Vict., 1st Sess., 5th Parl., vol. 13, p. DD-.
96 Ward, supra note 7.
97 Drew, The Refugee, supra note 6.
98 On the Anti-Slavery Society of Canada and its members and correspondents (who included Freeman and Ward), see Fred Landon, “The Anti-Slavery Society of Canada” (1919) 4(1) J. Negro Hist. 33. Regarding churches and other institutions, see Winks, Blacks in Canada, supra note 2, at 218–32; Simpson, North Star, supra note 3, at 24–29.