The Story
Around 1782 or 1783, James DeLancey of New York, after fighting as a Loyalist for the British in the American Revolutionary War, was condemned by the new state and fled to Nova Scotia with many other United Empire Loyalists. DeLancey had been a Colonel in command of a cavalry troop known as the Westchester Refugees, and was a member of a prominent New York family. Records suggest that DeLancey was a slave owner while in New York, and may have brought his slaves with him to Nova Scotia.
On May 26, 1800, Jack, a black slave, escaped from his owner, James DeLancey of Annapolis, Nova Scotia, and made his way to Halifax, where he was employed by the merchant William Woodin, who may also have been a Loyalist. DeLancey demanded that Woodin return Jack or face legal action. Woodin admitted he had Jack in his employ, but insisted that Jack was not DeLancey's property, since there was no law in Nova Scotia making "negros" slaves. DeLancey sued for the return of his property, using the legal concept of trover as the basis of his claim. The case was heard in Annapolis Supreme Court in the September term of 1801. Though DeLancey initially won his case and was awarded 70 pounds damages, the defence lawyer convinced the court to overturn the judgement on the grounds that an action of trover was not valid for the recovery of a slave in Nova Scotia. A hearing on the case was scheduled for the next September term (1802); it is not known if the hearing ever occured. DeLancey then sought the legal opinion of "several gentlemen of the law" in England and in the Colonies. The longest opinion by far, and the one all the others agree with, was given by Joseph Aplin, former Attorney General of Prince Edward Island, then a lawyer in Nova Scotia, and quite possibly known to DeLancey from when both men took refuge in New York during the American rebellion. The other "gentlemen", all eminent legal authorities, in very brief opinions agreed with Aplin that an action trover was valid in the case. Some time in 1801 an anonymous person living in New Brunswick ("an old acquaintance" of DeLancey) heard of the case and obtained the opinions from DeLancey, and in 1802 had them printed, probably before September. In August of 1803, DeLancey, apparently having given up hope of recovering Jack, lodged a complaint of trespass against Woodin, claiming damages of 500 pounds for the loss of Jack's services over the three years of his absence from DeLancey's control. The case may never have gone to trial. Jack appears to have kept his freedom; when DeLancey died in 1804, Jack was not listed as part of the DeLancey estate.
Commentary
James DeLancey was a persistant man. After having the judgement in his favor overturned in the first court case in 1801, and presumably not getting satisfaction in the hearing schedule for 1802, he lodged another complaint against William Woodin in 1803, over three years after Jack ran away. He seems to have been determined to get Jack back, or at least get compensation from Woodin for "detaining" his slave.
Why did he not then simply have the law enforcement agency of the day apprehend Jack and return him to Annapolis? Wasn't Jack his slave? It was certainly the practice in the southern states to recapture runaway slaves. But in Nova Scotia there was no legislation regarding slavery, neither sanctioning the ownership of other people or making it illegal. Slavery in itself did not become illegal in the British colonies until sometime later, though it was already illegal in England. Jack's status, either as DeLancey's slave or as a free man, was ambiguous. DeLancey had no recourse to law to return Jack to slavery by force.
In addition to this problem, DeLancey was up against a man who was quite possibly his equal, both in social standing and in wealth. William Woodin was a businessman and merchant in Halifax, and during the period covered by the court cases was probably the part owner of two successful privateering ships that captured seven prizes. This alone would likely have made Woodin wealthy. He was certainly not intimidated by DeLancey; he continually refused DeLancey's demands for at least three years.
DeLancey's original suit against Woodin, based on the concept of trover, was made with the implicit assumption that Jack was simply property to be argued over, property that DeLancey had "lost" and that Woodin had "found" and refused to return. Jack's rights are not in question; from DeLancey's point of view, he has no more rights than one of DeLancey's horses does. Woodin, for altruistic or financial reasons, sees Jack as a free man, though whether he is free to leave Woodin's service is not certain, since even a free servant could be held in a contract of servitude for a given period.
DeLancey, after losing the first court battle, was probably preparing for the subsequent hearing when he solicited legal advice from Joseph Aplin, at the time a lawyer practicing in Nova Scotia. Aplin, like DeLancey, was a Loyalist in the American Revolutionary War, and was forced to flee to the British Colonies of Nova Scotia, New Brunswick and St. John's (Prince Edward) Island in 1783. Aplin had spent some time in the British-controlled New York during the war; it is possible he met DeLancey there. In any case, Aplin produced an extensive commentary on the relevant law for DeLancey, a commentary that takes up 18 of the 24 pages in the pamphlet. In contrast, the other three "gentlemen of the law", all living in England, contributed at most a few paragraphs each, primarily commenting on Aplin's opinion, with which they all more or less agree. The impression one gets is that DeLancey used his social position to get these eminent legal authorities to give their opinions, but that they were not interested enough in the case (or impressed enough by DeLancey) to give it more than cursory attention.
Despite the efforts of Aplin and the others to show that trover was the correct action for DeLancey to have taken against Woodin, it is clear that the courts did not agree. DeLancey's 1803 complaint is of trespass, not trover, merely claiming damages for losses suffered because of Woodin's (not Jack's) actions. The damages claimed are extensive; 500 pounds at that time was a small fortune, enough to allow a person to live in considerable luxury for quite some time.
In the end, the opinions of DeLancey and the "several gentlemen of the law" were irrelevant. Jack retained his (relative) freedom up to the time of DeLancey's death in 1804. In 1807 Britain abolished the slave trade in all of its colonies, though the emancipation of the slaves had to wait another three decades in the British colonies and six decades in the United States.
David Badke
August 2004
Introduction