f causing him to be criminally
prosecuted." _Inst._, 4, 3, 11 Gaius 3, 213.

II, 935, "A free person called as a witness could not be subjected to
torture, but a slave could be tortured."

CHAPTER II

THE EARLY BRITISH PERIOD

When Canada passed under the British flag by conquest there was for a
time confusion as to the law in force. During the military regime from
1760 to 1764 the authorities did the best they could and applied such
law as they thought the best for the particular case. There was no
dislocation in the common affairs of the country. When Canada was
formally ceded to Britain by the Treaty of Paris, 1763,[1] it was not
long before there was issued a royal proclamation creating among other
things a "Government of Quebec" with its western boundary a line drawn
from the "South end of Lake Nipissim"[2] to the point at which the
parallel of 45 deg. north latitude crosses the River St. Lawrence. In all
that vast territory the English law, civil and criminal, was
introduced.[3] It is important now to see what was the law of England
at the time respecting slavery.

The dictum of Lord Chief Justice Holt: "As soon as a slave enters
England he becomes free,"[4] was succeeded by the decision of the
Court of King's Bench to the same effect in the celebrated case of
Somerset _v._ Stewart,[5] when Lord Mansfield is reported to have
said: "The air of England has long been too pure for a slave and every
man is free who breathes it."[6]

James Somerset,[7] a Negro slave of Charles Stewart in Jamaica,
"purchased from the African coast in the course of the slave trade as
tolerated in the plantations," had been brought by his master to
England "to attend and abide with him and to carry him back as soon as
his business should be transacted." The Negro refused to go back,
whereupon he was put in irons and taken on board the ship _Ann and
Mary_ lying in the Thames and bound for Jamaica. Lord Mansfield
granted a writ of habeas corpus requiring Captain Knowles to produce
Somerset before him with the cause of the detainer. On the motion, the
cause being stated as above indicated, Lord Mansfield referred the
matter to the full court of King's Bench; whereupon, on June 22, 1772,
judgment was given for the Negro.[8] The basis of the decision and the
theme of the argument were that the only kind of slavery known to
English law was villeinage, that the Statute of Tenures enacted in
1660, expressly abolished villeins regar