CHAPTER LVII.
Contents—Military rule—Imperial Act, 1774—French Canada—Refugees—Military Government in Upper Canada—New Districts—Lunenburgh—Mecklenburgh—Nassau—Hesse—The Judges—Duncan—Cartwright—Hamilton—Robertson—Court in Mecklenburgh—Civil Law—Judge Duncan—Judge Cartwright—Punishment inflicted—First execution—New Constitution of Quebec—1791, Quebec Bill passed—Inhabitants of Upper Canada.
UPPER CANADA FROM 1783 TO 1792—THE GOVERNMENT, MILITARY AND CIVIL.
For three years after the conquest the Province of Quebec was governed by military laws, but in 1774, the British Government introduced a Bill, conferring civil rights upon the Canadian French, with a governing council of not more than 23, nor less than 17. The laws, religion and language were secured to the Province, as before the conquest, so that in most respects, excepting the presence of an English Governor, Canada remained a French Colony. The timely concessions of the British Government, and the natural antipathy felt by the Canadians to the New Englanders, prevented in a most positive way, any desire or intention, on the part of the Canadians, to take sides with the revolting British Provinces. When the loyalist refugees began to pick their way into Canada they found themselves as it were in a foreign country. A colony it is true, under the government of an English Governor, but nevertheless consisting of a people entirely dissimilar to themselves. While the war continued the presence of a large number of British troops made the country seem less foreign in its character; but the close of the war, and the disbanding of many of the companies, and withdrawal of others, left the unhappy refugees in a society to them altogether unnatural. It was under such circumstances that steps were taken to survey land upon the upper waters, to which the loyalists might go. The plan pursued by Government was, not to extend the operation of the laws belonging to Lower Canada, and therefore French and unnatural, to the settlements in Upper Canada; but to marshal the pioneer in bands under officers, with the necessary appointments, to secure order, protect interests, and administer justice. The first settlers of Upper Canada, then came in military order, by word of command, and were directed to the point where each should find the land allotted him, and meet his wilderness foe.
All alike were governed by military law, until 1788. Says the historian of Dundas, “It was decided by Government that the first settlers should live under Martial Law, till such times as it should be rescinded, and replaced by competent courts of justice. But by martial law was meant only, that the English laws, having by the settlement of this part of Canada, been introduced, should be its laws for the present, and that these laws, which very few knew, should be martially executed by the Captain in command, having the superintendence of the particular locality.”
Upon the 24th July, 1788, Lord Dorchester issued a proclamation, dated at the Castle of St. Louis, Quebec, forming a certain number of new districts in the Province of Quebec. Upper Canada was formed into four districts, viz.: Lunenburgh, which extended from the borders of Lower Canada “to the River Gananoque, now called Thames;” Mecklenburgh, which included the settlement from Gananoque to the Trent River; Nassau, extending from the Trent to Long Point on Lake Erie; Hesse, which embraced the remaining parts of Western Canada, including Detroit. The division was based upon the number of settlers rather than the extent of territory.
To each of these districts was appointed a Judge, a Sheriff, &c. The Judge seems to have been clothed with almost absolute power. He dispensed justice according to his own understanding or interpretation of the law, and a Sheriff or Constable stood ready to carry out the decision, which in his wisdom, he might arrive at. These four courts of Common Pleas constituted it seems the whole machinery of the law in Upper Canada, after the people ceased to be under military jurisdiction. It may have been, however, probably was, that appeal could be made against the Judge’s decision, to the Governor and Council. There were no other magistrates, and no lawyers in those primitive happy days.
Of the four Judges appointed to the districts, positive knowledge can be obtained but of three; these are Richard Duncan, Judge of Lunenburgh, Richard Cartwright, Judge of Mecklenburgh, and Robert Hamilton, Judge of Nassau. Not unlikely, William Robertson, of Detroit, was Judge of Hesse. This opinion is ventured from the fact that this gentleman was the most successful and prominent man in that locality; the same as Duncan, Cartwright, and Hamilton were in theirs.
Respecting the Judgeship of Mecklenburgh, the Rev. Mr. Stuart writes, 1788, that “our new settlements have been lately divided into four districts, of which this place (Kingston,) is the Capital of one called New Mecklenburgh. I had a commission sent me as first Judge of the Court of Common Pleas, which I returned to Lord Dorchester, who left a few days ago.” The office thus refused was subsequently filled by Mr. Richard Cartwright. In a letter before us, written by John Ferguson, dated 29th December, 1788, it is stated that “our Courts are opened, but they have done nothing particular, but I suppose will in a few days.” This was the commencement of other than martial law at the Bay of Quinté. 1788 then, is the year in which civil law began to be administered. This was considered a boon by the British Americans, who objected quite as much to military law, when the individual might not by education, be qualified to dispense judgment and justice, as they did to the French laws of Lower Canada. Indeed the loyalists of Lower Canada complained very much that they had lost the protection of British laws. And probably many were induced to ascend to Upper Canada where the British law was in operation. At the same time Upper Canada remained a part of the Province of Quebec.
Reference is made in the History of Dundas, to Judge Duncan, of Lunenburgh as follows: “As a soldier he was generous and humane.” The Court sat at Mariatown, of which he was the founder. He “seemed to have monopolized every office. A storekeeper, and holding a Captain’s rank, he dealt out law, dry goods and groceries alternately.” The court room was at the place of Richard Loucks, who kept a store and tavern, about a mile below the present eastern limits of the County of Dundas. The name of the Sheriff was Munro, probably John Munro, who was subsequently called to the Legislative Council.
With respect to Judge Cartwright, the reader is referred to individual U. E. Loyalists for a notice of his history. The fact that he was selected as the Judge after the office was refused by Mr. Stuart, shows that he was a man of influence, education and wealth, and persons are now living who remember him as a “big man,” along the Bay. From all that we can learn, it is most probable that Judge Cartwright held his court at Finkle’s tavern, Ernesttown. It is stated that he convicted the first man that was hanged in Canada. The crime charged against him for which he was executed was watch stealing. The article was found upon him, and although he declared he had bought it of a pedlar, yet, as he could not prove it, he was adjudged guilty of the crime, and sentenced to be hanged. Dr. Connor, of Ernesttown, stood up in court and appealed against the decision of the Judge, but he was hissed down, and the law took its course. The man was hanged, and subsequently the pedlar from whom the watch had been purchased came along and corroborated the dying words of the unfortunate man.
The most common punishment inflicted upon those convicted of high offences, was that of banishment for a certain number of years, or for life, to the United States, “a sentence next to that of death, felt to be the most severe that could be inflicted.” “Minor offences were atoned for in the pillory. For a long time there stood one such primitive instrument of punishment, at Richard Louck’s Inn, the centre of law and Justice for the Lunenburgh District.” (History of Dundas).
The first person executed at Niagara was in 1801, a woman by name of Loudon, who was convicted of poisoning her husband, at Grimsby.
The difference between the French and British in Canada, as to religion, language and laws, was so great that, although efforts were earnestly made to unite the two races, the divergence of views continued to increase. And the result was, that a Bill was introduced into the Imperial Parliament, by the Government, which duly became law.
On Friday, 4th March, 1791 Mr. Chancellor Pitt moved, “that His Majesty’s message concerning the New Constitution for Quebec might be read. It was read accordingly.”
“George R.—His Majesty thinks it proper to acquaint the Commons, that it appears to His Majesty, that it would be for the benefit of His Majesty’s subjects in the Province of Quebec, that the same should be divided into separate provinces, to be called the Province of Upper Canada and the Province of Lower Canada; and that it is accordingly his Majesty’s intention so to divide the same, whenever His Majesty shall be enabled by Act of Parliament to establish the necessary regulations for the government of the said Provinces. His Majesty therefore recommends this object to the consideration of this House,” &c., &c. The discussion which arose in connection with the passage of this Bill was of unusual interest, and produced that historic scene between Burke and Fox, during which “tears trickled down the cheeks” of the latter, as “he strove in vain to give utterance to feelings that dignified and exalted his nature.” The Bill passed its third reading on the 18th May.
At this time there were distributed along the St. Lawrence, the Bay of Quinté, Niagara frontier, Amherstburgh, with the French settlement on the Thames, and the Indians at Grand River, about 20,000 souls, or double the number, who came at the first as refugees, and disbanded soldiers.
For a list of the Governors of Upper Canada see Appendix.