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.