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.

History of the settlement of Upper Canada (Ontario,) with special reference to the Bay Quinté · 第 57 / 71 章