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Loyalist law and order in Upper Canada.

Justices of the Peace were very important persons in the Upper Canada communities for roughly fifty years after the arrival of the United Empire Loyalists in 1784. These dispensers of swift justice were a formidable force for wrongdoers, even of "petty little crimes."

There was no such thing as "speaking with one's lawyer before going to gaol, to the whipping post, bearing the public disgrace of being placed in the stocks, or even going to the gallows. The stocks, a legacy of old British law, were timber frames with holes for confining the ankles and straps for securing the hands. It was an extremely demeaning punishment, both physically and mentally, for the offender was at the mercy of the public who could throw garbage or rude taunts at him. In communities where they did not have gallows in those early times, a tree served the purpose.

One of the cruellest... was being tarred and feathered

Upper Canada (now Ontario) was a vast expanse of forests, lakes and rivers when the loyal subjects of the British king fled New York State during the American War of Independence. Many of them had been greatly persecuted by the American Rebels and had their lands confiscated. One of the cruellest persecutions was being tarred and feathered by the Rebels. The Loyalists' native allies, the Mohawks of New York, fled with them. There were a few nomadic Indian tribes in Upper Canada but the only other white people in the new province were the families of the British garrison who lived in relative safety at Kingston, founded in 1673 as a French trading post.

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The first settlements of United Empire Loyalists were in a row of eight townships along the north shore of the St. Lawrence River, between what later became Cornwall and Brockville, and five townships in the Bay of Quinte area, about sixty miles west of Kingston. To prevent the potential discord of race and religion in the eastern townships that were close to Lower Canada (now Quebec), a section of wilderness was left between the closest seigneury full of French Canadians and the line of Loyalist townships. This was done at the Loyalists' request and with the compliance of Governor Haldimand. The Mohawks were settled on two reserves: St. Regis near the eastern townships and Tyendinaga, a few miles from the Bay of Quinte townships.

The size of the Crown Lands allotted to the settlers, was decided by rank and family size. Civilian families received one hundred acres plus fifty additional acres for each person in the family. Those who were discharged soldiers from the British army received the same as the civilians. Then the scale went up by rank. Non-Commissioned Officers received initial parcels of two hundred acres.

Staff officers, warrant officers and those ranking below Captain received five hundred acre grants. Captains were granted seven hundred acres and field officers were granted 1,000 acres. The additional fifty acres for each person in the family went to all.

The newly-settled Upper Canada was spread along the waterfront, from the eastern extreme of the province westward to the Niagara District. Understandably, the early Loyalist settlers stayed close to the waterfront where water travel soon became available to them.

The pioneers cleared land for farming and used the timber they felled to build log cabins and barns. From the British government they had received seed for planting, rations of flour, pork, beef and salt. A cow and a plough were supplied for every two families, a gun and a set of carpentry tools for every five families, and clothes for three years or until they could provide apparel for themselves. A limited amount of other equipment included a short-handled ship axe, a spade, hoe and nails. Later, the settlers built grist mills, saw mills, schools and churches. Some of these little communities eventually became towns and cities.

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For the first few years, the Loyalists were too busy trying to eke out a living from the land to be much concerned about local government but not all of these refugees from the American Revolution were saintly souls. Quarrels and wrongdoings were bound to arise and there was need for the administration of justice at the local level. Enter the Justices of the Peace.

In the transfer of authority from military to civil government in 1788, the magistrates (Justices of the Peace) were appointed. Upper Canada was divided into four judicial districts that same year: Mecklenburg, Lunenburg, Nassau and Hesse. The names can be attributed to the many families of Dutch and German descent, for some of the loyal subjects of the British king were immigrants or descendants of immigrants from the European continent. However, the districts were given English names a few years later. Each district was comprised of several townships. A General Commission of the Peace was issued, appointing two magistrates for each township. A judge and a sheriff were appointed to each district. Extended power was vested in the Justices of the Peace and this body was authorized to sit collectively at Court of Quarter Sessions.

The early courts were held at inns until court houses were built. Kingston had the first court house in Upper Canada, built in 1796, several years before the other districts.

The first Court of Quarter Sessions was held at Kingston on 14 April 1789. Both civil and criminal cases were heard at these Courts and some harsh sentences were handed out. Larceny, large or small, was a serious offence. The whipping post was in use and the wrongdoer could receive a fixed number of lashes on his bare back. Then he could be imprisoned for a month, more or less, and brought out to sit in the stocks one day a week, bearing the label "thief' so that all may know his crime.

In the provincial parliament at York (now Toronto) in June, 1800, an Act was passed to further introduce the criminal laws of England into Upper Canada. One clause in the Act stated that the punishment of "burning in the hand was often ineffectual, besides leaving a lasting mark of disgrace and infamy on offenders who might otherwise become good citizens." With the lawmakers thus enlightened, the hand burning was replaced by either public or private whipping, not more than three times, except in the case of manslaughter. Female offenders were to be whipped in the presence of females only.

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In addition to their judicial duties, the Court of Quarter Sessions transacted a large amount of business. For example, they issued licenses to clergymen to solemnize marriages, provided that the good man could produce proof of ordination, five shillings, and could get seven respectable men to vouch for him. They also granted licences to ferries and taverns.

Adolphustown, in the Quinte area, was recognized as the most important centre of civilization in Upper Canada before the turn of the 18th century and for some years after. The word of men from that area carried heavy influence. The Court of Quarter Sessions was held at Adolphustown in January and July and at Kingston in April and October.

An official document appointing sixty-nine Justices of the Peace for the Midland (formerly Mecklenburg) District was found in the attic of an historic house in Lennox and Addington County in 1971. I had occasion to see this collector's gem after it fell into the hands of an antique dealer. It was dated 25 June 1800 and had been written on calfskin vellum measuring roughly thirty-two inches by twenty-six inches; I say "roughly" since it was still in the shape of the calfskin. The strength of the vellum was far superior to paper and was still tough so that one felt no danger of it crumbling when handled. The ink was appreciably faded but most of the writing was still legible. Only a few words had been blurred by the passing of time.

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"go after those who have lain in wait to maim, cut or kill our people."

According to the document, the Justices were assigned "jointly and severally to keep the peace in the Midland District well within liberties" and to "chastise and punish all persons that offend against the form of those Ordinances as ought to be done." They shall "enquire into the truths of the matter" and by "the good and lawfulness of the aforesaid District be concerned with all manner of felonies, poisonings, enchantments, sorceries, arts magick, trespasses, forestalling, regratings, engrossing, and extortions whatsoever, whether these crimes are committed or attempted." The Justices are further admonished to "go after those who have lain in wait to maim, cut or kill our people." Any less than honest vendors who abused weights and measures, or sold "victuals against the form of the ordinances and statutes" were also to be chastised.

The document points out, that offenses may be punished by "fines, ransoms, amedisments, forfeitures, and other means as according to the Law and Custom of Upper Canada." It does not detail the "other means" but, undoubtedly, the Justices knew what they were. A few gleanings about the lawful punishments in Loyalist country convince one that it would have been safer, indeed, to live the honest and upright Christian life in those days. With little or no interval of time between the pronouncement and the punishment, and with the shortage of media, there wasn't much chance of the prisoner becoming the victim of prejudice or the object of sympathy that could make him a folk hero.

Several Justices appointed on the old calfskin vellum are noteworthy and familiar names that have been carried on in the "Midland District." These include Clarke, Campbell, Smith, Claus, Johnston, McNabb, Bell, Dorland, Vanalstine, Mitchell, Sager, Fairfield, Kimmerly and Prindle. One was a Reverend John Shactun.

"To the Honourable William Dummer Powell," the old document begins. Powell was an original member of the provincial Court of King's Bench and later an Executive Councillor who became Chief Justice of Upper Canada in 1816. In the lower left corner, under the words "By Command of Honour," it is signed by D. Cameron and John Beverly Robinson. The latter, born at Bath, was the son of one of the first notables in law and politics in the Midland District. John Beverly Robinson became Chief Justice of Upper Canada in 1829 and remained so for thirty-four years.

While it is not known how the old document happened to be left in private hands, it is assumed that it must have been entrusted to some worthy individual who simply kept it.

accused of stealing a watch ... He was hanged

The village of Bath had the distinction of being the seat of the first court held in the Mecklenburg District but this was not a Quarter Session Court. In lieu of a court house, Finkle's Tavern was used. As well, Bath had the less honourable distinction of being the scene of Upper Canada's first hanging. The unfortunate victim, accused of stealing a watch, was convicted on circumstantial evidence. So-called "justice" was swift. He was hanged from a tree near the tavern. A few months later the victim's innocence was confirmed by an itinerant peddler who stated that he had sold the watch to the man under the conditions that the prisoner had alleged in his plea!

A prisoner sentenced to death for murder stood very little chance of reprieve and, once convicted, he had only a short time to ponder his demise. To make it even worse, his disgrace and final indignity would be watched by large numbers of the populace, for hangings were public spectacles. From miles around the people would come to "Boot Hill' (the nickname for a gallows site*).

* Editor's Note: I could find no such reference for Boot Hill, which normally refers to a cemetery of those who died violently (with their boots on). Can a reader please enlighten us?

The death penalty was in force for many crimes, including counterfeiting and forgery. In 1800 a man was executed in York for forging a note. It was recorded that he showed great fortitude in approaching the place of execution and seemed much resigned to his unhappy fate.

The Gazette of York reported many robberies and other cases of larceny. Even magistrates and high officials were the victims of thieves.

In the Gazette issue of 05 June 1802, Mr. Justice William Henry Alcock offered a goodly reward for the conviction of the person who stole a number of iron teeth from two harrows on his farm near the Garrison. In 1803 one Peter Russell offered a five guinea reward for anyone apprehending the thieves who stole a turkey hen and her six half-grown young ones from his barn near the town of York. Even with the very harsh punishments of the day, thieves assumed that they would not get caught; therefore, they would not be punished. This factor seems to be one that remains today.

In those early days in Upper Canada, a few citizens sought redress by resorting to duels. On 03 January 1800, the province's first Attorney- General, John White, was fatally wounded in a duel with John Small, Clerk of the Executive Council. Small had to appear in court but was acquitted. One Joseph Willcocks was engaged in a duel in 1801 but was arrested by the sheriff before it had proceeded far enough for injury or death. Duels were not encouraged.

The stocks in York stood opposite the Marketplace and persons sentenced to this demeaning punishment would be put there on market days. During a riot occasioned by the wild elections at the time of the creation of the City of Toronto, the stocks and the whipping post were destroyed by the rioters.

a drunken squabble over a horse

Shortly after the War of 1812-1814, a Kingston farrier [a horseshoe specialist] was sentenced to the gallows for the stabbing death of a neighbour in a drunken squabble over a horse. The farrier had a large family and had completed a long and honourable army career. He was usually known as a sober and hardworking man. In consideration of his otherwise good reputation, a petition was circulated, calling upon Lieutenant Governor Sir Peregrine Maitland for clemency. The petition was rejected and the day of execution set. Kingston residents were shocked but that did not deter them from attending the spectacle where they had plenty of company. People from the surrounding countryside set out early in the morning to reach "Boot Hill' in plenty of time. Whole families came with basket lunches. Young men brought their sweethearts and some fellows brought "spirited" drink to make the day more festive. While they waited for the main event, the crowd talked, laughed, played cards, flirted, ate and drank. Even a few fights broke out.

customary to hand the body over to the village surgeons for dissection

The steamship Commodore Barrie ran an excursion that day, bringing more than three hundred sightseers from the Bay of Quinte area, about sixty miles from Kingston.

When the condemned man mounted the scaffold, accompanied by a clergyman, the sheriff and the executioner, the crowd watched every move until the swaying body ceased to quiver. Until this particular hanging, it had been customary to hand the body over to the village surgeons for dissection but, considering the farrier's otherwise good reputation, the physicians resigned all claims to this cadaver. When the man's body was cut down, his family was allowed to take it away for proper burial. A Kingston newspaper, The Chronicle, expressed appreciation for this act and called for the repeal of an existing law, a hangover from an old European law that required the bodies of convicted murderers to be either dissected or hung up in chains.

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"It is no punishment to the criminal," the newspaper article read, "but a cruel and unnecessary addition to the sorrows of his suffering friends." One might add that it was a terrible trauma for his suffering family.

In 1820 one Captain C. Stuart of the East India Company spent a year in Upper Canada and wrote a book about his observations. He noted that Canadian law closely resembled British law, that the Justices of the Peace and other parish or town officers were the same as in England, and that they "were equally inept at correcting drunkenness, profanity, and breaking the Sabbath rules." However, Stuart went on to say that these were general features of the human character and that "justice may be said to pervade the province."

Population growth and overcrowded gaols in the province made the building of a penitentiary a legislative priority. Kingston seemed to be the ideal location with all its limestone, not only for construction of "the big house" but also for employing prisoners in the drudgery of cutting rock and that is what they did for several years after the opening of Kingston Penitentiary in 1835. Now there was a place to incarcerate longer term prisoners where conditions were primitive and punishments were harsh.

Despite changes in law and order, crime seemed to be increasing. However, so-called crimes are largely defined by the social mores of the times, that is, society's tolerance of various offences; but the times change. For example, during the early 1800s, assault was a common offence that received light punishment in Upper Canada. Those were the days of harsh pioneer environment and even members of the elite were brought to court on assault charges. Fines were minimal amounts. This lenient attitude towards the violence of assault changed in the 1830s and 1840s with the fear of growing disorder. Stricter laws against assault were passed and enforced. Fines for same were greatly multiplied and, by the 1840s, it was common for the offender to be sentenced to two years' imprisonment.

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During the 1830s, the more populated settlements were building court houses, largely constructed of limestone quarried by the inmates of Kingston Penitentiary. Prince Edward County, an isolated island in the south end of the Midland District, became a separate judicial district in 1831. An affluent Anglican clergyman donated the land for a court house in Picton. The beautiful Revival style building opened for court on 07 April 1834, at which time a young lawyer, John A. MacDonald, made his first speech to a jury. MacDonald practised law from his cousin's law firm in nearby Hallowell for three years before moving on to Kingston. In the Prince Edward judicial district, the future first Prime Minister of Canada was almost as well known for his hi-jinks and practical jokes as he was for his practice of law.

07 April 1834 ... John A. MacDonald made his first speech to a jury

Throughout the province of Upper Canada, the problem of law and order became the most prominent social issue during the 1830s and 1840s. Alarm over the increase in crime resulted in the formation of the first Canadian non-military police force when Toronto City Council established a six-man police force in 1835. This act replaced the "night watch" system that was previously in effect. The alleged rise in violence was widely attributed to the "influx of criminal elements" from outside the country. William Lyon Mackenzie demanded restrictions on the immigration of "criminal elements" into the province.

With the apparent inability of the times to make a distinction between morality and good citizenship, it is understandable that "blasphemy" and "Sabbath-breaking" were indictable offenses. The writings of Israel Lewis, who was probably Upper Canada's only "criminologist," are evidence of the lack of distinction. Lewis wrote: "I have often thought that the Criminal Laws should be made a part of the study of Theology: all Criminal Law should be considered a transcript of the Divine Law."

In the conservative mind that dominated Upper Canada, religion was a highly important factor since a common morality was considered a key bond in holding society together. Therefore enforcement of morals was necessary to strengthen the social bonds without which this emerging society would be destroyed. Temperance was a major social order. Intemperance was one of the greatest moral offenders. The Grand Jurors of Niagara District in 1836 expressed their view that the greater portion of crime was due to the "intemperate use of ardent spirits." After inspecting the Toronto gaols in the same year, the jurors were alarmed at the intemperance and immorality in the city. They attributed the great increase of crime to the large number of taverns in the city.

"worthless drunkards" or "rogues in idleness."

In conservative Upper Canada there was an image of the criminal that can be summed up by one commentator who wrote about "the moral depravity which exists in that class of our fellow creatures who are sent to the penitentiary." Such "creatures" were thought to be "worthless drunkards" or "rogues in idleness." Society looked upon them as outcasts and depraved characters, quite distinct from the great body of law-abiding citizens. In short, they were "not respectable." What seemed to make them "un-respectable" in the view of Upper Canada society was that the so-called criminals failed to accept certain values and virtues of upright people.

Surprisingly, while governing bodies, law enforcers and clergy worried about the doomsday of moral depravity, visitors from outside Upper Canada saw the country as being relatively free of serious crime. One visitor, J. B. Brown, commented that "serious criminal offences, especially against property, may be said to be comparatively rare in [Upper] Canada." He added that quarrels and assaults were perhaps the most common offences. Obviously, the visitors were less conservative in mind.

The petty "crimes" that worried the "keepers of the peace" were merely a part of the province's remarkable growth in population, business and industry. In such wooded country, lumbering and saw mills flourished, particularly in the Midland District where the lumber was shipped out from the fine natural harbours of the Quinte Bay area. New townships were laid out for settlers to move farther inland, following the lumbering, more pioneer farming, and the sporadic mining operations.

From their humble beginnings, the Loyalist settlements grew into towns that gradually broke away from the autocratic rule of the Justices of the Peace. Boards of police were created to regulate affairs: in Toronto, Kingston, Cornwall and Bytown (now Ottawa), this was done by special Acts of Incorporation. The rural sections followed and, in 1841, the District Councils Act took much power away from the Quarter Sessions, but not without a struggle. One of those opposing the Act in the provincial parliament was the Member for Lennox & Addington County (Midland District), J. S. Cartwright, who considered the bill to be "too democratic and republican." Perhaps Mr. Cartwright was an extra loyal UEL who was strictly anti-American.

five years ... for horse thievery ... a mere three-year term ... for manslaughter. The victim was his wife!

The "swift justice" of the early Loyalist days had come to an end by the mid-1800s and court room procedures had improved. However, there appears to have been a contradictory sense of values in some judgements. At a Court of Assize in 1849 one George Banbury received a sentence of five years' hard labour in a penitentiary for horse thievery and, in that same court, one Adam Crane drew a mere three-year term of hard labour for manslaughter. The victim was his wife!

The mores of early Upper Canada changed very slowly. The conservative mind (found in Loyalist law and order) was reflected in a statement by George Brown, publisher of the Globe in Toronto. Brown, who would later become a political leader and statesman, declared in 1850 that the purpose of the law was "to guard the property, peace and what is of higher significance, the morality of the community."

Queen Louise of Prussia was born Duchess Louise Augusta" Wilhelmina Amalie of Mecklenburg-Strelitz in Hanover on 10 March I 1776. Her father, the Duke, was governor of Hanover for King George III of Great Britain. Her mother, of the Hessian ruling family, died when Louise was only six. This left Louise with a lifelong sympathy for orphans. Her father remarried but when his second wife died, her broken father took his children to Darmstadt to be raised by his Hessian mother-in-law Landgravine Marie Louise. Louise grew up well educated, and was recognized as a great beauty. Her father arranged for her to meet the heir to the Prussian throne when she was 17 and the serious, Christian crown prince immediately fell in love with her. On 24 December 1793 the couple were married. She was described as possessing a heart of "angelic goodness." Already famous for her compassion and charity, when her husband became King Friedrich Wilhelm III of Prussia on 16 November 1797, she found that she could help others even more.

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FINKLE'S TAVERN

Erected in 1786 by Henry Finkle, a Loyalist soldier, it was the first tavern built between Kingston and York. Henry Finkle also built the first brewery in I Upper Canada and one of the earliest schools on this property. In 1788 an unfortunate transient was falsely accused of stealing a watch and sentenced to hang by Judge Richard Gartwright, of Kingston, who held the district court here. The tavern became tile headquarters. in 1798, of As a Danforth when he built the eastern sector of the Kingston-York Road. the first public highway in Ontario.

Assistant Editor's Note:

To understand the mentality and morality during the Loyalist period, I think it is important to keep in mind how slavery affected crime and punishment. Please read the following excerpt on slavery...

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Excerpt from an online article Crime and Punishment (in Toronto): http: //www.russianbooks.org/crime/cph2.htm

Whipping

A punishment that remained on the books in Canada until very recently, whipping was most often routinely prescribed for petty larceny (theft under $10).

Stocks and Pillory

Locked into the device, a prisoner was then left out at the mercy of the public, which would amuse itself by throwing objects at the prisoners. With just the legs confined in stocks, the prisoner could at least protect his head and face.

Frequency of Assault

The court records in 1828 indicate in a short time period: four cases of petty larceny, nineteen of larceny, eight of riot, one of break-and-enter, four of nuisance, and 129 of assault!

Slavery until 1811

Slavery persisted in Toronto much later than we think. Toronto Magistrates ... minutes for March 1811, describe the escape of two black slaves:

"William Jarvis of the town of York, Esq., informed the Court that a negro boy and girl, his slaves, had the evening before been committed to prison for having stolen gold and silver out of his desk in his dwelling-house."

While slavery was banned in Upper Canada in 1793, children born to female slaves subsequently were to remain slaves until the age of twenty-five. Under these laws, a female slave, one year of age in 1793 when the act was enacted and who, for the sake of argument, could give birth until the age of thirty-five, could have technically sustained slavery in Toronto until about 1850.

By Mrs. Ruth Howard, Bay of Quinte Branch

Ruth Howard was a busy homemaker and student by correspondence courses when opportunity arrived with a college arts programme. Specializing in Journalism became a dream come true. Photography, advertising and publicity skills were added to her freelance work. Favourite journalism topics were historical research/ writing and profiles of noteworthy people. A few of the latter evolved into poetry. Presently Ruth pursues some fictional writing--hopefully for a future book of short stories.
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Title Annotation:United Empire Loyalists
Author:Howard, Ruth
Publication:The Loyalist Gazette
Geographic Code:1CONT
Date:Mar 22, 2011
Words:4598
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