Old Province tales : Upper Canada

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I. THE CAPTIVE LOYALISTS . . . . i

II. THE FIRST ATTORNEY-GENERAL 14

Chapter I

In the Old Dominion, the Province of Virginia, ^ in the latter part of the eighteenth century, lived Rene La Force with his wife and family. He was happy in his family ; his wife Agnes was a true helpmeet, and his children were obedient and helpful. While many of his neighbours were strong Continentalists and ardently desired full Home Rule for the Colonies, La Force was loyal to his king and his flag. Never hesitating to express his views, he became most unpopular in the community ; he was unjustly treated ; heavy fines were laid upon him, and he was subjected to many and increasing annoyances.

At length in 1776, when the Colonies declared their independence, he made up his mind to withdraw from a society which was uncongenial — a society composed of those whom he considered traitors and rebels, and who certainly were Republicans who had forsworn the allegiance into which they had been born, to establish a new nation and live under a new flag.

La Force was a man of considerable property, owning many slaves, male and female, and a large herd of cattle, with other property. He gathered his family around him, and in true patriarchal fashion journeyed with wife and children, slaves and herds towards the West, where the wilderness of Kentucky offered him an asylum from the persecution of his former friends. When they had arrived at the end of civilization and settlement, they stayed their march for a rest, intending to renew it on the morrow. In the evening two of the sons went to kill a fat ox for food, taking with them their rifles. A shot from one rifle sufficed to kill the beast; the other rifle was laid down carelessly by the main tent while its owner helped to skin and prepare the ox. After nightfall, when the young man had retired to rest in his tent, he remembered that he had left his rifle lying on the ground. He went out and picked it up : in groping around in the dark among the tent cords, he accidentally discharged his weapon. His father had retired ; and unfortunately the bullet found its billet in his body, mortally wounding him. This unhappy accident delayed their progress ; but after a short time, staying but to bury the unhappy father, the survivors took their way westward into the wilderness, and came to a halt at a place estimated by them to be about two hundred miles from any settlement of the recreant Colonists.

Here they picked out a piece of ground for a small fortress, surrounded it with palisades as a defence against the Indians, and built within the stockade huts for themselves and the slaves. They thought themselves safe from molestation from any but Indians, and had little fear of them, for there seemed enough room for all. They cleared land, cultivated it, and were making the wilderness bloom as the rose, living entirely within themselves without neighbours and without communication with the rest of the world. But their settlement was in the favourite huntingground of the Indians; and the Red Men complained of them and others to the representative of the Great Father, King George, at Detroit.

Many excursions were being made at this time from Detroit by small detachments of British troops, each of them accompanied by a more or less numerous band of Indian allies ; the Revolutionary War was raging in all its virulence, and American settlers were everywhere harried by the royal troops and their allies, just as the Loyalists were harried by the Continentalists. As far west as the Mississippi, through all the Ohio district, the hinterland of the Atlantic Colonies, the Republicans had here and there blockhouses, fortifications of more or less size and strength : they had also some regular and many irregular troops in this wild region. A raid from Detroit, besides threatening these scattered posts, afforded a convenient opportunity of striking at the rear of the larger and more formidable armies to the east.

One of the most active and efficient officers in the British service was Henry Bird,^ a captain in the 8th Foot, an engineer of great skill, and no mean tactician, who had come from Niagara in 1778 with a detachment of fifty men. In the spring of 1779 he was so anxious to proceed against the enemy that he kept urging Henry Hamilton,^ the commandant and lieutenant-governor of Detroit, to allow him to go with a few volunteers against the revolted Virginians — both those in what is now Virginia and also and primarily those in its western hinterland. Just at that time, too, a large body of American troops was threatening the loyal Indians ; and they were complaining of the neglect of the lieutenant-governor to protect them. Both Bird and the Indians were pressing and insistent, and at length Hamilton yielded to their importunity ; notwithstanding the weakness of his garrison, he allowed Bird to go in command of a small detachment of troops with a number of volunteers. He also sent considerable ammunition with him for the Indian allies. Many Ottawas and Chippewas joined the expedition, and it set off for the south. Although by no means so large or so important a force as that commanded by Bird in 1780, this was no contemptible little army either in numbers or in personnel.

In 1778 there arrived at Detroit from Fort Pitt (Pittsburgh) Simon Girty, Alexander M‘Kee and Matthew Elliott, who had escaped from the rebels and made their way to loyal British territory to offer themselves to the service of the crown.

Simon Girty, ^ born in Pennsylvania in 1741 of an Irish father and an English mother, was at the age of fifteen taken prisoner by the Indians with his mother and brothers.

He lived with the Senecas for three years, when he was set free. For a time he seemed to favour the Revolutionary party, but finally made up his mind to join the other. He v/as a hardy, brave, and indefatigable border warrior, whose name has suffered from his taking the losing side. Like some others he has been blackened by partisan writers : * renegade,^ * fiend, ^ ^ worse than Indian

cruelty,’ etc. etc., are freely used in connection with his name, but he seems to have been no worse and no better than the other Indian fighters, many of whom have received fulsome eulogies. Later on he is said to have been the last man to leave Detroit when it was given up to the Americans in 1796. Thereafter he lived near Amherstburg, where he died in 1818.

Alexander M‘Kee was a native of eastern Pennsylvania. He became a justice of the peaceand deputy Indian agentat Fort Pitt, and was carrying on a large and lucrative business there when the Revolutionary troubles began. He took the Loyalist side and was imprisoned in 1777 by General Hand of the American forces at Pittsburg, Released on parole, he was threatened with imprisonment again, and he made his escape with Girty and Elliott.

Arrived at Detroit, he offered his services to the commandant, and was appointed interpreter and captain in the Indian service. He took part in almost every operation of the loyal forces till the end of the war. In 1788 he was made a judge of the Court of Common Pleas for the District of Hesse, but declined to act. He died in 1799. His descendants are still prominent and respected members of society in and near Windsor.

Matthew Elliott was an Irishman who emigrated to America. He took up his residence in Pennsylvania and early engaged in the Indian trade with headquarters at Fort Pitt. He was a Loyalist, but in trading with the Indians he was overtaken in 1776 near the present Dresden, Ohio, by a party of Wyandots, and his goods were confiscated by them. He made his way to Detroit with his servant, and was there arrested in March 1777 as a spy by Hamilton and sent to Quebec as a prisoner ; but next year he was released on parole and went back to Fort Pitt by way of New York. He left for Detroit with Girty and M'Kee in March 1778. Arrived at Detroit, he took an active part on the Loyalist side during the whole course of the war. He was made superintendent of Indian Affairs and received full recognition for his very valuable services. He lived to fight in the War of 1812, commanding a body of Indians at Miami Rapids, October- November 1812, and taking part in other battles. He seems to have died in 1814.

These three joined Bird’s expedition, as did Captain Graham, a captain in the Indian Department, whose influence over the Indians was very great. There was also in Detroit at the time a French Canadian who had become a loyal British subject— Duperon Baby. Baby was born in 1738 and became a merchant in Detroit of great enterprise and considerable success. At the time of the conquest in 1759-60 he was at Fort Pitt : he refused at first to change his allegiance, but after assisting Major Gladwin in the defence of Detroit against Pontiac, and after the final cession of Canada in 1763, he took the oath of allegiance to King George, and thereafter was most active in his new allegiance. He became an interpreter and captain in the Indian Department, and was a prominent and trusted official as well as a successful fur trader. He also after the war was made a judge of the Court of Common Pleas ; but he declined to act, on the ground of ignorance of law and his large business connection. He died at Sandwich in 1789.

Baby joined Bird’s expedition, together with a M. Le Due. (Contemporary writers sometimes call him Le Deuke, but French orthography puzzles illiterate — and some literate — ^Englishmen even to this day.)

Frederick Fisher, an interpreter of the Indian Department, could not resist the temptation to take part in the adventure — he survived till 1810 — and it is probable that there were many other volunteers, whose names have not been handed down.

On June 25, 1779, after the little La Force colony had enjoyed three years of Arcadian simplicity, there appeared before the stockade a body of British soldiers and Indians, a detachment of Bird’s force, and demanded surrender. We are not told whether Mrs La Force asserted her loyalty at that time ; if so, it was in vain ; the small garrison surrendered on the promise of being taken in safety to Detroit.®

The Indians were apt to get out of hand, and the prisoners with many others were hurried to Detroit, some hundreds of miles away. At Detroit the slaves were divided among their captors : Simon Girty took

Scipio ; M. Le Due, Tim and Ishener ; Captain Graham, Stephen ; Captain Elliott, Joseph and Keggy ; M. Baby, Job ; Mr Fisher, Hannah ; Captain M‘Kee, Candis ; while the Indians took Bess, Grace, Rachel, and Patrick. The other — the white — captives were sent to Montreal by boat and land ; and there they were driven into the Provost Prison like cattle into a pound.

Fortunately, on their way to the prison, marching along the open street under charge of an armed party, they were met by William Dummer Powell, then a practising barrister and attorney in the city. On his making inquiry from the non-commissioned officer commanding the escort, he was informed that they were prisoners of war taken in the Kentucky country and brought into Detroit by a detachment of the garrison there.

Powell at once brought the matter to the attention of Sir Frederick Haldimand, at that time governor, and had Mrs La Force sign a petition (still extant). Haldimand issued peremptory orders to the commandant at Detroit to search for the slaves of Mrs La Force and send them to Montreal to their mistress. Detroit, however, was too far distant from headquarters, communication

It was too difficult, interests prompting to disobedience of Haldimand^s order too strong for the order to be effective. The Detroit commandant temporized, and after repetition of the order he stated that the slaves could not be produced. Poor Agnes La Force never saw any of them again.®

NOTES TO CHAPTER I

' Many of the facts of this paper are taken from a manuscript of Chief Justice William Dummer Powell. He has fallen into error in a few particulars. I have found not only in this but in other matters that his memory is not wholly to be relied upon. Where his statements are not contradicted by (substantially) contemporary documents, I have adopted them ; where I have departed from them, I have given the reason for such departure. For particulars as to Powell, see note i, chap, hi, p. 41 post

2 Powell makes La Force a resident of North Carolina ; but the petition of Mrs La Force, still extant, states that she is the ‘widow of Rene La Force, late of Virginia.’ This petition is reprinted from the Haldimand Papers (in the Canadian Archives) and in the Michigan Pioneer and Historical CollectionSf vol. xix, p. 494; it purports to have been delivered January 6, 1780.

® For Captain Henry Bird, see Michigan Pioneer and Historical Collections ; references will be found in the Index volumes. He afterwards was made chief engineer at Detroit and planned Fort Amherstburg. After most strenuous and successful public service on this continent he joined the 54th Regiment in Ireland and assisted in quelling the rebellion there. After the suppression of this rebellion he immediately embarked for foreign service and joined the expedition to Egypt under Sir Ralph Abercromby. He died on that expedition in l8oi, after a service of thirty-seven years.

For his active and zealous services with the Indians through the whole of the Revolutionary War from 1775 to 1783, he was highly esteemed by his superiors ; but, as in the case of too many others, his merits were forgotten and he was not treated with generosity or even plain justice in his dealings with the authorities.

* Hamilton first appears in the history of this continent in 1777 as governor of Detroit. The following year he captured Vincennes, whose commander Helm was taken prisoner with a small force of defenders. The well-known American commander, George Rogers Clark, shortly afterwards besieged the fort ; and Hamilton was in his turn forced to surrender. He was treated by Clark with much barbarity, and on Jefferson’s order was sent handcuffed to Williamsburg, where his treatment was still worse. Probably as an effect of a letter from Governor Haldimand to Washington, Hamilton was paroled; and he got to England in 1781. He was made lieutenant-governor of Quebec in 1784, filling that position a little less than a year. He was a man of no great capacity and but little judgment, although perfectly honest and sincerely desirous of doing his duty.

® A full and accurate account of the Girtys, including Simon ‘the Renegade,’ is given in a work which is very scarce (a copy is in ‘The Riddell Canadian Library’ atOsgoode Hall, Toronto), History of the Girtys, by Consul Willshire Butterfield (Cincinnati, Robert Clarke and Co., 1890). Mr Butterfield, while by no means eulogistic of Simon Girty, is scrupulously fair to him, and thus is an almost unique exception to the most of American writers who mention him.

® Powell, who makes La Force take with him his sons-in-law and sons’ wives, says that ‘ they had no sooner surrendered . . . than her sons and sons-in-law had to resort to arms to resist the insults of the Indians to their wives and slaves. Several lives were lost. . . .’ This is, I think, quite incredible. Mrs La Force does not mention anything of the kind, though she speaks of her five children. From the fact that Powell seems to connect this incident with the document mentioned in note 8 post, and other suggestions, I think his memory plays him false here and that he has confused this incident with the capture of several forts in 1780 (one of them called Martin’s), when the Indians did act in the shameful manner described by Powell. See, for example, Michigan Pioneer and Historical Coiiections^ vol. xix, PP- 538, 539-

^ This was Major Arent De Peyster, who after the capture of Henry Hamilton took over the command of ‘ Detroit and its dependencies’ from the temporary control of Captain Lernoult — the Moravians describe De Peyster as ‘of generally happy memory. *

® To show how captured slaves were disposed of, Powell gives us the copy of a document which came before him in his court. It reads thus :

‘ Detroit, May 14, 1784.

‘ I Henry Bird do declare that the wench Esther became my property in consequence of an article of Capitulation of Martin’s Fort, whereby the Inhabitants and Defenders agreed to deliver up their Blacks, moveables and Arms to the Indians as their property on Condition that their Persons should be safely conducted to Detroit : which article was punctuly complied with and fulfilled by the Captors. The said Esther became my property by Consent and permission of the Indian Chiefs.

(Signed) H. Bird, Captain.

Present and Witness to the Capitulation.

(Signed) A. M‘Kee, D.A.

Indian Affairs.’

‘ I do hereby make over and give my Right and Property in the said Wench and her male Child to William Lee in consideration of having cleared for me sixteen acres of land.

(Signed) H. Bird, Captain.’

Chapter II

The beautiful town on the left bank of the embouchure of the Niagara into Lake Ontario which is now called Niagara-on-the-Lake was the first capital of the province of Upper Canada. The hamlet had been called West Niagara, Butlersburg (some manuscripts read Butlersbury), Loyal Village, Nassau, Niagara ; but Simcoe, the first lieutenant-governor of the new province, upon his arrival there in 1792 gave it the name of Newark, from Newark, New Jersey, which he had known well when in command of the Queen's Rangers during the Revolutionary War.

Thither in November 1792 came a traveller, versed in English law if not a barrister. One day he found himself in the primitive but ceremonious Trial Court at the capital ; and we have his contemporary account.^ He tells us that, presuming on the ignorance of court and jury, * an advocate from England of some authority ^ insinuated to the jury whom he was addressing that if they found against his client ‘ he would bring a writ of attaint against them ’ — the writ of attaint being effete and dead as Julius Caesar. This advocate was John White, the first attorney-general of the province.

John White was the eldest son of Thomas White of Cork : he received the ordinary

education of a gentleman and was able to write with elegance and precision. The well-known lawyer Samuel Shepherd (afterwards Sir Samuel), who refused the chief- justiceship of two courts, married White’s sister (whom Scott pronounced ^ fine and fidgety ’) ; and that seems to have determined White’s choice of a profession.

He was entered of Gray’s Inn in 1780 and was called to the Bar about 1785, apparently by the Inner Temple.^ He then went to Jamaica and practised law for a time with no great success ; returning to England, he went to live in Wales with his wife and family, intending to take holy orders. But Shepherd knew Osgoode, the English barrister who in 1791 was appointed the first chief justice of Upper Canada ; and he made earnest application to him for a position in the new province i6 for his brother-in-law. Osgoode had no power himself to appoint, but on the strength of Shepherd^s recommendation he wrote to Evan Nepean ^ to ask the secretary of state to appoint White as attorney-general of Upper Canada. This was done, and White received the appointment asked for, at a salary of ‘ £300 per annum with a possibility of some small addition from other tenable appointments.’

Setting sail from England with the chief justice and Peter Russell ^ in the spring, he arrived at the Banks early in May 1792 ; at Quebec June 2 ; and at Montreal some time later in June. Thence, on foot and by boat, he journeyed to Kingston, where the governor was temporarily resident. The chief justice arrived at Kingston at the same time, the last day of June 1792.

William Dummer Powell, the ‘ first judge ’ at Detroit, was at that time holding the Court of Oyer and Terminer or Criminal Assizes at Kingston. With him as marshal of assize or clerk of the court was V/alter Roe,^ the only duly admitted lawyer in Upper Canada till that time. Then and for many years thereafter the judge who presided at the Criminal Assizes had the ‘ patronage ’ of his court.

Roe was a friend of Powell’s and had a very active practice in his court at L’Assomption, now Sandwich ; Powell accordingly appointed him to the office of marshal of assize, petty but rather lucrative.

White adopted the system already in vogue in Canada, and took upon himself the prosecution of all crown cases. When a solicitor-general was appointed in 1797, the two divided the cases and the fees between them, the office of Crown Counsel at the assizes being one of those ‘ tenable appointments ’ for which White had stipulated. Nor was there any objection on any score to this course: till the other day, the attorney-general of England increased his official income by fees for legal business conducted for the crown.

White procured from Roe the coroner’s inquisitions (one concerning an Indian) and conducted the prosecutions ; he notes with dismay that all were acquitted.® He complained to La Rochefoucault ^ three years after that there was not a district in Upper Canada in which one or more persons had not been tried for murder and all acquitted, though the evidence was strong against them. Upper Canada was, for a decade or so, more free than law-abiding, and drunken-

O.P.T. ;U.C, B iS OLD PROVINCE TALES

ness was ‘ a very common vice in this country/

At the instance, or at least with the approval of the governor, White was nominated for the House of Assembly as the member for Leeds and Frontenac. For a time he feared that the ‘ Town of Elizabeth in the County of Leeds,’ being very populous, might defeat him by putting up a local candidate, but that fear proved groundless, and, although one Grogan was said to have secured forty-five votes and to be determined to stand. White was elected by acclamation. ‘ After which,’ he says, * they dragged me about in a chair to the diversion of the mobile ^ and my inconvenience.’ However, he gave them ‘ two barrels of porter and bread and cheese.’

During his stay in Kingston there arrived at that town Prince Edward Augustus, the fourth son of King George III, afterwards Duke of Kent and Strathearn, whose only title to fame is the fact that he was the father of Queen Victoria. He will not be wholly forgotten in this province so long as the rich and beautiful county of Prince Edward,. Ontario, called after him by Simcoe, continues to bear its time-honoured name.

The governor left Kingston and went to

Niagara toward the end of July, and White followed him early in September in the Onondagay^ an armed government vessel of twelve guns and eighty tons burden — a squarerigged, two-masted schooner, as well known in Upper Canada at that time as the Great Eastern was later in England. Simcoe received him most hospitably and gave him the use of his marquee for a dwelling. White at once got into active private practice and frequently appeared in the courts.

At that time there was no Court of King’s Bench, but each of the four District's (Luneburg, Mecklenburg, Nassau, and Hesse) of which the province consisted had its own Court of Common Pleas, three of them presided over by lay judges, the fourth by only one judge. Powell was the only lawyer of the ten, and he sat at L’Assomption (now Sandwich) in and for the District of Hesse. White had the contempt for the judges which a barrister and an Englishman might be expected at that day to have for a layman sitting on a judge’s bench, and a colonial at that. He does not seem to have been very successful ; his health was precarious and his temper not always under control — a failing pardonable in a martyr to the gout and what we now call neuritis.® He took his full share of legislative labour — the statutes of the first parliament of Upper Canada are a model of clearness and conciseness : but he had the same contempt for his fellow-members of the Assembly as for the lay judges.

Newark v/as a gay little provincial capital, and White was not the least active member of society. Nor was this society one to be despised — the governor, stately but kindly ; Mrs Simcoe, ‘ femme de trente-six ans . . . timide . . . obligeante et bonne,’ as La Rochefoucault tells us ; the aides-de-camp and army officers both of Newark and of Fort Niagara across the river, still held by Britain ; the civil officers of the administration with their wives and families, some of the best blood of England ; as well as a very superior group of United Empire Loyalists, many of whom had risked their lives, and all of whom had left home, friends, and property, that they might keep their faith and live under the old flag. Amongst the civil officers was Major John Small, who came from England as clerk of the Executive Council and was later (in 1806) appointed clerk of the Crown and Pleas. Small came from Cirencester, England, and belonged to a good county family with high connections : he was tall and finely built, with a pleasant but somewhat reserved manner. Any reserve in his manner was more than made up for by the vivacity of his wife. Fair, rather petite y she had a charming presence and somewhat less than the demureness then the mark of the well-bred woman.

Within a few months White became very intimate with the Smalls. They dine together at his house or theirs, play whist together, they stay a week at a time with him, he escorts the lady to dinner and home from dinner when the husband is sick, notwithstanding the procellaedomesticaev/hich threaten now and then. He notes in his diary ‘ a little coquetry ^ on the part of the lady, but there is nothing to indicate anything but a Platonic friendship.

Faithfully performing the duties of his office and supplementing his salary by the practice of his profession. White continued to live in Newark till the capital was changed (1797) to York (originally and now Toronto) — Simcoe gave the name York to the nascent settlement in 1793, in honour of the Duke of York, son of George III, then lately making his mark as general in the Low Countries.

During his residence in Newark, White took part with nine other lawyers in a meeting at Wilson^s Hotel, Newark, July 17, 1797, when the Law Society of Upper Canada was formed, membership in which has ever since been required of every practitioner in the courts of the province. Floreat aeterna.

He also saw to it that he did not miss his share in the ‘ grab ’ for public lands in which every one of official standing, cleric or lay, military or civil, participated at the time. He got 1200 acres in Scarboro^ township in 1796, in 1797 he added to this, 100 acres in the township of York, and the following year, 200 acres more in the same township ; his wife, Marianne, got altogether 1000 acres, a daughter 100 acres, and two sons 300 acres each (and also each a lot in the town of York) — 3200 acres for one family.^® But there was abundance of land for all comers. On the lot he acquired in 1797, i.e. Park Lot No. 4, township of York, which was just outside the town, and is the land east of Sherbourne Street, running from King Street to Bloor Street, White built a residence and set out a garden, and there he lived for the remainder of his life. In York he continued the course of life begun at Newark ; but something occurred to mar his friendship for the Smalls. The gossip of the provincial capital then and for long after blamed the woman, but the precise reason has not been recorded in anyexisting document.

Whatever the cause — and probably White’s wretched health had as much to do with it as anything else — he ventured, early in the year 1800, to speak lightly of Mrs Small. When this came to the ears of Major Small, there was but one course for him to pursue — according to the code of honour of the times, any other course would brand him as a coward and unfit to associate with gentlemen. He acted as a man of honour needs must: he called upon White for a retraction and an apology. White refused, and Small challenged him. Not six months before White had had a controversy with Captain Fitzgerald of the Queen’s Rangers. He had Captain Fitzgerald bound over in the King’s Bench to keep the peace.^^ But he could not pursue the same course with Small : a challenge to fight a duel must be accepted or he must be ‘ niddering.’