TOUGH JUSTICE IN HASTINGS COUNTY

By Andre Philpot

Generally, in the earliest years of Upper Canada, with the absence of any other established system, British martial law with all its rigors had prevailed. Supervision of the law was left to the senior Officer present in the area there being no civil Judges, Magistrates, nor Justices of the Peace around to act.

          As may be expected justice was rough and ready. Near Maitland a man named Church, was assaulted and struck back with a bottle, in self defense, he claimed. Although there appears to have been no witnesses, there was at the time also no court to try him. Nor was there a handy jail nearby. During his wait for justice, it was decided that Church should remain in the ‘custody’ of a local farmer who could, at any rate, use help around the place.

For nine months the matter hung in limbo. Church became more and more a member of his ‘jailor’s’ family. He had confessed the act, and at last, he agreed to go to Cornwall, travelling on his own, to learn his fate. And quite a fate it was. For manslaughter he was sentenced to have an ear cropped and a red-hot poker driven through his hand. Thereafter he was to be banished from the colony. Upper Canada was apparently too new a place to provide much mercy.         

          Execution was in the 1820s prescribed for 120 felonies. As an English Judge is said to have remarked to a convicted horse thief on his way to the gallows; ‘You are not being punished for stealing a horse;  you are being punished that horses may not be stolen.’

Our first Lieutenant Governor Simcoe was not a cruel man but he was a practical one and willing to do his duty as and when he saw it. Upper Canada was vulnerable,  and order, especially for the militia,  was required. Under his direction a deserter was made to provide an example. He was shot while forced to kneel on his own coffin.

As the colony grew, the distribution of land appropriated from the first nations became a major issue. Loyalists, retiring soldiers, and immigrants all wanted their farm sites. The problem was no one really knew their boundaries and some just didn’t care. Immigrants were coming into lands poorly surveyed or not surveyed at all. Newcomers thrashing though the bush tended to consider that the best spots they came across must be within their particular property grant.

Charles Hayes, on his way to becoming Marmora’s Ironmaster, in 1821, would have the result of vague boundaries brought home to him. He realized some months after arriving in Marmora, that the vast mountain iron ore that had brought him to Upper Canada in the first place, was not actually within his land grant.  The very mountain of  magnetite iron ore itself at what became Blairton, had thrown off the surveyor’s compass, and the site he needed so badly was actually in the neighboring district. To get that parcel Hayes bargained to pay for the survey of all what is now Belmont Township.

Just how serious it was to see to the preservation of survey monuments once they had been set was clear to the Provincial Parliament, when they met in June 1798 and passed ‘An act to establish on a permanent footing, the boundaries of the different townships of this province’. To address any bickering before it started, it was proclaimed that;

           “Be it further enacted by the authority aforesaid, that if any person or persons shall knowingly and wilfully pull down, deface, alter, or remove any such monument so erected…he, she, or they, shall be adjudged guilty of felony, and shall suffer death without benefit of clergy.” Second Parliament, Geo. 111, C.1, 1798

            By modifying that law and denying ‘benefit of clergy’ Parliament was removing the possibility that a defendant could use an ancient way of dodging the Civil Courts by seeking protection from the Ecclesiastical Courts. Early British Courts had been presided over by both a Bishop and a Magistrate. A first- time defendant might, by claiming to be a cleric, or at least literate and pious, get his case transferred to the Church authorities. There he may have a good chance to get a sentence of Penance, which would have obviously been superior to the fatal alternative.

  Although capital sentences were often reduced before they were carried out, public hangings made a popular outing. When an execution was set in Kingston, steamboats offered special day excursions from Belleville in the Bay of Quinte. It is estimated that the population of London, Upper Canada, in 1830 was about 300, yet it is recorded that over 3,000 showed up for the District’s first public hanging.

  One reason capital punishment was preferred was that long term imprisonment was a poor a choice for a sparsely populated and poorly funded colony. It was simply too costly. Whatever work could be extracted from inmates would never cover the costs of lodging and feeding prisoners. Other forms of punishment were swifter and cheaper. Stocks, by which offenders could be publicly displayed while locked in wooden leg or arm holds, and pillories, by which their necks were secured, provided quick shaming that may only last a few hours. It was a remedy not abolished until 1841. Branding was used for a number of offenses until 1802, and for some time afterwards, for manslaughter only. Public flogging or whipping declined in the 1830’s but corporal punishment was not finally removed from the Canadian Criminal Code, until 1972.

In Upper Canada the Courts could also impose banishment. Political rabble rouser Robert Gourlay was acquitted by juries in Kingston and Toronto of seditious libel, but charged again as a ‘Seditious Alien’ at Niagara, spent eight months in jail and was then banished. After the 1837 Rebellion at least eighty-three rebels were banished to Van Diemen’s land, an extraordinary trip half way around the world to the island now called Tasmania. These defendants enjoyed a fair measure of public support in Upper Canada and to have executed them would likely have precipitated a crisis. Banishment got rid of them in a less provocative way.

Even years later minor offenders in Hastings County had to look out. By-Law 5 of the County of Hastings passed at the May Session 1851 provided that:

Whereas it is expedient and proper to provide for the proper correction of person committed to Goal for minor offences; and whereas this cannot be accomplished by permitting offenders to spend their time in idleness during the period of their confinement,

Be it therefore enacted…………………