Speedy Justice: The Tragic Last Voyage of His Majesty's Vessel Speedy 9781487580001

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SPEEDY JUSTICE

The Tragic Last Voyage of His Majesty's Vessel Speedy

BRENDAN O'BRIEN

The Tragic Last Voyage of His Majesty's Vessel Speedy·

Published for The Osgoode Society by University of Toronto Press Toronto Buffalo London

© The Osgoode Society 1992 Printed in Canada Reprinted in 2018

ISBN 0-8020-2910-8 ISBN 978-1-4875-8104-6 (paper)

e

Printed on acid-free paper

Canadian Cataloguing in Publication Data

O'Brien, Brendan, 1909Speedy justice : the tragic last voyage of His Majesty's vessel Speedy Includes index. ISBN 0-8020-2910-8

ISBN 978-1-4875-8104-6 (paper)

1. Speedy (Ship). 2. Shipwrecks - Ontario, Lake {N.Y. and Ont.). 3. Ontario - History - 1791-1841.• 1.

Osgoode Society.

11.

FC3071.9.s5027 1992 971.3' 502 c525.027 1992

Title.

c92-094324-1

To Susie and Duncan

Contents

ix

FOREWORD PREFACE

xi

CAST OF CHARACTERS PASSENGER LIST

1 2

XV

xxii

MAPS AND ILLUSTRATIONS

xxiii

The Scene 3 Natives, Society, and the Law

29

3 'Cozens Kill My Brother, I Kill Cozens'

54

4 The Lake Ontario Naval Force 68 5 The Speedy Sails 82 6 Disaster 97 7 Aftermath 111 Conclusion

12 5

APPENDIX: THE PETITION OF THOMAS PAXTON JR, 1827 137 NOTES

139

INDEX

155

ILLUSTRATION CREDITS

168

PUBLICATIONS OF THE OSGOODE SOCIETY

1981 David H. Flaherty, ed. Essays in the History of Canadian Law, volume 1 1982 Marion MacRae and Anthony Adamson Cornerstones of Order: Courthouses and Town Halls of Ontario, 1784-1914 1983 David H. Flaherty, ed. Essays in the History of Canadian Law, volume II 1984 Patrick Brode Sir John Beverley Robinson: Bone and Sinew of the Com-

pact

1984 David Williams Duff: A Life in the Law 1985 James G. Snell and Frederick Vaughan The Supreme Court of Canada:

History of the Institution

1986 Paul Romney Mr Attorney: The Attorney General for Ontario in Court, Cabinet, and Legislature, 1791-1899 1986 Martin L. Friedland The Case of Valentine Shortis: A True Story of

Crime and Politics in Canada

1987 C. Ian Kyer and Jerome E. Bickenbach The Fiercest Debate: Cecil A. Wright, the Benchers, and Legal Education in Ontario, 1923-1957 1988 Robert Sharpe The Last Day, the Last Hour: The Currie Libel Trial 1988 John D. Amup Middleton: The Beloved Judge 1989 Desmond Brown The Genesis of the Canadian Criminal Code of 1892 1989 Patrick Brode The Odyssey of John Anderson 1990 Philip Girard and Jim Phillips, eds. Essays in the History of Canadian Law, volume III, Nova Scotia 1990 Carol Wilton, ed. Essays in the History of Canadian Law, volume IV, Lawyers and Business in Canada 1830-1930 1991 Constance Backhouse Petticoats and Prejudice: Women and Law in

Nineteenth-Century Canada

1992 Brendan O'Brien Speedy Justice: The Tragic Last Voyage of His Maj-

esty's Vessel 'Speedy'

Foreword THE OSGOODE SOCIETY

The purpose of The Osgoode Society is to encourage research and writing in the history of Canadian law. The Society, which was incorporated in 1979 and is registered as a charity, was founded at the initiative of the Honourable R. Roy McMurtry, former attorney-general for Ontario, and officials of the Law Society of Upper Canada. Its efforts to stimulate the study of legal history in Canada include the sponsorship of a fellowship, a research support program, and work in the fields of oral history and legal archives. The Society publishes (at the rate of about one a year) volumes of interest to the Society's members that contribute to legalhistorical scholarship in Canada, including studies of the courts, the judiciary, and the legal profession, biographies, collections of documents, studies in criminology and penology, accounts of great trials, and work in the social and economic history of the law. Current directors of The Osgoode Society are Jane Banfield, Brian Bucknall, Archie Campbell, J. Douglas Ewart, Martin Friedland, Howard Hampton, John Honsberger, Kenneth Jarvis, Allen Linden, James Lisson, Colin McKinnon, Roy McMurtry, Brendan O'Brien, Peter Oliver, James Spence, and Richard Tinsley. The annual report and information about membership may be obtained by writing The Osgoode Society, Osgoode Hall, 130 Queen Street West, Toronto, Ontario, Canada M5H 2N6. Members receive the annual volumes published by the Society. It gives the directors of The Osgoode Society very great pleasure to publish Speedy Justice. Brendan O'Brien was a founder of the Society and

x Foreword

served as our president for our first ten years. As well as being an avid student of history, Mr O'Brien is one of Canada's most distinguished lawyers. His research on the Speedy was carried out quite independently of The Osgoode Society. From time to time, however, he shared with us parts of the dramatic and tragic story of the vessel, and explained some of its significance to the history of early Ontario. As his work progressed, it became apparent that his manuscript was likely to have great appeal to our membership and it has fully lived up to those expectations. Based on painstaking research in obscure sources, it is a work of careful scholarship which contributes substantially to our knowledge of life in early Upper Canada and adds to our understanding of such significant subjects as the Upper Canadian legal system, the relationship between the aboriginal population and settlers of European origin, and the state of the Provincial Marine. But first and foremost Speedy Justice is a fascinating story, replete with the intrigues, prejudices, and passions of a bygone era. Most mystery stories, Mr O'Brien writes, 'have heroes and villains. This one is no exception. The villain turns out to be the governor, LieutenantGeneral Peter Hunter.' We are confident that our members will read Speedy Justice with much enjoyment. R. Roy McMurtry

President

Peter N. Oliver

Editor-:in-Chief

Preface

Tales of shipwrecks have long attracted interest. Much has been written about them, especially those involving a large loss of life and the death of prominent people. Yet, no matter how much is known about a shipwreck, elements of mystery often remain. There are suggestions of rescues that might have been and tales of heroism and cowardice. Unanswered questions tend to keep the story alive, particularly when the ship simply disappeared with all on board. Such a case was the loss, on Lake Ontario in October 1804, of the naval vessel Speedy under the command of Lieutenant Thomas Paxton. As dusk descended on the lake, anxious watchers, huddled near a bonfire on Presqu'ile Point, saw the Speedy struggling to make port in the teeth of a northeast wind which carried it out into the waves and darkness. It was never seen again. On board were a number of leading members of Upper Canadian society as well as a black slave, two children of indigent parents who were unable to afford passage for themselves, and an Ojibwa Indian who was faced with a charge of murder and was in the custody of his jailer. The story of the Speedy is extraordinary both in its cast of characters, led by the foul-tempered Lieutenant-Governor Peter Hunter, and in the sometimes amazing twists of fate and circumstance that took the vessel to its watery grave. Despite its intrinsic drama, however, the story has received only modest mention in histories of Ontario. It has been dis-

xii

Preface

cussed more fully by writers of tales of shipwrecks on the Great Lakes. One such was C.H.J. Snider, who for many years wrote a column entitled 'Schooner Days' for the Toronto Telegram. Snider's story about the Speedy, published in 1949, makes interesting reading but much of what he wrote was the product of his inventive imagination. When in 1989 I decided that something more could be written about the Speedy, I had in mind a factual account of its disappearance, accompanied by biographical information about the victims and speculation as to where the wreck of the ship might lie. As my research proceeded, however, it became apparent that the Speedy had carried with it to the depths a much more intriguing tale - one that began many years earlier and that reveals much about government and society in pioneer Upper Canada. Indeed, no sooner had I uncovered one part of the story than another appeared, the various elements interlocked like the pieces of an elaborate jigsaw puzzle. The story of the Speedy, I began to realize, was closely connected with the state of the Provincial Marine, the oligarchical and faction-ridden nature of Upper Canadian politics, and, perhaps most important of all, the relationship of native people to the colonial legal system and white society as a whole. My interest in the sinking of a ship had opened my eyes to a story far more complex and fascinating than I could ever have imagined. The structure of this book reflects the multidimensional nature of the story. An opening chapter develops the essential context by painting a picture of life in early Upper Canada, focusing on the arrival of the loyalists, the official founding of the colony in 1791, the size and composition of the population in the 1790s and early 1800s, early politics -particularly the role of Lieutenant-Governor Hunter, a central player in the tragedy of the Speedy - and social and economic development. Much of this material will already be familiar to students of early Ontario history. Native people are key actors in our tale, and their place in Upper Canadian society is explored in Chapter 2, with special emphasis on their treatment by the legal system. The discussion of this theme is continued in Chapter 3, which recounts the story of Ogetonicut, the Indian on board the Speedy on her last voyage. The appalling state of the Provincial Marine is laid out in Chapter 4; Chapters 5 and 6 bring together the various facets of the story in a discussion of the sailing and subsequent sinking of the Speedy; and the aftermath of the disaster is the subject of Chapter 7. A conclusion, in addition to summing up my thoughts on the Speedy, describes recent marine archaeological work on Lake Ontario shipwrecks and assesses the chances for success in current efforts to locate the Speedy.

Preface xiii

The writing of this book has been made possible by help from many people. I first mention those who reviewed the initial draft of the manuscript and made many useful suggestions. These were Edith G. Firth, Robert L. Fraser, Mr Justice Archie Campbell, and Brian Bucknall. Others who helped in a great many different ways were Jodi Aoki, F.H. Armstrong, Emily Cain, Ronald Cass, Kenneth Cassavoy, Terrence Cook, Bernardine Dodge, W.A.B. Douglas, Gordon Farquharson, Gary French, Jean Lancaster Graham, Mr Justice Gibson Gray, Fred Gregory, Nora Herd, Mark I. Jackman, Basil Johnston, Patricia Kennedy, John Leslie, Judge Richard Lovekin, Joseph Macinnes, William and Marilyn Macfarlane, Mel McIntyre, Charlie Meyers, Sharon Moynes, Milton Mowbray, Daniel Nelson, Michael O'Brien, Peter Rindlisbacher, Mr Justice Robert Rutherford, Roy Schaeffer, Bryan Shaughnessy, Helen Schmid, Cathy Shepard, Jack Simpson, Eric Silk, Donald P. Smith, Helen Hornbeck Tanner, James Wardlaw, and Charles Taws. In addition I thank the ever-obliging personnel at the Ontario Historical Society, the Women's Canadian Historical Society of Toronto, the Metropolitan Toronto Reference Library (Baldwin Room), the Archives of Ontario, the National Archives of Canada, and Parks Canada. I especially extend my most sincere thanks for the editorial assistance I have received from Peter Oliver and Curtis Fahey. The one to whom I owe the most for research work, encouragement, helpful criticism, and typing and retyping many drafts is my wife, Beverley.

Cast of Characters

ALLCOCK, HENRY (1759-1808) Judge of the Court of King's Bench, 1798-1802; chief justice of Upper Canada, 1802-5; chief justice of Lower Canada, 1805-8; ordered John Stegman to survey area where murder of John Sharp occurred. ANDERSON, JOHN (1783-1804) Law student, nephew of Jacob Herchmer and cousin of Robert Isaac Dey Gray, lost on Speedy. BAKER, DORINDA Servant (slave) of Robert Isaac Dey Gray, mother of Simon and John, daughter of Lavine, who was purchased by Gray in Albany for $50. BAKER, JOHN (1766-1871) Servant (slave) of Robert Isaac Dey Gray, brother of Simon, left in charge of the house when his master and brother sailed on the Speedy.

BAKER, SIMON (d. 1804) Servant (slave) of Robert Isaac Dey Gray, lost on Speedy. BALDWIN, ROBERT SR (1741-1816) Arrived in Upper Canada from Ireland, 1799; settled in Clarke Township, where he was a neighbour of Samuel Cozens; later moved to York; father of Mary, who married John Breckenridge, 1816.

xvi Cast of Characters

BALDWIN, WILLIAM WARREN (1775-1844) Son of Robert Baldwin; graduated at the University of Edinburgh, 1797; immigrated, with his father, to Upper Canada in 1799, and settled in York in 1802; authorized to practise law, 1803; treasurer of the Law Society of Upper Canada, 1811; married Margaret Phoebe Willcocks; his son, Robert, was the 'Father of Responsible Government' in Upper Canada. BOUCHETTE, JEAN-BAPTISTE (1736-1804) Helped Governor Guy Carleton escape American forces at Sorel, 1775; commodore of Lake Ontario naval force, 1794-1804. BOULTON, D'ARCY (1759-1834) Succeeded Robert Gray as solicitor-general, 1805; attorney-general, 1814-18; judge of Court of King's Bench, 1818-27. BRECKENRIDGE, MARY WARREN (1791-1871) Sister of William Warren Baldwin; related her 'Recollections,' which told of early life in Clarke Township and Ogetonicut's threat to Samuel Cozens, to her daughter Maria Murney. CAMERON, JOHN (d. 1804) Ship's mate in the Provincial Marine, lost on Speedy. CAMPBELL, DONALD Fort major at Kingston. CARLETON, SIR GUY, 1st BARON DORCHESTER (1724-1808) Governor of Quebec, 1768-83; governor-in-chief and commander-in-chief of British North America, 1786-94. COCHRAN, THOMAS (1777-1804) Judge of the Court of King's Bench, 1803-4, lost on Speedy. COWAN, GEORGE (d. 1804) Fur trader at Matchedash Bay, Indian interpreter, lost on Speedy. COZENS, SAMUEL D. (1769-1808) United Empire Loyalist; emigrated from Philadelphia, 1796, settling in York; declined serving as ensign in York militia, 1798; employed by Pro-

Cast of Characters xvii

vincial Secretary William Jarvis until resignation, 1801; suspect in murder of Whistling Duck. ELMSLEY, JOHN (1762-1805) Chief justice of Upper Canada, 1796-1802; chief justice of Lower Canada, 1802-5. FAREWELL, AIKEN MOODY AND WILLIAM Fur-trader brothers with a post at Lake Scugog; employers of John Sharp, who was allegedly killed by Ogetonicut. FISK, JOHN (d. 1804) Auctioneer, pound-keeper, and high constable of York, 1804; lost on Speedy. GERRARD (d. 1804) Boatswain, lost on Speedy. GORE, SIR FRANCIS (1769-1852) Succeeded Peter Hunter as lieutenant-governor of Upper Canada, 1806, retaining the post until 1817. GRAY, ROBERT ISAAC DEY (1772-1804) Solicitor-general of Upper Canada, 1794-1804; member of House of Assembly, 1796-1804; treasurer of the Law Society of Upper Canada, 1798-1801; lost on Speedy. HERCHMER, JACOB (1773-1804) Merchant at York, fur trader at Rice Lake, lost on Speedy. HUNTER, PETER (baptized 1746; d. 1805) Commander-in-chief of armed forces in Upper and Lower Canada, lieutenant-governor of Upper Canada, 1799-1805. JARVIS, HANNAH (1763-1845) Wife of William Jarvis; diarist and social critic.

JARVIS, WILLIAM (1756-1817) Provincial secretary and registrar, 1791-1817.

xviii

Cast of Characters

JOHNSON, SIR JOHN (1741-1830) Superintendent-general and inspector-general of Six Nations, 1782-1830; member of Legislative Council of Lower Canada, 1796-1830; head of Indian Department. JOHNSON, SIR WILLIAM (b. c. 1715; d. 1774) Superintendent of northern Indians in Thirteen Colonies, 1756-74. LABARO, FRANCIS Seaman, lost on Speedy. LA ROCHEFOUCAULD-LIANCOURT, DUC DE (1747-1827) Exile from France who travelled in the United States and Canada, 1795-7, and published several volumes on his journeys. MACDONELL, ALEXANDER (1762-1842) Sheriff of the Home District; accompanied Lieutenant-Governor John Graves Simcoe to Matchedash Bay, 1793, and wrote the diary of the journey; employed as Lord Selkirk's agent at the Baldoon settlement, near Lake St Clair, 1804-9; member of the House of Assembly and Legislative Council; brother of Angus, who was lost on Speedy. MACDONELL, ANGUS (d. 1804) First clerk of the Legislative Assembly, 1792-1801; member of the House of Assembly for Durham, Simcoe, and East Riding of York, 1801-4; treasurer of the Law Society of Upper Canada, 1801-4; chemist, saltmaker, and lawyer; lost on Speedy. McEWAN, CHARLES Queen's Ranger; accompanied Simcoe to Matchedash Bay, 1793; charged with the murder of Wabakinine, a Mississauga chief, August 1796.

McGILL, JOHN (1752-1834) Member of Executive Council, 1796-1818, and of Legislative Council, 1797-1834; inspector-general, 1801-13; prominent merchant in York. MACKENZIE, HOLT Captain, 41st Foot, stationed at Fort Henry (Kingston).

Cast of Characters xix MEALY, PATRICK Sergeant in Queen's Rangers; tavern-keeper in York; witness to Charles McEwan's attackon Wabakinine. MURNEY, MARIA Daughter of Maria Breckenridge (nee Baldwin); wrote her mother's 'Recollections,' which described life in Clarke Township. OGETONICUT (d. 1804) Ojibwa Indian, brother of Whistling Duck, alleged killer of John Sharp; lost on Speedy. OSGOODE, WILLIAM (1754-1824) Chief justice of Upper Canada, 1792-4; chief justice of Lower Canada, 1794-1801 . PAXTON, THOMAS (1754-1804) Lieutenant in the Provincial Marine on Lake Ontario, 1787; Captain of Speedy from 1798; lost on Speedy. PAXTON, THOMAS JR (1794) Son of Lieutenant Thomas Paxton; married Nancy Merrill, 1822; filed petition for land, 1827. PEARSON, SILAS Master-builder at Kingston; criticized for delays in construction of Speedy and discharged for misappropriation, 1801. PLAYTER, ELY (1775) Tavern-keeper in York, diarist. POWELL, WILLIAM DUMMER (1755-1834) Judge of the Court of King's Bench, 1794-1816; chief justice of Upper Canada, 1816-25. PRESCOTT, ROBERT (1725-1816) Lieutenant-governor of Lower Canada, 1796; governor-in-chief of British North America, 1797-9.

xx Cast of Characters

ROSS, WILLIAM Commissary of dockyard at Point Frederick (Kingston). RUGGLES, JAMES (d. 1804) Storeowner on Yonge Street, York; justice of the peace; lost on Speedy. RUSSELL, ELIZABETH (1754-1822) Half-sister of Peter Russell, with whom she lived in York; cousin of Maria Willcocks and Margaret Phoebe Willcocks Baldwin. RUSSELL, PETER (1733-1808) Receiver-general of Upper Canada, 1792-1808; member of Executive and Legislative councils, 1793-1808; administrator of Upper Canada, 1796-9. SCOTT, THOMAS (1746-1824) Attorney-general of Upper Canada, 1800-6; treasurer of Law Society of Upper Canada, 1805; chief justice of Upper Canada, 1806-16. SHARP, JOHN (d. 1804) Queen's Ranger; employed by the fur-trader Farewell brothers; allegedly killed by Ogetonicut. SIMCOE, ELIZABETH POSTHUMA (nee Gwillim; baptized 1762; d. 1850) Wife of John Graves Simcoe; diarist and artist. SIMCOE, JOHN GRAVES (1752-1806) First lieutenant-governor of Upper Canada, 1791-8. STEGMAN, JOHN (1754-1804) Land surveyor, lost on Speedy. STUART, GEORGE OKILL (1776-1862) Son of the Reverend John Stuart; rector at York, 1801-12; later rector and archdeacon of Kingston. THORPE, ROBERT (b. c. 1764; d. 1836) Born in Ireland; chief justice of Prince Edward Island, 1801-5; judge of Court of King's Bench, Upper Canada, 1805; elected to House of Assembly, 1807; suspended from office, 1807; chief justice and judge of ViceAdmiralty Court, Sierra Leone, 1808.

Cast of Characters xxi

WABAKININE (d. 1796) Head chief of Credit River Mississauga; allegedly murdered by Charles McEwan, who was acquitted for 'want of evidence.' WEEKES, WILLIAM (d. 1806) Born in Ireland; studied law in United States; immigrated to Upper Canada, 1798; elected to House of Assembly, 1805; bencher of Law Society; killed in duel. WHISTLING DUCK (d. 1803) Ojibwa Indian, brother of Ogetonicut; allegedly killed by Samuel Cozens. WILLCOCKS, JOSEPH (1773-1814) Sheriff of Home District, 1803-7; second cousin of Peter Russell; defected to Americans during the War of 1812; shot at Fort Erie.

PASSENGER LIST HIS MAJESTY'S VESSEL SPEEDY ON ITS VOYAGE FROM YORK TO NEWCASTLE SAILING FROM YORK ON SUNDAY, 7 OCTOBER, 1804, 4 P.M.

CAPTAIN THOMAS PAXTON (lieutenant in Provincial Marine; Kingston and York) PASSENGERS THOMAS COCHRAN (judge of Court of King's Bench; York) ROBERT ISAAC DEY GRAY (solicitor-general; Cornwall and York) ANGUS MACDONELL (member of House of Assembly and treasurer of Law Society of Upper Canada) JOHN STEGMAN (surveyor; York) JACOB HERCHMER (merchant; Rice Lake and York) JOHN ANDERSON (law student; Cornwall and York) JAMES RUGGLES (justice of the peace; York) GEORGE COWAN (Indian agent and interpreter; York) JOHN FISK (constable; York) OGETONICUT (Ojibwa Indian) SIMON BAKER (slave of Robert Isaac Dey Gray; Cornwall and York) SERVANT of Thomas Cochran (York) TWO CHILDREN of indigent parents (names unknown) CREW JOHN CAMERON (mate; Kingston) GERRARD (boatswain; Kingston) FRANCIS LABARO (seaman; Kingston) TWO SEAMEN (names unknown; Kingston)

Presqu'ile harbour and site of the short-lived village of Newcastle

Lake Ontario and part of Georgian Bay, with points of interest identified

s NEWCASTLE DISTRICT

HOME

DISTRICT

Oshawa/ Creek

The Lake Scugog area, where John Sharp was slain in 1804

The Reverend John Strachan, later bishop of Toronto. In his youth, he was jilted by Margaret England in favour of Jacob Herchmer, who was lost on the

Speedy.

Marble memorial to Lieutenant-Governor Peter Hunter in the Cathedral of the Holy Trinity in Quebec City. The inscription on the memorial reads as follows: 'Sacred to the memory of Lieutenant-General Peter Hunter, of His Majesty's forces in both the Canadas; who died at Quebec on the XXI of August MDCCCV, aged ux years. His life was spent in the service of his king and country. Of the various stations both civil and military which he filled, he discharged the duties with spotless integrity, unwearied zeal and successful abilities. This memorial to a beloved brother, whose mortal part rests in the adjacent place of burial, is erected by John Hunter M.D. of London.

William Willcocks, resident of York, whose windows were broken because he did not join in the celebration of the victory of Admiral Nelson in the Battle of the Nile

Alexander Macdonell, brother of Angus who was lost on the Speedy. In 1793, while sheriff of the Home District, he kept the journal on Lieutenant-Governor Simcoe's trip to Matchedash Bay, and years later, in October 1804, he identified the debris from the Speedy near Oak Orchard River in New York State. He was also a member of the House of Assembly and, from 1831 to 1841, of the Legislative Council.

Barracks at York, as sketched by Lieutenant Sempronius Stretton in May 1804. The residential part of the town lay about two miles to the east or to the right.

Peter Russell, receiver-general and later administrator of Upper Canada. He may have forestalled a native uprising in 1796 by promising vigorous prosecution of the alleged killer of the Mississauga chief Wabakinine.

John Graves Simcoe, first lieutenant-governor of Upper Canada. In 1793 he met the fur trader George Cowan at Matchedash Bay and soon after brought him into government service. Cowan was lost on the Speedy.

Fort Rouille, the French trading post at Toronto, as portrayed in the 1750s

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This plan of the Toronto harbour was prepared for Lieutenant-Governor Simcoe in November 1792 by Joseph Bouchette, then aged eighteen, who was a son of Jean-Baptiste Bouchette, commodore of the Lake Ontario navy. The name 'Toronto' appears on the plan because the change of the name to 'York' did not take place until the following year. The remarks written on the plan indicated that 'the harbour is very safe for shipping' and 'the least water at the entrance [is] two fathoms and a half.' A descendant of Simcoe presented this plan to the City of Toronto on 23 May 1934.

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A modem artist's depiction of a seaman in the Provincial Marine. The apparel of a Speedy crew member may have resembled that of the figure in this sketch,

Sketch of the government yacht Toronto by journalist C.H.J. Snider, c. 1913. Peter Russell failed in his effort to have Captain Thomas Paxton assigned to the command of this vessel. According to John Baker, whose brother was Jost on the Speedy, it was the Toronto that brought the news to York that the Speedy was missing.

The waterfront at York as it appeared to surgeon Edward Walsh of the 49th Foot in the autumn of 1803. The vessel in the harbour is not identified but it could have been the Speedy. The Mississauga chief Wabakinine was slain on the waterfront, somewhere near the foreground of this sketch, in 1796. The homes of Peter Russell and William Warren Baldwin are shown.

Angus Macdonell, chemist, saltmaker, politician, poet, and lawyer. In 1804, when he was lost on the Speedy, he held a seat in the House of Assembly and was treasurer of the Law Society of Upper Canada.

-

His Majesty's Schooner Speedy as visualized by journalist C.H.J. Snider, C.

1913

William Osgoode, first chief justice of Upper Canada

The Ojibwa chief Candise, or Great Sail, as sketched by Elizabeth Simcoe, 1793

The Reverend George Okill Stuart, a prominent Anglican churchman in York and Kingston. He is the source of the information that the Speedy ran aground in York harbour when setting out on its last voyage.

Robert Isaac Dey Gray, solicitor-general of Upper Canada and treasurer of the Law Society to 1801. Lost on the Speedy

These two portraits show Provincial Secretary and Registrar William Jarvis, his wife, Hannah, and their children in happier times before Jarvis was publicly humiliated and reduced to tears by Lieutenant-Governor Peter Hunter.

Thayendanegea, or Joseph Brant, the great Mohawk chief. The Mississauga sought his guidance after the loss of their beloved chief, Wabakinine.

Speedy Justice

1 The Scene

On 12 November 1804, just over a month after the Speedy's disappearance, the lieutenant-governor of Upper Canada sent a dispatch to the colonial secretary in London. An austere man, Peter Hunter confined himself to informing the home government of the ship's loss and offering some comments on the matter of a replacement for Thomas Cochran, a judge on the Court of King's Bench who vanished with the Speedy. The dispatch read: It is with deep regret I state to your Lordship, that Mr. Cochran one of the Puisne Judges of the Court of Kings Bench in this Province, Mr. Gray, the Solicitor General, another Gentleman of the Bar, with other respectable persons, in all (including the Master and Ships Company of His Majesty's Schooner Speedy) amounting to about Twenty Souls, embarked at this place and Sailed on the 7th. of October last, for the purpose of holding the Assizes for the District of Newcastle, and have never since been heard of; It is now beyond a doubt, that they must have perished on Lake Ontario, but no person hath survived, to give an account of the time, or the manner, in which this melancholy event took place. I am unable to offer any Gentleman to your Lordships notice, to supply the place of Mr. Cochran as a Judge, I must therefore request that you will be pleased to recommend some person to His Majesty, who in every respect may be qualified to fill that important Office. It is hardly necessary for me to suggest, that the the situation of His Majesty's Subjects in this Province requires, not only a Gentleman in that office of Legal

4 Speedy Justice Abilities sufficient to discharge the Duties of a Judge, but also, of such manners and conduct, as to improve and instruct Society in private Life. Your Lordship will permit me further to state that it will very much add to the Obligation, if His Majesty will be pleased to fill up this Vacancy as soon as possible, there being only one Judge of the Court of Kings Bench at present residing in this extensive Province. Before your Lordship receives this Letter, Mr. Allcock the Chief Justice of this Province, (who is absent by leave from His Majesty) will be in England; that Gentleman, from his knowledge of this Province, as well as from his acquaintance with the English Bar, is in every respect qualified, to afford such Information on the present occasion, as your Lordship may be pleased to require.1

This report tells much about Hunter's personality and priorities. In describing one of the greatest tragedies the young colony of Upper Canada had known, he remained true to form, terse and cold. His reference to the loss of a judge and the solicitor-general was curiously matter-of-fact, and his insensitivity to the loss of so many other lives was chilling. On the practical issue of the vacant judgeship, he again betrayed a part of himself. The importance he attached to the character of the new judge reflected the contemporary belief that those in positions of authority had an obligation, not only to govern fairly and wisely, but also to conduct their daily lives in a manner that set an example to the lower orders. Yet it also hinted at Hunter's view of the colony he presided over. For him, as for other officials sent from Britain to the distant colonial outpost of Upper Canada, the rather raw quality of local society left much to be desired. Another 'gentleman' on the colony's highest court would be a valuable ally in the all-important cause of elevating the tone of Upper Canada, and of Upper Canadians. Such a gentlemen would not be found in Upper Canada itself - both Hunter and Chief Justice Henry Allcock, who was part of the lieutenant-governor's inner circle, had a low opinion of colonial lawyers - but among the ranks of the 'English Bar.' The most notable aspect of Hunter's report was what was omitted from it. A week earlier, the loss of the Speedy had been reported in a lengthy article in the Upper Canada Gazette: The following is as accurate an account of the loss of the schooner Speedy, in his Majesty's service on Lake Ontario, as we have been able to collect. The Speedy, Capt. Paxton, left this port on Sunday evening the 7th. October last, with a moderate breeze from the N.W. for Presqu Isle, and was descried off that island on the Monday following before dark, where preparations were made

The Scene 5 for the reception of the passengers, but the wind coming around from the N.E. blew with such violence as to render it impossible for her to enter the harbor; and very shortly after she disappeared. A large fire was then kindled on shore, as a guide to the vessel during the night; but she has not since been seen or heard of, and it is with the most painful sensations, we have to say, we fear is totally lost. Enquiry, we understand, has been made at almost every port of the Lake, but without effect; and no intelligence respecting the fate of this unfortunate vessel could be obtained; it is therefore generally concluded that she has either upset or foundered. It is also reported by respectable authority that several articles, such as compass-box, hencoop, and mast, known to have belonged to this vessel, have been picked up on the opposite side of the Lake. The passengers on board the ill-fated Speedy, as near as we can recollect, were Mr. Justice Cochrane; Robert I.D. Gray, Esq.; Solicitor General, and Member of the House of Assembly, Angus M'Donell, Esq; Advocate, also a Member of the House of Assembly, Mr. Jacob Herchmer, merchant, Mr. John Stegman, surveyor, Mr. George Cowan, Indian interpreter, James Ruggles, Esq.; Mr. Anderson, Student in the Law, Mr. John Fisk, High Constable, all of this place. The above named gentlemen were proceeding to the District of Newcastle, in order to hold the Circuit, and for the trial of an Indian (also on board the Speedy) indicted for the murder of John Sharp, late of the Queen's Rangers. - It is also reported, but we cannot vouch for its authenticity, that exclusive of the above passengers, there were on board two other persons, one in the service of Mr. Justice Cochrane, and the other in that of the Solicitor General, as also two children of parents whose indigent circumstances necessitated them to travel by land. The crew of the Speedy, it is said, consisted of five seamen (three of whom have left large families) exclusive of Captain Paxton, who also had a very large family. - The total number of souls on board the Speedy is computed to be about twenty. A more distressing and melancholy event has not occurred to this place for many years - nor does it often happen that such a number of persons of respectability are collected in the same vessel. - Not less than nine widows, and we know not how many children, have to lament the loss of their husbands and fathers, who, alas! have, perhaps in the course of a few minutes, met with a watery grave. It is somewhat remarkable, that this is the third or fourth accident of a similar nature within these few years - the cause of which appears worthy the attention and investigation of persons conversant in the art of ship building.2

The Gazette's report provides much information that was not in Hunter's account, and it shows grief for the victims as well as compassion for

6 Speedy Justice

the widows and orphans. In addition, since the Gazette's editor was an employee of the government, it must have taken courage for him to make the reasonable suggestion that some sort of investigation was in order. As it happened, such an investigation was never held, a fact that is hard to explain considering other investigations that had been conducted in the recent past. In 1801, as we shall see, Hunter ordered a special threeman court to inquire into an allegation that there was a shortage of two ounces in the rum ration to the seamen on the Mohawk. The following year there was an inquest into the drowning of one Peter McGregor in the Don River, with a verdict of accidental death.3 In March 1804 an inquest was held into the death of an unnamed Indian, supposedly the victim of 'an immoderate use of spirituous liquor,' and in this case as well the verdict was accidental death.4 Finally, in the year following the loss of the Speedy, there was a court of inquiry into the loss of the Hope without loss of life - at St Joseph Island in Lake Huron.5 If these incidents warranted the holding of inquiries, surely the loss of the Speedy did too? The reluctance to hold an inquiry cannot be attributed to the failure to find any bodies, for the Probate Court lost no time in granting probate and administration in the estates of some of those who were lost. Obviously, death was assumed. The Gazette article prompts many questions. Who was the unnamed Indian prisoner? How did he come into conflict with John Sharp, late of the Queen's Rangers? Why was he being tried at Newcastle rather than at York (Toronto)? To answer the various questions that surround the loss of the Speedy, it is necessary to assemble and evaluate bits and pieces of evidence from sources that are widely scattered in time and kind. To put this evidence in proper perspective, and to appreciate its many ramifications, we will first offer a sketch of early Upper Canada. Understanding this society its people, its social and economic life, its politics, its values - helps to put the story of the Speedy in context. Similarly, exploring the mystery of the Speedy sheds light on Upper Canada. It is impossible to tell one story without telling the other. Long before the arrival of the first Europeans, native people had established a firm presence in what is now southern Ontario. In the early seventeenth century, this region was inhabited by two native linguistic groupings, the Algonquians and the Iroquoians. The former, consisting of the Algonkin, Nipissing, Ojibwa, and Ottawa, were a nomadic people who ranged widely across the Ottawa valley and the areas around Geor-

The Scene 7

gian Bay and Lake Nipissing, subsisting by hunting, fishing, and gathering. The Iroquoians, who included the Huron and the Iroquois Confederacy, lived to the south of the Algonquians, the Huron on the southern shore of Georgian Bay, the Iroquois along Lake Ontario in present-day New York state. Semi-sedentary, the Iroquoians supplemented hunting and fishing with agriculture, their chief crops being com and squash. In the 1640s a long period of Six Nations-Huron warfare came to an end with the virtual destruction of the Huron. Thereafter the Iroquois moved into the southern Ontario region, establishing settlements and focusing their military might against a new foe, the Ojibwa. The latter adopted a defensive posture in the first phase of this struggle, but as the century wore on they became more aggressive. By the early 1700s, moving south from their base on Lake Superior and the north shore of Lake Huron, the Ojibwa had succeeded in driving the Iroquois back across Lake Ontario. The Ojibwa who settled on the north shore of the lake now became known as the Mississauga, a name applied to them by the French. Later, after the founding of Upper Canada, Ojibwa in southern Ontario and elsewhere in the colony were also commonly called Chippewa. 6 Until the late eighteenth century, there were few Europeans north of the Great Lakes. For New France, the area was vital for commercial and military reasons, not as a home for colonists. Apart from a settlement in the Detroit area dating to the early 1750s, the French presence at the time of the Conquest of 1760 consisted only of military garrisons - at Michilimackinac, Detroit, and present-day Niagara, Toronto, and Kingston and a network of fur-trade posts stretching throughout the territory of the upper lakes. Little changed after 1760. During the first two decades of British rule, the land north of the lakes remained largely unsettled by whites, its chief importance deriving from its role in the fur-trade empire. Indeed, under the Royal Proclamation of 1763, Britain, in an attempt to reassure the Indians that the transfer of sovereignty did not threaten their way of life, transformed the continental interior into an Indian territory where settlement was prohibited. This move comforted the Indians, whose anxiety over their future had just triggered the Pontiac Rebellion, but infuriated the land-hungry Thirteen Colonies.7 Then came the American revolution, an event that changed the course of Canadian history by prompting the immigration into British North America of the United Empire Loyalists. The northern half of the continent would never be the same again. The loyalists were those Americans who, for a variety of motives, supported the British cause during the Revolutionary War. Estimates of their

8 Speedy Justice

numbers vary, but it appears that there were roughly 500,000 loyalists in the Thirteen Colonies, a figure that constituted 16 per cent of the total population.8 Contrary to the mythology that later developed around the loyalists, they were not uniformly wealthy and of British descent; in fact, they were remarkably diverse in their class and ethnic backgrounds. Militarily speaking, those loyalists who took up arms during the Revolutionary War were skilled frontier fighters, serving in small guerilla bands that launched lightning raids on the northern and western frontiers. If the British regulars had been as effective, the outcome of the war might have been different. But they weren't, and with the peace of 1783, the loyalists had to accept the bitter pill of defeat. Many decided to risk persecution by returning to their homes. Others, roughly 100,000 in number, resolved to move on in search of new homes elsewhere. Of these, approximately 30,000 went to the Maritime colonies of British North America and about 10, 000 made their way to the province of Quebec. The bulk of the loyalists who gathered in Quebec wanted to settle in the frontier region beyond the Ottawa River, and, in the fall of 1783 and the following spring, surveys of these lands were undertaken. Travelling by boat from the central embarkation point at Sorel, all of the loyalists had reached their western destination by the fall of 1784. In absolute terms, this loyalist migration was not large, amounting to roughly 7,500 persons. Yet numbers do not tell the whole story. The loyalists represented the first significant influx of white settlers into the territory that was to become Upper Canada, and were responsible for opening up the southern portion of this territory to agricultural settlement. Geographically, they were concentrated in eastern Ontario - along the north shore of the St Lawrence River and the Bay of Quinte - and in the Niagara peninsula.9 Accompanying these white loyalists on their journey to the western frontier of Quebec in 1783-4 were several hundred Iroquois. During the Revolutionary War, the Iroquois Confederacy had been badly split; most opted for neutrality but many - particularly among the Mohawk - allied themselves openly with Britain and played a prominent role in the fighting on the frontier. The conclusion of the conflict forced them to abandon their ancestral lands in New York. One small band of Mohawk led by John Deserontyon settled on the north shore of the Bay of Quinte, in what later became Tyendinaga Township, in late May 1784, before the arrival in the area of the first white loyalists. A larger group, consisting mainly of Mohawk but also several Cayuga, Oneida, and Seneca, settled along the Grand River. They were led by Thayendanegea, or, as he was known to the British, Joseph Brant, the most celebrated Indian leader in

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the Revolutionary War and a towering figure in early Upper Canadian history. 10 The loyalists, both white and native, could not have survived without the generous support of the British government, and, more particularly, of Governor Frederick Haldimand of Quebec. Haldimand took a personal interest in the fate of the loyalists, providing them not only with transport to their new homes but also with food, clothing, tools, and seed once they arrived. In addition, the Quebec authorities furnished the loyalists with free and abundant land, and later the British government gave them generous financial compensation for their wartime losses. Largely because of this bounty, the loyalists did more than survive: they prospered. Furthermore, the initial loyalist migration of 1784 was supplemented by the arrival of thousands of other settlers in the second half of the 1780s, some inspired by motives of loyalty but many more probably lured simply by the abundance of good land. By 1791 the population of the territory north of the lakes was twenty to thirty thousand, and settlement had expanded up the Ottawa River to the Rideau, along the north shore of Lake Ontario almost to the future site of York, across the Niagara peninsula, and up the shore of Lake Erie. 11 The arrival of the loyalists, and of the settlers who followed, transformed the political map of British North America. In 1784 the imperial government, responding to the desire of loyalists in Nova Scotia for political° institutions of their own, created the colony of New Brunswick. In Quebec, change was more gradual. Over the 1780s the area west of the Ottawa River received a rudimentary administrative and legal system with the creation of four separate districts, each of which had its own court of common pleas and land board, and the appointment of judges, sheriffs, and justices of the peace.12 The loyalists were pleased with these developments, but they wanted more. Having grown accustomed to representative government in the Thirteen Colonies, they were unhappy with the non-elective government based in Quebec that now controlled their lives. Another grievance was seigneurial land tenure, which the loyalists regarded as a feudal imposition. The British government acted fairly promptly to address complaints about land tenure, abolishing the seigneurial system west of the Ottawa River in 1788.1 3 On the matter of representative government, however, it moved more cautiously. Although not opposed to representative institutions in principle, the imperial government was convinced that one of the main causes of the American revolution had been the excessive power vested in the elected branches of the governments of the Thirteen Col-

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onies. It was not about to make a similar mistake in British North America. When it finally responded to the political demands of Quebec loyalists, it did so with a measure calculated to preclude a repetition of the American experience. The Constitutional Act of 1791 provided for the splitting of the old province of Quebec into the separate colonies of Upper and Lower Canada, the actual division taking place under a subsequent order-in-council. Each of the Canadas was to have an elected House of Assembly and an appointed Legislative Council; an Executive Council, destined to play an important role in Upper Canada as a sort of cabinet under the chairmanship of the lieutenant-governor, was not mentioned in the Constitutional Act, but nonetheless came into being in the colony's early days. The appointed branch was rendered independent by the sources of revenue it controlled and by its lack of accountability to the assembly, appointments to the Legislative Council being the responsibility of the lieutenant-governor. To encourage the growth of a landed aristocracy, the act stipulated that members of the council were to hold their seats for life. Lastly, one-seventh of the public land was reserved for the maintenance of a 'Protestant Clergy,' a phrase that was intended to apply merely to the Church of England, widely regarded in British ruling circles as a bastion of the social and political order. 1 4 At the head of the administration of Upper Canada was the lieutenantgovemor, who was subordinate to the governor-in-chief in Quebec. The first lieutenant-governor was John Graves Simcoe, a veteran of the Revolutionary War brimming with ideas for the development of Upper Canada. Determined to transform Upper Canada into a well-populated, prosperous society - a society whose very success might prompt the United States to apply for readmission into the British empire - Simcoe put generous land policies into place and actively encouraged American immigration into the colony. 1 5 His successors reformed some of the abuses and inefficiencies in the land-granting system, but the basic principle of free and abundant land remained untouched. The result was a huge increase in population growth. Wave after wave of 'late loyalists,' as they have come to be known, swept into Upper Canada in the two decades after the Constitutional Act, increasing the population to roughly 100,000 by 1812 and extending settlement throughout the southern portion of the colony.16 The pace of progress in this small comer of the world left many in awe. One observer, a loyalist in the Niagara peninsula, boasted to a brother in New Brunswick in 1800: 'This is one of the finest Countrys in the world for a Farmer that will be Industrys [sic] ... you would be as-

The Scene

11

tonished to see the people from all Parts of the States, by land and by water, 250 Waggons at a time, with their familys on the road, something like an Army on the Move; the Goodness of the land is beyond all Description, their is the best of Crops this Season I ever saw.' 1 7 Yet, for the officials charged with guiding the destinies of Upper Canada, progress had a dark side. Not only was the population overwhelmingly American in origin, but only one-quarter of this population was loyalist or of loyalist descent. 18 The dubious loyalty of the remainder would pose a serious problem during the War of 1812. Native people were the great losers in the era of loyalist and postloyalist settlement. White settlers, arriving in ever-greater numbers year after year, wanted one thing above all - land - and government officials were eager to oblige. This meant that the aboriginal residents somehow had to be persuaded, tricked, or coerced into giving up territory they had occupied for centuries. As it turned out, the natives were cooperative, at least initially. By the early 1780s the Mississauga of southern Ontario numbered only about 1,000 and were weakly organized in a few bands scattered across the north shore of Lake Ontario. 1 9 Clearly in no position to resist loyalist settlement, the Mississauga responded positively when officials of the crown raised the subject of land surrenders. Their willingness to cede land reflected their realistic assessment of their own position and also may have been rooted in misunderstanding; the Indians, lacking any concept of private property, believed that they were granting white settlers the right to use the land, not ownership of it. In any event, the first surrender took place in May 1781, when the Mississauga ceded a strip of land four miles wide on the west bank of the Niagara River for 'three hundred suits of Clothing.' 20 This was only the beginning. By the early 1800s the Mississauga had ceded almost all of their waterfront territory in southern Ontario, stretching from the St Lawrence River in the east to the Detroit River in the west, all in exchange for British presents of guns, ammunition, clothing, trinkets, and the like.21 Over the course of the 1790s the Mississauga came to understand the true meaning of the treaties from the British point of view. White settlers, believing that native land rights had been extinguished by the surrenders, denied Indians the right to use, or even travel across, their lands. At the same time, they did not hesitate to encroach on whatever lands remained in Indian hands. Years later some Mississauga elders reflected bitterly that, when the white men arrived, 'our fathers held out to them the hand of friendship. The strangers then asked for a small piece of land on which they might pitch their tents; the request was cheerfully granted. By and

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by they begged for more, and more was given them. In this way they have continued to ask, or have obtained by force or fraud, the fairest portions of our territory.' 22 The Mississauga did what they could to protect their land and their rights. Surveyor William Chewett reported in 1794 that the natives in the Lake Simcoe and Thames River areas were harassing survey parties and protesting the hunting of deer by white settlers, and that it was only with difficulty that they were restrained from taking settlers' cows in lieu of deer. 2 J Such efforts, however, were unavailing; the needs of white settlers continued to take priority over theirs. Whites felt no grief over the fate of Upper Canada's native population. Like the inhabitants of frontiers in other times and places, they were single-minded in the pursuit of their goals - getting land and farming it, building homes, raising families - and had little use for those who stood in their way. And, if we measure them according to their own standards, they were remarkably successful. By the late 1780s the years of struggle were largely behind the loyalist pioneers - although memories of the 'Starving Time' of 1789 long lingered - and subsequent years witnessed the emergence of a largely self-sufficient agricultural economy. Relying on the slash-and-bum techniques of pioneer farming, Upper Canadians grew most of their own food - wheat, oats, and barley were the principal crops - and also kept livestock. Indicative of the strides made by local agriculture was the fact that, from the late 1790s on, Upper Canada exported wheat to Lower Canada and also supplied food to the American settlements on the south shores of lakes Ontario and Erie. 2 4 Although it was a predominantly agricultural society, commerce also had a place. Indeed, because of the shortage of capital, a small number of merchants - such as Robert Hamilton of Niagara and Richard Cartwright of Kingston - acquired considerable influence. 2 5 Yet, that said, Hamilton, Cartwright, and the like were exceptions; most Upper Canadians spent their days not with their heads bent over ledger books but with their hands buried in the earth. The colony was overwhelmingly rural; the only towns of any significance were Kingston, Niagara (Niagaraon-the-Lake), and York. Kingston had its origins in the French regime, a fort being constructed there as early as 1673. After the Conquest, and particularly after the American revolution, Kingston acquired greater importance, serving as a major military and naval base and as a trans-shipment point in the export grain trade and in the westward movement of merchandise from Lower to Upper Canada. Still, despite its commercial and military role, Kingston remained a small community, numbering no more than a thousand souls

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in the 179os. 26 To the west, Niagara was even tinier. Chosen by Simcoe as the colony's temporary capital in 1792 - he also renamed it Newark - the settlement was then described as 'a poor, wretched straggling village with a few scattered cottages erected here and there as chance, convenience, and caprice dictated,' 2 7 or, as another put it, 'a spot on the globe that appears ... as if it had been deserted in consequence of a plague.' 28 As the capital, Newark experienced a building boom and many of the houses erected by government officials were grand structures, the mansions of Deputy Surveyor-General David William Smith and ReceiverGeneral Peter Russell being prominent examples. Yet in 1796, when Simcoe ordered that the capital was to be moved to York, Niagara was hardly a metropolis. It contained seventy houses. 2 9 The move of the capital to York was unpopular with government officials, who were not eager to desert their gracious homes in Niagara for a life in the bush at York. Their feelings were understandable. York, located on an old Indian route to Lake Simcoe and Georgian Bay, had been the site of a trading post and later a fort - known as Fort Rouille in the French regime. Following the Conquest, York, or Toronto as it was then known, was virtually abandoned until the arrival of Simcoe in the 1790s. Visiting the site for the first time in 1793, Simcoe concluded that it was the best possible place in the colony for a naval base, renamed it York, and instructed the Queen's Rangers to begin hacking a town-site out of the wilderness. Progress was slow. At the time of its elevation to the status of capital in 1796, York was still little more than a military camp.3° The location was not without appeal - Mrs Simcoe described the view as 'pleasing' and the waters of the bay as 'beautifully clear and transparent'J 1 - but a long time was to pass before York became a settled community. As an inducement for moving, Simcoe arranged to have one-hundredacre estates in York set aside for government officials.3 2 But for many, deep misgivings remained. Chief Justice John Elmsley complained that, on coming to York, officials had to live 'either in the open Air or Crowded together in Huts or Tents, in a manner equally offensive to their feelings and injurious to their health.'33 Another official, Attorney-General John White, lamented that he had to cut his own firewood and grow his own potatoes, 'however incompatible with my station and education.'34 In fact, the move to York took two years to complete as the functionaries, grumbling and whining, shuffled into the new capital one by one. The town's population remained small for many years, numbering 241 in 1797 and 432 in 1804,35 and was constantly changing as people moved back and

14 Speedy Justice

forth from the town to the surrounding countryside. Gradually, sawmills, tanneries, breweries, and distilleries were built, and local farmers began producing flour and potash for export. Despite the local economy's steady growth, however, the high cost of both goods and labour remained a serious problem throughout the years before the War of 1812.36 Since York was the centre of government after 1796, and since it was the community most affected by the loss of the Speedy, a brief discussion of the texture of life in the capital in the 1790s and early 1800s is in order. The majority of York's citizens belonged to the lower class, and many of them were illiterate. Their social life centred around the tavern, which not only provided lots of liquor but also served as a meeting-place for friends.37 For the members of the upper class, which included for the most part the lieutenant-governor and his cronies, as well as some members of the bench and bar and the Executive and Legislative councils, there were official balls and parties to attend. Another activity enjoyed by the leisure class was visiting between friends, with much consumption of liquor, card-playing, and reading aloud by one member of the group. Shooting, sledding, and fox-hunting were also popular. One fox hunt was described in the Upper Canada Gazette on 14 February 1801 as 'a diversion new in itself to many; and in some of its circumstances to all ... William Jarvis caused a fox of full growth to be unbagged ... turned loose the hounds upon it ... the chace was followed by a number of gentlemen on horseback, and a concourse of the beau monde of both sexes in carioles and sleighs ... After the death of the unfortunate poulterer, his remains served as a dragg, to prolong for several hours the sport.'3 8 Fascinating glimpses into the life of the York elite are provided in the diary of Joseph Willcocks, who arrived in Upper Canada from Ireland in early 1800 and took up residence with a distant kinsman, Peter Russell, the administrator of the colony. Many nights of the week Willcocks either wrote or played cards with visiting friends and there are numerous references in his diary to Peter Russell reading. On 30 September 1800 he noted, 'We had for dinner a Salmon two Perch a piece of Roast Beef a Brace of Pheasant rashers and Peas I spent the Evening at home Willcocks [William, a cousin] was there Mr. Russell read part of Gullivers Travels ... '39 Willcocks's spare time during the day was spent enjoying such pastimes as flying a kite, making bullets, and cleaning his pistols. In December 1801 he 'cleaned Mr Russell's Pistols & dressed the woodden Shoes which I bought this day,' and on another occasion the same month 'Miller & I went out to Yonge Street in the Sleigh.'4° Members of the middle class, which included wealthy merchants, minor

The Scene 15 government officials, and others whose credentials did not qualify them for entry into the upper class, possessed neither the time nor the means to engage in the type of leisure activities described by Willcocks. Nevertheless, as the diary of Ely Playter, first an innkeeper and later a farmer, suggests, even occasions of duty could be turned into opportunities for entertainment. Since 1793 it had been compulsory for every male inhabitant between the ages of sixteen and fifty to serve in the militia and drill at least twice a year. Ely Playter obviously enjoyed these meetings with his fellow militiamen. On 4 June 1802 he wrote: Hurried to the allarm Post to join the Company. The men attended pretty generally, & we march'd into Town & joined the Battalion in the Park. The Men look'd very well we went through no exercise only formed the Line. The Captains gave in their returns to the Colonel! & he disimiss' d us offering a Bever Hatt to the best marksman with the smoothe board guns and another to the best with there Riffles we fired at the Target by Tums ... The Town of Course was full of People, and a great number drunk, whare was restling, Jumping, Boxing, and the like all the evening. 41 On another occasion Playter 'join' d the other Companys in close order - the Men with arms where order'd to the right & we fired three Volleys in Honor of the King by order of the Ajudant and were then Dissmissed - Geo. [Ely's brother] & me went & took some whiskey & water with Mr. H. Heward then came to P. Merrians & Drank some beer & eat some Cakes with Jonathan Ashbridge.'4 2 Though this fare was humble, Playter's diary, like Willcocks's, shows that eating and drinking were important components of all entertainments. Some pastimes could be enjoyed by everyone, regardless of class. A shivaree, which originated in France, was a favourite of the young at heart. This noise-making activity involving much banging of tin pans and kettles was usually held to celebrate a marriage, especially when the match was considered too hasty or incongruous. Both Willcocks and Playter attended the shivaree on 12 October 1802 for Eugenia Willcocks, a relation of Joseph, who married a French royalist, and noted the celebrations in their diaries. Playter was particularly enthusiastic, writing that 'the young beaux of the Town ... a Number of them in disguise assembled and made a great noise about the old Esquires House, till, the Esquire, his Son and Doctr. Baldwin came in a great Passion with their Guns and threatened to Shoot if the disguised Party did not disperse.' The following

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evening 'a small company of wild rakes gathered to keep up the Shivierie' and on the third evening 'all was prepared for continuing the Shivierie and such a noise with drums, Kettles, Cowbells and Homs was never before heard at York.'43 While such celebrations no doubt took on peculiarly local characteristics, the importance of the custom showed the determination of the settlers to maintain vestiges of Old World culture. This determination was displayed not only in adherence to tradition but also by a concerted effort on the part of both men and women to keep abreast of European fashion, even though sophisticated items of dress were often in short supply - or not available at all - in the new colony. There were a number of merchants in early York, yet many goods simply could not be had. Alexander Macdonell, sheriff of the Home District, wrote in a diary entry of 8 January 1799: 'Call'd at Allan & Woods bought a skain of black sewing silk, & borrowed the Encyclopaedia ... Nott the Taylor, call' d in - Gave him a pair of blue pantaloons ... & a scarlet waistcoat to make ... Cald at [Jacob] Herchmer's for a blank book, for red silk & twist. He had neither. Called on [Samuel] Heron, he had neither .. .' 44 His luck had been better the previous day when, at the shop of Allan and Wood, he 'purchased 2 yds. of hair ribbon, tied it on my hair.'45 In 1799 Elizabeth Russell, Peter's half-sister, wrote to her friend Elizabeth Fairlie in England: I want to work a gown with the coulord cottons, and there is none to be got in this country so will be obliged to you if when you go next to Town if you will get me some of the following Coulors two kinds of Browns yellow orange pink scarlet & crimson garter Blue light Blue apple & grass green ... I will also be very thankfull to you if you would get me a muslin gown made as they are worn ... I would have it a smart & visiting afternoon but not quite a full dress, also a calico morning dress ... and if you could send me a fashionable Bonnet and also, whatever is worn most around the waist ... 46

In 1802 Laurent Quetton St George opened a shop in York and a year later advertised in the Upper Canada Gazette a list of articles 'lately arrived from New-York.' Among the items available for men were knee buckles, hair powder and pomatum, razor straps and shaving boxes, leather shoes, and snuff boxes. For the ladies, the list seemed endless. It included cloths, cashmeres, twilled corduroys, coating, striped cotton, cotton check, chintz and calicoes, white and black muslins, shawls, hose, gloves, white cotton night caps, and, for those such as Elizabeth Russell who wanted to trim

The Scene 17

their own dresses, 'Sattin and China ribbons, velvet do ... White and black laces ... black and colored silk, Thread, of different kinds, Tape and bobbins ...'47 Although the York garrison had a doctor in attendance, the civilian population depended for several years on the services of the one qualified physician, William Warren Baldwin, who was also a lawyer and an architect.48 Medical treatment was often given by laymen with the help of a book by William Buchan, entitled Domestic Medicine or The Family Physician. Ely Playter noted in his diary in June 1804 that his friend 'John P.' had called to say that his wife's jaw was dislocated and locked but 'after examining Buchan's Family Phisitian we went with John and soon replaced Mrs. P's Jaw by Buchan's directions .. .'49 Many people, including Mrs Simcoe, had great faith in herbal remedies. She said in her diary that rattlesnake bites could be cured by horehound and plantain juice or by putting the limb in cold mud for half an hour, that wounds would heal after the application of turpentine obtained from the cones of the 'Balm of Gilead fir,' and that, when her son Francis was ill with a stomach problem, she was advised to give the patient 'Crow's foot boiled in Milk till it becomes Red & thick.'5° She found that cat mint in tea was a good 'stomatic' and sweet marjoram tea cured headaches, and that a child had been cured of consumption by drinking tea made with 'consumption vine, a pretty Creeper.'5 1 Probably the most popular panacea was the water in a spring near Niagara 'which is said to cure lameness, blindness & every disorder. The water tastes like Ink & looks very dark. It smells very sulphurous & so does the earth all around it extremely strong of Brimstone.'5 2 The severity of the winter, the lack of adequate heating and sanitation, the heat of summer and the accompanying mosquitoes were frequent causes for complaint and of illness in York. Joseph Willcocks, writing to his brother in Ireland in 1800, said: 'The heat of Summer is insupportable & the Cold of Winter Intollerable, there are many instances of Persons being frozen to death and a Winter dose not pass by with out several noses, fingers, and feet being lost, for my part I dred the Winter altho I have one of the most Comfortable rooms in this Province ... in fact Mr Russell thinks nothing to good for me.'53 For the people of York, attacks of fever were debilitating and sometimes fatal. John Bennett, the king's printer, was one victim who attributed the problem to 'a marsh about 1 / 2 a mile from where I live from which a thick fog arises every morning ... and to the low and uncultivated state of the Country.' During his recovery from a 'severe fit of fever and ague'

18 Speedy Justice

he wrote that 'I have been delirious almost every day, but by taking of bark every hour .. . I have missed the ague these two days past - I am still under a course of bark - I hope in God I shall have no more of it it sets me quite crazy- the Chief Justice has lately recovered and the Speaker of the House is now ill with the fever .. .'54 Lord Selkirk also blamed the 'Easterly winds blowing off the marsh' when he wrote from York in 1803 that the 'Soldiers stationed in the Block house last summer were constantly affected by Fever & Ague.'55 Business in the colony's capital was adversely affected by these bouts of illness among the inhabitants. The day before the Speedy sailed on its ill-fated journey, shopkeepet Alexander Wood mentioned that his country friends were unable to come to town because 'a kind of Epidemick has been raging so generally round this place ... I mean the Ague accompanied with a low but distressing Fever not dangerous tho' painful and lingering. '56 Public displays of loyalty and patriotism were infrequent in York, probably because it was so far from the centre of the empire and also perhaps because of the diverse political sentiments of the residents. An interesting illustration of the remoteness of the colony and the mixed loyalties of the populace is found in the diary entries of Alexander Macdonell for January 1799. On 3 January Macdonell recorded great news from abroad - Admiral Nelson had defeated the French fleet at Alexandria in an action later to be known as the Battle of the Nile. That this naval victory had happened more than five months earlier did not diminish the effect of the news. A great celebration was soon arranged. Colonel Shank at the garrison gave orders for the firing of a feu de joie. Some prominent citizens, including Judge Henry Allcock, Solicitor-General Robert Isaac Dey Gray, and Alexander Macdonell made plans for a huge bonfire to be lit at sundown, for which five cords of firewood were collected. By popular request, led by Peter Russell, an illumination of the whole town would coincide with the other events. This glorious outpouring of affection for the homeland and Admiral Nelson was marred by a somewhat discordant note, described by Macdonell: 'Mr. [William] Willcocks [an Irishman] windows broke in consequence of his not illuminating.' The next day, although the celebrating and partying continued, Willcocks took out a warrant for the arrest of Thomas Smith 'for riotous conduct, &ca, the preceding evening.' Smith was arrested and bail was arranged. Later in the day Macdonell notes: 'The Solicitor, McNab, my Brother [Angus] & self played a Rubber at

The Scene

19

whist. The Solicitor & I gained four points, drank a glass of porter & came home - having a severe cold, mull'd some wine, bathed my feet & went to bed.' On 6 January there was more socializing. 'Bums & Gray dined with me - My Brother dined with [James] Ruggles - An indifferent dinner drank nearly a bottle of port each besides two bottles of porter - Mr. A. Burns, Mr. McNabb & Mr. Allan called in the Evening - drank three bottles more porter & eat bread & cheese ... Conversation during the evening chiefly about Willcocks windows being broke - Different Opinions, mine that he deserved to have them broke - McNabb & Grey uneasy about the business.' On 8 January Macdonell went to the garrison. Again from his diary: Soon after the drum beat for dinner - Shank and Smith, McCauley & self only there - Drank 3 bottles of wine. Walked to Town with McCauley ... Went to the President's [Peter Russell] - found him & Miss Russell, Mr. A. Bums & Mr. A. McNabb at their wine; drank two glasses of wine - Thereafter Mr. McNabb soon retired - Conversation general ... Supper - Retired soon after - ... Went home. Found Messrs. [William] Weekes & [William Dummer] Powell with my Brother Mr. Weekes in liquor my Brother very drunk Mr Powell gay-Conversation general about Buonaparte, Nelson & the Duke of York - My brother talked absurdly Weekes and Powell soon retired, and went to bed at half past eleven.57

Thus the partying wound down. Three of Alexander Macdonell's convivial companions who helped him celebrate the great naval victory would perish with the Speedy, and a fourth would narrowly escape the same fate. The inhabitants of York did not spend all their time partying, admiring their clothes, or complaining about their health. On the contrary, they, and indeed all Upper Canadians, had two abiding passions which gave their lives meaning. One was religion. For those who liked to shop around for the brand of religion that best suited them, Upper Canada was a cornucopia of delights.5 8 The loyalist founders of Upper Canada represented a bewildering variety of denominations, including Anglicans, Presbyterians, Roman Catholics, Lutherans, Methodists, Baptists, Mennonites, and Quakers. This diversity was reinforced with the arrival of the 'late loyalists.' The denomination supposedly established under the Constitutional Act, the Church of England, remained weak throughout the 1790s and early 1800s: it had only three clergymen in the 1790s and six (including the formidable John Strachan) in 1812, and its flock was small

20

Speedy Justice

in all parts of the colony except York. But other denominations, particularly the Methodists and Baptists, grew by leaps and bounds. By 1812 the Baptists had fifteen churches served by nine resident clergy and several travelling missionaries from the United States. For the Methodists, who had more than 1,700 members and 10 preachers in 1805, the turningpoint had come with the arrival of a preacher from New York, William Losee, in 1790. Personifying the emotionally charged brand of religion so central to early Methodism, Losee helped to spark a religious awakening in the Kingston area. It is said that one of his early converts, an 'ignorant, wicked young man,' was 'struck by the power of God while in the act of making derision in a religious meeting.' Apparently Losee, on observing the fellow's behaviour, had 'lifted his hands to heaven and cried out, "Smite him, my God! smite him!" He fell like a bullock under the strike of the butcher's axe, and writhed on the floor in agony until the Lord in mercy set his soul at liberty.'59 The other passion of Upper Canadians - and this is hinted at in accounts of the 1799 celebration of the Battle of the Nile - was politics. Part of the appeal of politics derived from the entertainment provided by public debate of the issues of the day, especially at election time. In early Upper Canada, elections were tumultuous, often raucous affairs where cheers and catcalls were interspersed with flowing liquor and flying fists - as one government official put it, 'the more broken heads and bloody noses there is, the more election-like.' 60 The issues raised in these contests, and political life generally, were often local, and the alignments that developed in response to them differed from one region of the colony to another. In eastern Upper Canada, for example, political conflict revolved around the antagonism between the loyalist elite and later arriving English immigrants, while in the Niagara area the main political issues divided the farming community from the merchant oligarchy led by Robert Hamilton.61 Nevertheless, Upper Canadian political life also had its share of issues that originated at the centre and deeply affected Upper Canadians elsewhere. At the provincial level, Upper Canada's political history began in July 1792, when proclamations issued by Lieutenant-Governor Simcoe and his Executive Council divided the colony into nineteen counties, allocated representation in the House of Assembly among these counties, and ordered elections to be held. The first legislature convened on 17 September.62 Simcoe was not enamoured of the sixteen men Upper Canadians had chosen to represent them in the assembly, terming them individuals 'of a Lower Order, who kept but one Table, that is who dined in Common

The Scene

21

with their Servants,' 6 3 and his opinion did not improve with time. That said, the main opposition to Simcoe's various projects initially came not from the assembly but from the Legislative Council, where Richard Cartwright and Robert Hamilton stood firmly against such 'wild' schemes as the strengthening of the established Church of England.6 4 Moreover, whatever the deficiencies of the first legislature, it had several accomplishments to its credit. In its first session, which ran to 15 October, English civil law, trial by jury, and the English system of weights and measures were introduced, and provision was made for the building of jails and court-houses. (English criminal law existed in the colony from the beginning, having been put into effect in all the territory of the old province of Quebec in 1774.) The legislature met four more times at Niagara, or Newark as it was now known, before being dissolved in 1796. During this period, the assembly rejected only two of Simcoe's favourite ideas - a land tax and an education bill. On the positive side, apart from enacting a variety of housekeeping measures, Upper Canada's first parliament oversaw the beginnings of a comprehensive judicial system with the creation of a Court of King's Bench, district surrogate courts, and a provincial court of probate. Over the opposition of some slaveholders in the legislature, the parliament also provided for the gradual abolition of slavery by banning the importation of slaves and stipulating that the children born to slave women were to gain their freedom on reaching the age of twenty-five. A provincial militia was organized, and a marriage act validated existing marriages that had been performed by justices of the peace and military officers. 6 5 By 1796 Simcoe was increasingly ill. He was also disappointed, many of his more ambitious schemes having been overruled by Governor Dorchester from Quebec City. In July 1796 Simcoe departed Upper Canada on a leave of absence; he never returned, officially resigning the post of lieutenant-governor in 1798. In his absence, Receiver-General Peter Russell acted as administrator of the colony. Cautious to the point of timidity, easily offended, and obsessed with detail, Russell could best be described as a plodding and obsequious civil servant. 66 Nonetheless, he achieved much during his short time at the head of government. Inheriting a land-granting system from Simcoe that was both inefficient and rife with abuse, Russell closed up loopholes, reformed administrative procedures, and generally made land policy clearer and fairer, although he also led members of his Executive Council in a successful effort to gamer thousands of acres for themselves and their families. As the person responsible for supervising the move of the capital to York - a move he

22

Speedy Justice

himself opposed - Russell did his work well, contending all the while with the constant complaining of Chief Justice Elmsley. Once settled at York, moreover, Russell became a father to the little community. He extended the town to the west, introduced a basic zoning plan, and encouraged the erection of public buildings. The accomplishment of which he was perhaps proudest was the start of construction of the Danforth road from York to the Trent River. Russell was immensely proud of this road, which was completed just after his term as administrator was over, proclaiming that it would 'be the making of this Town, and indeed the greatest thing ever done for this Province. I expect the Gratitude of the People will erect a Statue to my memory for it.' 6 7 On Simcoe's resignation in 1798, Russell expected to be named his successor. To his dismay, however, the post of lieutenant-governor went to Peter Hunter. A Scottish bachelor, and a distinguished military officer, Hunter was brusque, impatient, and autocratic, more accustomed to berating his subordinates than to coddling them. 68 His only experience of civil government before his arrival in Upper Canada was as superintendent of the settlement later known as British Honduras (Belize). Afterwards, in the wake of the 1798 rebellion in Ireland, Hunter served as military governor of County Wexford. There, contrary to a claim that he pursued a moderate policy, Hunter had three of the local gentry hanged on a bridge and then decapitated, their heads being impaled on iron spikes over the door of the court-house for several days. 6 9 In Upper Canada, Hunter was determined to run a tight ship. Since his appointment was not only as lieutenant-governor but also as commander of the forces in the two Canadas, Hunter decided that a standing committee of the Executive Council would govern the colony during his lengthy absences. Russell and William Dummer Powell, a Massachusettsborn judge on the Court of King's Bench, would have preferred the appointment of an administrator, but Hunter bluntly rejected their views, insisting that he needed the authority to govern Upper Canada 'upon the principles which his own judgement suggests and for which alone he can consent to be responsible.'7° As it turned out, after 1802 Hunter began to spend most of his time in Upper Canada, but he still relied principally on a small circle of advisers on the Executive Council. The composition of this circle changed over the course of his administration, its key members being Chief Justice Elmsley, Judge Henry Allcock (Elmsley's successor as chief justice), John McGill, and Thomas Scott. Eager to carry on with Russell's work of reforming the land-granting system, Hunter accelerated the issuing of patents (to his own financial

The Scene 23

advantage), overhauled the fee structure, and purged more than nine hundred names from the list of those entitled to free grants as loyalists. These reforms, and similar ones to the machinery of government, were long overdue, but they naturally aroused much anger in the colony on the part of those affected - anger that was intensified by the insensitive, heavy-handed manner in which the new policies were implemented. Hunter could have helped his own cause by attracting the loyalty and support of his subordinates, but instead he alienated many of them through his bullying tactics. To put it mildly, Hunter was not a tolerant person. For example, he told the under-secretary of the Colonial Office that Peter Russell 'is avaricious to the last degree and would certainly ... have granted lands to the Devil and all his family (as good Loyalists) provided they would have paid the Fees.'7 1 One of Hunter's favourite whipping boys was William Jarvis, the provincial secretary and registrar, who aroused the lieutenant-governor's ire by sitting on a large backlog of land patents.7 2 Jarvis was not a model of hard work and efficiency, but he was not entirely to blame for the mess of the land-patent system; one of the main problems with this system was the fact that, because the fees for issuing land patents did not cover Jarvis's expenses, he had no incentive to improve his performance - indeed, if he did pick up his pace, the financial hole he found himself in would become deeper. But Hunter had no patience with Jarvis's excuses. When a number of Quaker settlers complained of delay in receiving their patents, Hunter ordered Jarvis, along with four other officials and the disgruntled settlers, to assemble at his office. Jarvis sought to excuse himself by citing the pressure of other business, a request that brought down upon him the full weight of Hunter's fury . The lieutenant-governor's severe tongue-lashing, delivered in the presence of all the others, ended with the words, 'Sir! If they [the patents] are not forthcoming, every one of them, and placed in the hands of these gentlemen here in my presence on Thursday next [it was then Tuesday], by George! - I'll un-Jarvis you.'73 By the fall of 1801 Jarvis was a broken man. Hunter would require him to walk the two miles to his office several times a day to answer trivial questions when a written answer would have sufficed. Often Jarvis worked from four in the morning until ten at night. On one occasion, his wife, Hannah, said that he had 'come home crying like a child from the treatment he has met with ... '74 Hunter's reforming zeal, combined with his autocratic manner, accentuated the less attractive side of Upper Canadian political life. From the time of Upper Canada's founding, politics in the colony had been riven

24 Speedy Justice

with malicious gossip and petty jealousies. These characteristics of the political scene were partly the by-product of Upper Canada's nature as a small, insular society with a governing elite that was just as small and insular - the colony's rulers and their associates, it has been claimed, were drawn from about thirty families.75 Mean-spiritedness was also the inevitable result of the kind of factional politics practised in the colony. Throughout these years, and for long after, party was a dirty word in Upper Canadian politics; indeed, most politicians avoided it like the plague, equating their own independence from parties as a sign of their enlarged views and incorruptibility. As well, politics in the colony revolved not around policy but around personality, and alignments were usually formed on the basis of personal friendships or rivalries and on the prospect of patronage. The latter was especially important. In early Upper Canada, the retention of power was a challenging, risky game that hinged upon the influence of well-placed patrons. Power, accordingly, always beckoned but was often hard to obtain, and sometimes it was no sooner grasped than the death or fall from grace of a patron snatched it away- an event that could ruin the careers not only of the patron's leading followers but also of the latter's hangers-on. By its very nature, such an environment produced duplicity, constant manoeuvring for advantage, rampant gossip, and clique-ridden politics. To survive and prosper, a person had to ingratiate himself with a more powerful figure, constantly strive to stay in that figure's good graces, and, if at all possible, frustrate the designs of rivals. It was a system that pitted individual against individual, and clique against clique.7 6 These features of political life were evident during the Simcoe years, when the local government was dominated by Peter Russell, Deputy Surveyor-General David William Smith, and Chief Justice William Osgoode. All was not sweetness and light within this charmed circle - Smith did not get on well with Russell, and indeed remained aloof from all cliques.77 Yet those excluded from the circle, such as Judge William Dummer Powell and William Jarvis, were even less serene. Jarvis's wife, Hannah, with the tongue of a viper, blamed the 'Pimps, Sycophants and Lyars' surrounding Simcoe for blighting her husband's prospects, while denouncing Peter Russell as 'the old Rogue' and Elizabeth Simcoe as 'the little stuttering Vixon.'7 8 Infusing this bitterness among the grandees of Niagara was an element of ethnic tension, with leading American families resenting the superior airs of those from Britain. What poisoned the atmosphere still further was an incessant quarrel over the fees accruing from land deeds. This quarrel did not simply pit the 'ins' versus the 'outs.'

The Scene 25

So eager was everyone for a larger slice of the pie that the conflict had no clear battle lines, involving Jarvis, Smith, Russell, John Small, the clerk of the Executive Council, Attorney-General John White, and even Simcoe himself.79 After Simcoe's departure, Russell was at the peak of his power, much to the disgust of Chief Justice Elmsley. With the arrival of Peter Hunter in 1799, however, Russell's star was eclipsed. Although he was named to the standing committee that was to govern Upper Canada during Hunter's absences in the lower province, Russell immediately found himself on the fringes of that body, overshadowed by his hated rival, Elmsley. One year later, in 1800, the Small-White duel occurred, an incident that, while not related to Russell's fall, spoke eloquently about the trivial concerns and childish feuds that marked political life in York. The attorneygeneral, John White, had had an affair with the wife of John Small, clerk of the Executive Council. Shortly afterwards, Mrs Small publicly insulted Mrs White, prompting the attorney-general to question Mrs Small's virtue in a letter to David William Smith. His remarks reached Chief Justice Elmsley, and soon all of York society was alive with gossip. John Small challenged White to a duel; White accepted, and was mortally wounded, dying thirty-six hours later. Small was tried but acquitted, even though the presiding judge, Henry Allcock, disliked Small and would have preferred a different outcome. As a result of these proceedings, Small was cast adrift by his friends, particularly Peter Russell, D.W. Smith's appointment to the Executive Council was postponed indefinitely, and Mrs Small was treated like a leper. Eight years later, Mrs Small still was excluded from genteel society in York.80 Meanwhile, back on the Executive Council, the humiliation of Peter Russell continued. Not only did he have little power in Hunter's standing committee, but even in the full council he was ranked below others, leading him to complain that 'I have the mortification of being commanded by those to whom I was lately Superior, without having done anything to merit this degradation.' 81 By this time, Hunter's policies, especially those concerning land grants, were arousing widespread resentment, and in the last days of the Hunter regime an opposition group slowly began to take shape. United by their political philosophy and sense of Irish identity, the members of this group would later see the Hunter era as a turning-point in the colony's history. Judge Robert Thorpe, the leading figure in the opposition, claimed after Hunter's death that his government had been controlled by an arrogant 'Scotch faction,' which itself was connected to a 'Shopkeeper Aristocracy' that 'stunted the pros-

26 Speedy Justice

perity of this Province & goaded the people until they have turned from the greatest loyalty to the utmost disaffection.' 82 One of Thorpe's allies was William Weekes, whose career demonstrated the importance of cliques in early Upper Canadian politics. 8 3 Weekes was born in Ireland and in 1798 came to York, where he practised law. At first he supported Hunter, seeing him as 'rigorous in his mandates, and deliberate and judicious in his measures,' 8 4 and attached himself to the coat-tails of Henry Allcock. In the election of 1800 Weekes acted as Allcock's election agent, and secured his candidate's victory by closing the poll when he was ahead. (He did this by stirring up a spurious altercation and then shouting 'A riot! - a Riot!' 8 5) However, Weekes's questionable tactics came under scrutiny in the assembly and, after an investigation during which Allcock maintained a haughty, aloof demeanour, the election was voided. The two men then had a falling out, and Weekes slowly moved into opposition - but not into obscurity. In July 1802 Weekes brought action against Allcock, who, he alleged, had insulted him in court. 86 He then inserted in the Upper Canada Gazette the following notice: Mr Weekes requests that such persons as have favoured him with the care of their Law business will not urge him to proceed to Trial therein until a Case in which he is Plaintiff and the Honourable Henry Allcock, Esquire, one of the Justices of the King's bench is Defendant will have been determined. He is induced to make this request rather from a regard to his Clients' interest than to his own benefit. 8 7

This curious advertisement served several purposes. It let everyone know that he was suing the chief justice, it implied that he had so many clients that he could not communicate this message to them individually, and it left the impression that his clients could not get justice while his litigation against the judge was pending. It is also noteworthy for being one of the earliest known lawyer's advertisements in Upper Canada. The following month, York resident Ely Playter noted in his diary: 'The Town in an uproar about Lawer Weekes as no one had seen him for 12 Day nor knew what had become of him, Saml Whitesides the authority put in gaol yesterday. and Weekes House keeper today on suspicion.' In early September the housekeeper confessed that she and Whitesides had murdered Weekes, prompting a depressed Playter to reflect sadly 'at the thought of such heinous crimes being committed in so new a settlement as York.' Bones supposed to be Weekes's were discovered and about to

The Scene 27 be buried when word reached York that Weekes, very much alive, had surfaced at Niagara - according to Playter, Weekes 'had been lost in the wood for many Day's & was quite Insaine.' 88 In May 1804 Weekes's sanity was sufficiently restored to enable him to run for the House of Assembly, but he was defeated by Angus Macdonell, brother of Alexander and treasurer of the Law Society of Upper Canada. 8 9 The latter's victory was short-lived: in six months he would embark on the fatal voyage of the Speedy. The career of another of Thorpe's associates, Joseph Willcocks, also revealed the extent of political factionalism in Upper Canada. As noted earlier, after arriving in York in 1800, Willcocks had moved into the house of his distant cousin Peter Russell. Russell's half-sister, Elizabeth, also lived there, and for a time Willcocks shared a room with a slave known as Jupiter. With Russell's help, Willcocks secured a job in the surveyorgeneral's office, and he also struck up a friendship with William Weekes, as evidenced by his diary entries. On Christmas Day, 1800, Willcocks noted that he and Weekes went to church together and then dined at the Russells' on 'soup, roast beef boiled Pork Turkey Plumb Pudding & minced pies'; and on 28 March 1801 he wrote, 'Weekes called an[d] borrowed three dollars ... We tapped a Cask of Madaira -we had for dinner minced veal soup Pigs cheek and Eggs & Pudding .. .'9° In the summer of 1801, however, Willcocks and Weekes had a falling out, the latter claiming that Willcocks was 'under the Pay of Government as their informer.'9 1 The two agreed to fight a duel on the morning of 21 July, but Willcocks was arrested by the sheriff on his way to the appointed site and was released only after agreeing to keep the peace for six months.9 2 Shortly after this incident, Willcocks's relations with Russell took an ugly tum. Sensing his patron's waning influence, Willcocks had begun cultivating Henry Allcock. As if this were not enough, Willcocks was in search of a woman with money - beauty alone, he once wrote, 'will not make the Pot boil'93 - and his eyes settled on Elizabeth Russell. On learning that Joseph and Elizabeth were, as the former put it, 'pulling a cord together,'94 Russell ejected Willcocks from his home. Finding himself 'naked to the world,'95 Willcocks moved into Allcock's house and, with the assistance of the chief justice, obtained three lucrative posts - registrar of the Probate Court, marshall of assize, and sheriff of the Home District. Content, he remained aloof from the 'Republican Party' and claimed that 'mediocrity ... is the summit of my ambition.'9 6 Disaster, however, was again looming around the comer: in 1804 Allcock left Upper Canada to

28 Speedy Justice

become chief justice of the lower province. Willcocks was a man who could not survive without a patron, and he now began gravitating to the opposition. Such, in broad outline, was early Upper Canada, a society noted, among other things, for the heavily American character of its population, the primacy of agriculture in its economy, the inveterate small-mindedness of its political elite, and the sway of factionalism in its public life. Many of the themes addressed here intersect with the story of the Speedy. At the political level, the loss of the Speedy was not only clearly connected with the kind of government in place at the time, but it also, in an indirect way, precipitated a series of changes in public affairs. As we shall see, Hunter, ever the crusty autocrat, had a hand in the tragedy of the Speedy, ordering it to sail over the protests of its captain. Additionally, the loss of Justice Thomas Cochran on the Speedy was to lead to the appointment of Robert Thorpe as his replacement. This development intensified the bitter factionalism that already characterized Upper Canadian politics, and had a crucial impact on the lives of two Upper Canadians, William Weekes and Joseph Willcocks, both of whom fell under Thorpe's spell. These political threads in the Speedy' s saga will be followed in subsequent chapters. There is another link between the Upper Canada described above and the Speedy. Significantly, the purpose of the Speedy's last voyage was to bring an Indian charged with murder to trial. The loss of the ship - and of the Indian prisoner aboard it - is therefore closely tied to the increasing marginalization of native people in early Upper Canada and, more specifically, to the failure of those in authority to treat natives and nonnatives equally before the law. It is to this theme that we will now turn.

2 Natives, Society, and the Law

The deteriorating position of natives in Upper Canada was the result of fundamental changes in native-white relations that had begun after the end of the American Revolutionary War. Before the revolution, native people had been valued both as commercial partners and as military allies. Indeed, New France depended on its native friends for its very survival, and after the Conquest of 1760 Britain too was anxious to maintain good relations with the Indians both in order to exploit the fur trade fully and to restrain the ambitions of the Thirteen Colonies. The outbreak of the American revolution cemented the alliance between Britain and several Indian nations, particularly the Mohawk, but its conclusion heralded the beginning of a new era in which native people would occupy a much different role. The importance of maintaining a military alliance with Indian nations was still recognized; for example, Simcoe hoped to create an Indian buffer state, composed of Britain's native allies, between the newly independent United States and Upper Canada, and in subsequent years British authorities encouraged native efforts to create a powerful confederacy in the continental interior. At the same time, however, native people were no longer just allies whose friendship had to be encouraged; they were also, after the arrival of the loyalists, obstacles to settlement. In Upper Canada, accordingly, the white perception of native people was deeply ambivalent. Officials there understood the importance of native people in British military strategy, and were also deeply concerned that Indian discontent in Upper Canada might lead to a bloody uprising in

30 Speedy Justice

the colony itself. Yet alongside this mixture of respect and fear was a growing element of contempt. Increasingly, government authorities saw native people as barbaric savages who must not be allowed to block the march of civilization. Settlers, less concerned with grand military planning than with the practical business of survival in a frontier setting, shared this view. For them, there was nothing admirable about Britain's native allies. They were merely a nuisance that needed to be eliminated as quickly as possible. 1 Of all the government officials who served in early Upper Canada, Simcoe probably had the most positive view of native people. The respect with which he treated them was evident in 1793. On 24 September of that year Simcoe embarked on a canoe trip to Matchedash Bay on Lake Huron via what are now known as the Humber and Holland rivers, lakes Simcoe and Couchiching, and the Severn River. Five canoes were used, and, besides Simcoe himself, the party consisted of the sheriff of the Home District, Alexander Macdonell, four officers of the Queen's Rangers, four Indians, a survey party, and four regular soldiers, one of whom was named Charles McEwan. A detailed journal of the trip was kept by Macdonell. In addition to describing the rugged beauty of the Ojibwa's domain, this journal reveals much about Simcoe's attitude towards native people and about the Ojibwa themselves. Coincidentally, the journal is also interesting because of its links to the story of the Speedy. Alexander Macdonell was the brother of one of the Speedy's victims; and another of the characters who figures in the journal's pages - George Cowan, a trader at Matchedash Bay - also perished on the Speedy. Charles McEwan did not sail on the Speedy's last voyage, but he too sheds light, as we shall see, on one of the subthemes of the tragedy, natives and the law. On the trip north through Lake Simcoe (formerly Lac Aux Claies, renamed after Simcoe's naval-officer father) the lieutenant-governor's party landed at an Indian encampment at a place now known as De Grassi Point. The Indians 'fired a feu de joie to compliment His Excellency, which we answered with three cheers .. . Soon after our landing the Indians came in a body to wait on the Governor, to whom they presented a beaver blanket, which he declined taking then, but promised to take it upon his return from Matchetache Bay. They were all more or less drunk and made rather an unintelligible speech ... His Excellency was sorry that he could not see Keenees, the chief of the village, with whom he was acquainted, as he was dangerously ill.' Two days later the travellers reached the narrows leading from Lake Simcoe to Lake Couchiching. When an Indian in the lieutenant-governor's

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canoe saw two Indians paddling across the narrows, 'he gave the death hallow; the strange Indians made for land, and we, seeing the wigwam, followed.' On landing, the Indian from Simcoe's party told in 'melancholy detail of the number of deaths that had lately happened among the Lake Simcoe Indians, and closed his speech with saying that "the end of the world was at hand. Indians would be no more." An old Indian, owner of the wigwam, gave a similar unpleasant account of the great sickness in his neighbourhood .. .' The party proceeded down a river (now known as the Severn). After crossing the third portage, they encamped. The journal continues: 'This place is said to be much infested with rattlesnakes; it certainly has much the appearance of it, being almost a solid rock, with a few scrubby pines and oaks growing upon it. John Vincall of the Rangers, cut one of his toes almost off here.' The following day, after the fifth portage, the beauty of the country stirred Macdonell to write: 'The scene of the place is pleasing and romantick; the portage is a solid level rock, with a few small pines and oaks growing out of the rents. The falls rush, as may easily be conceived to be the case, from an immense body of water, having a great descent, and being condensed between two rocks, at not more than fifteen feet asunder.' On 4 October the travellers arrived at Matchedash Bay, where they were met by a white trader named George Cowan who had resided for the past fifteen years in a stockade on the bay's north side. Macdonell thought it worth noting that Cowan 'does not allow the Indians to get drunk within the garrison.' He also observed that Cowan had been 'taken prisoner by the French at Fort Pitt during the war of '58 and '59, when a boy,' that he 'speaks much better French than English,' and that he 'is a decent, respectable looking man, and much liked by the Indians.' The Simcoe party camped in the woods half a mile from Cowan's residence and the next morning the lieutenant-governor met with the Indians, Cowan acting as interpreter. They told Simcoe that 'they were happy to see him in good health and thanked him for taking the trouble of visiting them in their own country.' He replied that he 'would always be glad to hear of the prosperity of the Indians, and entreated them to attend to their hunts, and told them that he wished for nothing more than seeing them and his children, the whites, live in harmony together and mutually assist each other.' He promised them a keg of rum, to be delivered on the day of his departure, and told the chief he would send him from York a silver medal and a flag, 'the usual badges of distinction.' This happy scene was marred somewhat by news which reached Matchedash Bay. The Lake

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Simcoe Indians 'were much mortified' that the lieutenant-governor had not taken the beaver blanket which they had offered him six days earlier. After meeting with the Indians at Matchedash Bay, Simcoe with Cowan 'and the gentlemen of the party embarked in one of Mr. Cowan's large canoes, worked by five Canadians ... intending to visit Penetanguashin ... The wind blew so fresh that we could not effect our purpose ... We however, landed upon an island called by Mr. Cowan "Place La Traverse" [Beausoleil Island].' From there they could see the harbour, which Simcoe judged to be suitable for vessels of eighty or ninety tons. On 6 October, twelve days after they had set out, Simcoe and his party started on their return voyage. They went back to the campsite near Cowan's and the lieutenant-governor gave the Indians 'the keg of rum agreeable to his promise. After some little ceremony on their part in wishing us favourable weather and a clear day, & c., we pushed off from shore, upon which they saluted as they did on the day we arrived in the bay, and we answered as before with three cheers.' Later that day, after going five or six miles past the first portage, one of Simcoe's Indian guides became ill, so Lieutenant James Givins, one of the Queen's Rangers, and two of the other Indians returned to the point of departure with the sick man. They were hoping to obtain another guide in his place, but when they arrived back the Indians on the point 'had paid their devoirs so very strenuously to the rum keg that they had not the use of their limbs or reason. Finding that none would come with him and expostulation being in vain, he [Givins] put the sick man on shore, pushed off and joined us in the evening.' When they reached De Grassi Point again, 'His Excellency humanely went to pay a visit to Keenees, the chief, who ... was dangerously ill when we passed on our way to Matchetache Bay,' but on reaching the wigwam he was told that Keenees had been dead for some days. 'A man possessed of less sensibility and feelings than the Governor would have been shocked on this occasion, but his were plainly painted on his countenance upon his return to camp.' That evening a number of Indian women came to visit Simcoe, two of them carrying images of their deceased husbands, 'dolls about two feet long, decorated with silver broaches, feathers, paint, & c., if a chief, as was the case with ... [Keenees], his medal is hung to his neck, the face painted black.' Simcoe gave them some knives and looking-glasses. Macdonell's journal continues: At 8 o'clock the Indians came in a body, and being seated around the fire, each got a dram and a piece of tobacco, after which the chief got up, thanked their

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Great Father, and presented him with the beaver blanket, which he spread under him. He then said: 'You white men pray; we poor Indians do not know what it is, but we hope you will entreat the Great Spirit to remove the sickness from amongst us.' To which the Governor replied that they should certainly be remembered in the prayers of the whites. He then ordered them a keg of rum and they went away perfectly happy, and highly pleased that the blanket was accepted, and that they had made their Father's bed.

On 16 October Macdonell recorded: 'When we came to the forks of the river we saw an eagle sitting on a muskrat house. The Indian in the bow fired, but in vain, being only loaded with duck shot.' The party arrived back in York on 20 October, twenty-seven days after its departure. 2 Macdonell's journal of Simcoe's 1793 trip to Matchedash Bay, with its references to drunkenness, widespread illness, and death, illustrates the suffering and demoralization of the Ojibwa in the 1790s, a mere decade after the beginning of white settlement north of lakes Ontario and Erie. The journal also makes clear that, while Simcoe had his faults, he was not blind to the problems and needs of native people. While he was determined to open Upper Canada to white settlement - a goal that necessarily entailed the removal of natives - Simcoe nonetheless held native people in the highest respect and sympathized with them in their troubles. His feelings on this score, rooted to a certain extent in his appreciation of the importance of the military alliance with natives, never translated into concrete changes in government policy. Yet they remained genuine all the same. To put it simply, Simcoe, whatever shortcomings he may have had with regard to native people, had sympathy for them. There were a small number of people in York who shared Simcoe's compassion towards native people. Ely Playter noted in his diary on Sunday, 19 September 1802, that he had attended a Quaker meeting. One woman said 'prayers for our Wellfare Happyness and growth in serving the most Gracious and Mighty Being to whom all Nations are but as the Dust of the Ballance.' Anna Mifflin then said a prayer and after a short pause 'the last mentioned Friend rise [sic] and gave us a lecture on the ill custom of Selling strong Liquor to the innocent & ignorant Indians, and after warning us of the Bad consequences and the Risk of incuring the Divine Displeasure by that pernicious habit a short Silence ensued ... and the meeting closed.' One of those present at this meeting was Thomas Paxton, the Speedy's captain.3 Still, these people were exceptions; most Upper Canadians had a different view of natives. Over the course of the 1790s, as the settlement of

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the colony continued apace, prejudice against native people became more and more pronounced. The attitudes whites displayed towards natives were, in a sense, understandable; the meeting of natives and whites in early Upper Canada did indeed leave many natives, especially those in the southern parts of the colony, impoverished and prey to the temptations of alcohol. Nevertheless, what is striking about many white comments about natives in Upper Canada in the 1790s was the lack of sympathy, sensitivity, and understanding. For instance, while Mrs Simcoe was favourably impressed with 'some Indians of the Gibbeway [Ojibwa] tribe .. . from near Lake Huron,' saying that 'they are extremely handsome & have a superior air to any I have seen, they have been little among Europeans therefore less accustomed to drink Rum,'4 she had less use for the Mississauga along Lake Ontario. In 1792, after arriving with her husband in Kingston, she described the Mississauga there as an 'unwarlike, idle, drunken, dirty tribe ... [who] saunter up & down the Town all day, with the apparent Nonchalance, want of occupation & indifference that seems to possess Bond street Beaux,' although adding that 'they never quarrel with white people unless insulted by them.'5 The Due de la Rochefoucauld-Liancourt, on visiting Kingston in 1795, was just as blunt, noting that the Mississauga there were 'the filthiest of all the Indians, I have hitherto seen, and have the most stupid appearance. They are said to live poorly, to be wicked and thievish, and men, women and children all given to drinking.' 6 Another witness, Joseph Willcocks, was not so much hostile as indifferent to natives, writing in his diary on 27 April 1801: 'Saw some Indians fighting I parted them one of them attempted to Strike me I nocked him down they were then quiet Dined when I came home on roast fowl & Pudding.'? This terse account spoke volumes: native depravity was to be expected, and natives themselves did not matter all that much - if at all. Attitudes such as these had important implications for government policy and the development of Upper Canadian institutions. The speed and efficiency with which land surrenders were concluded can be seen both as a measure of the hunger of whites for land and as evidence of a pervasive and deeply rooted belief among white Upper Canadians that Indian occupation of the land should not be viewed seriously - a people as depraved as the natives were had no right to stand in the way of civilization. Indifference, as well as active hostility, towards native people also influenced the workings of a key arm of the Upper Canadian government, the legal system. In this area, the situation, admittedly, was complex. The application of the law to Upper Canada's native population

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was marked as much by confusion as by racial prejudice. Still, when it came to native people, the justice system was far from perfect. Confusion at official levels often worked in their favour, it is true, but there were also times when natives who did harm to whites were treated differently from whites who did harm to natives. The fundamentals of the Upper Canadian legal system can be briefly summarized. As indicated earlier, before the Constitutional Act of 1791, English criminal law - with all its brutal punishments for relatively minor crimes - was in effect in the province of Quebec, including that portion west of the Ottawa River, by virtue of the Quebec Act of 1774. With the creation of Upper Canada, English civil law also was introduced into the colony by an act of the first legislature. As for the court system charged with implementing these laws, it underwent major changes over the 1780s and 1790s. In the wake of the loyalists' arrival, courts of common pleas and surrogate courts were established in each of the colony's four districts to handle all civil matters, while criminal cases were left to the district courts of quarter sessions staffed by justices of the peace. The latter did not try capital cases, however; these were remitted to trial at the district assizes, where they were considered by the judges of Oyer and Terminer and General Gaol Delivery. This structure remained in place until the passage of the Judicature Act of 1794, which replaced the district courts of common pleas with a superior Court of King's Bench that had both civil and criminal jurisdiction. A companion measure set up new district courts to deal with contract disputes under£ 15; still other acts authorized justices of the peace to consider cases involving less than 5 shillings, and established a court of probate with district (surrogate) branches to rule on inheritance cases. The Court of King's Bench sat at York four times a year to hear appeals on points of law, and its judges held assizes once a year in each administrative district. 8 In terms of the hierarchy of judicial office, the attorney-general of Upper Canada was the chief legal counsel to the crown and its representative in the courts. But, in actual practice, he was not as influential as the chief justice. The latter, unlike the attorney-general, had a seat on the Executive Council, and, at least under Simcoe and Hunter, the ear of the lieutenantgovernor. 9 Occupying the post of chief justice from 1791 until the early 1800s were three very different men. The first chief justice, William Osgoode, who served from 1792 to 1794, was diligent and able. As Simcoe's principal adviser, he drafted the Judicature Act of 1794 and also framed the colony's jury laws, which lasted, with some modifications, until 1850. 10 His successor, John Elmsley, not-

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withstanding his constant bickering with Peter Russell, was a similarly capable jurist whose main concern was to adapt English laws to Upper Canadian conditions.11 He was also a kindly, public-spirited person with a good sense of humour; in November 1797 he informed David William Smith, 'There is no news here except the death of my Parrot, who departed this life the day before yesterday without a will: My father in law has administered to the Estate, & is now employed in [mounting] the skin of the Deceased, as a memento of the long friendship which subsisted between them.' 12 In 1802 Elmsley moved to Lower Canada, where he succeeded Osgoode as chief justice of that province. Taking Elmsley's place as the chief justice of Upper Canada was Henry Allcock, undoubtedly the least attractive personality to hold that post before the War of 1812. 1 3 Before his elevation to the chief justiceship, Allcock, as a judge on the Court of King's Bench, alienated both Judge William Dummer Powell and Elmsley (his patron) by his insistence on the use in Upper Canada of the full pomp and procedures of English law. When Elmsley was transferred to Lower Canada, Powell expected to be named chief justice by reason of seniority. However, Allcock, with the support of Hunter, was given the appointment instead. Now wielding both legal and, as one of Hunter's main advisers, political power, Allcock was by all accounts a vindictive, arrogant, and difficult person. His 1800 election to the House of Assembly by devious methods (to say nothing of the impropriety of a judge's election to the assembly in the first place), and the subsequent overturning of that election brought his high office into ill repute. So did a public spat in 1803-4 with the Reverend George Okill Stuart of York. Occasioned by the latter's decision to publish banns on Good Friday, this dispute was marked by Allcock's insistence that Stuart sign a document admitting his guilt, and by the latter's complaint that he had been 'insulted in the Discharge of his office' - to which the judge replied, 'Dont be impertinent!' Reports from York to George's father, the Reverend John Stuart of Kingston, suggested that Allcock's 'unwarrantable Brutality happened in a Paroxysm of madness.' John Stuart himself, furious over the way his son was being treated, called the judge 'passionate, illiberal & vindictive,' decried the tyranny of the 'iron Hand of Power,' and lamented the 'Lukewarm set of Christians' in the Upper Canadian capital, where 'not less than six kept mistresses may be counted.' 1 4 As it turned out, George Stuart did not have to put up with Allcock for long. In 1805 the 'great, angry man' - to quote John Stuart- succeeded

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Elmsley as chief justice of Lower Canada, and there he made himself just as unpopular as he had been in the upper province. So much for structure and personality. With respect to the matter that concerns us more directly - the administration of justice - a point that needs to be made at the outset is that capital cases involving whites only were straightforward matters for colonial officials. When one white killed another, prosecution, trial, and hanging followed swiftly. The first hanging in York, in May 1800, was for the crime of obtaining the sum of three shillings and ninepence by use of a forged note. Lieutenant-Governor Hunter had no hesitation in signing the warrant for the hanging of this poor unfortunate, Humphrey Sullivan. Alas for Sullivan, his hanging was botched; Joseph Willcocks wrote that 'there was no getting a Hangman untill at length an other dear Countryman who was in for Robbery, with the promise of a Pardon & twenty Guineas to carry him out of the Country filled the Office with the most unpardonable Ignorance, the Gentleman who was to die fell three times from the Gallows ...' 1 5 In August of the following year, Chief Justice Allcock presided over the trial of George Nemiers and Mary London, who were alleged to have poisoned London's husband. The trial began on the morning of Friday, 14 August, at 9:30 a.m. and was all over eight hours later, when the defendants were convicted of murder and Allcock pronounced the court's sentence that both were to be 'hung till dead, afterward to be hung in chains.' 16 The contrast between such cases and those involving natives only, or a native and a white, was striking. When an Indian was the killer of a white man, or when one Indian killed another, there was considerable confusion at high levels about the jurisdiction of the courts and about what government policy should be. A major question that was discussed but not resolved until about 1830 was whether Indians charged with murder could be tried in British courts according to British laws, or whether their conduct should be judged according to ancient Indian customs and usages, one of which recognized the right of retaliation in cases where a member of a tribe had been killed by a member of another tribe or by a non-Indian. In the minds of the colonial authorities, this issue was relevant to all Indians in the colony. It was complicated by whether or not such matters were covered by treaty, and also by whether or not a tribe surrendered one of its members to colonial authorities for trial. A subordinate question was whether a tribe had obligated itself by treaty to surrender its members for trial. A notable case involving the question of jurisdiction occurred in 1795.

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That year Isaac Brant, son of the famous Mohawk chief Joseph Brant, apparently without provocation, fatally shot a white man named Lowell who was a deserter from the American army. In a letter about this case to Lieutenant-Governor Simcoe, Peter Russell stated: 'It is likewise said that his [Joseph Brant's] son has lately murdered a White man by blowing his Brains out in the presence of two other white men; but I do not hear that information has been yet regularly made of the transaction before a Magistrate though it has been so publicly talked of that I have little doubt that the Grand Jury will present it to the next Quarter Sessions.' 1 7 Simcoe brought the Isaac Brant case to the attention of the governor, Lord Dorchester, seeking directions as to what should be done if the Indians refused to deliver up the person accused of murder. He then added: I am led to believe that Captain Brant says he will give up his son, but that he clandestinely has obtained of the other Tribes, the Cayugas especially, to refuse his delivery. Colonel [John] Butler informs me that he understands the Six Nations will give up the young man, but in case of condemnation will intercede for his pardon. On the Supposition of this Event taking place and the Conviction of the supposed criminal, I am to request your Lordship's Opinion whether it will be proper to respite the Convict till His Majesty's pleasure be known. Of course I shall not take any steps and shall restrain the Attorney General from applying to the Indian Department for the obtaining the delivery of the accused Person till I am acquainted with your Lordship's pleasure. 18

This case had a curious postscript - late in 1795 Isaac Brant died from a wound inflicted during a scuffle with his father. Simcoe reported to Lord Dorchester on 22 December: 'Your Lordship has not thought proper to give me the directions which I thought it my duty to ask from you relative to the Murderer, Captain Brant's Son - I consider it as a fortunate circumstance that in attempting to assassinate his father this dangerous young man fell the victim of his own Atrocity.' Simcoe then went on to say that, if Isaac Brant had survived the altercation with his father, he would have proceeded against him for the earlier crime, with military force if necessary . 1 9 This claim rings rather hollow since in the eight months since the crime nothing had been done and Dorchester had not agreed to taking action. No proceedings were taken against Joseph Brant in connection with Isaac's death. The failure to take action against Isaac Brant for the alleged murder of

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a white was no doubt prompted in part by a desire to avoid a confrontation with Joseph Brant, with whom delicate land negotiations were taking place. But it was also probably linked with uncertainty about the propriety of trying and punishing an Indian in a white man's court unless his tribe surrendered him for that purpose. In the years prior to the American revolution, Sir William Johnson, the superintendent of northern Indians in the Thirteen Colonies, had apparently believed that there was a treaty covering the surrender for trial of Mohawks charged with murder. But Simcoe reported to Governor Dorchester in 1795, in connection with the Isaac Brant case, 'I am sorry that the treaty between Sir William Johnson and the Mohawks in which the Nation promises to give up all Murderers, is not to be found.' 20 A few years later, during Lieutenant-Governor Hunter's regime, the civil authorities were faced with another delicate case. In 1800 two Mohawk Indians were killed by other Mohawk Indians, in circumstances that would have justified murder charges, at the Tyendinaga settlement on the Bay of Quinte. After failing to obtain action from the local magistrate, Chief Deserontyon, who was the brother-in-law of one of the victims and uncle of the other, complained to Lieutenant-Governor Hunter. In response, instead of ordering a prosecution in the courts, Hunter convened a council presided over by William Claus, the deputy superintendent-general of Indian affairs, James Givins, now an Indian Department official, and a Lieutenant McQueen of the Queen's Rangers. The council heard evidence for eight days, at the conclusion of which Deserontyon was persuaded by Claus to shake hands with the killers, which he did most reluctantly, and the killers were required to place wampum on the graves of the victims. 21 These proceedings demonstrated that, on some occasions at least, the civil authorities proceeded cautiously in murder cases involving natives, partly, it would seem, because of their desire to maintain good relations with their Indian allies and also because of uncertainty about the relationship of the Indians to the colonial legal system. Parenthetically, it should be noted that the Indian custom of atoning for murder by placing wampum on the victim's grave was not always viewed positively by colonial authorities. In the Isaac Brant case mentioned above, Simcoe had told Lord Dorchester that 'He [Isaac] renovated the Indian Custom of covering the grave of the murdered person which had been rendered obsolete by Sir William Johnson's treaty, and is totally inadmissible.'22 The issue of jurisdiction was not the only cause of judicial uncertainty in cases involving native people. When an Indian charged with murder

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was tried in a white court, the question arose whether hanging should inevitably follow a conviction or whether the crown should extend royal clemency and commute the sentence to imprisonment or exile. This dilemma was underlined as early as 1773 by Sir William Johnson in a dispatch to the secretary for the colonies, the Earl of Dartmouth. At this time, though Johnson was based in the Mohawk valley in colonial New York, his jurisdiction as superintendent of northern Indians extended into the recently acquired Canadian territory of Quebec, part of which later became Upper Canada. The relevant parts of this dispatch are set forth below: Last month ... the Cheifs of the Six Nations arrived at this place on the subject (as they gave me notice) of the murder committed by a small party of Senecas on Four Frenchmen on Lake Ontario ... After sundry conferences as well in private with the principal men amongst them as in public with them all, I have at length satisfied them that their antient custom of making attonement and covering the graves (as they term it) is not, neither can it be deemed any satisfaction for murder, in consequence whereof they have agreed to make restitution for the Peltry taken from the deceased, & to deliver two of the murderers (the other having fled) for the performance of which they have left three hostages in my hands ... it will on many accts. be the best policy to shew the Prisoners as much clemency as is consistent with the Dignity of Government, because they are both young, inconsiderate, and have been entirely influenced by the wicked fellow who escaped, & indeed it is the first instance wherein the Six Nations have been induced to make the attonement required by our laws, for as they derive no benifit from, and are not permitted to partake of them, they think it peculiarly hard to deviate from their own antient usages in such cases, which were even confirmed by agreements between them and the White People at the first settlement of the Country, & generally practiced to the present time, and more especially as this tho' an act of Justice by our laws, will be made use of by those who are disaffected in the other confederacies much to our prejudice, on account of the many murders committed by our people with impunity, of which there are no less than eighteen recent instances. 2 3

The same issue was raised in a case of the 1820s, in which an Ottawa Indian named Shawanakiskie was convicted of the murder of an Indian woman in the streets of Amherstburg. In his report on this case to the colonial secretary, Lord Bathurst, Lieutenant-Governor Peregrine Maitland enclosed a report from the trial judge, William Campbell, which stated in part:

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The case was most atrocious and fully proved - He was consequently sentenced to suffer death as prescribed by the Statute, but it having been urged by his Counsel that other Judges had on former occasions expressed an Opinion that the Indians of this Country are in no case amenable to our Laws, being exempted therefrom by Treaty, I have thought it expedient to respite execution of the sentence ... in order that Your Excellency may be able to ascertain upon what Authority such opinion is founded .2 4

Inquiries followed as to whether such a treaty existed, and as to the views of other judges, and in 1825 Maitland reported to Bathurst that no treaty existed which stated that an Indian was not to be considered as amenable to the law for offences committed against another Indian. 2 5 By 1826 the matter had passed into the hands of Sir Robert Peel, who had been assigned the task of humanizing and reforming the criminal law. Peel issued a warrant giving Governor Dalhousie discretionary power to carry out the death sentence against Shawanakiskie, but he also instructed both the governor and the lieutenant-governor of Upper Canada: Inasmuch as some circumstances unknown to Us may be Known to you Our Governor of our Provinces of Upper and Lower Canada, or to you our Lieutenant Governor of Our said Province of Upper Canada which may render it inexpedient to Execute the same ... that if there shall appear to you or either of you to be good reason for not carrying the said Sentence into full effect, you do cause to be passed under the Great Seal of Our said Province of Upper Canada Our Most Gracious Pardon of the said Murder and Felony upon Condition that the said Shawanakiskie be Transported to New South Wales or Van Dieman's Land or some one or other of the Islands adjacent for and during the Term of his Natural Life, or be Imprisoned in some Prison in the said Province and there kept to hard Labour for the same Term, as to you or either of you shall seem most meet and agreeable to Justice. And for so doing this shall be your Warrant.

The preamble to the warrant states that 'we thought fit to refer the Proceedings in the said Case to our Advocate, Attorney and Solicitor General for their Opinion, who have Reported unto Us that the Conviction of said Shawanakiskie was proper.' 26 There is no evidence that Shawanakiskie received a pardon. As far as native people were concerned, then, the administration of justice in Upper Canada was characterized by a peculiar combination of uncertainty and sensitivity, depending on the status of the accused. But this is not the entire picture. In cases involving the murder of Indians by

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whites, the legal system sometimes failed native people dismally. As already noted, Sir William Johnson had indicated in 1773 that by that date there were eighteen instances in which white people had murdered natives 'with impunity.' In using the word 'impunity,' Johnson did not mean to imply that white people who killed Indians were immune from punishment; he was rather drawing attention to the failure of the justice system to punish those guilty of such crimes. Nothing changed in this respect in the early years of Upper Canada's history as a separate colony. Sometimes the civil and judicial authorities were to blame; on other occasions the fault rested with white juries. For native people, however, the result was the same: justice was denied them. The eighteen instances cited by Johnson would no doubt have included the glaring case of David Ramsay and his seventeen-year-old brother, who in 1772 killed eight Mississauga Indians in two separate events. 27 The first killings occurred in March 1772, on Kettle Creek, near what is now St Thomas, Ontario. In a dispute over rum, David Ramsay killed and scalped a warrior named Wandagan and two women, while the rest of the band was absent. The Ramsay brothers then fled to Long Point, on Lake Erie, where some Mississauga caught up to them. Capturing them, the Indians tied up the brothers, but the latter freed themselves during the night while the Indians were drinking. After Ramsay killed and scalped five of the Mississauga, including a woman and child, he and his brother made their way to Fort Erie, where they were apprehended and sent to Montreal for trial. Ramsay pleaded self-defence, causing Sir William Johnson to write, 'Killing a Woman and Child, and then Scalping them afterwards is inexcusable, and the Circumstance of his being able to do all this, is an evident proof that he was not in the danger he represents, and that the Inds. were too much in Liquor, to execute any bad purpose.' Knowing the ways of white juries in cases of crimes committed against Indians, he added, 'I don't think he will Suffer, had he killed a Hundred.' 28 The British commander-in-chief, Thomas Gage, informed Johnson that 'I am trying all I can to get Evidence, for if what is related concerning his Cruelty is true no wretch ever more deserved the Gallows.'29 But Ramsay was acquitted by a Montreal jury for want of evidence. Years later a son of one of Ramsay's victims tried unsuccessfully to kill Ramsay at the rapids on the Maumee River, in what is now Ohio. Ramsay escaped to Detroit and later prospered in Upper Canada, where he lived on a large tract of land on Lake Ontario, west of York.3° Another example of the failure of white justice occurred in the fall of

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1793, when a man named Perish Montour, accompanied by his brothers, his father-in-law, and a brother-in-law (named Tootum) committed two particularly revolting murders in the Raisin River district. After shooting an Indian man, they 'stripped his Wife and ravished her one by one, close by the body of her bleeding husband and then put a Knife into her.'3 1 They then fled, taking the deceased's belongings with them, including his horse. When word of this reached Lieutenant-Governor Simcoe in July 1794, he wrote to Lord Dorchester: I enclose for Your Lordship's perusal, the copy of a letter which I lately received from Colonel (Alexander] McKee, relative to the murder and robbery of some Indians. I am totally at a loss how to act in this affair. Chief Justice Osgoode, and I believe all the gentlemen of the Law, do not think the sentence on such a murderer, if it should be death, could be legally executed upon any conviction that might take place under a Civil Court of Judicature. Should Your Lordship be of opinion that the offender is subject to be tried by a General Court Martial ... it might be advisable to have the criminal apprehended, tho' the distance of time that must necessarily intervene between Your Lordship's approval of the sentence and its execution, would be much to be regretted. Having been informed of some former difficulties on this very Subject, I stated it to Mr. Pitt, cursorily, before I left Great Britain, if they still subsist in Your Lordship's opinion, I hope you will have the goodness to intimate to the King's Ministers, the necessity of their being obviated .. .32

Simcoe does not explain the reason for doubting the jurisdiction of a civil court, but it seems probable that his doubt related to such a court's territorial jurisdiction, since the crime of Perish Montour and his gang happened beyond the Detroit River in what is now Michigan. At that time this area was probably considered to be Indian territory in which both British and American forces were operating. It was not until 1803 that the British parliament passed an act extending the jurisdiction of the courts of Upper and Lower Canada into Indian territory.33 This act, of course, was not retroactive; Montour and his cronies escaped unpunished. Despite the inability of the authorities to deal with Perish Montour's gang, some small measure of justice was meted out. The Reverend Edmund Burke, the Catholic priest in the Detroit area, reported to Alexander McKee in 1795 that 'Montour who killed the indians has broken the heads of two or three of the gang who wou' d not stand to their primitive agreement & threatens one of them with Death.'34 Then there was the case of Chief Snake, which subjected British justice

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to a severe test shortly after Simcoe's arrival in the colony. On 25 June 1792 Chief Snake met his death at Kingston in an altercation with soldiers of the 26th Foot. An inquest conducted by Coroner John Howard certified that the chief had been wilfully murdered and that later evidence 'strongly induces a suspicion that five persons ... are guilty of the said Murder.'35 On 12 July acting governor-in-chief Alured Clarke reported the matter to Simcoe, noting: 'I trust that summary steps taken by the Government to bring the offenders to condign punishment, will calm the wrath of the friends of the deceased, and that as they seem already satisfied with the honors paid to the memory of the Chief, no evil consequence will arise.'3 6 On 25 July Joseph Chew wrote from Montreal to Alexander McKee, the deputy superintendent-general of Indian affairs, stating that 'I have heard the Missisagues intend Coming here with their Complaint on Account of the Chief who was killed at Kingston, I have wrote to Lines to stop them if he Can, as their coming here will be attended with much trouble .. .'37 On 29 July Simcoe wrote to Clarke to advise him that two soldiers had been committed for trial, 'and I am sorry to say there is little doubt of their guilt and conviction.'3 8 When Chief Justice Osgoode found out about the case and realized that he might soon have to sentence two soldiers to be hanged, he communicated with Simcoe in a letter marked 'Private.' Expressing his concern about the upcoming trial, he stated that 'from what I have heard of the Evidence ... it is probable that one or both may be convicted.' He then reminded Simcoe that he had the power to grant respite in case of conviction and also that 'latitude is given to the Governor's Discretion in Cases of Conviction for a Murder.' Osgoode wanted Simcoe to be ready to act because 'by Law in Crimes of this sort Execution must take place the day next but one to the Conviction.'39 This communication between the chief justice and the lieutenant-governor before the trial had taken place can be understood if not condoned because of the speed with which execution would follow conviction. But as it turned out, the precautions were unnecessary. As the historian W.R. Riddell recounts: 'The Court of Oyer and Terminer and General Gaol Delivery came on, Thursday, August 23rd, Chief Justice Osgoode presiding. William Robertson and one Fraser, accused of the murder of the Indian, were prosecuted by [AttorneyGeneral John] White, as was William White accused of stealing a sheep from the Commodore. All were acquitted.' In a footnote Riddell adds that the accused pleaded self-defence and that 'it was probably a drunken brawl.'4° This verdict is hard to square with the opinion of Simcoe and others

Natives, Society, and the Law 45 that there was little doubt as to the guilt of the accused. A native gathering at Montreal was probably averted by the decision of the Kingston authorities to bury Chief Snake 'in a particularly distinguished manner' and to give handsome presents to his relations 'in public council.'4 1 Of all the cases involving white violence against natives. the murder of Wabakinine is the most notorious. On 20 August 1796 the Mississauga chief Wabakinine was slain at York in an altercation with Charles McEwan of the Queen's Rangers. Several days later Wabakinine's widow, who had taken part in the me lee, also died. 42 Wabakinine had been well known to the civil authorities. In 1781 he was involved in confirming the surrender of a tract of land along the Niagara River; in 1784 he was one of ten Mississauga chiefs who signed an agreement surrendering one-half of their people's hunting grounds at the western end of Lake Ontario; and in 1787 he was the principal Indian representative in negotiations with the government concerning the purchase of a tract of land stretching from the Carrying Place on the Bay of Quinte to the Etobicoke River and north to about Rice Lake, and extending back from Lake Ontario 'as far as a man can travel in a day.'43 Several years later, in 1796, George Cowan of Matchedash Bay, now serving as an interpreter in the Indian Department, reported that Wabakinine had sent a messenger to inform the Ojibwa at the Thames River to be on their guard, for 'their Father, the English was going to send a party of soldiers with Captain Brant's people [the Six Nations] to destroy them and all the Indians on Lake Huron.'44 Shortly afterwards, Wabakinine was one of the last Indians to greet Simcoe and his wife before they left Upper Canada for England. In her diary entry for 10 June 1796, Mrs Simcoe described the events of the evening: After three miles we came into good galloping ground on fine turf by the side of the Lake till we came to the King's Head Inn at the head of the Lake where Walbekanine & a number of his tribe (who are encamped a mile distant) were assembled to compliment the Gov. & fired Musquets in our Horses' faces their usual mark of respect which frightened me & my Horse very much, he started & I shrieked, but the sound was lost in the Whoops of the Indians. They gave us the largest Land Tortoise I ever saw.45 The Mississauga were outraged by Wabakinine's death. They hastened in large numbers to Niagara, which was still the seat of government. It appeared to Peter Russell, the administrator of the colony, and others that a full-blown uprising was imminent. A council meeting with the

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Indians was convened on 26 September. The following sets forth the essential parts of the minutes of this meeting: PRESENT His Honor Peter Russell Esqr. Administrator. The Honble Aeneas Shaw - The Honble John McGill Wapenip, a Messessague Chief addressed His Honor, vizt. ... Father/The dead man is in the ground we would not wish to have the body dug out of it. He is now in the ground he never will be able to rise again, or lift his knife. The Great Spirit above has placed him in the ground, he might be displeased were he removed. Father ... my Children are come down crying to enquire into the circumstances of his death ... His Honor the Administrator replied, Children/ I am very unhappy at the present melancholy occasion of our meeting. Our Father the Governor is gone over the Great Lake to see his & our Great Father the King, he has left me here to represent him. I was very unhappy to hear of the death of Your Chief, he was our very good friend, and more so to hear the manner of his death .. . When you came here & made your complaint to our Chief Warrior, he did everything that he could to console you. As soon as I heard of it I immediately gave the necessary orders to make every enquiry of the manner in which the murder was perpetrated. Had I myself been killed no other steps could have been taken by the Chief Warrior, or the officers of Justice than those which have been taken to discover the murderer of Wapeconine ... I received a letter from the Chief Warrior at York last night, he says a man has been suspected & taken up as the guilty person, that he is now in irons & on his way to this place but the vessel in which he is has been by the violence of the wind blown to Kingston ... A man who is capable of murdering one of you, is also capable of murdering one of us, it is therefore as much our wish and interest to find him as it is yours, so that you need not be afraid that we will not do our utmost to find out the murderer & punish him as he deserves ... I am informed that our Chief Warrior has given cloathing to the Children of

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Wapeconine; I have directed more to be given to you & provisions to carry you home. If you will go down to the Indian store house you will receive some things and I wish you all a very good journey; you shall also get some rum, but you are not to drink it in Town as you did some time ago. Wapenip replied Father/ I thank you for what has been said. I am happy that you are desirous of having the tie between us continued, on our part it is as firm as ever. Father/ I shall send this message to our people at a great distance back. His Honor the Administrator concluded by saying Children/ I thank you for your good disposition and I hope you will keep it.4 6

The traveller and author Isaac Weld, who reached Niagara just afterwards, commented: On arriving at Niagara, we found great numbers of these Indians dispersed in knots, in different parts of the town, in great concern for the loss of a favourite and experienced Chief. This man, whose name was Wompakanon, had been killed, it appeared, by a white man, in a fray which happened at Toronto ... The remaining chiefs immediately assembled their warriors and marched down to Niagara, to make a formal complaint to the British government. To appease their resentment the commanding officer of the garrison distributed presents amongst them to a large amount, and amongst other things they were allowed no small portion of rum and provisions ... but the rum being all consumed they seemed to feel severely for the loss of poor Wompakanon.47

With the help of rum and promises, Russell may have forestalled an uprising. The brave words having saved the day, it was now incumbent upon the authorities to put them into action. The brief of evidence that was prepared for crown counsel gave a strangely muted summary of the events of the evening of 20 August. One witness, Patrick Mealey, a sergeant in the Queen's Rangers, had heard the prisoner McEwan declare that Wabakinine had taken a dollar and some rum of his and that he insisted on having the money returned. Mealey told McEwan to desist, but the latter demanded the dollar again,

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knocking down Wabakinine with something like a stone. He then picked up the dollar, which had fallen on the ground. 48 Another witness, John Austin, said that, when Wabakinine was on the ground, he was bleeding at his mouth and nose. The brief further stated that the blow had since occasioned the death of Wabakinine.49 A different - and more complete - story of what occurred on that fateful night on the York waterfront appears in a letter written by Peter Russell to Simcoe. Dated 28 September, the letter reads: Wabikanyn (the Missassague Chief) was killed at York about a month since. The first intelligence the officers of Government at York had of this unfortunate affair was from this place whither the Chief's wife and the other Indians repaired some days after it happened to lay their Complaints before Major Shank from whence it appeared that the Indians having sold some salmon at York had got drunk with the money and one of your Excellency's Regiment (McKewen) having given a dollar and some rum to the Chief's sister to induce her to grant him certain favors came after dark when the Chief was asleep under his canoe opposite Berry's, and took the Squaw from thence to a little distance. This being perceived by Wabikanyn's wife she roused her husband and told him the Whites were going to kill his sister upon which he got up and staggering from under the canoe half asleep and half drunk a scuffle ensued between him and McKewen who knocked him down and left him senseless on the ground. The women making a great noise at this brought thither the other Indians who carried the Chief and them over to the Peninsula and removing early the next morning to the River Credit he died in the course of that day. As soon as I heard of the affair I ordered the strictest enquiry to be made into the circumstances, and depositions being in consequence taken by Mr. Justice Small strongly presumptive of McKewen having given the deceased a blow which caused his death, he was committed and sent in the Sophia Gun Boat under a Guard to this Place, but a violent gale of wind coming on the vessel was driven to Kingston and neither the prisoner nor the depositions are yet arrived here. Major Shank did all in his power to console the wife and the other Mississaguas for the loss of their Chief by assuring them that everything should be done to bring the supposed murderer to justice by which and some presents which he made to them and the children of the deceased, they appeared to be perfectly satisfied. But Wabikanyn's widow having unfortunately died in a day or two after, a report reached some Indians of the same nation who were hunting about the sources of the Thames that she died in consequence of the ill treatment she had received from the Whites and her brother (who is said to be a considerable Chief) collecting them immediately together, stopped Mr. [Augustus] Jones, the Surveyor, from proceeding with a survey he was making for

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Captain Brandt and they all came down to this place for intelligence respecting the two supposed murders. Mr. Jones, having represented their discontent to me in a very serious light, I judged proper to give them a talk with some solemnity, and to make them a few presents. This had every appearance of pleasing and contenting them respecting the steps which had been taken to do them justice. I cannot, however, shake off my apprehensions that some unfortunate family may yet, notwithstanding fall a sacrifice to their resentment, for Wabikanyn had many relations among the Chippewas and Lake Indians, and was greatly beloved by them, especially as they are not insensible of our present incapacity to punish them to any effect - for they mentioned this to Mr. Jones and proposed to him to join them should they prevail upon the Lake Indians to join them in revenging the many injuries they had received from us in this and other instances they enumerated.5°

Attorney-General John White appears to have proceeded quickly with the prosecution. The Upper Canada Gazette for 7 December 1796 reported that 'McEwen who stands indicted for murder will take his trial at the next court of General Gaol Delivery which is to be holden in this town on Tuesday next.' The power and the certainty of British justice was about to be demonstrated to the aggrieved Mississauga, but Justice somehow stumbled. The Upper Canada Gazette reported on 14 December: 'Yesterday, His Majesty's Court of Oyer and Terminer and General Gaol Delivery opened in this town; the Grand Jury in the case of McEwen found no bill, it not having been proven that the Chief with whose murder he was charged is dead.' There would be no trial. This was the end of the case. Simcoe's astonishment when he received this news from Russell in a letter of 31 December can be imagined. The letter stated in part: 'McEwen of your Regiment was indicted at the last Court of Oyer for the Murder of Wabakenin but none of the Missassagues attending (though summoned) to prove the death of that Chief, the Jury threw out the Bill for want of evidence. He was consequently discharged by proclamation.'5 1 How did it happen that the Mississauga, 'though summoned,' failed to appear to give evidence of Wabakinine's death? A possible clue to the cause of this farcical ending to the murder prosecution can be found in a quaintly worded affidavit of David Tait, sworn at Detroit a year earlier. Tait had been sent to Fort Wayne 'in Sarch of a Molato man Named Bill, the property of Colonel McKee, which was thought to be at Fort Wayne.' Tait found that Bill had escaped into the

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lines of the American soldiers stationed in that area. These soldiers made it clear to Tait that they had a very poor opinion of Simcoe and his soldiers, and in particular 'they called Colo. McKee & Captn [Matthew] Elliott Dam' d Rasculs & Villains & said that they gave the Indians Rum to make them Drunk to prevent them from going to Counsels.'5 2 It seems possible that there were also some 'dam'd rasculs' in York and Niagara who served the summonses for the McEwen trial. But whatever happened, this sorry demonstration of the workings of British justice must have given rise to lasting resentment and distrust among the Mississauga. Russell's lame attempt to put the blame for the fiasco on the Indians for not turning up to give evidence simply cannot be accepted. There is not even a suggestion that an adjournment was sought to see why the witnesses had not come, the usual procedure when a witness fails to appear. A grand jury presentation that is not open to the public can always be adjourned if a witness is delayed. It is not as though a judge and court are being kept waiting. There seems to be little doubt that the fault lay with the authorities and not with the witnesses. We are left with the uncomfortable feeling that there was never a real intention to bring McEwan to trial. The curious excuse given in September that the ship bringing the prisoner from York to Niagara had been blown off course to Kingston gives rise to the suspicion that, if fear of an Indian uprising had not intervened, the original plan was to spirit the prisoner out of the province before a charge could be laid. Even if a strong west wind was blowing, a ship blown off course had a choice of several ports before reaching Kingston. However these strange events are explained or justified, the suspicion arises that if Peter Russell had been the victim, the crown prosecutor at the trial of the killer would somehow have managed to prove that Russell was truly dead. These were indeed difficult times for the Ojibwa. Even before they had learned of the dismissal of charges against McEwan, the Ojibwa were complaining of a breakdown in relations with the civil government following Simcoe's departure. On 25 November 1796 Indian agent James Givins reported a message from two Lake Simcoe chiefs: Father/ Our Great Father Governor Simcoe before he went away told us before several of you green coated Officers, That he was going over to the Great Lake, where His Father and our Great Father the King was, and in his absence the Council

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fire would be kept alive by you, and that whenever we had anything to say to our Father, we should come to this fire, and that we should be assisted in our distresses - You the Wolf interpreted this to us Father Several Indians in want of a little Tobacco have been refused - We are in want of some also. You say you have none. When our Father Governor Simcoe was with us, he was good to us. But now we are neglected. Yesterday we came here and sat at your doors; Not one of you would look at us Father I am sorry we are thrown away. And that our Great Father Governor Simcoe should have a sweet mouth, we are very thankful for the Provision you gave us - That is all we have to say.53

Governor Robert Prescott in Quebec was much disturbed by the ugly tum that relations with the Ojibwa had taken. In May 1797 he wrote from Quebec to Peter Russell: It is a circumstance exceedingly to be regretted at this Crisis that the Indians should have any ground for declamation or complaint and I must equaly regret that means were not found to bring the supposed murderer of the Messissagua Chief in question to a Public Trial - A similar circumstance happened a few years ago, as I am informed, at Kingston, when an Indian Chief of the same Nation was killed by a Soldier of the 26th Regiment; but by bringing the supposed Culprit to tryal, and hurrying the murdered body in a particularly distinguished manner, as well as giving the relations of the deceased some handsome presents in Public Council, the matter was settled and they satisfied. I cannot too strongly recommend pointed regard to be paid to the Indian Nations at present, particularly when it is known that evil disposed persons are tampering with them, and may endeavour to estrange their affections from the British Government and join its Enemies.54

The Kingston case referred to was no doubt the killing of Chief Snake. Not long after the acquittal of McEwan, William Dummer Powell wrote to his friend John Askin: Our wiseacres have given to Jo. [Joseph] Brant so decided a superiority in the late

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negociation, that the Missasague's who own the Territory between York and the western population of the Province have adopted him in the place of their great Chief Wabkenine who was murdered it is supposed by some rangers. They say that Brant is fittest to be their Chief because he alone knows the value of land. I think much Matter may arise from this Transaction and not greatly to the Credit of our Politicians.55

Whether Powell included the crown law officers and the court in his term 'Politicians' is not clear, but for a judge to refer to a murder after the discharge of the accused underlines the reality of the situation. One disaster after another seemed to strike the Ojibwa. On 3 July 1797 Samuel Cozens, a loyalist then living in York who would later play a key role in the story of the Speedy, informed his brother-in-law in Philadelphia that 'in consequence of the small-pox, the Chippewas, a nation bordering on Lake Huron, have not been in to receive their annual presents from the Government.'5 6 Had it not been for this new cruel stroke of fate, McEwan's acquittal might have prompted the angry Ojibwa to converge on the capital, as they had done at Niagara the previous September. However sick and demoralized the Indians were after the death of Wabakinine, they remained a source of anxiety for the authorities. At this time there were rumours of a combined French and Spanish attack on Upper Canada, and colonial officials feared that Brant's Six Nations would assist such an invasion because of frustration over government opposition to sales of Grand River lands. In fact, after hearing of Wabakinine's murder, Brant had started making plans for a meeting of native chiefs, and over the winter of 1796-7 a native rebellion seemed imminent. In the end, this rebellion fizzled out after Brant and the government resolved their differences, but concern about the natives' intentions lingered. In October 1798 Peter Russell informed Governor Prescott that an Indian named Catfish was 'very busy among the Mississagues in persuading them to go to Presqu' Isle to meet a Chief of that Nation (called Paqua) ... & promises that the French will soon come & (if the Mississagues Join him) will Assist them in revenging the Death of Wabakanyne and driving the English from all their lands.' While adding that he did not see much reason for alarm, Russell nevertheless conceded that 'the seat of Government is naked of Defence & open to attack from all Quarters in case of any hostile movement towards it.' He also suggested to Prescott that there should be a strengthening of the scattered troop detachments in the upper province.57 There is a curious postscript to the Wabakinine case. In 1797, David

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Ramsay - the same person who had earlier survived a charge of mass murder of Indians - filed a petition for land on behalf of two of Wabakinine's sons, Akkebeadgewann and Sa Kitchey Wanass. He thought that they should be entitled to some land because of their father's service 'in the Late war he being the princaple Chife and Chife Captain of the Massesagoes for and in behalf of Britain.' His petition ended with the following note - 'N.B. Wabakenynes famley was two sons a Daughter his wife and his sister and two sons which is seven besides himself.' In view of the gross injustice to Wabakinine's family resulting from the non-trial of his alleged murderer, one might have expected that such a reasonable request would have received sympathetic consideration, but instead it was rejected by the unimaginative Peter Russell with the twoword comment 'No Precedent.'5 8 This brings us to Ogetonicut, an Ojibwa accused of the murder of a white man in 1804. One year earlier Ogetonicut's brother had apparently been murdered by a white trader, but the legal system had done nothing. Its inaction in this instance - and in those other cases involving white violence towards natives - was all the more striking when compared to the speed with which it moved to punish Ogetonicut for his alleged crime. The case of Ogetonicut threw into stark relief the shortcomings of the colonial legal system as far as natives were concerned. It also led directly to the tragedy of the Speedy.

3 'Cozens Kill My Brother, I Kill Cozens'

The main parts of the story of Ogetonicut - the name can possibly be translated as 'Above the Clouds' 1 - first appeared in Henry Scadding's Toronto of Old, published in 1873. Discussing the loss of the Speedy in October 1804 while transporting Ogetonicut to his trial on a charge of murder, Scadding wrote: 'The name of the Indian who was on his way to be tried was Ogetonicut. His brother, Whistling Duck, had been killed by a white man, and he took his revenge on John Sharp, another white man ... The Governor had promised, so it was alleged, that the slayer of Whistling Duck should be punished. But a twelvemonth had elapsed and nothing had been done.' 2 This account is the earliest extant reference to Ogetonicut and Whistling Duck. Scadding does not say who the alleged killer of Whistling Duck was, but W.R. Riddell provided this information in Old Province Tales of Upper Canada, published in 1920. In his version of the event he stated: 'Ogetonicut's brother, Whistling Duck, had been killed by a white man, one Cozens, a short time before, and Ogetonicut killed the first white man he could.'3 Riddell reached the conclusion that the first crime was committed by Cozens on the strength of 'Recollections of Mary Warren Breckenridge,' written by her daughter Maria Murney 'from her mother's own words in 1859.'4 Scadding's account may also have been drawn, at least in part, from this source. Mary Breckenridge was a member of one of Upper Canada's bestknown families, the Baldwins.5 Her father, Robert Baldwin the elder, a

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widower, had come to Upper Canada from Cork, Ireland, with his children in 1799. After a brief stay in York, the Baldwin family moved a short distance east, where in Clarke Township (present-day Newcastle) they joined another well-known Upper Canadian family, also from Ireland, the Lovekins, who had settled in the area a short time before. The Baldwins occupied a farm property adjacent to the Lovekins, and nearby was a property occupied by the Cozenses. By 1803 William Warren Baldwin, the eldest of the Baldwin children, had moved back to York where he married Margaret Phoebe Willcocks. The Baldwin household in Clarke Township then consisted of Robert, the father, two daughters, Alice and Mary, and a French maid. In 1816 Mary married John Breckenridge. Their daughter, Maria, married Edmund Murney in 1835, and twenty-four years later Mary related to her daughter a number of family stories. It is to one of these stories that Riddell made reference when he identified Cozens as the killer of Whistling Duck. The story, as told to Maria Murney, was as follows: One Sunday he (my grandfather) had gone to see his neighbour Mr Cozens, when soon after he had gone several Indians came, bringing furs and asking for whiskey. My mother and aunt refused them. The Indians became so urgent and so insolent and so constantly increasing in number that they became terrified and sent the French girl to beg my grandfather to return. She came back in a few minutes more frightened than ever, saying that as she passed the camp she saw the squaws hiding away all the knives, as they always do when the Indians are drunken, and that they chased her back. Some of the Indians were intoxicated before they came to the house, and their threats were awful. They had collected to the number forty, and those poor girls still held out stoutly in refusing the whiskey, which was kept beneath a trapdoor in the kitchen, in a sort of little cellar. At length my aunt thought of the large, handsome family Bible, in two volumes, in which they had been reading, and opened them and pointed out the pictures to try and attract their attention, while my mother knelt down at the other end of the table and prayed to God loudly and earnestly. In this position my grandfather found them, and fearful was the shock to him. He brought Cozens with him. No sooner did the Indians see him than one man drew his knife and showed it to my mother, saying, 'Cozens kill my brother, I kill Cozens.' Then my grandfather to divert that idea, was obliged to get them the whiskey. Nothing else probably saved their lives. Cozens slipped away and called the Lovekins and some other neighbours, and my aunt and mother went into a little room inside my grandfather's, while he and his friends kept watch, and those horrid creatures set for a regular orgie.

56 Speedy Justice There was a great kettle of food for the hounds on the fire, made of bran and potato peelings and all sorts of refuse. This they eat up clean and clever; then they drank, danced and sang all night long, and in the morning off they went, to the relief and joy of the family .6

Mary Breckenridge, in telling this story to her daughter, did not identify Cozens by his first name, but of the several members of the Cozens family in Upper Canada at that time, Samuel Cozens seems to be the most likely. He was a close neighbour of the Baldwins and the Lovekins and had cultivated land in that area. Samuel Cozens was born in 1769 in New Jersey, the son of Captain Daniel Cozens.7 He was educated in London, England, with Stephen Carnick, who later became his brother-in-law. Camick afterwards lived in Philadelphia, while the members of the Cozens family, who had strongly supported the British cause in the American revolution, settled as loyalists in Upper Canada. There they applied for and obtained large land grants in York and in Vaughan and Clarke townships. Samuel Cozens was employed as assistant to William Jarvis, the provincial registrar and secretary, and he and Jarvis were initially on good terms. Jarvis had founded one of the first masonic lodges in Upper Canada, Harmony Lodge No. 8, of which Jarvis was master and Cozens the secretary. The latter informed Stephen Camick in 1797 that he had been adopted as son to the Ojibwa chief Nacanee, 8 which appears to indicate that he was held in the highest regard by the Ojibwa. Things began to go badly for Cozens after 1797. In 1798, although appointed to serve as ensign in the York militia, he declined to serve,9 and in July 1801 he resigned from his position as Jarvis's assistant. His letter of resignation, addressed to Jarvis, was a curious one. He wrote: I do wish you would permit me to leave your service altogether - I very well remember our original engagement that I was not at liberty to leave you without giving you one months notice. I hold myself bound to this should you insist upon it, but such repeated insults I can no longer bear with for I have no possible means of retalliation - I must in the end become a sacrifice to such treatment for this is the cause of all my wanderings and failings - my manners are to free - this gives offence, but I am educated and I am not disposed to unlearn what I have learned - at last the measure is filled. I have long sighed for tranquility and repose - will you have the goodness to suffer me to depart. 10

Cozens was obviously beset by personal problems.

'Cozens Kill My Brother' 57

After the incident in the Baldwin home, the next mention of Cozens's whereabouts or employment is to be found in a letter he wrote on 27 August 1804 to the office of the surveyor-general in York. From this letter it is apparent that Cozens was then a member of a survey team in the Chatham area. 11 Afterwards, he disappears again until March 1806, when the accounts of the House of Assembly indicate that he was entitled to six pounds five shillings in pay for copying. 12 Two years later, on 27 January 1808, the following notice appeared in the Upper Canada Gazette: 'Departed this life on the 29th ult Mr Samuel D. Cozens, one of the first inhabitants of this Town [York]. His remains were interred with Masonic honours on the 31st.' That April a cousin of Samuel, Benjamin Cozens, informed a friend in New Jersey that 'Samuel D. Cozens died this winter. He was taken in a fit, fell backwards and never spoke afterwards.' 1 3 Thus ended the life of Samuel Cozens at age 39. Considering his troubled later years, it is touching and prophetic that the final words in his 1797 letter to Stephen Carnick were: 'What are we to look for from the human heart? All, all, is the "baseless fabric of a vision." ' 1 4 Scadding and Riddell give no particulars of the alleged murder of Whistling Duck, but in T.E. Kaiser's Historic Sketches of Oshawa, published in 1921, the following appears: 'This Indian [Ogetonicut) was a brother to Whistling Duck, who had been killed by a white man the winter previous, at Mr. Cozens, in what is now the township of Clarke. Whistling Duck had tried to thrust a muskrat spear through an American, but missed his aim, and had his skull cracked. The Governor promised there should be blood for blood, and this is why Sharp was killed.' 1 5 Kaiser's sources of information were obviously not the same as Scadding's and his account differed from the latter's. Instead of naming the vessel the Speedy, he incorrectly calls it the Catherine or the Maria and says - again incorrectly- that it sailed on a morning in September 1803. 16 Kaiser was a medical doctor and served for a time as mayor as Oshawa and on the Provincial Board of Health. His book has no footnotes but the introduction contains this statement: 'By a strange chain of circumstances, certain documents of historic value have been quietly accumulating in my possession.' No other mention of these documents is made. Kaiser's name does not appear in the Oshawa directory after 1938. Evidence about the murder of John Sharp is to be found in J.E. Farewell's Ontario County, which was first published in 1907. His account of the event is as follows: The Farewells soon opened up a trade with the Indians, and in 1806 left their

58 Speedy Justice man John Sharp, in charge of their camp at Washburne Island, Lake Scugog, while they went down the lake and river to let the Indians know that they were on the island for trade. On their return they found the camp looted and their man killed. Hastily burying him they started for Cedar Creek at the head of the lake, and followed the trail down to Lake Ontario, east of Oshawa harbor. Enquiring of Eleazar Lockwood on the way, he told them that he had seen the Indians passing the night before and had crept down to the camp and saw and heard one named Ogetonecut describe how he had killed Sharp because his brother, Whistling Duck, had been killed by a white man a year ago and no white man had been killed on his account. They followed the Indians to Toronto, finding them encamped on the Island. Going to the Fort they got the interpreter, Ruggles, and some soldiers, who arrested the Indian. 1 7

The author of this history was a descendant of one of Sharp's employers, and his version of the events should be accurate, but at the same time his account seems, in part, to follow Scadding's description, published thirty years earlier. Farewell has certain additional information, the most important concerning what Lockwood overheard when he eavesdropped in the darkness at the Indian encampment. The fact that Farewell says that the murder occurred in 1806 is an error; a review of all the evidence clearly indicates that the correct date is the spring of 1804. On the same issue of timing, an otherwise reliable historian, William Canniff, was even farther off the mark. In 1889 Canniff wrote this account of the Speedy story for an historical atlas of Northumberland and Durham counties: There are so many versions of this disaster as well as the circumstances out of which the trial arose that we supply the following as authentic. Two brothers named Wm. and A.M. (Aiken Moody] Farewell, (the latter the father of Abram Farewell, ex-M.P.P.), had settled on the Oshawa Creek, in the present county of Ontario. They were in the habit of going back to the Scugog for the purpose of trapping and trading for furs with the Indians. In the winter of 1806-' 7, they were back on Lake Scugog, and the Nonquon, for the purpose, taking a man named John Sharp, with them. The latter they left in charge of the camp while they proceeded up the Scugog. On their return they found the unfortunate Sharpe murdered, his skull having been smashed in with a club. They quickly made their way back to Oshawa and told their story of the murder to Eleazar Lockwood, then settled on the Lake shore. He had noticed the Indians camped on the shore, on their way to Toronto a day or two previously, some of them were intoxicated, and one of them, O-go-tong-nat, went through the motions, shewing how he had

'Cozens Kill My Brother'

59

killed poor Sharpe. This performance was watched by Lockwood from a distance. Having got hold of the story Lockwood started for Toronto after the Indians. They were found encamped on the Island by Lockwood and the Indian Superintendent, Col. Givins, to whom Lockwood related particulars of the murder. A warrant was issued, a sergeant and guard were procured, and the offending Indian given up by the Chief, whose name is said to have been Waab. 18

It seems clear that Canniff did not rely on Scadding for his account of the events, and that Farewell did not rely on Canniff for his version. Canniff introduced several new pieces of information, the most significant being the spelling of the name O-go-tong-nat. He also added details about how Sharp was killed and indicated that the Farewell brothers were on a mission of trapping and trading for furs with the Indians. T.E. Kaiser's book gives a different account of Sharp's death. His version reads as follows: About the close of the second spring's trading, the two brothers left their trading house on Ball Point, now township of Mariposa, for the purpose of gathering in some furs, and closing up business preparatory to leaving for York to market their furs, placing the house and goods in charge of their hired man - John Sharp. A.M. returned to the house before Wm., and found the place deserted, and the liquors and goods missing. Not an Indian could be seen or heard. Near the spring, six rods from the house, lay the dead body of John Sharp, a knife stab in his left side and his head crushed with a club. The recognized signal among the Indians and traders for calling for assistance, was the firing of three guns in quick succession. This was done, and a canoe with a solitary Indian came from the opposite shore of the lake, and in a short time the Chief of the tribe - 'Wabbekisheco' -approached the brothers, (William having arrived in the mean time). The Chief was very sorry for what had taken place, but unhesitatingly stated who had killed Sharp, and how it was done. He stated that a large number of Indians had brought furs, which Sharp purchased, and in a short time, the Indians became tipsy, wanted more liquor, which Sharp refused to give them. They induced him to go to the spring for water, when Ogetonicut followed and killed him. 1 9

This version of the killing differs from that given by Farewell, yet, if it is true, it is the kind of information that would seem to have come from a Farewell family source. All versions agree that Ogetonicut was arrested when he was encamped with fellow tribe members on the peninsula at York, but Scadding and

60 Speedy Justice

Kaiser give the name of the chief as Wabbekisheco rather than Waab, as identified by Canniff. Thus it would appear that their sources of information were different. Riddell adds other pieces of information, not given by either Scadding or Canniff; he refers to the 'well-known Indian Ogetonicut' and also indicates that 'General Hunter had promised that Cosens, the slayer of Whistling Duck should be punished but it had been impossible to apprehend him.' Farewell says that Ruggles was present when the arrest was made, suggesting he was an interpreter, but this seems highly unlikely - James Ruggles had only recently come to Upper Canada from Massachusetts and was a merchant in York. It is possible that he was present as a justice of the peace, a post to which he had been appointed a short time before. 20 This is the extent of the information available on the murders of Whistling Duck and John Sharp. Curiously, there is no mention of the names Whistling Duck or Ogetonicut in primary sources, and the court records connected with the case against Ogetonicut have also disappeared- except for a note by the chief justice that mentions 'the Indian' and for the same official's instructions regarding a survey of the area where the alleged murder took place. 21 Yet, on balance, it seems safe to rely on the existing accounts of the story of Ogetonicut. Canniff and Riddell were always thorough in their research. Scadding may not have been as thorough, but, like Canniff and Riddell, he had excellent sources for his information, including the oral testimony of people alive at the time of the events he was describing. Born in 1813, Scadding was married to a Baldwin, and thus likely had personal knowledge of the Ogetonicut case, obtained from persons who remembered it. 22 Similarly, Canniff, born near Belleville in 1830, had close ties with the Indians in the Trent River valley, 2 3 and Riddell, who was born in 1852 near Cobourg and raised in the area southwest of Lake Scugog, must have known many people who had family ties with some of the victims as well as old-time residents of Northumberland and Durham counties.2 4 As for Mary Breckenridge's 'Recollections' and J.E. Farewell's published history, there seems no reason to doubt their essential accuracy, although, as noted, Farewell's dating of the murder of Sharp - like Canniff's - is definitely incorrect. With regard to Whistling Duck specifically, the present writer accepts the accuracy of Scadding's statement - substantially corroborated by Kaiser- that an Indian of this name did in fact exist and that he was murdered; whatever his deficiencies as an historian, Scadding did not fabricate stories out of thin air, especially one so harmful to the reputation of a lieutenantgovernor. There also seems every reason to believe - in the absence of

'Cozens Kill My Brother'

61

any evidence to the contrary - that Whistling Duck was murdered by a man named Cozens, that the authorities failed to prosecute his killer, and that this failure led to the killing of John Sharp. The evidence identifying the killer of Whistling Duck as Samuel Cozens is less strong but still substantial. Whether Whistling Duck was in fact Ogetonicut's brother Ogetonicut may have used the word 'brother' not in a familial sense but merely as a synonym for a close friend or a fellow tribe member - is immaterial. The important point is not Ogetonicut's relation to Whistling Duck but rather his reaction to the murder. Finally, the lack of court records relating to either Whistling Duck or Ogetonicut is perhaps not surprising. The records on the Ogetonicut case undoubtedly went down with the Speedy, and it is possible that they included documentation concerning Whistling Duck. It is also possible that there are no records relating to the murder of Whistling Duck for the simple reason that no formal steps had been taken to proceed with a charge. When all the evidence is pieced together, certain conclusions can be reached. If Samuel Cozens was indeed guilty of the murder of Whistling Duck, his background and important connections in Upper Canada may help to explain why the authorities did not proceed against him. Also, the fact that the victim whose sacrifice atoned for the death of Whistling Duck was John Sharp rather than Cozens may not accord with our concept of justice or even fairness, but it was in accord with the Ojibwa code of conduct. The important thing under their system of justice was that retaliation be visited upon one or more of the opposing tribe whose member had been the first to kill. By calculation from other evidence, Whistling Duck's death must have occurred in 1803 and John Sharp's, as already noted, in the spring of 1804. The murder of Whistling Duck presumably occurred in Upper Canada, because Scadding states that it was Lieutenant-Governor Hunter who had promised action but failed to provide it. T.E. Kaiser, as indicated, says that it took place in Clarke Township. The fact that the killing was brought to the attention of Lieutenant-Governor Hunter would imply that no magistrate was prepared to proceed with a charge, the proper procedure in such a case. The arrest of Ogetonicut likely occurred sometime in April or May 1804 because it would have been most unlikely to find the Indians travelling by canoe to York during the winter months. Three circumstances distinguish the case of Ogetonicut from that of Isaac Brant, also accused of the murder of a white man several years earlier. The first is that, in Ogetonicut's case, the deceased was 'late of the Queen's Rangers' whereas the deceased in Brant's case was a deserter

62 Speedy Justice

from the American forces. The second is that Ogetonicut was a backwoods Ojibwa, while Isaac Brant was a member of a distinguished Mohawk family. The third is that Lieutenant-Governor Hunter and Chief Justice Henry Allcock were now in charge rather than the more fair-minded Simcoe and Chief Justice Osgoode. What the story of Ogetonicut demonstrates above all is the double standard that often characterized the administration of justice vis-a-vis native people. The murder of Whistling Duck by a white man had gone unpunished, just as the white murderer of Wabakinine had escaped facing a trial on a technicality a few years earlier. Ogetonicut would not be so fortunate. Because he had murdered a white man, the full weight of the law was to fall swiftly on his head. The legal system under the regime of Lieutenant-Governor Hunter and Chief Justice Allcock was apparently more concerned to punish Indian murderers of whites than white murderers of Indians. It was not only racism that lay at the heart of this double standard. Fear was present as well. The determination of local government officials to see justice done in the case of Ogetonicut was probably rooted in their anxiety over the consequences that would ensue if the trial was bungled. At the time of Wabakinine's death in 1796, it will be remembered, Peter Russell was concerned that whites - especially those living in the more remote settlements - might fall victim to the Indians' desire for revenge. This worry undoubtedly became greater after McEwan went free without even going to trial. In 1804 both Lieutenant-Governor Hunter and Chief Justice Allcock seem to have believed that, in order to forestall the killing of other white settlers, it was necessary to make a quick and public example of the Indian who had killed Sharp. This appears to be the most logical explanation for the speed and efficiency which characterized the preparations for Ogetonicut's trial. In 1804 there was as yet no legal right for an accused to have legal counsel, but it was customary at this time to have counsel appear to present legal arguments and no narrow restraints were placed on him. Although most historians agree that Angus Macdonell would have been Ogetonicut's defence counsel,25 some have suggested that William Weekes would have played a part. 26 Riddell states that originally Solicitor-General Gray had planned to travel to Newcastle on horseback with Weekes, but that Justice Thomas Cochran had persuaded him to travel with him on the Speedy. 2 7 It was in character for Weekes to insist on travelling alone. If Ogetonicut's trial had taken place, his counsel could have made a

'Cozens Kill My Brother' 63 point of the lack of a treaty between natives and whites ceding sovereignty over the area where the alleged murder had occurred. In 1787, as noted earlier, Wabakinine and other Ojibwa chiefs had negotiated a treaty that gave the British sovereignty over a strip of land from the Bay of Quinte to the Etobicoke River and north to Rice Lake. However, because a description of the land was not included in the treaty, Governor Dorchester considered the agreement of no real value; in his view, the treaty left the British in the position of having to depend entirely on the good faith of the Indians for just so much land as they were willing to allow. 28 This flawed treaty was not rectified until 1805, the year after the sinking of the Speedy, and the new document covered only the area around York. 2 9 There was no treaty covering the Lake Scugog area until 1818.3° The fact that the British in 1804 did not have treaty rights to the region north of Rice Lake could have had a bearing on the case against Ogetonicut. What it meant was that Sharp and his employers, the Farewell brothers, had ventured far into Indian territory to establish their trading post at Lake Scugog. This invasion of unceded Indian territory and the building of a post could have been a provocation to the Ojibwa, who hunted and trapped in that area, and it was also unlawful, being contrary to the terms of the Royal Proclamation of 1763, which prohibited all persons 'from making any Purchases or Settlements whatever, or taking Possession' of unceded Indian land without 'especial leave and Licence.'3 1 There is no evidence that Sharp and his employers had such leave and licence. Nor is it likely that a licence would have been granted to trap or operate a trading post in unceded territory. The violation of the terms of the proclamation would not have furnished a defence to a murder charge, but it is possible that such a violation would have made Sharp a trespasser and this could have brought about a confrontation and struggle in which the fatal blows were struck. In these circumstances, the proper charge could have been manslaughter rather than murder. If Sharp had first given rum or whisky to Ogetonicut, as is said in Kaiser's history of the event, this also could have been a factor in the case. In addition to the foregoing argument based on treaty rights and the Royal Proclamation, Ogetonicut's counsel could also have claimed that his murder of Sharp was justified in the context of Indian culture, which recognized the right of retaliation in instances where a member of a tribe was killed by an outsider. In Ogetonicut's case, the prior killing of Whistling Duck by a white man would have provided justification for Ogetonicut' s retaliatory action. There had been no court ruling on this point by 1804.

64 Speedy Justice

In urging the relevance of the unavenged death of Whistling Duck to the defence of Ogetonicut, counsel could have submitted to the court that the crown had breached the assurance that was made to Pontiac and other Indian chiefs by Sir William Johnson in 1766. Under a canopy of green boughs at Oswego, Johnson had urged the Indians to refrain from retaliating for injuries done to them by whites, and had assured them that such criminals would be punished by their compatriots. In reply, Pontiac had expressed full agreement with Johnson's words and noted that he would work to ensure that the Indians under his influence remained at peace with whites.32 Ogetonicut had waited a year for the crown authorities to act before he retaliated. Solicitor-General Robert Isaac Dey Gray would have been hard put to make answer to such an argument. If, notwithstanding these formidable defences, Ogetonicut had been found guilty of murder by a jury, the next question for determination would have been whether the penalty of hanging should automatically follow, or whether the conviction should be respited so the English authorities could consider if it would be proper - as Sir William Johnson had said - to show the prisoner 'as much clemency as is consistent with the Dignity of Government.' It seems possible that, if Ogetonicut's case had been submitted to the Colonial Office, the question of treaty rights, the terms of the Royal Proclamation, and Ogetonicut's belief that his retaliatory act had been justified might have led to a favourable decision on his behalf. The prisoner might have been pardoned without conditions, or some trifling penalty might have been considered sufficient to be 'consistent with the Dignity of Government.' Much would have depended on the evidence admitted at the trial. The court might have ruled out evidence concerning the death of Whistling Duck and the failure of the authorities to prosecute the killer. But even if it had done so, there would have been an option available to Ogetonicut's counsel. Under the law as it stood in 1804, while the accused person was not a competent witness in a murder case, the law did recognize the right of the accused to make an unsworn statement to the court. In such a statement Ogetonicut could have given his reason for attacking Sharp, thus putting this issue on the record for consideration by the authorities in London if the case had gone there for final disposition. As it happened, of course, Ogetonicut's counsel would never have the opportunity to put forward any arguments in his defence. The sinking of the Speedy saw to that. The authorities proceeded carefully in preparing for Ogetonicut's trial.

'Cozens Kill My Brother' 65

Chief Justice Allcock left among his papers a note, dated 31 May 1804, which appears to be a reminder to himself to arrange for a survey of the area where the murder of Sharp had occurred. The note reads: 'The Indian taken. Survey of the place where the murder committed. That wd. do if Survey made in the last of July.'33 Normally, one would expect that matters of this sort would be attended to by the attorney-general or the solicitor-general, but as usual the chief justice was interfering in a most injudicious way. It is not surprising to find him referring to a 'murder committed' before there was a trial - that was his way of doing things. Whether the necessity for a survey was the result of a jurisdictional challenge by the defence is not clear, but by 31 May the chief justice had come to the view that such a survey was indeed needed. The reason was simple. Two years earlier the Newcastle District had been created as a separate jurisdiction from the Home District, where York was located. A town-site had been laid out at the village of Newcastle, the new district's county town, and by the spring of 1804 the construction of the new courthouse at Newcastle, on Presqu'ile harbour, was well under way. It was thus essential that it be determined, by survey, whether Sharp's death had occurred in the Home District or the Newcastle District. If it was the former, Ogetonicut would be tried in York; if it was the latter, he would have to be transported to Newcastle. Even though by August 1804 Chief Justice Allcock was preparing to leave for England, he found time on 15 August to write to the surveyorgeneral as follows: You are hereby required and directed to cause a Survey to be performed, so as to determine the exact position, or situation of the House of Moody Farewell, where a murder is supposed to have been committed on the Body of John Sharpe - that is [to) say whether the Said House falls into the District of Newcastle, or into that of the Home District, so that the Surveyor may be enabled to declare the same upon oath. This Survey, if in the nature of possibility to be returned by the Surveyor on the seventh day of September next, to the Court Held at Newcastle where he is to remain in waiting after he has finished his Survey, until he is called upon by the Said Court, and this shall be your Order & Authority for so doing.34

In this letter, the chief justice had originally written 'where a murder was committed.' He then struck out the word 'was' and wrote above 'is supposed to have been' - a fine distinction that sheds some light on the high judicial mind. In any event, his letter of instruction was approved by

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Lieutenant-Governor Hunter, a sign that he too was taking a personal interest in the charge against Ogetonicut. A curious thing about Alkock's letter is that he seems to have known what the result of the survey would be before the line was actually run. In his note of 31 May he contemplates a survey being done in July, so it is possible that some preliminary search or previous survey information indicated what the outcome would be, and the purpose of the 15 August letter was to obtain corroborative evidence for use in the trial to establish the jurisdiction of the Newcastle District court. Whatever the explanation, the surveyor-general assigned the task to John Stegman, whose diary notes for the survey, beautifully written, still exist. Stegman wasted no time. On Thursday, 16 August, he engaged men and provisions; on Friday they left York and travelled eighteen miles; the next day they covered twenty miles; and on Monday the 20th they arrived at the boundary line. They then ran the line north, came to Lake Beobescugog on Thursday the 23rd, and finished the survey on Saturday. Instead of proceeding to Newcastle as directed by Chief Justice Allcock, the party returned to York and Stegman 'made out the pay list and Discharged the party.' On Wednesday, 29 August, he submitted a plan of the survey to the surveyor-general's office.35 No copy of this survey is to be found today in government records, which suggests that the documents prepared by Stegman were lost with the Speedy. In any case, the survey established that Sharp's murder had occurred in the Newcastle District, and plans were made to hold the trial there. As for Stegman, his decision to return to York rather than proceed to Newcastle, as the chief justice had directed, proved fatal: he was on the Speedy when it left York in October 1804 transporting Ogetonicut to trial in Newcastle. The date of the sittings of the Newcastle court had apparently been delayed from September to October, and Stegman must have learned of this change of plans before leaving York. This trial was not going to be sabotaged by a lack of witnesses, as McEwan's trial for the murder of Wabakinine in 1796 had been. Arrangements were made for the attendance of the Farewell brothers to prove the death of John Sharp, but they had the good fortune or the good sense to travel by canoe to Newcastle, accompanied by Lockwood, the star witness who had eavesdropped on the Indian encampment just after the slaying of Sharp. In the ordinary course of events the crown's preparation of the case would have been done by the solicitor-general, Robert Isaac Dey Gray, perhaps assisted by his law-student cousin John Anderson, but, as just

'Cozens Kill My Brother' 67

indicated, at least part of the preparation had been taken over by Chief Justice Allcock, supported by Lieutenant-Governor Hunter, who had made arrangements for the running of the survey line and the attendance of the surveyor John Stegman as a witness at the trial. Had it not been for Allcock's planned trip to England it seems probable that he would have gone to Newcastle to preside over the court on the auspicious occasion of the opening of the town's new court-house. Fate decreed, however, that a young, inexperienced judge, Thomas Cochran, would have the ill luck to be chosen for this important trial. So, by the end of August 1804, the important decisions had been made. A charge of murder had been laid against Ogetonicut, who since May had languished in York's vermin-infested jail on King Street (where the King Edward Hotel is now located), and the trial would take place not in York but in Newcastle. Later, it would be decided that Ogetonicut, along with Justice Cochran and other prominent figures in the town of York, would travel to Newcastle on the Speedy.

4 The Lake Ontario Naval Force

The vessel that Ogetonicut boarded as a prisoner destined for trial in October 1804 was part of the Provincial Marine, and its history demonstrates in microcosm why that naval force was plagued by problems from the time of its inception. The story of the Speedy also makes clear that its sinking should not have been entirely unexpected. Travelling across Upper Canada, whether by land or water, was no easy matter. Land travel was particularly difficult, not only because of the scarcity of the roads but also because of their poor condition. Under Simcoe, Yonge Street was built north from York into the wilderness as far as the Holland River, and work was begun on a road - named Dundas Street - from Burlington Bay to the Thames. Simcoe's successors continued his road-building projects, extending Yonge Street farther north and Dundas Street eastward to York, and constructing the Danforth road from York to the mouth of the Trent River. In addition to these trunk roads there were also local ones, one of the busiest being the road from Queenston to Chippawa. 1 Still, by the early 1800s the road network was far from large and the roads themselves were primitive, so primitive in fact that until 1803 York could not be reached except in summer, when travel was possible by boat. 2 The first stagecoach lines were established in the Niagara area in 1798, but stagecoaches did not run from York to Kingston and Niagara until after the War of 1812.3 Further, a ride by coach on Upper Canadian roads was not pleasant, intrepid travellers commonly describing the experience as 'bone-jarring.' Passengers were advised to

The Lake Ontario Naval Force 69

wear hats to prevent cracking their heads on coach roofs; they often were forced to help push coaches out of the mud or up hills; and sometimes they were thrown out onto the road when their coach struck a stump or boulder. Inns were located along the roads for the weary - and perhaps terrified - passengers, but they were a mixed blessing. Stagecoach drivers often became intoxicated on the free drinks they obtained from innkeepers eager for their patronage.4 For obvious reasons, then, water transport was the preferred mode of travel, but it was not always available. Shipping on the lakes was controlled by the Provincial Marine, and while these government vessels were allowed to transport cargo and passengers when there was room, they were not always able or willing to do so. On top of this, travel by boat also had its dangers - as the passengers and crew on the Speedy in October 1804 would discover. Not to put too fine a point on it, the vessels of the Provincial Marine were not the last word in safety. The Provincial Marine had its beginnings in 1776, following the unsuccessful American invasion of Quebec. After driving the retreating American forces under Benedict Arnold as far south as Lake Champlain, Governor Guy Carleton decided that he would need a naval force to dislodge the invaders from the lake. He first established a dockyard on the Richelieu River which he placed under the command of a talented young Scottish career naval officer, John Schank, who, at Carleton's request, had been seconded to his service by the Royal Navy.5 Schank was quick to prove his worth, supervising the construction with surprising speed of a flotilla of ships that in October 1776 destroyed the American squadron on Lake Champlain. After the British defeat at Saratoga in the following year, Carleton persuaded Schank to stay on in Quebec to become commissioner of naval forces on the Great Lakes. 'Normally,' as historian W.A.B. Douglas has noted, 'such a position would have been filled by a post-captain, appointed by the Admiralty and reporting directly to the Navy Board in London. Carleton, however, insisted that the Admiralty's jurisdiction did not extend to inland waters.' 6 Because of troubles abroad, the Admiralty did not challenge Carleton's jurisdictional claim and permitted Schank to take charge of the governor's marine department. Schank's commission, signed by Carleton on 28 June 1778, appointed him 'commissioner of all His Majesty's Naval Yards or Docks upon the Lakes, with power to controul and direct the construction repair and equipment of all vessels in the yards and docks aforesaid.'7 Schank informed Carleton: 'I will esteem your Commissions the same as if they were from the Lords of the Admiralty.' 8 The next year - Carleton had by

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then been succeeded as governor by Frederick Haldimand - the commander of British naval forces in Quebec asked for Schank's release so that he could return to the Royal Navy. Haldimand refused, stating that 'it would not be reasonable to deprive him of the chance of succeeding in his Profession, expressly reserved to him, and for which he has been recommended to me by the First Lord of the Admiralty.'9 Until 1784, when he returned to England, Schank ran the marine department along Admiralty lines, and under him were three separate commands, on Lake Champlain, Lake Ontario, and lakes Erie, Huron, and Michigan. Schank depended on the Royal Navy for seamen but on provincials to serve in the dockyards and as ships' officers, a system that remained in place after his departure. When John Graves Simcoe became lieutenant-governor of Upper Canada in 1791, he tried to arrange for Schank to return from England to take charge of the naval forces in the new colony, but he was unsuccessful. 10 Instead naval command over the Provincial Marine was divided among the commanders of the fleets on each of the lakes, with authority over the force as a whole being vested in the governor-in-chief and the lieutenant-governor of Upper Canada. The Lake Ontario section of the Provincial Marine had problems throughout its early history. In part, these difficulties could be blamed on nature, for sailing ships on Lake Ontario were exposed to the everpresent danger of sudden and violent storms together with uncharted reefs and shoals. Yet nature was not the only culprit. For one thing, the manning of the naval force's ships was less than ideal. Mrs Simcoe, for example, was not overly impressed with the quality of the seamanship that she encountered in Upper Canada, and she mentioned this issue more than once in her diary. One such entry, for 23 July 1792, read: 'At 8 this morning we went on board the Onondaga - Commodore Beaton. We sailed with a light wind. A calm soon succeeded & we anchored 7 miles from Kingston. The men who navigate the Ships on this Lake have little nautical knowledge & never keep a log book. This afternoon we were near aground. The Lake is beautifully transparent, we saw the bottom very plainly.' 11 On 17 May 1795 she had a much more harrowing experience on the same ship: About 5 P.M. we were off Gibraltar Pt. It blew extremely hard from the Shore, the Captain chose to tum the Pt without shifting a Sail, he was supposed to be not sober & the Gov. ordered the English Lt. to give orders & he brought us safely into York Harbour. We were certainly in great danger, for the Onondaga is so built that she would overset sooner than carry away anything. I was unusually

The Lake Ontario Naval Force 71 frightened having dreamt twice following the other night that I was lost in the Onondaga. My servant came several times to tell me we were going to the bottom. I told her to shut the door&: leave me quiet, for the motion of the Vessel made me sick. 12

In the years following the departure of the Simcoes, the manning of the naval vessels continued to be a source of difficulty. Working conditions were bad and the pay was poor in comparison to the pay on merchant vessels: in the naval service a seaman received $8 a month, whereas on merchant vessels seamen received $9 to $10 a month. 1 3 For both these reasons, recruits were scarce and the rate of desertions was high. It was so hard to find competent crews that sometimes a ship would lie idle for want of a crew despite generous inducements to spur enlistments. At Quebec sailors were paid an enlistment bounty of $20, and on Lake Ontario the bounty was $30. 1 4 As well, tavern-keepers were offered a bounty of $1 for each man they could persuade to enlist. 1 5 But notwithstanding such inducements, enlistments barely kept abreast of resignations and desertions. Deserters took advantage of the proximity of the United States border and were seldom caught. In the summer of 1802, desertions reached epidemic proportions, over a dozen seamen stealing any available watercraft to cross the border.16 Lieutenant-Governor Hunter, who was quick to arrive at decisions, had no trouble getting to the heart of the matter. As he saw it, the problem of desertions was the result of 'enlisting vagabonds and Irishmen in great numbers.' 1 7 Yet another problem for the Lake Ontario navy was the lack of care demonstrated in the design, building, and maintenance of the ships. The Due de la Rochefoucauld-Liancourt wrote after his journey through Upper Canada in the 1790s: The royal navy is not very formidable in this place; six vessels compose the whole naval force, two of which are small gun-boats, which we saw at Niagara, and which are stationed at York. Two small schooners of twelve guns, viz., the Onondaga in which we took our passage, and the Mohawk, which is just finished; a small yacht of eighty tons, mounting six guns, and lastly the Missasoga, of as many guns as the two schooners, which has lately been taken into dock to be repaired, formed the rest of it. All these vessels are built of timber fresh cut down, and not seasoned, and for this reason last never longer than six or eight years. To preserve them even to this time requires a thorough repair; they must be heaved down and caulked, which costs at least from one thousand to one thousand two hundred guineas. The expence for building the largest of them amounts to

72 Speedy Justice four thousand guineas. This is an enormous price ... The timbers of the Missasoga, which was built three years ago, are almost all rotten. It is so easy to make provision for shiptimber for many years to come, as this would require merely the felling of it, and that too at no great distance from the place where it is to be used, that it is difficult to account for this precaution not having been adopted. Two gun-boats, which are destined by Governor Simcoe to serve only in time of war, are at present on the stocks; but the carpenters, who work on them, are but eight in number. 1 8

The two gun-boats La Rochefoucauld saw on the stocks at Kingston were probably the Speedy and the Swift. There is ample evidence in the records of the marine department to support the statements of the duke. In January 1799 a report of the naval vessel Mohawk spoke of rot in the timbers and indicated that the cause of the decay was that the timbers had not been properly prepared or seasoned and that the caulking had been neglected and had not been washed or kept clean. By 1803 it was beyond repair. 1 9 In February 1798 James Green, secretary to the lieutenant-governor, wrote to Major Hazleton Spencer, commander of the Kingston garrison, informing him that 'the Onondaga schooner and Catherine & Sophia Gun Boats, being reported unserviceable by the Board of Survey held at Kingston the 5th January - His Excellency desires they may be laid up in the manner usual with condemned vessels.' 2 ° From other records it appears that the Onondaga was built in 1790 and the Catherine and Sophia in 1792. 21 This means that the Onondaga had operated for just seven seasons and the other two vessels for just five seasons. The relatively short life (six to eight years) of the ships of the Lake Ontario navy was owing to the use not only of unseasoned timbers and planking, but also of pine and spruce instead of the more durable cedar. Government correspondence reveals that the longevity of cedar when used for fence posts was well known. Why it was not used for shipbuilding is a mystery. One vessel that was made of rot-resistant red cedar was the privately owned Prince Edward, built in 1801 at Belleville by Captain Mumey. It survived for many years and, because constant repairs were not needed, made a small fortune for its owner. 22 The various weaknesses of the Provincial Marine on Lake Ontario and the other lakes were exacerbated by the fact that naval officers did not have ultimate authority over the force. By the 1790s the influence of career officers in the Provincial Marine had all but vanished. For all practical purposes, the marine department was under the control of the mil-

The Lake Ontario Naval Force 73

itary establishment, and the latter in tum was commanded by the govemorin-chief and the lieutenant-governor of Upper Canada, neither of whom had naval experience. The traveller Isaac Weld commented on this situation in the 1790s. Apart from adding the incidental detail that the uniform of Provincial Marine officers was 'blue and white, with large yellow buttons stamped with the figure of a beaver, over which is inscribed the word "Canada,"' Weld noted: 'The naval officers are under the control of the military officer commandant, at every post where their vessels happen to touch, and they cannot leave their vessels to go up into the country at any time, without his permission.' 2 3 The structure of authority was apparent in the two commissions issued to Thomas Paxton, who soon was to become captain of the Speedy. Paxton, born in Newcastle-on-Tyne, England, in 1754, enlisted in the Royal Navy at the age of eighteen and served in various parts of the world before joining the Lake Ontario naval force in 1787. 2 4 His commission three years later as second lieutenant in the Provincial Marine - or, as it was then known, 'His Majesty's Naval Armament' - stated that he was to 'observe and follow such orders and directions as you shall from time to time receive from me, the Lieutenant Governor, General Officers of the Troops, the commanding Officer of the Fleet, and all others your Superior Officers, according to the Rules and discipline of War.' 2 5 A second commission, issued in 1797 by Governor Robert Prescott, promoted Paxton to the rank of full lieutenant and did not even mention the commanding officer of the fleet, merely noting Paxton's obligation to follow the orders of the governor - 'the Officer in the Chief Command' - and 'all other' superior officers. 26 The lowly position of the commanding officer of the fleet was especially evident in the career of Jean-Baptiste Bouchette, whose service with the Provincial Marine dated to its beginnings under Governor Carleton. 2 7 When the Americans invaded the colony in the fall of 1775, Carleton would have been trapped at Sorel if Bouchette - then the owner of a small merchant vessel - had not taken him aboard and piloted him safely to Quebec City, running the enemy blockade in the process. This heroic service was rewarded in 1776 when Bouchette was appointed lieutenant and commander of the armed sloop Hope. The following year he became 'master and commander, as well as captain' 28 of the armed vessel Seneca on Lake Ontario. In 1784, after his discharge, he returned to his business in Quebec, and two years later Carleton, now Lord Dorchester, commissioned him as captain of the militia there. Just before Carleton's resig-

7 4 Speedy Justice

nation in 1794, Bouchette returned to the naval service, obtaining appointments as senior officer and commodore of the Lake Ontario navy and as commander of the naval vessel Mohawk. Alas for him, his years in charge of the naval force on Lake Ontario were destined to be unhappy ones. Throughout his naval career Bouchette did not get on well with shore personnel. This problem had been evident as early as 1780 when the naval headquarters were located at Carleton Island, near present-day Kingston. At that time Captain Alexander Fraser of the Royal Highland Regiment was in command at Carleton Island, Captain Rene La Force commanded the naval dockyard there, and Bouchette was captain of the Seneca, an eighteen-gun naval vessel built at Oswego in 1771. In 1780 Captain Fraser reported to Governor Haldimand that there had been trouble between La Force on the one hand, and Bouchette and fellow naval captain James Andrews on the other. His report read in part: When the smallest trifle was wanted from Shore much form & ceremony was requisite to obtain it and if Captn La Force attempted to interfere with the loading of the Vessels (tho his instructions at times made it necessary) it disobliged Captn Andrews. Captn Bouchette also at times took part, in those disputes which were heightened by the parties being of different Countries. These disputes among the principal Officers frequently extended to the lower Orders, and a general want of Subordination, and Arrangement pervaded every class of that Department. 2 9

Captain Andrews tried to act as peacemaker, but ship-and-shore rivalries came to a head when, in November 1780, Andrews and all on board lost their lives on the Ontario, which disappeared in a violent storm while sailing from Niagara to Oswego.3° As soon as the loss of the Ontario was confirmed, a witness reported that 'very violent disputes broke out between Captains La force and Bouchette, which occasioned the formers leaving this post next day in discontent. Since his Departure I must do Bouchette the justice to declare that he has exerted himself exceedingly in forwarding the Service.'3 1 Early in Bouchette's term as senior officer of the Provincial Marine on Lake Ontario there were rumours that he took gratuities for the carriage of passengers and cargo in naval vessels.3 2 Nevertheless, La Rochefoucauld was impressed with Bouchette, writing, 'Captain Bouchette commands the naval force on Lake Ontario, and is at the head of all the marine establishments, yet without the least power in money-matters. This gentleman possesses the confidence both of Lord Dorchester and

The Lake Ontario Naval Force 75

Governor Simcoe ... By all accounts, he is altogether incorruptible, and an officer who treats his inferiors with great mildness and justice.'33 When Hunter's regime began in 1799 Bouchette was still commodore of the Lake Ontario fleet while the shore establishments at Point Frederick and Fort Henry (near Kingston) were under the command of Fort Major Donald Campbell, Captain Holt Mackenzie of the 41st Foot, and Commissary William Ross. The relations between Bouchette and the shore group were even more strained than those that had existed at Carleton Island in 1780. By the fall of 1801 Bouchette, ill and crippled with rheumatism, was no longer able to sail his vessel, the Mohawk, but was still commodore of the fleet. Notwithstanding this sad state of affairs, the shore establishment at Kingston, under orders from Lieutenant-Governor Hunter, held a most unusual court of inquiry, the main subject being the alleged shortage of almost a wine-glass full in each half-pint measure that was used on board the Mohawk for distributing the rum ration to the seamen. The inquiry was conducted by Captain Holt Mackenzie together with lieutenants Evans and Bayley, also of the 41st Foot. Evidence from seventeen witnesses was heard and the verdict, written by Mackenzie, found that 'the Conduct of Capt. Bouchette has been Highly Culpable in allowing a Measure so short of its quantity to be used on Board any of His Majesty's Vessels on Lake Ontario.' A review of the evidence taken at the inquiry makes it hard to understand the harsh verdict. In this regard, several points are worthy of note. First, not only was there no charge against Bouchette but his name did not even appear in the terms of reference for the inquiry. Bouchette was not present at the inquiry; nor is there anything in the proceedings to show that he was given notice of the hearing. Secondly, the only person who complained about the alleged shortage in the rum ration was a discharged seaman named John Venton. Venton did not appear before the inquiry, but two witnesses, when asked what character Venton bore among his fellow crewmen, said 'a very indifferent one' and 'a very bad one.' Thirdly, the boatswain on the Mohawk, one Gahan, stated that the measure used on the vessel 'was made by the Agreement of the Officers and Men of the different Vessels (at that time in Winter Quarters) to allow for Leakage in drawing off and serving the rum.' He further informed the inquiry that 'if there was any Rum remaining at the end of the month he divided it equally among the Crew.' This evidence was not challenged by any witness nor was he cross-examined on it. Fourthly, Lieutenant Fortier, master of the Swift, and Lieutenant Paxton of the Speedy said that the measures used on those vessels were the same as the one used on

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the Mohawk until two years earlier, when they were given new ones by Commissary Ross. Ross, who had testified before Fortier and Paxton, was not called again to explain why the new measures were given to the captains of the Swift and Speedy or why a new measure had not been provided for the Mohawk at the same time. Nor is this all. Bouchette's name was introduced into the proceedings in the evidence of Major Campbell and Commissary Ross, both of whom went on board the Mohawk on 14 September 1801. Campbell told Bouchette on this occasion that a discharged seaman had complained to the deputy quartermaster-general about the rum measure used on the Mohawk, and he asked Bouchette to produce the measure for inspection. Bouchette replied that the measure was in the storeroom and that the boatswain, Gahan, who had the key, was sick. When Campbell insisted on seeing the measure, Bouchette said that it was 'impossible' to get it. He was then asked who acted as steward when the boatswain was sick, and although Bouchette's answer does not appear in the evidence, both Campbell and Ross stated in identical words, 'No satisfactory answer was given.' Thereupon Campbell told Bouchette that, if the measure was not produced, 'he would consider it as a Disobedience of Orders and would Report accordingly.' Following this threat, Bouchette sent a seaman to get the key from Gahan. The measure was found and discovered to be a wine-glass full short of another measure that had been brought from Kingston. Bouchette acknowledged that the measure was small but said that he had received it .from his predecessor and that he supposed the reason for its size 'was to prevent any loss falling upon the steward by Retailing Rum to the Seamen.' As a parting shot at Bouchette, Campbell asked him what kind of rum measure was used on the Swift and the Speedy, and Bouchette replied, 'The same as mine.' Campbell then asked Bouchette for his weights 'and his answer was he had none.' Campbell explained that Ross accompanied· him on board the Mohawk 'to be present at the Examination of the Weights and Measures on Board that Vessel and also to explain any words of Captain Bouchette which he could not understand and of which he was often at a loss to make out the meaning.' Ross, who was the second witness, corroborated Campbell's evidence almost word for word. He said nothing about supplying new measures for the Swift and Speedy two years earlier. During the inquiry, there was no evidence or even a suggestion that anyone was profiting in any way from the use of the short measure. On the contrary, from all the evidence it was clear, as Gahan testified, that

The Lake Ontario Naval Force 77

the offending measure had been agreed to by the officers and men in winter quarters at an earlier time, and that any surplus was divided equally among the crewmen at the end of each month. If Venton had any valid complaint, it could have arisen only from his not being present for the rum distribution at the end of the month in which he was discharged.34 The mean-spiritedness of this inquiry is also evident from a letter written a few years earlier, on 18 June 1797, by the commissary and storekeeper-general in Quebec to a Captain Barnes in Kingston: 'I find by a Letter from Mr. Clarke at Montreal that Captain Bainsfair has made requisition for, and been furnished with a Sett of Pursers Weights and Measures. This is a misconception of Mr. Clarkes. In order that Mr. Bainsfair may not deprive his Crew of any part of their allowance I must request that you will give immediate orders to him on no Account to use these Weights and Measures but to send them back to Montreal.'35 From this it would appear that the marine authorities in Montreal viewed the purchase of a properly calibrated wine-glass measure as a needless extravagance. Bouchette, hounded over the kind of measure used on the Mohawk, would probably have agreed. After the rum-ration inquiry, Lieutenant-Governor Hunter seemed determined to make life as difficult as possible for Bouchette. When the latter, because of his ill health, sought permission to go to Quebec for the winter of 1801-2, Hunter refused this request and at the same time transferred Bouchette's administrative responsibilities to Major Campbell.36 It seemed obvious that the time for Bouchette's retirement had come, and friends in Quebec, who had influence with the Duke of Kent, worked out a plan for him to retire on full pay, but these negotiations dragged on until 1803 when Bouchette suffered the final crushing blow.37 The incident is described by W.A.B. Douglas: The infirm and weary, but no doubt defiant, old man went too far. Faced with an accusation of disobedience by the commanding officer of the port of Kingston, Captain Holt Mackenzie, reportedly 'Capt. Bouchette snapped his fingers quite dose to Capt. Mackenzie's Face, & throwing his hat violently on the Floor said he did not care one damn for either him or the General [Lieutenant Governor Hunter).' At the subsequent inquiry three charges against him were substantiated, and in September Captain John Steel took over the Provincial Marine.3 8

Bouchette returned to Quebec City where he died the following April, hopelessly in debt, his heroic deeds at Sorel during the Revolutionary War long forgotten.

78 Speedy Justice

Like the trials of Captain Bouchette, the story of the Speedy underlines the damaging effects on the Provincial Marine of interference by nonnaval authorities. The Speedy, as well as the Swift, was built in 1798.39 Specifications for these vessels cannot be found, but from what is known about other vessels built in this period, it can be assumed that both were two-masted schooners with topsails, having an overall length of about eighty feet with a beam of eighteen to twenty feet and a draft of about seven feet. As La Rochefoucauld correctly reported, the Speedy and the Swift had originally been designed as gunboats to serve only in time of war. But before they were finished, the plans were changed, and in the summer of 1798 the launchings were delayed in order to raise the gunwales by two feet to provide more deck space for cargo, with fresh-cut lumber from Wolfe Island being used for the purpose.4° This change may have been owing to the easing of tensions on Lake Ontario following the implementation of Jay's Treaty, whereby Britain agreed to surrender posts in the continental interior. During its construction, the Speedy was a victim of serious personnel problems at the Kingston shipyard. Silas Pearson, the master-builder at Kingston, was ill for most of the time and was criticized for delays. Pearson felt that he was being unfairly blamed and that the shipyard workers were expected to exhibit talents they did not possess. There was also constant friction between Pearson and Commissary William Ross over the use of the yard-boat in the harbour. Conditions did not improve and Pearson was dismissed for misappropriation of stores in November 1801.4 1 Another ship built on Lake Ontario at about the same time as the Speedy was the yacht Toronto. Peter Russell had obtained permission from the imperial authorities to build the Toronto for the use of the civil government. 42 When it and the Speedy were both approaching completion, there was needless delay and confusion over who would be in command of each ship. Peter Russell wanted Thomas Paxton, then the captain of the sloop Caldwell, to be released by the military to command the Toronto, but his request to this effect had gone unanswered. By the fall of 1798, a decision could no longer be delayed because the construction of the Toronto had progressed to the point where the ship's commander would have to be in daily attendance to inspect the work. In October Russell decided to write directly to Governor Prescott at Quebec, explaining that he would like to have Paxton as captain of the Toronto but indicating that other arrangements would have to be made if Paxton could not be released without placing his naval care~r in jeopardy. In the same letter Russell conveyed to Prescott the news that efforts were being made to organize

The Lake Ontario Naval Force

79

an Indian uprising in revenge for the death of Wabakinine.43 It is not known whether the reports of native anger influenced Prescott's decision, but on 8 November 1798 he informed Russell that 'Lieutenant Paxton being employed on Lake Ontario in one of the King's Schooners, renders his acceptance of the Command of the Armed Vessel now building at York for the service of the Civil Government of Upper Canada impossible.'44 In a fateful move, Prescott instead made Paxton the captain of the Speedy - a decision that would cost him his life. It is ironic that in October 1804 the first news to reach York that the Speedy was missing was brought by Captain Baker on the yacht Toronto .45 The records relating to the Speedy reveal constant problems. Every year, the vessel needed repairs - probably the result, in many cases, of the dry rot that infected its unseasoned timber. Just as ominous, these repairs involved endless red tape and so were done long after the need for them had become apparent. In the first year after the launching of the Speedy, serious leaks developed. An estimate of the workmanship and materials required for repairing the vessel, prepared by master-builder Silas Pearson in January 1800, included, in addition to pine boards, such detailed items as 24 pounds of various-sized nails, 1,000 brads, 'Glass, Common Pains 2, Oacum 100 lbs., Paint, Black 28 lbs., Paint, Read 14 lbs., Paint Yallow 14 lbs., Paint White 56 lbs., Putty 28 lbs.' To make the repairs, Pearson said, besides the services of the four-man crew, he would need two carpenters for twenty-two days, a joiner for fifteen days, and a painter for six days.4 6 Protocol dictated that the master's estimate required the signature of Commissary Ross, followed by the formal approval of Major Hazleton Spencer and the lieutenant-governor. The result of all this bureaucratic red tape was that the work was delayed needlessly. In July 1801 Captain Mackenzie informed the lieutenant-governor's office at York that the Speedy and the Swift were 'much in need of caulking ... they have not received their annual repairs agreeable to the estimate dated Mar. 17 which I hope will meet with the approbation of Lt. Gen Hunter.' Notwithstanding the unrepaired state of the vessel, his letter concludes: 'As what little wind we have will take out the Speedy I have ordered her to proceed without loss of time to York where I hope she may arrive in time for accommodation for the Members of Both houses.'47 This is a sample of the functioning of the shore command at its best. Repairs that had finally received the two levels of approval at Kingston by 17 March were still awaiting the lieutenant-governor's approval four months later, and the unrepaired vessel was sent to York to transport members of the House of Assembly.

80 Speedy Justice

The Speedy had other problems as well. Its captain, Thomas Paxton, like other officers in charge of the ships in the Lake Ontario navy, was subordinate to military officers on shore who knew nothing about the handling of ships. In the Speedy's case, the tension inherent in this relationship had come to the surface by the end of June 1802, so much so that Paxton and his superiors - the same Major Campbell and Captain Mackenzie who had made Bouchette's life miserable - were then barely on speaking terms. The trouble began earlier that month when Paxton had been unwilling to leave port because, in his opinion, wind conditions made it unsafe to sail. When his superior officers on shore ordered him to sail, he relented, but in short order his main top mast was carried away and damage was caused to his cargo. Captain Mackenzie's self-serving report on 25 June to the lieutenant-governor sought to shift the blame to Paxton, making the grossly unfair accusation that the captain had deliberately damaged his ship: Lt Paxton has reported to me that part of the Indian stores he had on board got damaged but he has not said in what manner or that his Vessel was Leaky. I shall immediately order her to be examined as his report & conduct on this trip have appeared both to Major Campbell & myself to have been very particular owing I imagine to his being ordered to sail when the Wind was not quite fair by which he carried away his Main Top which could not be owing to any other cause but that of intentional mismanagement. This l do not presume to say from my own judgements but from that of others who saw him sail at which time it was far from blowing hard. As soon as that is ascertained I shall acquaint you with the result for His Excellency's perusal as will also fort Major Campbell.

In a footnote to this letter, Mackenzie blamed Paxton for another incident, the desertion of two seamen, Dobbs and Young, and the loss of the ship's boat, and also noted that Paxton had not paid attention to orders to sleep on board his vessel. 48 On this point, Mackenzie was employing a double standard: the previous year he had held himself blameless for desertions from his regiment,49 but in 1802, when crewmen deserted from the Speedy, Paxton was to blame for not sleeping on board. He did not explain how Paxton could be expected to sleep on board and at the same time maintain an all-night vigil to prevent desertions. In a letter written the following day, 26 June, Major Campbell also gave Hunter the news about the desertions, and criticized Paxton on the same grounds. 'I am sorry to be under the necessity of acquainting you that two of Paxton's crew deserted last night, viz. Thomas Dobbs & William

The Lake Ontario Naval Force 81

Young. I am also sorry to be obliged to say that I think Paxton's conduct this last trip and previous to his sailing and since his return to be very blameable particularly in disobeying orders given him to sleep on board his vessel. Capt. Mackenzie and myself are going off in pursuit of the deserters. Please excuse haste.'5° On 6 July Major Campbell informed Hunter that the 'Speedy after receiving some repairs is now receiving a cargo of pork on board for the upper country and will be ready to sail this evening weather permitting.'5 1 The words 'weather permitting' are significant. By now Campbell was aware that the rash order to Paxton to sail 'when the wind was not quite fair' had laid up the vessel for eleven days at the busiest time of the season, and had also probably caused the cargo damage mentioned by Mackenzie. All in all, there can be little doubt that Paxton, with his Royal Navy background, was an able naval officer. It was his misfortune that the command structure made him subject to orders from shore personnel who had no experience in sailing a ship. His shabby treatment at the hands of Mackenzie and Campbell, all for a meagre pay of six shillings a day with which he had to support a wife and seven children, must have been difficult to bear. But the incompetence and pettiness of his superiors were more than an annoyance - they were also a danger. As events would prove, the organizational structure of the Provincial Marine was one of the main causes of the loss of the Speedy, and of the lives of Paxton and many others who were aboard on her last voyage. The tragedy might well been avoided if Paxton, instead of being subordinate to shore personnel at Kingston and the lieutenant-governor at York, had truly been in command of his own ship.

5 The Speedy Sails

In the summer of 1804, while preparations for Ogetonicut's trial were under way at York, construction of the Newcastle court-house was almost completed. The ambitious plans for this three-storey building included not only all the facilities that would be necessary for court proceedings, but also a hotel for the accommodation of judges, lawyers, witnesses, and others, as well as a jail, probably with gallows. The Newcastle town-site was on an equally ambitious scale, providing for a hospital, a church, a market square, and, to make it clear that this was not to be a temporary community, a graveyard. The pioneer settlers, including the Sellecks, Gibsons, Thompsons, and Simpsons, could probably foresee the day when Newcastle would be one of the principal urban centres in the province. The town's harbour, which naturally was to have a jetty and a lighthouse to mark the entrance, seemed an ideal one, even more sheltered than those at York and Kingston. Captain Charles Selleck and his father-in-law, George Gibson, were responsible for building the court-house complex. Once it was finished, Selleck and his wife were to operate both the court-house itself and its hotel. When Selleck was away on Lake Ontario with his schooner the Lady Murray, and court was not in session, his wife, assisted by her brother, would manage the hotel. She would also feed the prisoners who would soon be lodged in the new jail. 1 It is not known precisely when the decision was made to hold court at Newcastle in October rather than September; nor is it known when

The Speedy Sails 83

the authorities decided to have the judge and other officials travel to Newcastle on the Speedy. On the second point, however, there is a clue. As we shall see below, there are reports that just prior to the Speedy's setting out for Newcastle, Captain Paxton and the lieutenant-governor became involved in a confrontation over whether the vessel was seaworthy. This suggests that the decision to use the ship may have been a last-minute one. By the summer of 1804 the Danforth road from York to the mouth of the Trent was usable - barely - and the authorities may have intended initially that Ogetonicut and the court party would travel overland. However, the Upper Canada Gazette reported on 15 September 1804 that 'heavy rains have done material damage to the roads so as to render them in some places totally impassable.' In a letter to Lord Selkirk dated 30 November 1804, Alexander Macdonell mentioned 'the torrents of rain which fell during September and October.' 2 These storms, and the resulting flooding, possibly explain the change in plans. The party that boarded the Speedy on 7 October 1804 was a fairly large one, numbering twenty people including a crew of six. The crew consisted of Captain Thomas Paxton, mate John Cameron, a boatswain named Gerrard, one Francis Labard, and two unnamed seamen. The fourteen passengers consisted of the prisoner, Ogetonicut; Justice Thomas Cochran; Solicitor-General Robert Isaac Dey Gray; Angus Macdonell, a member of the House of Assembly and the treasurer of the Law Society of Upper Canada; Constable John Fisk; the surveyor John Stegman; Jacob Herchmer, a merchant and probably a defence witness; John Anderson, law student; Justice of the Peace James Ruggles; George Cowan, the Indian agent and interpreter; Simon Baker, a black slave and the servant of Robert Isaac Dey Gray; a servant of Justice Cochran; and two children of indigent parents. What do we know of these various people? Ogetonicut's story has already been told, and biographical information on Captain Thomas Paxton was also presented earlier. There is no evidence as to the identities of Cochran's servant and the children. As for Simon Baker, the black slave, we know little except that he and his family appear to have been treated well by their master, Robert Isaac Dey Grey. The members of the Speedy's crew are equally obscure. Francis Labard had a wife and two children.3 John Cameron was the eldest son in a family of six children born to Allen and Ann Cameron; his father, Ann's second husband, had been a quartermaster in the first battalion of the 60th Foot during the Revolutionary War, and had died in February 1803.4

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More can be said of the other passengers.

Thomas Cochran Thomas Cochran, only twenty-eight years of age at the time of his death, was from a distinguished Halifax family.5 His father, Thomas, was speaker of the Nova Scotia House of Assembly and a member of the Council. One brother, William, was a general in the army, and another brother, James, became chief justice of Gibraltar and was knighted. One of his sisters married Commodore Rupert George of the Royal Navy and another married John Inglis, the second bishop of Nova Scotia. In his youth Cochran was a student at the academy in Windsor, Nova Scotia, where he was tutored by the Reverend William Cochran of Trinity College, Dublin. A fellow student was George Okill Stuart who, after graduating later from Harvard, was rector of York from 1801 to 1812 and then went on to become rector and archdeacon of Kingston.6 Cochran himself initially wanted to enter the army, but after a visit to Quebec City and a discussion there with Attorney-General Jonathan Sewell, he abandoned the idea of an army career and went to England to begin the study of law in Lincoln's Inn. After completing his terms and being called to the bar, he attended the assizes on the Cheshire Circuit and in 1800 was appointed chief justice of Prince Edward Island. Three years later he proceeded to Upper Canada, where he had been appointed a judge of the Court of King's Bench. He arrived at York from Lower Canada on 25 July 1803 and three days later took the oaths of office before Chief Justice Allcock. Thomas Cochran was the first judge to preside at the assizes in the newly created Newcastle District in the fall of 1803, and so the trial of Ogetonicut would have marked his second court there. If he had arrived safely at Newcastle, he would have had to make numerous rulings on difficult points of law and on admissibility of evidence, for which his brief tour of duty on the Cheshire Assize Circuit would have ill prepared him. No doubt he would have found the trial to be a most difficult one; it would have taxed the skill and ability of the more experienced counsel for the crown and for the accused.

Robert Isaac Dey Gray Robert Isaac Dey Gray was born around 1772, probably in New York, the son of James Gray and Elizabeth Low.7 At the outbreak of the Amer-

The Speedy Sails 85 ican revolution the Gray family moved to Quebec, where Robert received his education and acquired an interest in the law which was later pursued under the guidance of his cousin Jacob Farrand. After the war ended, the family moved to Cornwall and Robert's father was appointed lieutenant of the County of Stormont. On leaving New York, the Grays had taken their three slaves with them. These slaves, Dorinda Baker and her two sons, Simon and John, became the property of Robert on the death of his father. Robert Gray was a benevolent slaveowner, as demonstrated by the following event a few months before the sinking of the Speedy. While on a visit to New York Gray wrote to his sister: I saw some of our old friends while in the States, none was I more happy to meet than Lavine, Dorin's mother. Just as I was leaving Albany I heard from our cousin, Mrs. Garret Stadts, who is living in Albany in obscurity and indigence owing to her husband being a drunken idle fellow, that Lavine was living in a tavern with a man of the name of Broomly. I immediately employed a friend of mine, Mr. Ramsay, of Albany, to negotiate with the man for the purchase of her. He did so by stating that I wished to buy her freedom, in consequence of which the man readily complied with my wishes, and although he declared she was worth to him 100 pounds (ie $250) he gave her to me for $50 dollars. When I saw her she was overjoyed and appeared as happy as any person could be, at the idea of seeing her child Dorin, and her children once more, with whom if Dorin wishes it, she will willingly spend the remainder of her days. I could not avoid doing this act, the opportunity seemed to have been thrown in my way by Providence, and I could not resist it. She is a good servant yet, healthy and strong and among you you may find her useful. I have promised her that she may work as much or as little as she pleases while she lives - but from the character I have of her idleness is not her pleasure ... I saw old Cato, Lavine's father at Newark while I was at Colonel Ogden's; he is living with Mrs. Govemeur - he is well taken care of and blind - poor fellow came to feel me for he could not see, he asked affectionately after the family. 8 In 1795, one year after being called to the bar, Gray was appointed solicitor-general of Upper Canada, and in 1796 he became a district judge for the Home District. During his tenure as solicitor-general, a dispute arose concerning his right to share in the fees previously paid to the attorney-general alone for handling government business at court circuits away from the capital. Attorney-General John White contended that the solicitor-general could act in such cases only during the absence of the

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attorney-general. But in the course of time, it came to be recognized that the solicitor-general could share in the fees, especially when the court was sitting at points remote from Niagara and, later, York.9 Gray's victory in this dispute ultimately led to the loss of his life on the Speedy. Gray also served as a member of the House of Assembly for the riding of Stormont and later for the riding of Stormont and Russell, winning elections in 1796, 1800, and 1804. He played a leading role in the assembly, initiating a number of measures (usually involving reform of the law and the legal system), opposing a bill designed to extend slavery within Upper Canada, supporting another refusing Methodist preachers the right to solemnize marriages, and voting for the Sedition Bill that years later would be used with brutal effect against the reformer Robert Gourlay. He also served as liaison between the assembly and the Legislative Council, and in this capacity he opposed all efforts to curtail the powers of the lieutenant-governor. Because of his political duties in York, and also because of his responsibilities as treasurer of the Law Society of Upper Canada from 1798-1801, Gray had much travelling to do between Cornwall and York. In a letter written from Kingston in June 1804 he deplored the condition of the roads to the capital. He complained that 'the accounts of the road to York and the impracticability of getting regular conveyance delays me here. Had I left Cornwall on Tuesday I would now have been at York, as a vessel sailed a little before I arrived here.' 10 This vessel was probably the Speedy. It was his ill luck not to miss it four months later.

Angus Macdonell Angus Macdonell was born in Inverness-shire, Scotland, to Allan McDonell of Collachie and Helen MacNab.11 In 1773 his family immigrated with a number of Scots of the Clan Macdonell of Glengarry to the estate of Sir William Johnson in the Mohawk valley of New York. Following the outbreak of the American revolution, Johnson's Highland tenants, including the Macdonell family, remained loyal to the crown. The Macdonells went north to Montreal, where Angus was educated and learned to speak French. His early career was a series of failures; in 1785 he was even jailed for debt in Quebec. After his release, he became interested in chemistry, and in 1791 he and a number of others (including his brothers Alexander and James) were granted a patent for a new method of manufacturing potash and pearl ash. For a time, in partnership with Samuel

The Speedy Sails 87 Hopkins, Macdonell attempted to market these products, but without success. In 1792 Lieutenant-Governor Simcoe, who had become aware of Macdonell's work, placed him in charge of a salt-producing project, first in the Bay of Quinte and later at Fifteen Mile Creek in the Niagara District. To assist him in working the salt spring, he was given two Queen's Rangers. Simcoe's instructions to Macdonell were that he was to take particular care that the soldiers behaved well and especially that 'they did not get any rum to injure their reputations.' 12 When little salt was produced, Simcoe questioned Macdonell, who replied that the health of his soldierassistants had not been good, his equipment was inadequate, and the spring was capable of producing two bushels a day at most. 1 3 Simcoe found this report frustrating. Whether the ill health of Macdonell's assistants was the result of too much rum or too little was not explained. In 1795 Macdonell answered a long questionnaire submitted by the inspector-general of mines, James Miller. His replies were full of scientific jargon. When asked about the taste of the salt produced, he said that it had 'a comparative biting, caustic taste, which it loses by keeping and gradually discharging a portion of the bittern or mother water, which adheres to it externally.' He then went on to say that, after boiling the water down a second time, he produced 'as fine salt as ever was produced in any country ... Resembling in color, taste and crystallization, Lisbon Salt.' He concluded by saying that in his general report he would be 'much more diffuse and explicit.' 1 4 Patrick Campbell, in his published account of his travels in North America in the early 1790s, says of Macdonell: 'This young gentlemen seems to have had a chemical tum from his infancy, and by a process, the materials for which can be found in any country or place, he informed me that he could make a composition for glass or soap manufacture, equal to any barilla that ever came from the Mediterranean .. .' 1 5 In addition to his scientific endeavours, Macdonell took an interest in the study of law, and on 7 July 1794 he was admitted as an attorney. In 1801 he was appointed treasurer of the Law Society of Upper Canada, succeeding Robert Isaac Dey Gray. Simultaneously, he began a career in government and later politics, but still continued as a saltmaker. His last report to Simcoe on the salt-works was in March 1796, when he indicated that, although the Rangers had been sick and of little assistance, new salt springs had been discovered at Salt Fleet and the rate of production had improved. He also predicted that before long he would be able to supply

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the whole province. 16 Notwithstanding this optimistic report, responsibility for the salt-works was transferred from Macdonell to Robert Addison, a Church of England clergyman. 1 7 In government, Macdonell acted as clerk of the House of Assembly from 1792 and was in charge of the printing of the assembly journals and the statutes of the province. In 1794 he served, along with Richard Cartwright and others, as a commissioner in negotiations designed to conclude a revenue-sharing agreement with Lower Canada. Still later, in 1799, Peter Russell appointed Macdonell as agent in the settlement of French emigres, but his work in this connection led to charges against him by the Comte de Puisaye. Although the Executive Council dismissed him from his government post in 1801, the assembly passed a resolution upholding his innocence and awarding him £300 for two years back salary .18 Macdonell acted as a scrutineer in the election of 1800; a newspaper account noted that 'his interrogatories were general, but in that mild way which characterises the man.' 1 9 Later he represented a group of York petitioners who complained that lawyer William Weekes, as Judge Henry Alkock's agent, had used improper measures to secure Alkock's election. As already indicated, Allcock was unseated, and in an 1801 by-election Macdonell defeated John Small, clerk of the Executive Council, and David William Smith. In the election of June 1804 Macdonell was again victorious, this time defeating Weekes after a hard-fought campaign. Macdonell's pocket notebook shows that his legal practice was thriving in this period.20 He was an extremely active member of the House of Assembly, initiating legislation on a variety of subjects and defending that body's powers in relation to those of the executive. In February 1804 he moved a resolution to change the name of York to its original Indian name, Toronto.21 The name was eventually changed, but not until thirty years after Macdonell's death. Angus Macdonell is depicted in his brother's diary as a bon vivant;22 if this is true, he was hardly the man to be put in charge of rum rations for the soldier saltmakers. Macdonell's notebook also reveals his fondness for poetry, though one of his biographers describes him as an 'unaccomplished poet.' 2 J A contemporary report, apart from noting his poetic inclinations, describes him as an easy going, pleasant companion, interested in chemical experimentation. 2 4 That he was a versatile man there can be no doubt, for in addition to all his other achievements he was both a Roman Catholic and a freemason!25 As noted earlier, according to many writers, Macdonell was to have acted as Ogetonicut's defence counsel at

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the Newcastle trial. If this is correct, it was a undoubtedly a sense of duty that prompted Macdonell, as treasurer of the Law Society (its highest post), to undertake the defence of a poor Indian. Angus Macdonell's fate was sealed the moment he stepped on board the Speedy for the trip to Newcastle. His brother Alexander was destined to have a much longer life, dying in 1842. A pillar of the Catholic community in York, he was also one of the key members of the 'Family Compact' that dominated the colony's political life in the years before the Rebellion of 1837. Elected to the House of Assembly in 1800, he later served, from 1831-41, on the Legislative Council, and as a director of the Bank of Upper Canada.

James Ruggles James Ruggles was born in Massachusetts, where his family had lived for six generations, and his uncle Timothy served as a brigadier under General Jeffery Amherst in the Seven Years' War.26 After the American revolution, James, a loyalist, settled in York, where he earned a living as a Yonge Street merchant. In 1796, expressing his desire to live under a government 'to which his Ancestors have ever been warmly attached,' he applied for, and received, 1200 acres of land in York Township.2 7 In 1801 he married Esther Dunham, the Reverend George Okill Stuart officiating, and three years later he became a justice of the peace. The reason for Ruggles being on the Speedy is not clear. One writer suggests that he was to act as an interpreter at the trial, 28 but, considering his background, this is unlikely. It is more probable that Ruggles, having been present in his capacity as a justice of the peace when Ogetonicut was arrested, was to attend the trial as a witness. Ruggles was a public-spirited citizen. Besides being a merchant and a justice of the peace, he served in the militia and as a commissioner of roads. Just three months before sailing on the Speedy, he discussed with Ely Playter the possibility of establishing a library in York,29 but before these plans could come to fruition the government sent him on his last voyage.

George Cowan George Cowan, mentioned earlier as a fur trader at Matchedash Bay in 1793, was no doubt sent on the Speedy as the official interpreter at the trial. Probably of Scottish origin, Cowan had been captured by the French

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as a boy at Fort Pitt in 1758; subsequently, he was renamed Jean-Baptiste Constant and learned to speak fluent French.3° From 1777 he was a fur trader at Matchedash Bay, travelling regularly via the north channel and La Cloche to Michilimackinac, and by the time Simcoe met him in 179 3 he was well known and liked by the Ojibwa. He acted as interpreter when the treaty ceding territory for the port of Penetanguishene was negotiated. On Simcoe's recommendation, Cowan was later employed as an interpreter and agent in the Indian Department. A letter to Cowan from Peter Russell in 1797 shows the importance of the position that he would occupy. It stated: His Excellency Lieut. Governor Simcoe having recommended you to me as a Person he found extremely useful in the management of the Indians on Lakes Simcoe and Huron, I was very sorry to find that you were not put upon the Establishment of Interpreters in this District agreeable to his Recommendation, because you could not give your attendance at Navy Hall or Fort George. I have however given directions to Captain [William) Claus, the Superintendant to consider you upon the Establishment of Interpreters, and I judge it best for the Kings Interest that you shall remain with the Indians in the neighbourhood of your dwelling at Matchidash. You will therefore use every Exertion to retain the Lake Indians in their attachment to Great Britain & communicate constantly by letter with Lieut. James Givens of the Queens Rangers at York, whom I have appointed Asst. Superlntdt of Indian Affairs under the Superintendant, Capt. Claus. Whatever methods you may judge necessary to secure the friendship of the Indians in your neighbourhood and to attach them to the Interests of Great Britain, you will not fail to communicate to me without delay thro' Lieut. Givens, and inform me thro' the same channel from time to time of every movement of the Indians, and your Ideas of their Views and Intentions, that I may be able to explain and do away whatever offence they may have taken against this Government, or be prepared to meet any Hostilities they may meditate.31

On 21 May 1798 Cowan filed a petition for land, stating that 'your Petitioners duty as Interpreter to the Chippawa Indians frequently bring him to York- He therefore humbly prays that your Honor will be pleased to grant him a Town Lot therein, whereon he may build for his own accommodation ... '3 2 The petition was accepted, and Cowan obtained a one-half acre lot on the north side of Russell Square 'on condition of immediate improvement.'33

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John Fisk John Fisk, an auctioneer and pound-keeper who in 1804 became high constable of York, was on the Speedy to guard Ogetonicut.34 His performance as a constable did not always command respect. Ely Playter, in his diary entry for 20 April 1804, recounts Fisk's conduct in placing a woman in the pillory: 'Mr. Fisk, who was chosen High Consbe. made a very rediculous appearance at the impilloring the poor Woman.'35 The woman in question was Elizabeth Ellis, who had been convicted by Chief Justice Allcock of keeping a disorderly house. Her sentence had been six months' imprisonment and two sessions of two hours each in the pillory on market days. In August 1804 Fisk's daughter was married to Joel Bigelow. The shivaree for the wedding got a bit out of hand. Playter and others took part, being careful to wear disguises, and when the noise became excessive the magistrates appeared to restore order, but not before Fisk 'shott at us 3 times & then came with his sword ...' The next day several people were bound over to keep the peace.36

John Stegman As already noted, John Stegman, the surveyor assigned the job of determining whether Sharp's murder had taken place in the Newcastle District or the Home District, was to be a witness at Ogetonicut's trial. During the American revolution, he had served as a captain in the Lossberg Regiment under Major-General de Loos.37 After settling as a loyalist in Upper Canada, he had much to do with the surveying of York and the surrounding area. In his oath of allegiance, sworn on 30 June 1801, he describes himself as being forty-three years old, about five feet and seven inches in height, with 'black Eyes and dark brown Hair.'3 8 In a petition for land Stegman explained that 'his zeal for the service [of his regiment] and his attachment to the British government induced him to become an inhabitant of this new settlement.' Noting that he had already received 500 acres, Stegman then asked to be placed upon 'the footing of a British Officer in regard to the proportion of Addition Lands granted to His Majesty's Troops in this Province, and that if Your Excellency should see Proper to grant him this indulgence your Memorialist will ever retain the most grateful sense thereof, and as in duty bound will for ever Pray.'39 This request was granted. Stegman had three daughters who were prominent in York society.

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Jacob Herchmer The reason for Herchmer's presence on the Speedy is not mentioned in primary documents or in early secondary accounts, but two recent works claim that he was a friend of Ogetonicut and espoused his cause in 1804. 4° This would be consistent with the fact that he had a fur-trading establishment at Rice Lake and that, before his marriage, he had an Indian family. A writer who has researched the Herchmer family believes that the mother of Jacob's children was a kinswoman of Ogetonicut. He rejects contentions that she was a descendant of Joseph Brant.4 1 Besides his fur trading, Herchmer was a tax collector, town warden, and prominent York merchant. An advertisement he placed in the Upper Canada Gazette in 1801 indicates that he was engaged in shipping ginseng root to the Far East. In it, Herchmer informed 'the inhabitants of York and its vicinity that he will purchase any quantity of GINSANG that may be gathered, between this and the first of November, next - He will give two shillings N. York Cy. per pound well dried, and one shilling for green.'4 2 Jacob Herchmer was a son of Johan Jost Herchmer, a loyalist and a nephew of the General Nicholas Herchmer who served in the American army during the Revolutionary War.43 His sister Mary married the Niagara merchant Robert Hamilton.44 In the 1790s Jacob had three children by an Indian woman. Then, in July 1803, to the surprise of many, particularly the young Anglican clergyman John Strachan, Herchmer married Margaret England of Kingston, with whom Strachan believed he himself had an understanding. When Strachan learned of the marriage he wrote a poem that was prefaced by the following note: 'Written July 29th, 1803. On finding that a Lady had deceived her lover after coming under the most solemn engagements and married a man she had formerly dispised and who had no qualifications whatever to recommend him - but a little and only a little money.'45 Others were just as surprised by the marriage. The Reverend George Okill Stuart, the Anglican clergyman at York, wrote to his brother James: 'Miss England, you may have heard is married to Jacob Herchmer - they made their appearance for the first time in church on Sunday last - She is artful and I suspect has consulted her Interest rather than her Judgement, in the choice of the Husband she has married. It is an unequal match and such marriages in my humble opinion are very seldom productive of conjugal felicity.'46 George's father, the Reverend John Stuart of Kingston, had a similarly low view of the bride, writing, also in a letter to his son James: 'Miss Eng-d is maried to J.

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Herchmer & gone to York. poor - S-n [John Strachan]; he has been cruelly used.'47 Previously Strachan had written a number of poems for Margaret England; in these, he gave her the name Laura. One such poem, dated 25 December 1802, ended thus: 0 Laura may the coming year To you in happy robes appear Effect the wish that's next your heart Before its number' d weeks depart, And if that dearest wish should prove The meet completion of our love As such a wish has long been mine Perhaps the auspicious pow'rs divine No longer on our hopes may frown But grant us soon bright Hymen's crown.4 8

Whether Strachan wrote an ode to the sinking of the Speedy and the drowning of his despised rival is not known.

John Anderson A twenty-year-old law student, John Anderson was related by marriage to both Solicitor-General Robert Isaac Dey Gray and the merchant Jacob Herchmer. 49 It seems probable that he was going to the trial as an assistant to the solicitor-general. Anderson had been articled to Jacob Farrand and Walter Butler Wilkinson, and in 1803 he had enrolled as student number 24 with the Law Society of Upper Canada. W.R. Riddell comments in his Old Province Tales of Upper Canada: 'It is melancholy to note he was the first student at law to be enrolled a member of the Law Society who was not afterwards called to the Bar.'5° There were on board the Speedy several sets of the statutes of Upper Canada, intended for distribution to eastern parts of the province.51 It is possible that the distribution had been entrusted to John Anderson. So much for the people who boarded the Speedy for the trip to Newcastle and the trial of Ogetonicut. They would never be seen again. Twenty-three years after the sinking of the ship and the drowning of his father, Thomas Paxton Jr made a startling disclosure. In an 1827 petition to the government for a tract of land, known as Fighting Island,

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in the Detroit River, young Paxton stated that in the fall of 1804 his father was 'directed' by Lieutenant-Governor Hunter to 'embark the judges and officers of the Court going on the circuit to open the assises in the District of Newcastle, against which he remonstrated alledging the utter unworthiness of the vessel to go to sea ... being peremptorily ordered by Governor Hunter to proceed he embarked the Court and proceeded on his voyage as directed .. .'5 2 (See Appendix.) Paxton Jr does not give the date of the confrontation between his father and Hunter, but it likely happened a short time before the ship sailed on Sunday, 7 October. How much stock can be placed in this petition? W.R. Riddell, a cautious, meticulous historian, did not question the accuracy of the petition's information. The present writer is also inclined to take the petition at face value. The fact that the Speedy in October 1804 had just about reached the end of its expected life span and that - as will be seen - it ran aground in the York harbour on setting out for Newcastle corroborates Paxton Jr's statement that the vessel was not seaworthy. As for the charge he levelled at Lieutenant-Governor Hunter, it too seems believable. In 1804 Paxton Jr was ten years of age, quite old enough to remember a row that his father had with the lieutenant-governor. Some may wonder why it took him so long to make his claim about Hunter's role in the loss of the Speedy. It may be, however, that what the lieutenant-governor said to Captain Paxton was common knowledge at the time but that no one had the courage to put such defamatory information in writing while Hunter was still alive and that, even after his death, there was still a reluctance to do so. On balance, it seems improbable that Paxton Jr would expose himself to the legal consequences of supporting his petition by a misrepresentation. At the time of the petition Paxton appears to have been a man of some substance. Thirty-three years of age, a veteran of the War of 1812,53 he had been married in 1822 by the Reverend George Okill Stuart and had one child. He had previously obtained a licence to occupy Fighting Island from Lieutenant-Governor Sir Peregrine Maitland,54 and by his petition he was seeking to achieve ownership of the same property. The petition also suggests, as an alternative to a grant of the land, that he be allowed to buy Fighting Island 'for a fair consideration.' A search of the title reveals that Paxton did later buy out some later claimants to the land. There are two other pieces of evidence that point to Hunter's complicity in the loss of the Speedy. One is a letter of 11 November 1804 from the Montreal businessman Alexander Auldjo to David William Smith, then living in England, in which an account of the Speedy's disappearance is

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accompanied by the following statement: 'Many blame Genl Hunter for exposing people in such a vessel, the Swift is condemned and then it's said the Toronto is unservisable.'55 The other is to be found in James Cleland Hamilton's Osgoode Hall Reminiscences, published in 1904. Hamilton tells of a conversation he had in 1868 with John Baker (brother of Robert Isaac Dey Gray's slave Simon Baker, who was drowned with his master) when Baker was a very old man: Young Gray was the only child of the Colonel, and went to Parliament several years running. The Colonel was strict and sharp, put deerskin shirts and jackets on me and gave me many good whippings. Simon was older than me and was Solisary [sic] Gray's body-servant. I lived two years in Toronto, or little York, in a large white house north of the boat landing. The people were proud and grand then. Simon was dressed finer than his master, with a beaver hat and gold watch. Governor Hunter ordered the party to go to trial in the 'Speedy.' He was a severe old man, and wore leather breaches. In one pocket he carried tobacco, in the other snuff, and it would fall over his fine ruffled shirt-front, - fine, no mistake, and silver buckles to his shoes. Solisary Gray, when he went off last, told me to look after the place. They started between four and five in the evening, and we heard of the loss next morning from the brig 'Toronto.' There were then in Toronto about twenty houses ... 56

The Colonel mentioned by John Baker was the father of Solicitor-General Robert Isaac Dey Gray, whom Baker called 'Young Gray' or the 'Solisary.' Baker's statement corroborates Paxton's in two respects: it says that Lieutenant-Governor Hunter ordered the party to go to trial in the Speedy, and it adds that Hunter was 'a severe old man.' The fact that this incident was still sharp and clear in Baker's mind, sixty-four years after the event, suggests that Hunter's order to Paxton was not a routine one. On the contrary, it would seem that the order was burned into Baker's memory because it was so unusual. By 1804 the Speedy had made hundreds of trips up and down Lake Ontario; indeed, when Lieutenant-Governor Hunter had arrived in Upper Canada, he travelled on the Speedy from Kingston to York. In the ordinary course of events there would have been no need for the lieutenant-governor to order the Speedy to make a routine trip down the lake. If Hunter did in fact order the Speedy to sail over the captain's protests - and, as argued, there are solid grounds for believing that this was the case- his conduct was inexcusable. Not only was he interfering needlessly with Paxton's operation of his vessel, but, given the state of the Speedy,

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he was endangering the lives of those aboard. There is ample evidence that the lieutenant-governor was aware of the dry rot that required annual repairs on the Speedy and other naval vessels built during the same period. Hunter also knew that the useful life of these ships did not exceed six to eight years, and that the annual repairs were done in the spring, which would mean that by October additional repairs would probably be needed in the six-year-old Speedy. Hunter knew as well, from reports that he had received from the naval authorities in Kingston, that the Speedy had been damaged in 1802 when Paxton had been ordered to sail against his better judgment. On top of all this, Hunter must have realized that Captain Paxton, with his Royal Navy background, was one of the most experienced captains in the naval service and that, having sailed the Speedy since it was launched, he would be aware of its capabilities. Hunter, as a lieutenant-general in the British army, far outranked Lieutenant Paxton, but his skills were in military actions on land not on the sea, and he must have known that Paxton's judgment on the Speedy's seaworthiness should have been respected. Hunter's conduct may have been prompted by his perception of the issue at stake in the case of Ogetonicut. Determined to forestall Indian violence against whites, Hunter may have brushed aside Paxton's objections because of his desire to make a quick and public example of the Indian who had killed John Sharp. Hunter also knew that, with winter approaching, it would be impossible to hold another court at Newcastle until the spring or summer of 1805. Patience was not one of Hunter's virtues. The history of his career in Ireland shows that he knew the salutary effect of public hangings and the display of heads on iron spikes over the court-house door. In Upper Canada he was not to be thwarted by a waterlogged ship or a timid captain. On the late afternoon of 7 October 1804 the Speedy left York for Newcastle, with Ogetonicut probably below deck in irons. On the evening of 8 October, or early the following day, disaster struck.

6 Disaster

There is no contemporary account of the sailing of the Speedy on that Sunday afternoon so long ago. It was not mentioned in Ely Playter's diary or the Upper Canada Gazette. All that we have are the memories, recorded many years after the event, of Thomas Paxton Jr, John Baker, and the Reverend George Okill Stuart. In a letter written to Chief Justice Sir John Beverley Robinson in 1860, Stuart, who was a close friend of Thomas Cochran and was well acquainted with others on board, recalled the departure of the Speedy. 'I am reminded,' he said, of 'her running aground on leaving the harbour of York. The occurrence delayed her departure, nearly two hours.' 1 Stuart's letter is the only source in which this incident is mentioned. From the memories of these three men there has been preserved the picture of Lieutenant-Governor Peter Hunter, a severe old man (in the eyes of John Baker) giving the peremptory order to his long-suffering subordinate, Lieutenant Thomas Paxton, to take the ship out into the lake, despite Paxton's protests that it was not seaworthy. There is also the picture of Simon Baker dressed for the occasion in finer raiment than that of his master, the solicitor-general, Simon wearing his beaver hat and carrying his fine gold watch, and Gray asking John Baker to look after their home until they returned. Then we have the picture of the ship when hardly underway running aground in the harbour, where it was held fast for two hours. There must have been much more that could have been described on

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that Sunday afternoon, but at this great distance in time all we can do is set our imaginations to work. Was there a ceremonial send-off for this group who were going to conduct the official opening of the new courthouse in the burgeoning town of Newcastle? Years before, when the Simcoes left Niagara to found the new town of York, Mrs Simcoe wrote in her diary that 'we embarked on board the Mississaga the band playing in the Ship.' 2 Was there a band playing on this occasion, were there farewell songs to speed the distinguished party on its way? Appropriate selections in such circumstances must surely have included 'Rule Britannia' and 'God Save the King.' Then there is Ogetonicut. Was there a jeering crowd watching as he boarded the ship? No doubt he would have been shackled in irons and in the custody of Constable Fisk, perhaps accompanied by soldiers to guard against an escape until he was safely on board. Did he and the other passengers board at the small pier that then existed or were they all taken out to the ship in one small boat? It is more likely that several trips were made, with the judge and his clerk making the last trip from the shore. Finally, it is known that there was a hen-coop on board the Speedy. It would undoubtedly have been well stocked to provide fresh food for the journey. C.H.J. Snider, a journalist who had a regular column entitled 'Schooner Days' in the Toronto Telegram, wrote several articles about the loss of the Speedy in 1949.J Snider was well versed in marine lore and was blessed with a vivid imagination. In his description of the departure from York he tells of the town crier calling out loudly, more than once, 'All ashore that stay ashore, all aboard that sail!' And later, after the ship sails, Snider describes Justice Cochran dining on roast capon in the captain's cabin, served by his own liveried black servant. Curiously, Snider includes as a passenger, travelling second class on the Speedy, the Reverend Robert Dunn. This was not entirely a figment of his imagination because a Reverend John Dun did perish on a ship in Lake Ontario, but this accident happened a year earlier, in the wreck of the Lady Washington.4 Perhaps we should not be too critical of Snider's fictionalizing and mistakes; his version of the affair makes for lively reading. He pictures the fowls in their pens preening their feathers and the cocks crowing repeatedly, which of course might be true. When Snider wrote his columns he was apparently not aware of the ship's running aground as it was leaving the harbour, since he does not mention this part of the story. As it turned out, the loss of these two hours proved to be of tragic importance. If the Speedy had arrived at Newcastle two hours earlier than it did on 8 October, there seems to have

Disaster 99 been little doubt that it would have safely entered the harbour, because the storm which drove it from the harbour entrance broke just as the ship was making its approach. Stuart wrote in his letter that, if the sheriff had been able to procure a small boat, the passengers could have landed. There is no explanation of the grounding of the ship in York harbour, but it seems improbable that a captain with Paxton's experience would have simply run aground in a harbour he knew so well. A more likely explanation would be that the ship was drawing much more water than it should have because of excessive water in the hold resulting from leaks. It is not known how the ship was refloated, whether by pumping out the bilges, the use of sweeps or of one or more kedge anchors, or by the combined use of such methods, but it would have avoided much grief if the ship had remained firmly aground. As the ship slowly inched free from the mud in the York harbour, Paxton must have given serious thought to returning to anchorage and discharging his passengers once he could safely do so, notwithstanding the stormy meeting with the lieutenant-governor that would be sure to follow. Had he done so he would have faced a court-martial, which probably would have ended in his dismissal from the service at the very least. Perhaps the consideration that weighed against such action was the memory of the false accusation made by Captain Mackenzie at Kingston two years earlier, when Mackenzie had reported to the lieutenant-governor that Paxton's 'intentional mismanagement' - after being ordered to sail in conditions he considered unsafe - had resulted in the carrying away of his top sail. If Paxton now returned ashore and refused to sail, this prior alleged misconduct would be used against him in the proceedings that would undoubtedly have followed. Hunter could break a man who dared to stand up against him. As the ship left the Gap and rounded Gibraltar Point, it would have been caught in the swell of the lake, and as it turned to the east, behind a fresh north-westerly wind, the sails would have billowed out and there would have been the all-familiar noises of a sailing ship that was fully underway: creaks and groans from the hull, the masts, and the spars, the slatting of the lines and the rigging, and the surging of the bow wave as the ship ploughed through one wave after another. Ordinarily, in a sound ship, these noises would have been sheer music to the ears ·of an experienced seafarer, but, knowing what they did about the Speedy, Paxton and his crew may have had a grim sense of foreboding as they drove eastward before the wind. It is not known whether any of the passengers were aware of the

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confrontation between Hunter and Paxton that took place before the ship sailed. For those who had witnessed or heard of the confrontation, the voyage must have been an uneasy one right from the beginning. The Speedy on its trip from York to Newcastle must have had generally favourable winds all the way because it covered the distance of about one hundred miles in about twenty-four hours. On a fine October day with the autumn colours at their best, travelling along the shore of Lake Ontario would have been a most enjoyable experience. William Weekes on horseback, much closer to the autumn glory of the oaks and maples, alone with his thoughts on how the defence of Ogetonicut would be conducted, would also have had a delightful trip. On that same autumn day, the Farewell brothers, employers of the deceased John Sharp, and Eleazar Lockwood, who had spied on the Indian encampment, set out in a canoe for Newcastle from a point near what is now Oshawa. Some writers have suggested that they were to be picked up in the Speedy but, finding it overcrowded, they decided to continue in the canoe.5 Others have said that, not seeing the Speedy, they continued on their way, 6 and at least one other writer has claimed that they accompanied the Speedy, sometimes the canoe being in the lead and sometimes the ship.7 All in all, it seems probable that the Farewell brothers and Lockwood proceeded on their own because they reached Newcastle a short time before the Speedy. Since their paddling speed for such a lengthy trip would have been less that the sailing speed of the Speedy, they probably left before the Speedy had reached the Oshawa area. The various descriptions of the disappearance of the Speedy do not all agree. Some say that the ship was in obvious trouble when it passed Keeler's Creek (now Colborne Harbour), about fifteen miles west of Presqu'ile Point, and that a frightful storm had then broken; 8 others claim that the storm did not break until the ship was about to enter the harbour, when a strong northeast wing sprang up. 9 No contemporary eyewitness account exists, but in his 1860 letter George Okill Stuart wrote of the Speedy's 'nearness within a mile and one half to Presque Isle Harbour at the close of the afternoon of this eventful stormy night, when our friends lost their lives - of the inability of the Sheriff to procure a boat, wherein the passengers would have landed in an hour or little more on a calm lake preceding the raging storm that arose and drove the vessel from the shore into the lake and it was swallowed up amidst the raging waves.' Stuart's version of events was probably obtained from reliable witnesses who were at Presqu'ile Point that night. The various accounts seem to agree that the authorities at Newcastle,

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hoping the Speedy could weather the storm and make another approach during the night, lit a bonfire on the shore to serve as a beacon. But the Speedy never returned. At what point did those on board first become aware that all was not well and that they were in real danger? Probably this realization would have set in when the strong northeast wind struck the ship and began to drive it from the harbour mouth into the lake. The pitching and tossing of the ship must have intensified as the ship was driven from the protection of the shore and spray and waves began to break over the deck. The only writer who has attempted to reconstruct what probably happened is C.H.J. Snider. After speculating that Paxton would have fired a distress signal, Snider continues: 'The passengers below thought the vessel was signalling her arrival, and began donning their greatcoats in preparation for landing. "A few moments yet, Your Lordship, a few moments yet," called down Lieut. Paxton. More truly than he thought. A light blazed redly. Capt. Selleck, on the point, in answer to the gun, had set fire to a great pile of brush, logs, and chips from the newbuilt courthouse, to guide the vessel in.' 10 According to Snider, the deck cargo, such as the baggage of the officials, the livestock pens for their table fare, and the furniture for the courthouse, made it difficult to reach the ship's pumps: 'She was a-leak, her usual condition in a headwind, for she suffered from a dry-rot. The water was coming in faster than the pumps could throw it out.' On seeing the fire on shore, Paxton 'could now calculate his position from his fix on the Point, so he flogged the ill-named Speedy towards it in wing-weary zigzags, adding the clangs of the overworked pumps to the roar of the sails, the sobbing of the scuppers and the hiss of the seas and the mingling snow.' 11 All that Snider has said so far may be an accurate description of what was happening on the vessel, but from this point on his account must be read with caution. The narrative continues: After much tacking the Speedy was beyond the Horseblock, Lieut. Paxton could tell by the compass bearing on the bonfire, now on his quarter. 'Stations forward!' he called. 'Standby for stays! Helm a-lee!' She came up to the wind and hung in irons, her snow-filled sails flailing wildly. She was so water-logged she could not steer. So he wore her around before the wind, hauled her up on the the other tack as she gathered headway, and bore away for the blaze of the beacon light. She could have made it in ten minutes. In the manoeuvre the Speedy had drifted to leeward, and she fell farther to

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leeward as she plunged soddenly through the snow with the muzzle of the lee gun level with the water. Even as he estimated the ten-minute level she smashed squarely on the hammerhead of the unseen Horseblock, and her masts went overside. With a rumble felt rather than heard, that spike of limestone split into fragments and collapsed, carrying down in its ruins the shattered vessel with all on board.12

The Horseblock mentioned by Snider was his name for a strange rock formation described first in 1895 by I.M. Wellington of Brighton, who was then a very old man. He was a grandson of Charles Selleck, and was born in 1821 in what used to be the Newcastle court-house.1 3 Wellington said that in the early part of 1804 his grandfather discovered, about four miles off the most westerly point on Presqu'ile, a huge rock which was barely three feet below the surface of the lake. He added that his grandfather showed this rock to Captain Paxton; they measured it as being forty feet across, and charted its position. He then said: But what surprised the captains and the whole crew the most was the fact that in sounding around on every side of the rock they found about fifty fathoms of water, and that on every dropping of the lead the line went straight down to the bottom. Capt. Paxton then made a correct note of every particular and told Capt. Selleck that when he went to Niagara again he should have it put upon the chart so that in after days it would be a warning to all the mariners traversing the waters of Lake Ontario; although at this time the Speedy and Lady Murray were the only schooners owned on this side of the lake.

When the Speedy disappeared several months later, off the mouth of the harbour, Wellington claimed that two or three days after the disappearance 'the water-barrel and the hencoop, with the name of the Speedy on them, were picked up on Weller's Beach, and brought to Presqu'isle and placed in the care of Capt. Selleck.' On the first fine day thereafter, Selleck and other local settlers decided to make a search about the sunken rock. But 'no rock could be found, nor has anything further ever been heard respecting that sunken rock. It was a great wonderment to all, especially to those who had seen the rock before that noted storm when the Speedy was lost, of what kind of rock it must have been. The general opinion was that it must have been a large boulder loose at the bottom, and when struck by the Speedy it was forced over, taking the Speedy down with it.' 1 4

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In Old Province Tales of Upper Canada, Riddell expresses extreme scepticism about the story of this rock: The story is still believed by the older residents of the neighbourhood of Presqu'isle that in the early part of the year the lake captain, who was in charge of the court-house and gaol at Newcastle, Captain Selleck, discovered a rock off the coast, just below the surface of the water, which he had never seen before; that he drew the attention to it of Captain Paxton next time the Speedy arrived at Newcastle; that the two examined and measured the rock, finding it some 40 feet in diameter, and rising sheer in a depth of fifty fathoms; and that Paxton assured Selleck that on his arrival at Niagara he would report the discovery, so as to have the charts amended and all mariners warned. The story is that after the loss of the Speedy, Captain Selleck and others tried to find the rock, but that after a most diligent search, continuing more than one day, no rock could be found; and it is certain that no such rock has been seen at any subsequent time to this day. It was thought to have been a large boulder loose at the bottom, that the Speedy struck it and that it rolled over taking the schooner with it. No record exists of any report being made by Paxton of the rock. There is no contemporary record of anything of the kind, and it is probable that the story of the mysterious rock is a myth. It sounds like a story to tell to the Marines, but anyone is at liberty to believe it who sees fit to do so. 1 5

Snider obviously was one who saw fit to believe it. Indeed, not only was he prepared to accept the existence of the mysterious rock formation, but he also gave it the name 'Horseblock.' Yet his account is not totally identical to Wellington's. Snider claimed that the rock was in eight fathoms of water rather than fifty, and that it was covered by only eight inches of water rather than three feet. 16 As a sailor who was very familiar with the area, Snider knew that there was no place near the point - the supposed location of the rock - where the water was fifty fathoms deep. The maximum depth of water four miles south of the westerly tip of Presqu'ile is about twenty fathoms. A review of all the available evidence leads to the conclusion that Riddell's assessment should be accepted. After all, if a rock measuring forty feet across was bowled over by the impact of the Speedy, it would have been, even on its side, easily identified by soundings. Snider's suggestion that the 'spike of limestone split into fragments and collapsed' calls for much faith. There also seems good reason to question the accuracy of Wellington's

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statement that, two or three days after the Speedy's disappearance, the ship's water-barrel and hen-coop were picked up on Weller's Beach and brought to Presqu'ile Point. To begin with, the loss of the Speedy was first confirmed in a letter of October 25 from the commanding officer at Niagara, Lieutenant-Colonel John Vincent, to the lieutenant-governor. If the objects mentioned by Wellington had been found, as he says, two or three days after 8 October, such an important find would certainly have been reported to York long before Vincent's letter. In addition, Vincent indicated that floating debris from the Speedy had been found at Oak Orchard. His letter read: I feel much regret I have it not in my power to remove the General's (Hunter's] alarm for the fate of the Speedy. On Friday last an account came here that a boat had picked up a top mast, a binnacle seat and hen coop painted red with some spars. These articles were taken to shore near the Oak Orchard to a Mr. Fuller's, about forty miles from here, to which place we sent Indians for information who are not yet returned, but I am sorry to state that a Mr. McDonald has just arrived from that place who reports that he saw those articles at Mr. Fuller's and that the name Paxton was on the lantern of the binnacle. 1 7

In another letter written on 30 November, Alexander Macdonell, brother of Angus, told Lord Selkirk that 'one of the yards, a hen coop, the binnacle, & I have lately heard the boat, are the only remnants of this ill-fated vessel which have been found. It is supposed that she struck upon a reef of rocks which project three miles from the mainland on the south side of the lake, off the Devil's Nose ... this however can only be conjedure.' 18 Devil's Nose was a few miles east of Oak Orchard River and was known to have caused other marine disasters. It seems probable that Alexander Macdonell is the person referred to in Vincent's letter as 'Mr. McDonald.' Weller's Beach, where Wellington claimed that Speedy objects had been located, is on the west shore of Prince Edward County, about three miles from the mouth of Presqu'ile harbour; Oak Orchard is about forty miles east of Niagara on the south shore of Lake Ontario. It is unlikely that debris from the Speedy could have been found at two such widely separated places. There is a possible explanation of the discrepancy between Wellington's account and those of Vincent and Macdonell. Wellington tells of asking his mother why Captain Paxton wanted a hen-coop on board his schooner. She replied that the Speedy's crew carried live fowls so that they could have a fresh meal whenever they desired it. No doubt Wellington, when

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discussing this matter with his mother, was referring to the hen-coop that had been found on the south shore and taken to the home of Fuller. But he may have confused, in his own mind, the name Fuller with the name Weller and thus mistakenly formed the belief that the hen-coop was found at nearby Weller's Beach. It should also be noted that, if the Speedy went down anywhere near Presqu'ile Point, while a strong wind from the northeast was blowing, it would have been impossible for such floating debris as a hen-coop to drift ashore on Weller's Beach. The wind would have carried this debris out into the lake where it would have scattered over a wide area. So what did happen to the Speedy? The finding of pieces of floating debris and the vessel's boat near Oak Orchard on the south shore of the lake, forty miles east of Niagara, strongly suggests that Alexander Macdonell was right in thinking that the ship had struck the nearby Devil's Nose reef. It seems impossible to believe that, if the ship had foundered near Presqu'ile harbour, items of debris from the wreck would drift, or be blown, a distance of about seventy miles to a point where they would all be found close together. Free-floating objects do not stay together in a cluster. It therefore appears that the Speedy was driven across the storm-tossed lake by a strong northeast wind or gale before it finally met disaster. If this is indeed what happened, it must have been a night of sheer horror for those on board. Angus Macdonell, known to be a very nervous sailor at the best of times, would have found the ordeal especially bad. In 1792 the surveyor William Chewett had travelled with Macdonell up the St Lawrence River from Quebec City to Montreal in a boat 'propelled by sail and oar.' In a diary entry for 25 May, a day that was 'very squally, with thunder and lightning,' Chewett wrote: 'Mr. Angus McDonell was very much panic struck, let go the halyard, broached too the boat and frightened the crew ... When about 100 yards from the shore he was in so great a fright that he attempted to get out of the boat, and when I asked him what he was about to do, he said he did not think there was so much water at the place.' 1 9 As the Speedy was driven across the lake, Macdonell was undoubtedly not alone in his terror. It must have been an unspeakable ordeal for everyone on board, especially for the two children travelling without their parents. Even for such a good sailor as Paxton, the final hours - likely made all the worse by seasickness - must have been grim indeed. It is unlikely that Ogetonicut would have had sailing experience in a large vessel, and if, as seems probable, he was below deck in irons, he

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would not have had a full appreciation of what was going on. Still, it may have occurred to him that, if the ship did go down with so many white men on board, the death of Whistling Duck would be more than avenged. Justice, in its own strange way, would be done. The Speedy's failure to reach Newcastle was soon reported in York when the yacht Toronto arrived from the east. 20 Although John Baker told James Cleland Hamilton that this news reached York the morning after the vessel sailed via the Toronto, this seems highly unlikely. Even if the Toronto had been at Newcastle when the Speedy failed to make port, and set out at once for York, the trip would have taken about twenty-four hours under favourable conditions, which would mean that word of the disappearance could not have reached York until 10 October at the earliest. News that the ship had disappeared would have caused alarm but not necessarily panic. If the Speedy had been a sound ship in good trim, no doubt it could have weathered a strong offshore wind; the only real and constant hazard for a sailing vessel would be from a lee shore with a very strong onshore wind. In any event, a sailing vessel in sound condition, at the mercy of the wind, could have safely reached a port anywhere along the hundreds of miles of shoreline, and considering the direction of the wind when the ship disappeared, the probability would be that it had made port on the south shore of the lake. If the ship had indeed made port on the south shore of Lake Ontario, a few days would elapse before word of its arrival reached York. Such hopes were dashed when Vincent informed the authorities on 25 October that debris from the Speedy was found at Oak Orchard. Ely Playter wrote in his diary entry for that day: 'The Town of York was in confusion by the Loss [of) the Schooner Speedy on her way to Newcastle with a Number of Passengers from York; her loss had been supposed some time but now was authenticated.' 21 The confusion of York's residents can be easily understood. The departure of Speedy on 7 October had been followed by a stunning and terrible disaster. Five per cent of the town's population of about 400 were gone forever, and among the dead were a number of York's most prominent citizens. One person who was particularly affected by the disaster was George Okill Stuart. On 10 November 1804 his father wrote to another Stuart son, James: 'George is again able to perform his public Duty; although he has sustained an irreparable Loss in the Death of J. Cochran, such a Friend as cannot be replaced. George feels severely on the melancholy

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Occasion, not only for him but for Gray, Herkimer, &c. &c. &c.' 22 The following month John Stuart again mentioned the Speedy's loss in a letter to James, this time noting its effect not only on George but also on himself and on the larger society: 'The melancholy accident you allude to has spread a Gloom over York and Kingston that is not yet dissipated. The Particulars I need not Detail. I never felt such an Interest in the Fate of Strangers - their Loss will long be remembered and lamented. George suffered severely in the premature Fate of Justice Cochrane, a true Friend - the Friend of his early Youth.' 2 3 George Stuart's own letter of 1860, written more than fifty years after the event, noted that 'when this sad News reached York, a gloom overspread the Village, which lasted a length of Time and the remembrance of the Melancholy fate of the Passengers, Captain & Seamen, will not be forgotten by the surviving friends and Cotemporaries of the Sufferers.' 2 4 At the time he penned these words, Stuart was eighty-four years old, but his memory of his boyhood at school in Nova Scotia with Thomas Cochran was sharp and clear, as was his memory of other people who lost their lives on the Speedy. To him, the victims of the disaster were not just names; many of them were his friends, real people who had suffered a dreadful fate. We who have come to know these people through old records can feel the same sense of loss. As noted in Chapter 1, the loss of the Speedy was reported in the Upper Canada Gazette on 3 November and in a dispatch from LieutenantGovernor Peter Hunter to the Colonial Office just over a week later. Not surprisingly, Hunter did not mention his role in the tragedy of the Speedy; nor did he order an inquiry into the loss of the ship with all its 'respectable' passengers. Perhaps his failure to hold an inquiry resulted from his wish to conceal his complicity in the affair? Such a motive seems at least possible. Hunter had a lot to answer for. Not only had he ordered the ship to sail despite its captain's protests, but he had also failed to take action against the killer of Whistling Duck - a failure that led to the murder of John Sharp and the Speedy's last voyage. On 8 November 1804, Robert Hamilton of Niagara reported the Speedy's loss in a letter to fellow merchant John Askin: The late very heavy Misfortune that has befallen our Society, has filled us with much Grief, & has sent Mourning into every district of the Province. The Speedy as you probably have heard, left York to go to Newcastle, formerly the Presque Isle of the Bay of Kenti [Quinte), with not less than 17 or 18 persons on Board. Amongst these were the following, Mr Justice Cochrane, Mr Sol. Gen. Gray,

108 Speedy Justice Messrs Angus McDonnel Jacob Herkemer Mrs Hamilton's Brother [George] Cowan the Interpreter at Matchetas, with seven other Passengers. She was seen off the Harbour of Presque Isle on Monday the 8th Oct, in the Evening, & has not since been heard of. A very violent Storm prevailed on that Night & the following day, & there can be no doubt but that she foundered in it. Some small portion[s] of the Wreck have be[en) found on the South shore of this Lake, but nothing much of Consequence, nor any of the Dead Bodies. Such Men as we have on this Occasion lost, will not soon be replaced; and it makes a sad Blank in the Society, particularly at York. The Absence of the Cheif Justice also, who is gone this Season on a Visit to England, will render this more sincerely felt, And will most probably prevent much Business of any Kind, being done there this winter. 2 5

This letter, like George Okill Stuart's decades after the event, underlines the impact of the Speedy's loss on Upper Canadian society. It is also interesting for several other reasons: it provides the first evidence that the fatal storm continued into the day after the Speedy was sighted at Presqu'ile; it is the only statement by a person who actually felt the strength of the storm; and it confirms other reports that debris from the vessel was found on the south shore of the lake. Incidentally, after commenting on the disappearance of the Speedy, Hamilton went on to say that the season was 'very wett.' This corroborates other evidence regarding the impracticality of overland travel that October because of bad roads. Other comments on the Speedy's loss similarly make clear the extent of grief felt by many in the wake of the disaster. The York merchant Alexander Wood wrote Robert Nichol of Niagara on 10 November 1804: 'I return with sorrowful concern the letter addressed to Mr. Gray, now not the least dawning of hope can exist, that a single soul escaped the fate of the unfortunate Speedy. Tho' not a body has as yet been found.' 26 Several months later, on 6 March 1805, Wood returned to the subject of the Speedy in a letter to John Elmsley, noting that 'the misfortune which robed this place of its brightest ornaments in the premature fate of poor Mr Cochran & Mr Gray will be remembered & lamented as long as the present society exists.' 2 7 On 11 November 1804 Alexander Auldjo, in a letter to David William Smith mentioned earlier, gave a lengthy account of the Speedy's disappearance. He wrote: I have now to relate a very melancholy loss - The Speedy Capt Paxton - with

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Judge Cochran, Sol. Genl. Gray, Angus McDonell, Herkemer, Ruggles, Stagman, Cowan the Interpreter from Matchetash, an Indian & some other passengers to the number of fifteen or Sixteen, Sailed from York on the 7 Octr. to hold court at Newcastle - they were within a Mile & a half of the port when a violent Gale of Wind came on which drove them out into the lake - and they have not been since heard of, some pieces of a wreck were found on the south side of the Lake, there is not a shadow of doubt but the vessel foundered & they are all lost - an express is gone to stop Alcock if at York-[Attomey-General Thomas] Scott writes that there is a stop to all business at York. The loss is dreadful - and will throw a damp for a long time on such a small place ...

Then followed Auldjo's statement concerning Lieutenant-Governor Hunter's role in the disaster.2 8 Later in November 1804 Thomas Scott wrote to David William Smith: 'I will not hurt you so much as to recount the particulars of the loss of Mr Cochrane Angus Mc Donell, Sol Genl(,] Herchemer & others on the Lake. We are Melancholly here beyond description.' 2 9 Early the following year, in a by-election called to fill the seat held by Angus Macdonell, candidate John Cameron waxed eloquent in invoking the Speedy's memory: The much to be lamented, and truly affecting loss sustained by the Public, in the premature fates of so many valuable Citizens, is a calamity of melancholy magnitude and distressing operation, and it is to the interests, as well as to the feelings of this small Community, a wound bordering upon vital: a wound which will long remain unhealed, and a disaster of which the effects will be painfully felt by the Bench, the Bar, Society, the Legislature and the Country. The severe dispensation holds forth an humiliating picture to human pride, and this affecting lesson to the survivors of those departed worthies, that neither blooming health, nor blooming prospects, nor the undissembled affection of admiring friends, can avert the awful fate which, He who rules the Winds and Waves, dispenses to Man ... Bowing, as we ought, to the will of an overruling Providence, let us, whilst we feel with the tenderness of men, submit with the fortitude of Christians, and suffer the tide of grief, which flows for the loss of such precious friends, to subside into a calm of pious resignation.

Despite his rhetorical splendour, Cameron was defeated by William Weekes.3°

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The last words belong to the Reverend Peter Roots, an American Baptist missionary active in Upper Canada. He informed the Massachusetts Baptist Missionary Society in April 1805: On Lords-day, the sixth of October last, a number of persons, among whom were some of the principal characters in this country, went on board a vessel at York, bound to New-Castle, in another county, to attend a court there; but the vessel, with all whom it contained (I think twenty-seven persons) was undoubtedly buried in the bottom of the lake; but nobody knows the spot where. 0 how sudden the change! Instead of attending an earthly court, they were summoned before the bar of God! How important that we should remember the words of Christ, 'Take ye heed, watch and pray: for ye know not when the time is.'31

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Aftermath

Lieutenant-Governor Hunter did not long survive the loss of the Speedy. Within a year he was dead. The end came unexpectedly in Quebec City on 21 August 1805. A notice published in the Gentleman's Magazine indicated that he was preparing to return to Upper Canada when his death was caused by 'gout in the stomach.' 1 A rather pretentious marble memorial in Quebec City's Cathedral of the Holy Trinity states that Hunter, fifty-nine years old at the time of his death, had 'discharged his duties with spotless integrity, unwearied zeal and successful abilities.' An obituary in the Quebec Gazette for 22 August 1805 noted that his loss would be severely felt and lauded his 'unremitting attention and exertions.' Major Green, Hunter's secretary, writing from Quebec to a friend in York, revealed more about the fatal 'gout in the stomach.' He explained that Hunter 'had for some time weakened himself too much by a low regimen which prevented the disease getting into the extremities as formerly.' 2 In Upper Canada, Hunter's closest associates were grief-stricken at the news of his death, John McGill of the Executive Council describing him as 'my much lamented Patron.'3 Others remembered him differently. Hannah Jarvis wrote in a letter to her father: 'I think the Ministry must have scraped all the Fishing Towns in Scotland to have met with so great a devil ... the wretch I am told half an hour before his Death, Damned every one around him in his usual manner ... a Tyrant in all his Departments - hated by all - except a few Lying ... mischief making sycophants and dependents.'4 When Francis Gore was sworn in as Hunter's

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successor in 1806, the Reverend George Okill Stuart wrote to his father: 'Every one is pleased in having a more polite man than our former Lieutenant Govemor.'5 Long before Hunter's death, Peter Russell had moved to turn the tragedy of the Speedy to his own advantage. From 1794 until the late 1790s Russell, though lacking legal training, had sat as a temporary puisne judge of the Court of King's Bench, and the Speedy had no sooner disappeared than he saw an opportunity to return to the bench. On 26 October 1804, the day after the loss of the vessel was confirmed, Russell wrote to his overseas friend Colonel W.H. Clinton expressing an interest in becoming Thomas Cochran's successor on the highest court and suggesting that Clinton might discreetly put forward his claim. After describing the disaster, Russell noted that the Speedy's loss offered a 'favourable opening for exciting an attention to my Services and Consequent Claim on Government.' His letter foresaw some problems 'on account of my never having been called to the Bar, which may I fear be an insuperable objection,' and disingenuously noted that 'I am not very anxious about Succeeding to that appointment, tho it requires much less application to Business & yields a Somewhat larger Income than the one I now hold, being conscious that I am not capable of executing the Duties of it even to my own Satisfaction, & it would very much hurt my feelings to be found unequal to any situation I may be placed in.' The letter concludes: 'I have not mentioned my intention to General Hunter, nor does anyone know of this application.' Enclosed with this letter was a formal memorial that was to be forwarded, with becoming tact, to the colonial secretary. It stressed the heavy responsibilities Russell was discharging as receivergeneral and then came to the point: 'Your memorialist hopes he may not appear presumptuous in availing himself of the Vacancy just occasioned by the late melancholy Death of Mr Justice Cochran to become an humble suitor to your Lordship for the Seat he occupied on the King's Bench of this Province.' 6 Russell must have sensed that he would not receive the judicial appointment because in a letter of 11 November he suggested to the prominent Montreal businessman and banker John Gray that, with the solicitorgeneral now dead, John Gray might tum over to Russell all his business in Upper Canada that had previously been handled by Robert Gray.7 No doubt he was disappointed to receive this reply from John Gray, dated 10 December 1804: 'I was extremely sorry to hear of the melancholy accident that happened to the Speedy sloop and sincerely thank you for your offer of service, but as it is absolutely necessary for me to have a

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lawyer in employment I have requested Mr Scott [the attorney-general] to take my affairs in hand which were under the management of the late Solicitor General. I shall nevertheless be much obliged by your having an eye to my demand on Mr Jarvis, and using your influence to recover same for me.'8 Russell would have to be content with this small crumb of comfort from the loss of the Speedy. He suffered further disappointment and humiliation after the death of Hunter, when he sought to be reappointed as administrator of the colony pending the arrival of a new lieutenantgovernor. The post instead went to Alexander Grant. Russell was not alone in seeking advantage from the disaster. In a letter of 23 December 1804 to the surveyor-general, a surveyor named Stevens, after asking for some routine information, bluntly stated: 'I am sorry to hear that my friend Stegman is dead; But since he cannot be brought to life again; I don't know that it can be any injury to his memory, to say that, if the Government should think proper to employ me in his room, it would be very acceptable to me.'9 Stevens was up against stiff competition. Another surveyor, Samuel Wilmot, had married one of John Stegman's daughters, and in the end he was appointed to fill the vacancy in the surveyor-general's department caused by Stegman's death on the

Speedy.

Another application for a position that was made vacant by the loss of the Speedy can be viewed with more sympathy. On 2 December 1805 George Cowan's son John asked to be appointed to his father's post as an interpreter in the Indian Department. His petition read: By the untimely death of his said father your petitioner is left destitute of the means of support and the Chippewa Indians ... without the usual medium of conveying their wants & wishes to Govt. The Chiefs of the said tribe have repeatedly and earnestly pressed your petitioner to apply for the place which his late father held and did invest your petitioner with wampum (their mode of making a request from Govt.) to that effect ... There is a tribe within the vicinity of Lake Simcoe denominated the Shakey who annoy and in some measure retard the settlement in that neighbourhood by threatening & frightening the settlers which last have also incessantly urged his petitioner to apply since his father's death ... If appointed it will enable him to support himself & his family (which his precarious health otherwise would disqualify him for) and become a useful member of Society. 10

There is no clear evidence that John Cowan did succeed to his father's

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appointment, but in 1814 two interpreters named Cowan were struck off the pay list. This was followed by a plea for reinstatement; the decision is illegible. 11 Another sequel to the Cowan story is found in an unsigned letter, dated March 1805, from Montreal to Commissary William Lane in Quebec. The writer stated: 'Mr Cown being still continued on this pay list to the 24 Dec is a matter I cannot account for as it being very certain that he was among the number of the unfortunate passengers on board the vessel that was lost on Lake Ontario with every soul perished. However as I have not seen any official acct of this being the case ... ' At this point the letter becomes unintelligible, with words written in and crossed out. The writer speculates that 'General Hunter may have authorised his being continued to the full period,' but these words are struck out and the letter ends, perhaps understandably, with the following: 'I am at a loss what to think of it I am rather inclined to suppose it is a mistake.' 12 Most of the Speedy's victims do not appear to have left wills. Thomas Cochran, however, just before sailing on the Speedy, addressed a letter to Duncan Cameron directing that, 'in the event of any accident befalling him,' he should write to his mother and a Mr Hill at Halifax and 'dispose of his property here and transmit the proceeds thereof to his mother.' 1 J This letter may suggest that Cochran had misgivings about his trip on the Speedy. One of the assets in Cochran's small estate was a set of sixty-two volumes of Debrett's Parliamentary Register which Duncan Cameron, as administrator of the estate, sold to the House of Assembly at an average price of ten shillings per volume. Subsequently, to his consternation, Cameron found among Cochran's papers evidence that for six of the volumes he had paid the bookseller an average price of fourteen shillings and ninepence, whereupon he petitioned the assembly for relief. This was granted. 1 4 One of the few Speedy victims who did leave a will was the solicitorgeneral, Robert Isaac Dey Gray. At his death, Gray owned 12,000 acres of land and had debts amounting to the enormous sum of£ 1200. 1 5 His will, dated 27 August 1803, was witnessed by Angus Macdonell's brother Alexander, Thomas Paxton, and one J. Macdonell. Appointing Alexander Macdonell as executor, the will directed him to pay Gray's debts and then continued: I feel it a duty incumbent upon me in consequence of the long and faithful services of Dorinda my black woman servant tendered to my family, to release, manumit,

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and discharge her from the state of slavery in which she now is and to give her and all her children their freedom ... l hereby accordingly release, manumit, and discharge the said Dorinda and all and every said children both male and female from slavery and declare them and every of them to be free.

Whether Simon Baker, Dorinda's son, was drowned before or after his master is not known, and consequently it cannot be determined whether he died a slave or a free man. The same uncertainty would affect the title to land that Gray bequeathed to Simon Baker - lot 11 in the first concession of Whitby. Gray also bequeathed to Simon his clothes and silver watch as well as £50. He left Simon's brother, John, £50 in addition to lot 17 in the second concession of Whitby. For unknown reasons, a copy of Gray's will was twice registered on the abstract of title, first in 1835 and again in 1861. Although Gray mentioned several relatives in his will, the beneficiary who received the largest bequest - Mary Ogden of Montreal - was not a relation. To her he left 1,000 acres of land in Hope Township. Since Gray was unmarried it is possible that Mary Ogden was his intended; curiously, however, the will said that her bequest was 'in token of my gratitude to the Honourable Isaac Ogden ... and his family.' Gray also bequeathed £20 to Chief Justice John Elmsley of Lower Canada 'in token of my regard and esteem for the Honourable John Elmsley and Mrs Elmsley his wife.' The will further stated that Elmsley should make 'such use' of the £20 'as he may like but as a remembrance of my gratitude for their attention to me.' 1 6 After Gray's death, John Baker, who received his release from slavery as a result of the loss of the Speedy and his master's will, entered the service of Justice William Dummer Powell. When Baker drank to excess he would enlist in the army. Powell bought his discharge seven times, but when after a warning he enlisted for the eighth time, he was allowed to remain a soldier. He went with his regiment to New Brunswick and fought in the War of 1812, and afterwards at Waterloo. It was reported in the Ottawa Citizen in 1867 that John Baker had appeared in court to give evidence concerning the death of a person in 1803 and another in 1804. 1 7 The latter was probably Robert Gray, or perhaps Baker's brother, Simon. When John Baker was interviewed in August 1868 by James Cleland Hamilton, he was then living in Cornwall. Hamilton described him as 'a dark mulatto of amiable countenance, suffering from old age and rheumatism, and not loath to lay aside the wood-saw, and tell the story of his life.' 18 A newspaper report in the following year said that Baker

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'is a little rheumatic, and is lame from a wound in the leg, received in action; but his intellect is as fresh and clear as when a boy. He draws a pension of one shilling sterling a day, and seems good for some years yet.' 1 9 Baker died in 1871 at the age of about 105. At the time of his death he was the last person surviving who had been a slave in Upper Canada. Another Speedy victim, Angus Macdonell, left a piece of unfinished business. When he had terminated his active interest in the salt-works in favour of the Reverend Robert Addison, he presented a bill to the government for expenses incurred and services rendered. The Executive Council held the account for investigation and action was long delayed. After the loss of the Speedy, Alexander Macdonell, as Angus's brother and principal heir and executor, called on the government to pay the long outstanding claim, which now amounted to more than £400. Alternatively, he proposed that the government should convey to the estate the 600 acres adjoining the salt springs which Angus had owned originally. The government again delayed, seeking to wind up Addison's affairs. To further complicate the matter, a man named Solomon Moore presented a claim against Addison and the salt-mine property. Moore accused Addison of duplicity in persuading him to sign a release of his claim. Addison's parishioners, resenting this attack on their pastor's honesty, heaped abuse on Moore. Lieutenant-Governor Francis Gore gave Moore verbal support for his claim, but he departed for England shortly afterwards with the several disputes unresolved.20 With Macdonell's death, the Law Society of Upper Canada found itself without a treasurer. It did not appoint a successor until Easter Term 1805 when Attorney-General Thomas Scott obtained the post. But the following year Scott became chief justice, and his successor as treasurer was D' Arey Boulton. Admitted to the bar in 1803 - a wag described him and three others admitted at the same time as 'heaven descended barristers, having sprung Minerva-like, at once into being, in full professional maturity' 21 - Boulton shared Macdonell's bad luck with marine travel. On a trip to England in 1810, Boulton made it as far as the English Channel before the vessel on which he was travelling was sighted by a French privateer and chase was given. Though the captain of Boulton's ship had arms on board, he refused to fight. Boulton and the other passengers, having more spunk, engaged the enemy but after a short contest they were overpowered by a boarding party. Boulton was wounded and taken prisoner; he languished in the fortress at Verdun until 1814.22 The widows and families of Captain Paxton and his crew attracted much

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well-deserved sympathy. The day after Lieutenant-Colonel Vincent wrote to confirm the finding of debris from the Speedy, G.W. Steel of the naval establishment wrote to the lieutenant-governor to obtain assistance for the victims' families. His letter expressed confidence that 'His Excellency ... will cause some provision to be made for the widow Paxton who is left with eight small children without a farthing to support them, as also Gerrard the boatswain, who left a wife & two children. I can attest these men to be old faithful servants.' 2 J Steel was in error on one point: the Paxtons had seven children, not eight. A crew member not mentioned by Steel was John Cameron, who left a widowed mother, Ann Cameron. In the petition that she filed for relief, Ann Cameron stated that her first husband had fought with the British forces in the American Revolutionary War, that both of them had been taken prisoner at Saratoga, and that he had later been killed at Yorktown, Virginia, while serving with Lord Cornwallis. Her second husband, Allen Cameron, a quartermaster in the 60th Foot, 'died in February 1803 having faithfully served His Majesty thirty two years and left your petitioner with a family of six children without any means of support, her oldest son John Cameron served in His Majesty's navy on this Lake and was lost in the Speedy with Lieutenant Paxton.' 2 4 On 12 November 1804 John Craigie, on behalf of the governor in Quebec City, wrote to Lieutenant-Governor Hunter deploring the loss of the Speedy and adding: I hope the General may be induced to do something for the widow Paxton and the poor family who I am informed are entirely destitute by the death of Lt. Paxton - there is a precedent exactly in point in the case of the widow Andrews whose husband perished in the same manner and to whom a pension was granted by General Haldimand ... which was at first paid out of the fund arising from the Lake Freights - when that fund was no longer productive Lord Dorchester directed the same sum twenty five pounds per annum to be paid by warrant on the military chest. 2 5

The widow Andrews mentioned in this letter was the wife of James Andrews, captain of the Ontario, which, as recounted earlier, was lost in 1780 with all on board. Notwithstanding this recommendation, it was necessary for Paxton's widow to file two petitions for relief, one in 1808 to the civil authorities and the other in 1809 to the military. 26 In the first she said that Paxton's death had reduced the family to extreme poverty, and in the second she

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described herself as destitute and noted that 'even now four of the children are under ten years of age.' Nothing was said in these petitions about the circumstances under which Paxton had been ordered to sail despite his belief that the Speedy was not seaworthy. She may have felt - or advisers may have told her - that her prospects of being granted assistance would suffer if, in her petitions, she was critical of the now-deceased lieutenantgovemor. In any case, she was ultimately awarded a pension of £25 a year. 2 7 There is no evidence that the dependants of the Speedy's other crew members received any assistance from the government. The merchant Jacob Herchmer was survived by his wife, Margaret England, who had jilted John Strachan, and by the three children of his earlier relationship with a native woman. Just thirty-one years old at the time of his death, Herchmer did not leave a will. Alexander Macdonell, in a letter to Lord Selkirk, expressed the opinion that this would make problems for his widow, 28 but if that was so it was not for long. By 1809 she had remarried. Her new husband was Aeneas Shaw, one of York's most prominent citizens, and after Shaw's death in 1815 she married the Reverend William Leeming, the Anglican clergyman at Chippawa. Thus in later years she found herself married to a clergyman in the diocese of which John Strachan was bishop.2 9 Another who was widowed by the loss of the Speedy was Esther Ruggles, wife of James, who lived with her son James and her younger sister. Misfortune continued to pursue this family. On 2 June 1806, while Esther's sister was making breakfast, her gown or petticoat caught fire. The screams were heard both upstairs and on the street. Esther, and a Mrs Moody, who was passing by, ran to give assistance; but the young girl was dreadfully burned and, although attended by Dr William Warren Baldwin and Dr Alexander Thom of the 21st Foot, she died on 16 June.3° The drowning of James Ruggles also brought to an end the plans for establishing a library that he had discussed with Ely Playter a few months before. Soon after the Speedy disappeared, the widow of John Fisk, Lavinia, and her recently acquired son-in-law, Joel Bigelow, applied for administration of the small estate left by the deceased.31 His death left open several positions - pound-keeper, auctioneer, jailer, and keeper of the pillory. Such positions were too lowly to attract Peter Russell and his like, but no doubt they were soon snatched up by others. It is likely too that the sword Fisk had used to restore order on the night of the shivaree just two months before his last voyage went to his son-in-law. In the appli-

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cation for administration of the estate, it is said that Fisk was on the Speedy bound for Newcastle 'to which place he had been ordered, having charge of a prisoner ...' Later the Bigelows moved to Port Perry where they opened a general store.32 A.M. Farewell, employer of John Sharp, gave up the fur-trading business in 1804. In the same year he married Elizabeth Annis and settled on the north half of Lot 4 in the first concession of Whitby, where he farmed until 1812. He then built and opened a tavern on Harmony Road, Whitby, which he continued to operate until 1837. At that time, as a result of the temperance agitation, he closed the bar forever.33 It is possible that, after John Sharp's death, Farewell did not consider it prudent to continue the fur-trading business in the Ojibwa territory around Lake Scugog. Chief Justice Allcock, who left York for England in September 1804, did not return to Upper Canada. The following spring, over strong opposition from Quebec, he was made chief justice of Lower Canada, and there his behaviour was predictably boorish. Herman Witsius Ryland, secretary to the governor and clerk of the Executive Council, in a letter to Bishop Jacob Mountain, referred to Allcock as a 'contemptible animal.'34 In another letter to the bishop, Ryland described the arrival and swearing in of Sir James Craig as governor in 1807: He landed about one o'clock, after which I saw him only for a minute, for he was so unwell he earnestly desired to be left alone. Yet that curious beast the CJ. (Allcock), after intruding himself with unparalleled assurance upon the General before he landed, forced himself upon him again at the chateau, when everybody but the President had withdrawn, and most impudently sat the latter out. There is little doubt that he ventured on this proceeding for the purpose of recommending as secretaries his intended father-in-law and a young man named Brazenson, or some such name, whom he had brought out with him from England, but his scheme entirely failed and his folly will fall on his own pate.35

It appears that the habit Allcock had displayed in Upper Canada, of intruding into matters beyond the scope of his duties, continued unchecked in the lower province. It is said that 'though he remained in office, he was excluded from the influence he cherished.' Allcock died in Quebec on 22 February 1808 of a 'bilious fever.'3 6 A few months after the Speedy's disappearance, on 5 February 1805, a petition was presented in the House of Assembly - signed by Robert Baldwin Sr and 134 others - stating that 'the place appointed by Law for

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building a Gaol and Court House in the District of Newcastle appears to Your Petitioners to be inconvenient.'37 In short order the district capital was moved to Amherst, twenty-four miles to the west. Amherst later became Cobourg, to honour the family of Queen Victoria. Newcastle, with all its ambitious plans, vanished - its hospital, school, and cemetery never came into being, although a town of the same name later appeared to the west. The original area is now the site of some summer homes and Presqu'ile Provincial Park. One road in the park is named Paxton Drive. In this same park, the province of Ontario has dealt a cruel injustice to the memory of Ogetonicut. A pamphlet distributed to visitors refers merely to 'an Ojibway Indian arrested for the murder of John Sharp, a fur trader.'38 His name is not mentioned. Another pamphlet says that 'also on the Speedy was an Ojibway Indian murderer, Ogotonicut or Mad Dog, who had brutally clubbed a trader John Sharp,' and that 'since Lake Scugog was part of the new district of Newcastle, Mad Dog had to be tried in the only official building in the town.' Later on the same page it is said that 'the schooner may have struck a rock, but the legend that survives is that the Ojibway Mad Dog, determined never to hang for the murder of a white man, clawed the bottom out of the Speedy and sank along with all the other passengers.' This unsigned, carelessly written history, indicates that 'the Speedy sank just off High Bluff Island.' Robert Gray's servant is identified as Simon Black, rather than Simon Baker, and the merchant Jacob Herchmer is identified as Jacob Hachner.39 A reputable authority on the Ojibwa languages states that the name Ogetonicut could mean 'Above the Clouds' but not 'Mad Dog' or anything similar. 4° No less disturbing is the statement in the park pamphlets branding Ogetonicut a murderer even though his case never came to trial, and the other statement retelling the groundless story that Ogetonicut himself was responsible for the Speedy's sinking. Surely the facts of the story deserve greater respect. Questions remain. What would have happened if the killing of Whistling Duck had been thoroughly investigated and the person responsible punished? What would have been Ogetonicut's fate if the Speedy had arrived safely at Newcastle and he had faced his trial? What would have happened if charges had been brought against Lieutenant-Governor Hunter for ordering the Speedy to sail over the protests of its captain? The answers to these questions must be speculative. One thing that does seem reasonably certain, however, is that Sharp's life would have been spared - and the trip to Newcastle in an unseaworthy vessel would not have been necessary - if prompt steps had been taken to deal effec-

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tively with the killer of Whistling Duck. With respect to Ogetonicut, if in fact he had come to trial, it is impossible to know how the difficult issues involved in his case would have been handled by such a young and inexperienced judge as Thomas Cochran. He may have found in favour of the accused, but it seems more probable that, considering his brief experience in the colony, he would have been guided by the law as he had learned it in England and that there would have been a conviction followed by a sentence of hanging. If this had happened, LieutenantGovernor Hunter, if we can judge by his previous conduct, would not have hesitated to sign the death warrant and the Colonial Office would not have not been consulted in the case. In sum, considering the alternative, perhaps Ogetonicut's life came to a more merciful end beneath the waves of Lake Ontario. As for Peter Hunter and his culpability in the loss of the Speedy, it is highly unlikely that charges would ever had been laid against him while he was lieutenant-governor of Upper Canada. It is possible that, if he had lived to retire to England, a charge could have been laid in a military court-martial. Yet a finding of guilt would not necessarily have followed. If the court was expected to rule merely on the propriety of Hunter's refusal to accept Paxton's judgment on the Speedy's seaworthiness, a conviction would probably have resulted. The court would not have determined this question alone, however; it also would have ruled on the more complicated issue of whether the loss of the ship was owing to Hunter's unreasonable and unjustifiable order to Paxton. Since there is no solid evidence on exactly how the Speedy met its fate, the court could not have concluded that the ship's loss was the direct result of Hunter's order the possibility remained, after all, that the Speedy had either run aground because of bad seamanship, or had been lost in a storm that would have swallowed up a perfectly sound ship. In sum, a charge against Hunter would probably have failed for lack of evidence concerning the cause of the disaster. Still in the realm of speculation, it is intriguing to imagine how the political careers of two prominent Upper Canadians - William Weekes and Joseph Willcocks - would have evolved if the Speedy had not been lost. To fill Cochran's seat on the Court of King's Bench, the British government turned not to Peter Russell but to Robert Thorpe, an Irishman who was then serving as a judge on the Supreme Court of Prince Edward Island.41 Arriving in York in August 1805, Thorpe almost at once got into hot water by attacking the local political establishment. One of his sup-

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porters, William Weekes, had profited from the loss of the Speedy by winning a by-election called in early 1805 - his opponent was the eloquent John Cameron, whose elegy for the Speedy has already been mentioned - to fill the House of Assembly seat vacated by the death of Angus Macdonell. Matters came to a head at Niagara in October 1806, when, at a court presided over by Thorpe, Weekes referred to the late LieutenantGovernor Hunter as 'a Gothic Barbarian whom the providence of God ... removed from the world for his tyranny and iniquity.' William Dickson, another counsel in court, took issue with the propriety of this remark, but Thorpe sided with Weekes. The latter, encouraged by Thorpe, challenged Dickson to a duel. The challenge was accepted, and on 10 October the duel was held. Weekes received a pistol wound so severe that he died the same evening.42 Thorpe, who had believed that Dickson would not accept the challenge, was deeply affected by what had happened, writing that 'this sudden and shocking catastrophe has shaken me much ... my heart is wrung.'43 But the loss did not prompt him to change his political course. Alexander Macdonell, in a letter to Lord Selkirk in December 1806, wrote: The loss of the Speedy ... was fatal and disastrous to this Province, and of this we have daily melancholy proof - what your Lordship said in one of your letters, speaking of the unfortunate passengers 'Such men are not easily replaced' is completely verified in one instance. The successor to the amiable, the good, the upright Mr Justice Cochran is in every point of view the reverse of what that accomplished young Gentleman was - Mr Justice Thorpe arrived here from the Island of Prince Edward sometime in August 1805. He soon began to court the attention of the lower class of people and has followed it up with an indefatigable perseverance.' 44

After Weekes's death, Thorpe's principal protege was Joseph Willcocks. During Hunter's term of office, as earlier indicated, Willcocks had lived the good life in the highest circles of society. However, after his patron, Allcock, left the province in 1804, Willcocks became politically restless and eventually allied himself to Thorpe, who confided to another friend that his new supporter 'did not possess a sufficiency of brains to bait a mouse-trap.'45 Soon Willcocks was on the outs with the new lieutenantgovernor, Francis Gore, and in early 1807 he was removed from his post as sheriff of the Home District for 'general and notorious bad conduct.'4 6 The offensive conduct in question occurred at a riotous dinner where Willcocks, in his cups, spoke disparagingly of the lieutenant-governor and

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extolled Thorpe's virtues.47 Following his dismissal, Willcocks started to publish a newspaper at Niagara called the Upper Canada Guardian: or Freeman's Journal, whose avowed purpose was 'to disseminate the principles of political truth, check the progress of inordinate power, and keep alive the sacred flame of a just and rational liberty.' Had Willcocks the journalist merely adhered to these principles, all would have been well. But he went farther. In the War of 1812 he could not accept the imposition of arbitrary military power, made necessary by the war, and in July 1813 he crossed the Niagara River and offered his services to the American forces. He was accepted and placed in charge of a unit of expatriate Upper Canadians. When leading this force in an attack on Fort Erie on 4 September 1814 he was mortally wounded.4 8 Robert Thorpe, the eminence grise of the early Upper Canadian opposition, was suspended from office in 1807 and the next year was appointed chief justice and judge of the Court of Vice-Admiralty in Sierra Leone. He died in London in 1836. If Thomas Cochran had not died on the Speedy, of course, Robert Thorpe would not have been named his successor. That being so, it is intriguing to wonder what would have become of William Weekes and Joseph Willcocks if Thorpe had remained in Prince Edward Island. Weekes was set in his political opposition before Thorpe's arrival, but, were it not for the latter's influence and encouragement, would he have become so reckless and met such an untimely end? Similarly, while Willcocks's political views had also begun to take shape before Thorpe's appearance in the colony, were his rebellious opinions reinforced by his new patron to such an extent that he felt he had no choice in the War of 1812 but to cross to the American side? And going back one step, if Willcocks had not been dismissed from his position as sheriff, his desertion to the Americans would have been highly unlikely. The dismissal was closely linked to his ties with Thorpe. All this, needless to say, is speculation. Nevertheless, it at least seems possible that, if Cochran had not gone down with the Speedy, Upper Canada's political life before the War of 1812 would have been more tranquil. Perhaps Weekes and Willcocks would even have had long lives, dying naturally and peacefully in their beds at York. The loss of the Speedy adversely affected others in an indirect way. In March 1805 York merchant Alexander Wood, in a letter quoted previously, wrote to Chief Justice Elmsley in Quebec offering his services in looking after the latter's property in York - a task that had previously been performed by Solicitor-General Gray. Besides referring to 'the mis-

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fortune which robed this place of its brightest ornaments,' Wood described Gray as Elmsley's 'late sincere and amiable friend .'49 A month later, Wood wrote to Ogilvie Mylne and Company, a London exporting firm, to explain why he was late in paying his debts. 'I should have been able long ere now to have paid up the Balance due to you, but for the serious & unfortunate disaster of last October, when this devoted place was in one night deprived of twelve of its most valuable inhabitants, who were Swallowed up in the Storm of the 7th Octr; their property has got into the hands of Executors which will delay the payment of their debts for some time yet. I however expect to remit you something more than the £ 100 herewith.'5° Two years later Ogilvie Mylne went bankrupt5 1 - perhaps the result in part of delayed payments from Upper Canada. The magnitude of the loss occasioned by the Speedy disaster cannot be exaggerated. It was a truly devastating blow to individual families and to the community as a whole. Its effects were felt for years to come. Considering what happened after the Speedy disappeared, it was no wonder that Lieutenant-Governor Gore, in connection with an accident suffered by the yacht Toronto, implored: 'For God's sake, let us not have ANOTHER SPEEDY DISASTER.'5 2

Conclusion

Despite all the evidence that has been assembled, many parts of the

Speedy's story are still shrouded in mystery. The unanswered questions

that hang over the tale have prompted much speculation over the years, and, unavoidably, this book too has raised possibilities and offered suggestions. The search for answers will doubtless continue. A few more words need to be said about some of the principal players. First, there is Samuel Cozens, the probable murderer of Whistling Duck. Clearly an educated, sensitive man, Cozens was in many ways an unlikely killer. In 1797 he was evidently happy, writing to his brother-in-law in Philadelphia that 'if I had sufficient time, would send you some entertaining accounts of the country; but this must remain till a future day.' 1 By the time he left the employ of William Jarvis in 1801, however, he was deeply depressed. What had happened to him in the interval to account for his change of mood? And why did he kill Whistling Duck? We do not have definite answers to either of these questions. There is also the matter of Cozens's relationship to Harmony Lodge No. 8. Although he was one of the founders of the lodge and served for a time as its secretary, we do not know whether he remained active in the lodge after his letter of resignation to Jarvis in 1801. The only record we have linking Cozens to the masons after that date - the records of the Harmony Lodge No. 8, alas, no longer exist - is a reference to his masonic burial in 1808. Adding to the mystery is an address delivered to the lodge two weeks before Cozens's 1801 resignation. The speaker wa~

126 Speedy Justice

his cousin, Daniel Cozens Jr, and the occasion was his retirement as lodge master. Considered sufficiently important to be published in the Upper Canada Gazette, this address had as its main theme the idea that 'no one can be a good mason in open lodge, who is otherwise out of it.' Daniel Cozens stressed to the lodge members that it was their 'future and most serious care to guard against admitting into this society persons who from loose principles, unmoral and disorderly conduct, bring masonry into disgrace and affix upon the whole body a stigma as unjust as it is prevalent ... I feel an assurance that you hereafter will scrutinize with watchful caution the character of every future candidate and admit no man until his principles are fully ascertained.' 2 These remarks seemed to have been aimed at a particular person. Was that person Samuel Cozens? The fact that the address was delivered just before Samuel Cozens severed his ties with William Jarvis and drifted into obscurity makes one wonder. Yet another puzzle concerns Cozens's death. I first found the Upper Canada Gazette obituary notice in John Ross Robertson's Landmarks of Toronto. On attempting to check the original newspaper article, I discovered to my surprise that the microfilm copies of the Gazette for the date in question, at both the Archives of Ontario and the Metropolitan Toronto Reference Library, contained no such notice. Someone had clipped from the newspaper, before it was microfilmed, a rectangular item that was about the right size for a death notice. Of the many issues of the Gazette researched for this book, this was the only one from which something had been removed. Then there is John Sharp, allegedly murdered by Ogetonicut in retaliation for the death of Whistling Duck. Oddly enough, no biographical information about this man, before he began to work for the Farewell brothers, can be found. Long after his death, however, his name surfaced again. In the Orono News for 29 August 1901 a brief summary of the much-told story of Ogetonicut and John Sharp was followed by 'The Sequel': One afternoon in the first week of August, while Mr. Gilfillan, Headmaster of Bowmanville H .S., and Mr. J.W. Odell, Math. Master Cobourg c.1., were strolling along the shore of Washburn Island, where they were spending holidays, the latter noticed the end of a bone protruding from the edge of a bank. His curiosity being aroused he immediately began to satisfy it by excavating. The further he proceeded the more mysterious grew the mystery as _the bones proved themselves to be human. At last the whole skeleton was exhumed, though in a very decayed condition. It was at first thought to be that of an Indian, but on piecing the

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fragments of the skull together, Dr. Blewett, of Chicago, Dr. Trebilcock, of Enniskillen and W.H. Elliott B.T., Vice Principal of Toronto Normal School, unhesitatingly declared it to be that of a white man with a remarkably well 'bumped' cranium. Still more mysterious grew the mystery, for on examination, death had evidently resulted from one or more severe blows on the left side of the skull which had been crushed in. The upper and lower jaws were smashed as with a tomahawk or hatchet knocking out the front teeth, while all the rest were in an excellent state of preservation without a sign of ante mortum decay. The body presented the appearance of a hurried burial as it was only about two feet below the surface of the earth. The grave was situated about twelve rods east of the spring where the traders had encamped and the crime committed, on Henry Bowen's farm, from whom the writer obtained the greater portion of the story of this tragedy. The facts of the murder of Sharp by O-go-tang-nat and his burial east of the spring on Bowen's farm with the finding of a skeleton of a white man almost in the exact place as narrated, with indications so plainly pointing to the manner of death, prove beyond a doubt, that the remains are those of the unfortunate Sharp. J.W.O.

Helen Schmid of Orono, who kindly provided the writer with a copy of this newspaper article, has satisfied herself that the initials J.W.O. were those of John W. Odell. The Orono News article corroborates the earlier evidence concerning the manner and location of Sharp's death. The name 'O-go-tang-nat' was almost identical to that used in William Canniff's account, suggesting either that Henry Bowen, on whose farm the bones were found, had communicated with Canniff or that both had a common source of information. To tum to Lieutenant Paxton, some have doubted that any naval officer who believed his vessel to be unseaworthy would have obeyed such an order as that given by Lieutenant-Governor Hunter. At one level, Paxton's decision seems to have been foolhardy even if he had to face a courtmartial for his disobedience. Yet, in other ways, it was understandable. The fact that he was able to sail the Speedy for one hundred miles without mishap demonstrates that the vessel, though much in need of repairs, might have successfully completed the journey to Newcastle and back barring unusual weather conditions. This was a gamble that turned out badly. Still, Paxton could not have been sure how the vessel would behave, and he may have felt that the risk was one that could be taken. No doubt he was still smarting from the charge made by Captain Holt

128 Speedy Justice

Mackenzie that he had recently damaged his vessel intentionally. We can sympathize with Paxton for the difficult situation in which he had been placed. As for the man who sealed Paxton's fate, Lieutenant-Governor Hunter, his peremptory order to the Speedy's captain was certainly wrongheaded. Yet, that said, it was also entirely consistent with military traditions at that time. For a swashbuckling general who had spent most of his life on the frontiers of the empire and who had recently put the Irish in their place, the overriding consideration was to make a prompt public example of a backwoods Indian who had dared to kill a man who had lately served in His Majesty's forces. The 'melancholy event' that resulted from this decision was regrettable, but, in Hunter's view, the respectable gentlemen who were lost were replaceable. In sum, Hunter's role in the loss of the Speedy may have been just a case of the military mind working as it was trained to do. On the question of why long periods of time elapsed before key pieces of evidence surfaced in written form, we cannot be sure that this information had not been committed to writing earlier. It is also possible that documents containing this information have been lost or that even now they may lie hidden here or abroad - perhaps at the bottom of Lake Ontario with the wreck of the Speedy. Many government documents were destroyed when York was burnt by American forces in 1813. Perhaps records relating to the Speedy story were among them? Whatever the case, chance plays a large role in the accumulation of historical knowledge. The news that the Speedy had run aground in York harbour and consequently was delayed by two hours took fifty-six years to be set down in writing - in this case, in an 1860 letter by George Okill Stuart to John Beverley Robinson. But for Stuart's letter, this important bit of evidence might have been lost forever. Still on the issue of evidence, some may question the reliability of Henry Scadding and William Canniff, but, as already indicated, I accept their accounts of the Speedy's story as trustworthy. As for W.R. Riddell, even the most critical would not deny that he was as an exceedingly conscientious historical researcher. As a young man, I had the good fortune to know Riddell and to see him in his office at Osgoode Hall using two fingers to operate an ancient Underwood typewriter. It can safely be said that, if Scadding had made any significant error in his account of the Speedy, Riddell would not have hesitated to point it out, just as he did with the tale told by I.M. Wellington about the giant rock off Presqu'ile Point. On that matter, Riddell stated his opinion that the rock never

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existed, but added that anyone who wanted to believe the story was free to do so. In similar fashion, it is left to each reader of this work to form his or her opinion as to the reliability of the evidence and the views expressed. Like the people involved in our story, the Lake Ontario navy also deserves a postscript. As might have been expected, it was ill equipped to meet the enemy in the War of 1812. On 12 March 1813 Lord Bathurst, the secretary for war, shifted the responsibility for the naval forces on the Great Lakes from the army to the Admiralty, and vested the overall command in Sir James Lucas Yeo.J He was quick to take charge and his fleet, incorporating the vessels of the Provincial Marine, proved to be a worthy adversary of the American naval force under Commodore Isaac Chauncey.4 It is arguable that, if the Admiralty had been in charge in 1804, the Speedy would not have set out on its last voyage - and this book would not have been written. Another central theme of the Speedy's story was the relationship between whites and natives. It would be desirable to say that the double standard in the administration of justice for the two groups - so evident in the early years of Upper Canada's history - no longer exists. But that would not be true; there have been glaring examples of the same double standard in recent years. If there has been any improvement, it is in the fact that the subject is being talked about more openly and efforts to eliminate the problem are now being made. Furthermore, notwithstanding the flagrant cases in which prejudice towards native people stands out so noticeably, there have been less publicized cases where the courts have valiantly struggled to balance the scales. At the heart of these cases has been the basic difference in cultural background between whites and natives. As recently as 1971 the Ontario Court of Appeal grappled with this question. In the case of Regina v. Fireman, a Cree Indian from James Bay had been sentenced to ten years in the penitentiary on a manslaughter conviction, arising out of the killing of one Indian by another in a drunken quarrel. Extracts from the court's judgment, written by Mr Justice Brooke, follow: It is clear these people have no real familiarity with our way of life ... The affairs of the people are governed by a chief and band council who exert strong control, and who, according to the police witnesses, are respected and obeyed in the community. The settlement, then, is a truly remote place, cut off from the rest of the country,

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Speedy Justice

inhabited by people who have really little contact with our way of life ... perhaps because of the differences in the cultures, the appellant's I.Q. tests were found to be below the average for our whole society, but they were average for his own community. Some indication of the basic differences may be gained from the fact that he lived in a community where time is told only by seasons, that his sentence of ten years is something that he is unlikely to fully understand for he is unfamiliar with the calendar measurement of time in terms of days, weeks, months or years ... After considering the appellant's background, some aspects of the values of the people of the settlement, including their apparent different value of death, the learned trial Judge rejected the contention that lesser punishment would suffice and, placing the emphasis on the deterrent aspect of the sentence, imposed the term of ten years on the appellant ... In my opinion, one can only proceed to consider the fitness of the sentence meted out to this man upon a proper appreciation of his cultural background and of his character, as it is only then that the full effect of the sentence upon him will be clear ... It is my opinion that even a short term of imprisonment in the penitentiary is substantial punishment to him. In the appellant's case, despite the best efforts of those who must be responsible for his care, the effect of his removal from his environment and his imprisonment would no doubt dull every sense by which he has lived in the north ... What is important in these circumstances is that to the whole community justice appears to be done and that there will be respect for the law. This is best accomplished in the case of this first offender if he is returned to his society before time makes him a stranger and impairs his ability to live there with some dignity ... In my view the sentence is too severe ... The crime for which the appellant was convicted is a very serious one and yet, the appellant has not by his previous conduct indicated that he is a dangerous person from whom society must be protected ... The sentence will be reduced to one of two years.5

The problem facing the courts when dealing with cases involving deep cultural differences was well put by Sir William Johnson in 1773, when he speculated as to how much clemency would be 'consistent with the Dignity of Government.' Mr Justice Brooke also took into account the need for reconciling 'respect for the law' with respect for the 'dignity' of the accused. All things considered, it was Sir William Johnson again who got to the heart of the matter when, in 1766, he urged natives to avoid retaliating for wrongs inflicted on them by whites, and promised that such criminals

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131

would meet with punishment from their own countrymen. Adherence to these propositions - on the part of native people and the judicial system of non-native society - is just as important today as it was when they were proclaimed under green boughs at Oswego more than two centuries ago. And so we come to the Speedy. Until the wreck is found we can only speculate about what happened to the vessel on its tragic last voyage. Some possibilities have been suggested in Chapter 6; these will now be elaborated on. We should take as our point of departure the known facts, or the facts that can be assumed. It is certain that there was a very violent storm, probably of gale force, on 8 October, as described by Robert Hamilton, and that it blew all night and the following day. It is also certain that the Speedy was in poor condition and probably leaking badly. In these circumstances, continuous pumping would be required to keep the ship afloat. Judging from other ships built in this period, the pumps would not exceed four in number, and each would be operated by one seaman. Because the pump barrels would likely not be greater than four to six inches in diameter, producing a steady flow would require all the strength of the operator, and if the ship was leaking badly seamen on the pumps would soon tire and have to rest. Judging also from other ships of this era, the Speedy would be steered by a long tiller-arm, perhaps assisted by rope blocks. This steering system would make a quick change of direction very difficult, and in strong winds two men might be needed to handle the tiller-arm. For any change of sail, probably at least two men would be required to handle the ropes. If the ship was low in the water because of leakage, it would be sluggish in its response to changes of direction, and in a gale-force wind the decks would be constantly swept by waves. From these known or assumed facts, it can be concluded that the small crew, six including Paxton, was barely adequate for the safe handling of a vessel such as the Speedy in stormy weather. If there were rotten planks in the hull or if the caulking was defective or falling out, the leakage would increase as the weather deteriorated and the waves grew bigger and hit with greater force. Even a sound hull will twist and groan in a heavy sea. As the Speedy was swept away from the harbour entrance by the strong northeast wind, Paxton, in the gathering darkness, would have had to decide on a plan of action. With his experience, it seems likely that he

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Speedy Justice

would have chosen to run before the storm with a minimum of canvas showing to enable him to maintain steerage. Paxton would also have known that, if he ran before a northeast wind, he would have at least fifty to sixty miles in open water ahead of him before reaching the south shoreline of the lake. If he decided to veer very slightly to starboard, he could hope to reach Niagara; and, if he could maintain such a course, it would provide over seventy-five miles of open water. While heading for Niagara would have been logical, there was a difficulty: running before the wind meant that Paxton's control of his course would have been minimal, governed entirely by the precise direction of the wind from the northeast. In a sound ship with a full crew, and in a moderate northeast blow, Paxton could1have run out into the lake to find room to manoeuvre and, when he had sufficient space, he could have tacked back and forth with the goal of making Presqu'ile harbour. But in a gale-force wind, and in a crippled ship with a handful of crewmen, this option was not open to him. Assuming that Paxton was angling across the lake to the south shore, he would have known that he had at least five or six hours before he had to concern himself with avoiding piling up on that shore. His problems would have been aggravated by the fact that he could not be sure of his exact speed or angle of approach. And even when he knew that he was within a few miles of the south shore, he would have been faced with the difficult task of bringing the ship up into the wind to sail off to the west, where he might hope to make port at Niagara. If Paxton guessed wrong about his speed or course in the darkness, there was the danger that he would delay too long in making his move or that the waterlogged ship would not answer to the rudder. This, of course, would mean that the Speedy would founder near the south shore or on any reef that extended out into the lake from the shore. Again taking into account Paxton's experience, it seems unlikely that he made a navigational error. The greater likelihood would seem to be that the ship simply foundered in deep water either because of excessive water in the hold, or because as he approached the shore the ship, too deep in the water and with a crew too fatigued to man the pumps or handle the tiller, did not respond to the rudder. This scenario is consistent with Alexander Macdonell's speculation that the ship foundered on Devil's Nose, just east of the Oak Orchard River where the debris was found. Now for the obvious questions: Where is the wreck of the Speedy? Will it ever be found? If it is found, what secrets might it reveal? Lake Ontario is not only vast in area but also very deep. Its central

Conclusion 133

trench reaches a depth of about eight hundred feet, a depth exceeded in the Great Lakes only by certain deep spots in Lake Michigan and Lake Superior. Its bottom is strewn with wrecks from the earliest days, few of which have been located or explored. Without knowing approximately where a vessel went down the odds of finding the wreck are slim indeed, but modem methods of electronic search from the surface and underwater scanning have greatly increased the chances of discovery. In 1813 two American naval vessels, the Hamilton and the Scourge, each about the size of the Speedy, capsized and sank in a squall in Lake Ontario. Because there were some survivors, the approximate location of the wrecks was known, but even with this information the finding of them was far from easy. In 1971 a search group was organized, equipped with magnetometers and side-scan sonar. Sonar-grid surveys were carried out in the most likely areas near the south shore of the lake to the west of the Niagara River, but it was not until 1975 that nearly certain identification of the ships could be made. Later underwater exploration of a most sophisticated kind revealed the two wrecks about fifteen hundred feet apart on soft clay soil on the lake floor at a depth where no destructive light penetrates and the water is at a constant near-freezing temperature and currents are gentle. The ships are in an almost perfect state of preservation and many fascinating pictures have been published and shown on television. The story of their loss and later discovery is told in Emily Cain's beautifully illustrated Ghost Ships, published in 1983. Many organized searches have been made - and are still being made today - in the Presqu'ile area to find the Speedy. The fact that it took several years to identify positively the wrecks of the Hamilton and the Scourge, whose approximate location was previously known, gives some idea of how difficult it will be to locate the Speedy. Obviously, luck will play a large part in the search. The area to be explored is immense, extending from Presqu'ile harbour to the mouth of the Oak Orchard River, a distance of about sixty miles. The line between these two points crosses, at an angle, the deepest trench of the lake. For about half the distance the depth ranges from three to six hundred feet. If the Speedy sank in water over one hundred feet deep, the chances of it being found in a well-preserved state are good, and the greater the depth the better the state of preservation is likely to be. But if the ship foundered on a shoal or reef and went down in relatively shallow water, the more likely it is that the wreck has been broken up and scattered by waves and currents or movements of ice.

134 Speedy Justice

Speculation regarding whether the Speedy sank in deep or relatively shallow water may be of little value, but some factors may be considered that favour the theory that the wreck is in deep water. If the ship went down on a flat or sloping bottom, the chances are that it would be resting on its keel, as do the Scourge and the Hamilton. This would be because of the heavy ballast carried in sailing vessels. If the ship settled on the bottom in an upright position and one or more masts were still intact, the tops of the masts would extend upward for sixty or seventy feet. The fact that in 185 years no searcher, fisherman, pleasure-boat operator, or scuba diver has ever come upon the masts of the Speedy sticking up anywhere dose to the surface would suggest that the ship went down in water over a hundred feet deep. Another factor to be considered is that, if the ship had sunk in relatively shallow water and broken up, it seems probable that more floating debris than the few items mentioned by Colonel Vincent and Alexander Macdonell would have been found. If other items had in fact been found, the wreckage would likely soon have been traced. The fact that no bodies were ever found may also be significant. In shallow water, which warms in the summer, a human body will rise to the surface, but in deep parts of the lake, where the water temperature never rises much above freezing, a body will usually not surface. If the wreck of the Speedy is found in deep water, in a good state of preservation, questions will arise as to what, if anything, lies hidden in the hull. Might still-legible documents be there? The chances of this are remote at best, but it is not impossible. Much would depend on whether the documents were carried in a rust-proof container or whether they were wrapped in oilskins or other protective coverings. Apart from the documents and the ship's log, we can imagine finding Simon Baker's gold watch and chain, or Ogetonicut's irons. An examination of the hull might reveal evidence of whether there was failure of planking that caused leaks or other structural damage. If the Speedy struck a reef before sinking, there probably would be visible evidence of structural damage, such as broken planking or a broken keel or rib timbers. On the other hand, if the ship foundered because of defective planking resulting from decay or dry rot, such defective planking would probably be distinguishable from sound planking even after the lapse of nearly two centuries. Thus, if there is no evidence of rot in vital planking, but there are other signs of structural damage, the conclusion will be that the ship simply foundered on a reef or shoal. Lieutenant-

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Governor Hunter's order to sail would then become less significant in the overall picture. If the wreck is located in Ontario waters, the Government of Ontario, through the Ontario Heritage Foundation, would lay claim to it and its contents. If, however, the wreck is found in American waters, negotiations as to custody and ownership would be necessary. There may be legal ramifications if it can be shown that the Speedy's loss was the result of the actions of government authorities. Prior to a statute passed in 18476, a family whose breadwinner had died as a result of another party's negligence could not lay claim to damages. In 1804, then, no such legal claim could have been asserted by the families of those who died on the Speedy. Moreover, at that time the crown could not be sued. Nevertheless, petitions for compassionate assistance could be filed - and were, as we have seen, by Paxton's widow and the mother of crew-member Cameron. Probably the last of such claims (if it could be so described) was the petition filed by Thomas Paxton Jr in 1827 for Fighting Island in the Detroit River. There is no fixed time-limit for the making of compassionate claims against government, and so descendants of the people lost on the Speedy could still advance such claims. A recent example of a compassionate claim is the one made on behalf of Japanese Canadians who were displaced during the Second World War. Native people have also put forward many compassionate claims, all based on the concept of ancient aboriginal rights. In the case of the Speedy, it is impossible to say whether other legal action could be taken now or in the future. It is safe to say, however, that if a prisoner today met his death while being taken to court for trial, a formal inquiry, probably an inquest, would be held. Similarly, if there was a multiple loss of life in a rail or air disaster, some sort of public inquiry would be sure to follow. In October 1804, it will be remembered, the editor of the Upper Canada Gazette suggested that an investigation into the Speedy's loss would be appropriate. Lieutenant-Governor Hunter, for understandable reasons, obviously thought otherwise. Some might think that the Government of Ontario, which in recent times chose to describe Ogetonicut as 'Mad Dog' and to brand him a 'murderer,' owes to him and the other victims of this marine disaster the kind of inquiry that Hunter should have ordered. There is no law that would bar such a special inquiry into the loss of the Speedy.

Appendix The Petition of Thomas Paxton Jr, 1827

To the Kings Most Excellent Majesty ... The Humble petition of Thomas Paxton, one of your majestys most dutiful and loyal Subjects, of your Majestys Province of Upper Canada in North America - second eldest son of Captain Thomas Paxton, who was most unfortunately drowned by the loss of His late Majestys Schooner, the Speedy, on Lake Ontario in the Said Province - Sheweth That your petitioners father, faithfully and honorably served your Majestys late father, of glorious memory, for a period of thirty five years in various parts of the world That for a few years prior to his unfortunate death, he had served in the Command of His late Majestys Schooner, the Speedy, belonging to what was then termed the Provincial Navy on Lake Ontario - and at that time under the control of the Lieutenant Governor of the Province.That in the fall of the year 1804, your petitioners father was directed by the then Governor of this Province, Lieut General Hunter, to embark the judges and officers of the Court going on the circuit to open the assises in the District of Newcastle, against which he remonstrated alledging the utter unworthiness of the vessel to go to sea: That being peremptorily ordered by General Hunter to proceed he The source of this petition is

AO, RG1 , c-1-1 , MS691 ,

reel

52.

138 Appendix

embarked the Court and proceeded on his voyage as directed: but from the time of his leaving the port of York no tidings were ever heard of the vessel, or her passengers and crew who must all undoubtedly have perished with the vessel, which is supposed to have foundered. That by the unfortunate death of your petitioners father, his mother and seven helpless children, were left unprovided for, there being no fund out of which he was of right entitled to receive any assistance - but some years afterwards His Late Majesty was most graciously pleased to bestow on her a pension of twenty five pounds currency of the Province (about twenty three pounds sterling) on which she has since existed, and brought up her family the best way she could. That your petitioner, during the late war with the United States of America, faithfully and honorably served his late Majesty in the Militia of the Province - who so gallantly seconded His Majestys troops in repelling the enemy.That your petitioner, not having received any lands in this Province either for his service - or as the son of a person employed under Government, which was usual at the time of his fathers death - has lately obtained from His Excellency Sir Peregrine Maitland, Lieutenant Governor of the Province, a license to occupy an Island lying in the River Detroit which separates a part of Upper Canada from the United States of America, called 'Grosse or fighting Island' His Excellency being restrained from granting or selling the same without your Majestys permission or authority That the said Island, which on the recent survey by the Commissioners under the treaty of Ghent falls within your Majestys Dominions, contains about 1200 acres of low flat marshy land, wholly unfit for cultivation or fortifications, but which could, if possessed by your petitioner be of great value for various purposes That inasmuch as the said Island can be of no kind of service to your Majestys Government-your petitioner humbly and earnestly solicits your Majesty for a grant of the same - or that he may be allowed to purchase and receive a grant for a fair consideration - and that your Majesty will be pleased to signify your Royal will and pleasure thereon thro' His Excellency the Lieut Gov of the Province And your Majestys dutiful and loyal Subject - as in duty bound will ever pray &c York Upper Canada 12 Nov 1827 -

Thomas Paxton

Notes

ABBREVIATIONS

AO

CHAR DCB

Archives of Ontario Canadian Historical Association, Report

Dictionary of Canadian Biography

Metropolitan Toronto Reference Library, Baldwin Room National Archives of Canada (Ottawa, Ont.) OH Ontario History OHSPR Ontario Historical Society, Papers and Records

MTLBR NAC

1 THE SCENE

1 AO, co42, vol. 336 (Q Series 299): 125-6 2 Upper Canada Gazette, 3 November 1804 3 J.R. Robertson, Landmarks of Toronto, 6 series (Toronto: 1894-1914), 6:292-3; Edith G. Firth, The Town of York, 1793-1815: A Collection of Documents of Early Toronto (Toronto: University of Toronto Press 1962), 245 4 Upper Canada Gazette, 17 March 1804 5 NAC, RG8, C Series, vol. 726:188 6 On native people in the pre-contact and early contact eras, see J.R. Miller,

Skyscrapers Hide the Heavens: A History of Indian-White Relations in Canada (Toronto: University of Toronto Press 1989), 3-80; Peter Schmalz, The Ojibwa of Southern Ontario (Toronto: University of Toronto Press, 1991),

140 Notes to 7-13

7 8 9 10

11 12 13 14

15 16 17 18 19 20 21 22 23

24 25

26

3-84; Donald B. Smith, 'The Dispossession of the Mississauga Indians,' OH, 73 (1981): 67-87. The Proclamation of 1763 is discussed in A.L. Burt, The Old Province of Quebec, 2 vols. (1933; repr. Toronto: 1968), 1:66-76; on Pontiac's Rebellion, see ibid., 1:51-65. Bruce G. Wilson, As She Began: An Illustrated Introduction to Loyalist Ontario (Toronto: Dundum 1981), 13 The above account of the loyalists is drawn from Wilson, As She Began, 9-94. See ibid., 89-94; Barbara Graymont, 'Thayendanegea,' DCB, 5 (Toronto: University of Toronto Press 1983), 802-12; C.M. Johnston, 'Deserontyon, John,' ibid., 253-6; Isabel Thompson Kelsay, Joseph Brant, 1743-1807: Man of Two Worlds (Syracuse, NY: Syracuse University Press 1984) Wilson, As She Began, 96-7 Ibid., 109 Ibid., 113 On the Constitutional Act of 1791, see Gerald M. Craig, Upper Canada: The Formative Years, 1784-1841 (Toronto: McClelland and Stewart 1963), 13-19. For the Church of England's role in the new colony, see Curtis Fahey, In His Name: The Anglican Experience in Upper Canada, 1791-1854 (Ottawa: Carleton University Press 1991). For a lucid, reflective account of the Simcoe administration, see S.R. Mealing, 'Simcoe, John Graves,' DCB, 5754-9. Craig, Upper Canada, 2o-65 Wilson, As he Began, 97 Ibid., 103 Smith, 'The Dispossession of the Mississauga Indians,' 30 Ibid., 31 Ibid., 30-3, 42-3 Ibid., 34 E.A. Cruikshank, ed., The Correspondence of Lieut. Governor John Graves Simcoe ... [hereafter Simcoe Correspondence], 5 vols. (Toronto: Ontario Historical Society 1923-31), 3:24 Craig, Upper Canada, 51-2 See George Rawlyk and Janice Potter, 'Cartwright, Richard,' DCB, 5:167-72; Bruce G. Wilson, The Enterprises of Robert Hamilton: A Study of Wealth and Influence in Early Upper Canada (Ottawa: Carleton University Press 1983). On early Kingston, see Richard A. Preston, ed., Kingston Before the War of 1812: A Collection of Documents (Toronto: Champlain Society Publications 1959).

Notes to 13-19 141 27 Joy Ormsby, 'Building a Town: Plans, Surveys, and the Early Years of Niagara-on-the-Lake,' in Richard Merritt, Nancy Butler, and Michael Power, eds., The Capital Years: Niagara-on-the-Lake, 1792-1796 (Toronto: Dundum 1991), 28 28 Ibid. 29 Ibid., 38 30 For the early history of Toronto, see J.M.S. Careless, Toronto to 1918: An Illustrated History (Toronto: James Lorimer and Company 1984), 9-24. 31 Ibid., 19 32 Firth, ed., The Town of York, 1793-1815, xxxvi 33 Ibid., 85 34 Craig, Upper Canada, 56-7 35 Firth, The Town of York, 1793-1815, lxxvii 36 Ibid., lii-lix 37 See Margaret McBumey and Mary Byers, Tavern in the Town: Early Inns and Taverns of Ontario (Toronto: University of Toronto Press 1987), 3-8 38 Upper Canada Gazette, 14 February 1801 39 Firth, Town of York, 1793-1815, 232 40 Jesse Edgar Middleton and Fred Landon, The Province of Ontario: A History, 1615-1927, 5 vols. (Toronto: Dominion Publishing 1927), 2:1302, Joseph Willcocks's Diary, 16 and 21 December 1801 41 Firth, The Town of York, 1793-1815, 245 42 Ibid., 249 43 Ibid., 247 44 Ibid., 229 45 Ibid., 228 46 Ibid., 230 47 Ibid., 124-5 48 See Robert L. Fraser, 'Baldwin, William Warren,' DCB, 7 (Toronto: University of Toronto Press 1988), 35-44. 49 Ibid., 249 50 Mary Quayle Innis, ed., Mrs. Simcoe's Diary (Toronto: Macmillan 1965), 63, 131 51 Ibid., 166, 184 52 Ibid., 167 53 Firth, The Town of York, 1793-1815, 237 54 Ibid., 242 55 Ibid., 253 56 Ibid., 129 57 Ibid., 227-9

142 Notes to 19-25 58 This sketch of early Upper Canadian religious life is drawn from Fahey, In His Name, 12-16. 59 John Caroll, Case and His Cotemporaries, 2 vols. (Toronto: 1867), 1:7-8 60 S.R. Mealing, 'Smith, Sir David William,' DCB, 7=813 61 Bruce G. Wilson, 'Patronage and Power: The Early Political Culture of the Niagara Peninsula,' in Merritt, Butler, and Power, eds. The Capital Years, 46 62 Craig, Upper Canada, 26 63 Ibid., 28 64 Firth, The Town of York, 1793-1815, Richard Cartwright to Isaac Todd, 14 October 1793, 22; Rawlyk and Potter, 'Cartwright, Richard,' DCB, 5:170 65 For a summary of the work of Upper Canada's first legislature, see Craig, Upper Canada, 26-32 66 Edith G. Firth's entry on Peter Russell in DCB, 5:729-32, provides a critical but not unsympathetic treatment of his administration. 67 Firth, The Town of York, 1793-1815, lxi 68 On Hunter's career, see his entry in DCB, 5=439-43. 69 E.A. Cruikshank, 'A Memoir of Lieutenant-General Peter Hunter,' OHSPR, 30 (1934), 20. 70 'Hunter, Peter,' DCB, 5:440 71 Graeme Patterson, 'Early Compact Groups in the Politics of York,' in David Keane and Colin Read, eds., Old Ontario: Essays in Honour of J.M.S. Careless (Toronto: Dundum 1990), 179 72 The land-patent issue is clearly explained in Hunter's biography in DCB 5, and in Robert J. Bums, 'Jarvis, William,' DCB, 5:452-3 73 A.S. Thompson, Jarvis Street (1980), 48--9 74 A.H. Young, ed., 'Letters from the Secretary of Upper Canada and Mrs. Jarvis, to her father, the Rev. Samuel Peters, D.D.,' Women's Canadian Historical Society of Toronto, Transactions, 23 (1922-23), 58 75 R.J. Bums, 'God's Chosen People: The Origins of Toronto Society, 17931818,' CHAR, 1973, 214 76 This interpretation of early Upper Canadian politics draws heavily on Firth, The Town of York, 1793-1815, lxiv-lxix, lxxix-lxxxi. 77 S.R. Mealing, 'Smith, Sir David William,' DCB, 5:812 78 Bums, 'Jarvis, William,' DCB, 5:453; Edith G. Firth, 'Peters, Hannah 0arvis),' DCB, 7:693 79 Edith G. Firth, 'White, John,' DCB, 4 (Toronto: University of Toronto Press 1979), 766 Bo On the Small-White duel, see Firth, 'White, John,' DCB, 4:767; and S.R. Mealing, 'Small, John,' DCB, 6 (Toronto: University of Toronto Press 1987), 721. 81 Patterson, 'Early Compact Groups,' 179

Notes to 26-36 143 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96

Ibid., 181 See G.H. Patterson, 'Thorpe, Robert,' DCB, 7=864-5. G.H. Patterson, 'Weekes, William,' DCB, 5:844 Firth, The Town of York, 1793-1815, 164, 167 Ibid., 235 Upper Canada Gazette, 24 July 1802 Firth, The Town of York, 1793-1815, 246 Firth, The Town of York, 1793-1815, lxvi Ibid., 233 Elwood H. Jones, 'Willcocks, Joseph,' DCB, 5:855 Middleton and Landon, The Province of Ontario, 2:1292, Joseph Willcocks's Diary, 21 July 1801 Firth, The Town of York, 1793-1815, 237 MTLBR, Willcocks Letters, Joseph Willcocks to Richard Willcocks, 27 March 1803 Ibid. Jones, 'Willcocks, Joseph,' DCB, 5:854 2 NATIVES, SOCIETY, AND THE LAW

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This analysis of the changing basis of native-white relations is drawn from Miller, Skyscrapers Hide the Heavens, 3-98; and Schmalz, The Ojibwa of Southern Ontario, 3-180. Cruikshank, Simcoe Correspondence, 2:70-C) Firth, The Town of York, 1793-1815, 246-7 Innis, Mrs. Simcoe's Diary, 9 August 1793, 103 Ibid., 3 July 1792, 72 Schmalz, The Ojibwa of Southern Ontario, 107 Firth, The Town of York, 1793-1815, 234 On the Upper Canadian legal system, see W.R. Riddell, 'Criminal Courts and Law in Early (Upper) Canada,' OHSPR, 22 (1925):21