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Full text of "Some early legislation and legislators in Upper Canada"

UNIVERSITY 

OF CALIFORNIA 

LOS ANGELES 



SCHOOL OF LAW 
LIBRARY 



Some Early Legislation 

and Legislators m 

Upper Canada 



By 
THE HONOURABLE MR. JUSTICE RIDDELL. 

L.H.D.. LL.D.. &c. 



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Some Early Legislation 

and Legislators m 

Upper Canada 



By 

THE HONOURABLE MR. JUSTICE RIDDELL, 

L.H.D., LL.D., &c. 



^s^<ytr<r^ 



19 13 
The Cakswell Co., Limited, 

TORONTO 



Some Early Legislation and Legis- 
lators in Upper Canada. 

By The HONOURABLE MR. JUSTICE RIDDEIL. 
L.H.D.. LL.D.. &c. 



It is a matter of regret that the early statutes of Upper 
Canada are not available for the ordinary practitioner; they 
are full of interest, historic-ally and otherwise. 

Of course, it is well known that at the time of the con- 
quest of Quebec — and consequently of Canada — in 1T59 and 
1760, what was afterwards Upper Canada, was not settled. 
Accordingly, the proclamation of 1763 which introduced or 
purported to introduce the English law, civil and criminal, 
into Canada, did not practically affect that district. The Que- 
bec Act of 1774, 14 Geo. III., ch. 83, did, however; for, before 
it was repealed. Upper Canada had a considerable number of 
inhabitants, chiefly from the revolting colonies to the south. 
This Act reintroduced the French civil law, although it left 
the English criminal law in full force. Much discontent was 
manifested by the English-speaking colonists of Upper 
Canada at being subjected to French law ; and when the Act 
of 1791, 31 G<^o. III., ch. 31, made Upper Canada a separate 
|)rovince, her first Parliament abolished the old Canadian or 
French law, and introduced the law of England for the 
decision of all matters of controversy relative to ])r()pcrty 
and civil rights, and also introduced the English rules of 
evidence. This is found in the very first chapter of the 
statute of the first session of the first Parliament of I^jiper 
Canada. 

The second chapter established trial by jury in all actions, 
real, personal and mixed, and authorized the jury, if so 
minded, to bring in a sjjecial verdict. In the French system 
the jury had no place: and the French-Canadian did not 
hesitate to express his wonder that the English should think 
their property safer in the determination of tailors and 
shoemakers than in that of their Judges. 



The third chapter established " one just beam or 
l.ahince, one certain weight and measure, and one yard, 
according to the standard of His Majesty's Exchequer 
in England." The lineal and superficial measures were 
the same then as now, l)ut the gallon, etc., somewhat 
smaller, being the same as those still used in the United 
States. 

Chapter 6 made a Court for small debts, the ancestor of 
the present Division Court. It authorized any two or more 
Justices of the Peace to sit and hold a Court, to be called a 
Court of Eequests, on the first and third Saturday in every 
month, to try any claim not exceeding 40 shillings, Quebec 
currency. This was what was also known as Halifax or Pro- 
vincial currency, a shilling equalled 20 cents. These Courts 
remained practically unchanged till 1833 — their jurisdiction 
was extended in 1797, by 37 Geo. III., ch. 6, and in 1816 by 
o() Geo. III., ch. 5 — in 1833, by 3 Wm. IV., ch. 1, it was 
provided that Commissioners should be appointed by the 
Governor or Lieutenant-Governor to sit and hold the Court 
of Requests. This Act after being amended in 1837 by 7 Wm. 
IV., was itself repealed in 1841, by 4 & 5 Vict., ch. 3, which 
provided for Division Courts to be presided over by the 
Judge of the District Court of the District in which the Divi- 
sion Court was situated. This introduced substantially the 
present system. We shall have occasion to consider the Dis- 
trict Court later. 

Chapter 7 regulated the tolls to be taken in flour mills, 
fixing them at not more than one-twelftli. This has 
come down unchanged to the present time, R. S. 0. (1897), 
ch. 140, sec. 1. 

Chapter 8 ])rovided for a gaol and court-house in every 
district. Lord Dorchester, the Governor of Canada, had, 27th 
July, 1788, by procLamation, divided what afterwards became 
Upper Canada, into four Districts, Lunenburgh, .Mecklen- 
liuigh, Nassau and Hesse. The Upper Canada Act which we 
are now considering, changed the names to Eastern, Midland, 
Home and Western, and directed that the gaols and court- 
houses should be placed in New Johnstown (Cornwall), 
Kingston, Newarlc (now Niagara), and for the Western dis- 
trict "as near to the present court-house, as conveniently 
may l>e." 

In 1810, it was directed that the gaol and court-house for 
the Home district should be erected at York (now Toronto), 
of, Geo. III., ch. IS. 



We shall meet these Districts again, and ])ass over them 
for the time being. 

Chapter 4, abolishing the summary proceedings in the 
Court of Common Pleas in actions under £10 sterling, and 
chapter 5, providing for the appointment of firemen, we 
also pass over. 

The above constitutes the legislation of the first Parlia- 
ment of Upper Canada during its first session at Newark 
beginning Monday, September 17th, and ending Monday, 
October 15th, 1792. 

But there were other matters of great interest at this 
session. 

On the 19th September, the Secretary of the Province 
' presented for the consideration of the House, a signed and 
sealed instrument delivered to him by Philip Borland of 
Adolphustown in the county of Lennox. This set out n 
" certain writ under the great seal of this Province of Upper 
Canada . . . directed to the returning oflScer of the 
County of Prince Edward and District of the Township of 
Adolphustown '' requiring him " to send one knight girt 
with a sword, the most fit and discreet to represent the said 
County"; also an election by the freeholders, of Philip Dor-, 
land; "that he, Philip Dorland, being "one of the persons 
commonly called Quakers," could not take the oath pre- 
scribed for members of the House, but he would make a 
declaration to the same effect. He then asked that if he 
could not sit without the oath, a new writ might issue. The 
House ordered a new writ to issue, as Dorland " was incom- 
petent to sit or vote in the House without having taken and 
subscribed the oath set forth in the Act of Parliament." 

On Saturday, September 29th, Mr. Colin McNabb, as 
preventative officer, was " ordered to attend at the Bar of the 
House to give information respecting the contraband traffic 
carried on in this district, as far as the same has come within 
his knowledge." 

It is time, now, that we enquire into the personnel of 
the Legislature. Much of my information, as to those I owe 
to two papers by C. C, James, Esq., C.M.G., LL.D., 
contributed to the Eoyal Society of Canada, in 1902 and 
1903,— vol. 8, sec. 2, pp. 93 sqq., and vol. 9, sec. 2, i))). 1-15 
s^qq., respectively. 

We may disregard \joxA Dorchester, the celeln-ated Sir 
Guy Carleton, who was Governor-General of Canada — but 



6 

Lieutenant-Colonel Jolin Graves Simcoe, the Lieutonant- 
Governor, is not negligible, for it is certain that he took a 
personal interest in much of the legislation. 

There was a Legislative Council appointed ])y the 
Crown for life, and a Legislative xVssembly to be periodically 
elected by the people; the electoral franchise was almost 
universal suffrage, as the qualification was placed very low — 
in counties, land worth 40 shillings sterling per annum, and 
in towns the possession of a dwelling house and lot worth £5 
per annum, or being resident for 12 mouths and having 
paid rent to the amount of £10 sterling. 

There was also an Executive Council referred to in an 
indefinite way in sec. 38 of the Act; the members were 
appointed by the Crown, and were not necessarily members 
of either House — they held office at the will of the Crown. 
They corresponded more nearly to the cabinet of the Presi- 
dent of the Tnited States than to anything now extant in the 
Briti-^h world; and were not unlike the Privy Council as it 
then existed in England. 

Of course, the Executive Council formed no part of the 
Parliament, but there can be no doubt of the accuracy of 
the following passage to be found in an address to the King 
by the Legislative Council, April l!»th, 1836: — 

" For many years the Legislative Council of I^pper 
Canada consisted of but four or five members, connected 
witli the Executive Government by the most confidential rela- 
tions, and forming in reality a body scarcely distinct from 
the Executive Council of the Colony." 

A number of legislative councillors, lour in all. had 
lieen a])poiiitcd by the Home (Jovernment before Simcoe 
arrived in Canada. One of these was William Osgoode, who 
was the first Chief Justice of Upper Canada, and al'tciwards, 
in 1794, api)ointed Chief Justice of Lower Canada: he was 
an English barrister of good standing. Osgoode Mall is 
called after liim. 

Peter Pussell was also appointed in England. He became 
Administrator of the Governim nt in I"!*."), on Simcoe's resig- 
nation; and some scandal was attached to his name, arising 
from his practice of making grants of Crown lands to him- 
self and his sister, while ho was Administrator. 

Alexaiuler Grant was tln' only eounoillor a]i])ointed 
among the fir-^t lot who was at the time in Camida. He was 
commonly known as Commodore Grant. He also became- 



Administrator — this was in 1805, on the deatli of Lieuten- 
ant-Ciovernor Hunter. 

William Rohertson had also been appointed; he had beien 
a resident of Detroit, then and until 1796 part of Canada; 
but had gone to England in 1790, and never afterwards came 
to Canada. He resigned shortly afterwards, being in June, 
1793, replaced by ^neas Shaw. 

There were consequently only three councillors with 
Simcoe; and as the Act, 31 Geo. III., ch. 31, sec. 3, required 
at least seven councillors, these were not a majority — and 
conseciuently not a quorum — of the council. Accordingly 
Simcoe had James (Jacques) Baby appointed — he lived in 
Detroit, and was of a well-known French-Canadian family. 

Osgoode and Eussell 'arrived in Canada in June, 1793, 
and Osgoode, Eussell, Grant and Baby were sworn in as 
members of the Executive Council at Kingston, in July, 1792 
•• — writs of summons calling them to the Legislative Coun- 
cil, were on the 16th of that month issued to these four, and 
also to Eichard Duncan, AVilliam Eobertson, Eobert Hamil- 
ton, Eichard Cartwright, Jr. and John Munro (of Matilda), 
Hamilton took part in the prosecution of Gourlay in 1819, 
and was said to have acquired 100,000 acres of Crown lands 
from the lots granted to sons and daughters of U. E. 
Loyalists. Cartwright was the ancestor of those of that 
name familiar in Canadian legal, military and political 
annals. He was the grandfather of Sir Eichard Cartwright, 
and was even before his appointment to the Legislative 
Council, a Judge of the Court of Common Pleas (the Court 
of Common Pleas, we shall meet again). J. S. Cartwright, 
the present Master in Chambers, and J. R. Cartwright, the 
Deputy Attorney-General, are also grandsons. 

Osgoode wa- the speaker of the Legislative Council, being 
appointed by the Lieutenant-Governor under sec. 13 of the 
Act ; and Messrs. Baby, Hamilton, Cartwright, Munro, Grant 
and Eussell all attended during the session. 

A provision in sec. 6 for hereditary rank entitling to a 
seat in the Legislative Council, never was in fact brought 
into force. 

On Monday, July, 16th, 1792, Simcoe issued a Eoyal 
proclamation, dividing L^pper Canada into 19 counties; and 
directing the holding of elections for 16 representatives in 
the House of Assembly. We are sometimes apt to say that 
Ontario is divided into counties, and the counties into town- 



8 

ships; but historically, in many cases, the townships came 
first, and the counties were formed by a grouping of town- 
ships. 

The counties formed by Simcoe's proclamation were: 1, 
Glengarry; 2, Stormont; 3, Duudas; 4, Grenville; 5, Leeds; 
6, Frontenac; 7, Ontario; 8, Addington; 9, Lenox; 10, 
Prince Edward; 11, Hastings; 13, Northumberland; 13, Dur- 
ham; 14, York; 15, Lincoln; 16, Norfolk; 17, Suffolk; 18, 
Essex; and 19, Kent. All these names are still used except 
Suffolk; but "Ontario" is now applied to a different part 
of the province: what is now Ontario was in those early 
times almost wholly destitute of inhabitants — " Ontario 
County " was then the islands west of the Gananoque river. 

Glengarry had two members. For the first riding Hugh 
Macdonell was returned; for the second, his brother John, 
who became the Speaker of the first House. As he was a 
lioman Catholic, he occupied a dignity which he could not 
at that time occupy in any other part of the British Domin- 
ions, except Lower Canada. These two brothers were U. E. 
Loyalists, and w^ere the maternal uncles of Lt.-Col. John 
Macdonell, who was Brock's aide-de-camp, and was killed 
with his chief at the Battle of Queenston Heights in the 
war of 1812. He was also Attorney-General of Upper 
Canada ; a mural plate to liis memory is to l>e found in the 
east wing of Osgoode Hall. 

Stormont wa/S represented by Lieutenant Jeremiah 
French, a U. E. Loyalist from Vermont. 

Dundas sent Alexander Campbell, of whom little is 
known, or at least recorded. 

Grenville sent another TJ. E. Loyalist, Ephraim Jones, 
the father of Jonas Jones, afterwards a Judge of the 
(King's) Queen's Bench; he had also two Pon?-iu-law. 
who achieved the same distinction, Levins P. Sherwood and 
Plenry John Boulton. 

Leeds and Frontenac were allotted one member: John 
"White, an English barrister, who had been appointed by the 
Home Government, Attorney-General of Upper Canada, and 
had come out in tl.une, 1702, was by Simcoe's influence 
elected member. He was killed in a duel some years after. 

Addington and Ontario sent Joshua Booth, a U. E. 
Loyalist, who died in the war of 1812. 

Lenox, Hastings and Northumberland had one represen- 
tative — and Lieut. Hazelton Spencer, also a U. E. Loyalist, 



9 

was elected. ("Leuox'" was the spelling at that time; now 
the word is spelled with two n's). 

Prince Edward and Adolphustown had one member (for 
the township of Adolphustown was detached from Lenox 
for electoral purposes). Philip Borland was elected, but not 
taking the oath required by sec. 29 of the Act, 31 Geo. III., 
ch. 31 (as he was a Quaker) a new writ was issued, and 
]\rajor Peter Yanalstine was elected in his place — they were 
both U. E. Loyalists. 

Durham, York and first Lincoln sent Nathaniel Pettit, of 
Grimsby, a member of the Land Board of Nassau District. 

The second riding of Lincoln sent Col. Benjamin Paw- 
ling, who had been in Butler's Rangers during the Revolu- 
tionary war. 

The third riding of Lincoln sent Isaac Swayzie, who had 
been a noted scout on the British side. His enemies called 
him a " spy " — a mere difference in terminology. He later 
took a prominent part in the prosecution of Gourlay; and it 
is said narrowly escaped prosecution for the murder of Wil- 
liam Morgan, who had threatened to disclose the secrets of 
Freemasonry, and who mysteriously disappeared. The mys- 
tery has never been wholly cleared u]); l)ut it \vas made evi- 
dent that Swayzie had nothing to do with ^lorgan's abduc- 
tion and death, notwithstanding hisJ^oast that he had.^ He 
undoubtedly was a Freemason, however. 

The fourth riding of Lincoln and Norfolk together had 
one representative. Parshall Terry was elected; he was one 
of Swayzie's bondsmen (v. the note^) and afterwards was 
drow'ned in the Don in 1808, having removed to York when 
Siracoe made the change. 

^This is told of him in Dout's "Upper Canada Rebellion," and 
should be taken cinn yruno. That he had enemies was to be expected, 
and indeed is fairly certain : there is on record a petition by him. of 
April, 1700, to the Laud Board of Nassau District. " setting forth 
that from his character having been traduced he had been prevented 
from enjoying the privileges of other loyal citizens." The Board 
found that he had produced sufficient proof that his character had 
been misrepresented; and lu'ld that he should receive the (lu.iiitity 
of land his services entitled him to as a volunteer in the British 
army at New York 

He was not a member of the second Pauliament. When that 
was in existence, the following mi-sfortune befel him (or some other 
of the same name, unknown to fame) as appears by the Term 
Books at Osgoode Hall: On Monday, .\pril 20th. ]7!>r). an infor- 
mation for sedition was filed by the .\ttorney-neneral. .Tohn White, 
against Isaac Swavz^, and a capiat was granted to bring him before 
the Court to answer it. The Court of King's Bmich, on that appli- 
cation, was composed of William Duminer Powell. PuisuT' .Justice, 
and Peter Russ(>ll. sitting on Spi'cial Comnu'ssion. On Wednesday. 
.\pril 22nd. Mr. Swayz^ appeared and pleaded '* not guilty." giving 



10 

Suffolk and Essex sent Francis Baby, a prominent Can- 
adian of Frencli descent, and like the Macdonells a Eoman 
Catholic. 

Kent sent William IMacoml) and David William Smitli.f 
the former of North of Ireland descent, and the latter, sou of 
the coiniiiaudant at Detroit. 

This first session was held it is said by some — but there 
seems to be a doubt — in Freemasons' Hall at Newark (see 
note 10 post 36). The first name of what is now Xiagara- 
on-the-Lake was Niagara, then it was successively called 
Lennox, Nassau and Newark. As Newark it was the 
cai)ital of Tpper Canada until after the selection of 
Toronto was made — the name being changed by Simcoe 
from Toronto to York in honour of the Duke of 
York, the King's brother. Newark had been chosen by 
reason of the proximity of forts lield by the British ; Simcoe 
expected that the British would continue to occupy the forts 
on the right side of the Niagara Kiver. A guard from the 5th 
Kcgiment was kept on duty during tiie whole session — the 
Lieutenant-Governor attended in state accompanied by a 
guard of honour and opened Parliament by a speech from 
the Throne in traditional British form — and Upper Canada 
was fairly launched on her free career. 

It was no doubt dut^to the presence of such lawyers as 
Chief Justice Osgoode and Attorney-General White in the 
two Houses, that the legislation is couched in such accurate 
and efficient language. 

two siirc'tit's. Parsliall Terry aiul Essni Daiton, in £-"0 each, liiin- 
sflf in £1(M), to appoar on Fridav next to ^inswcr to tho informa- 
tion asrainst liini. Friflay, April 'J4th. a voiirr was directed to issue 
retiu-nahlc Fridav next to try the issue, and Mr. Swayze ?iive new- 
sureties. .Toiin Wilson and Samuel Pew. May 1st. a jury was sworn, 
whose names are given, and these, on May 2nd. '" bv their foivrnan. 
Andrew Tenipleton. find the defendant jruilty." He then found 
sureties, William Reid and -Tohn ITainer to appear for judgment the 
first day of Trinity Term. .Tulv 2()th. On that day he eutei'cd into 
a refosnizanee himself in £2fK) I'.M. (i.e.. provincial money), and 
Oeorse I*^lrsyth and .Toseph F-dwards in £100 each, to appear Fridny, 
July 24th. There the <'ourt senteneed liim to pay a fine of £10 P.^I. 
and stand committed until it sliould he i)aid. an(T also to enter into 
a recognizance with two suretii-s for his pood behaviour for two 
years. 

He nfterwards jvas eleeted for the tliird. fourth, sixth and 
seventh Parliaments, dying in 1S2S. 

The name is spelled " Swayzie." " Sway/.e." '• Swayze." 
"Snavze" and " Swavzv " in different places. 

iDavid William Smith. Deituty .Tudge .\dvocate. of Newark, 
receivi'd a license dated at .V.ivy Hall, .Tuly 7th. 17i^>.">. under the hand 
and seal-at-arms of Governor Simcoe. count(>rsigned by W. Mayne. 
Acting Secretary, authorizing him to be and appear as an advocate 
or attorney in all and every of His Ma.iestv's Tourts. He afterwards 
removed to England, became a Baronet in 1R21, and died in England, 
IS.",?, at the age of 7."]. 



11 

SECOIS'D SESSIOX. 

The second set^sion of the first Parliament met iit Newark. 
Friday, 31st May, 1793, the Legishitive Councillors present 
being Osgoode, Eussell, Grant, Cartwright, Baby and Hamil- 
ton. The session lasted till Tuesday, 9th July, and was not 
unfruitful. 

The first chapter provided for the better regulation of the 
militia of the Province. Before this time a regulation passed 
at Quebec in 1777, had been in force, but it was now repealed; 
it had, indeed, given great offence even in Quebec, long 
before. It had provided for compulsory service on very 
insufficient pay, for payment at fixed rates for labour ren- 
dered, etc. ; and generally had all the defects and faults and 
few of the advantages of a system of corvee. It was petitioned 
against; and the attempts of Hamilton, the Lieutenant-Gov- 
ernor to enact a new militia law led to his recall in 1785. 

War was in 1793 going on between France and England; 
the people of the United States (speaking generally) were 
strongly in favour of France, and although Washington 
issued a proclamation of neutrality, the people and the Gov- 
ernment of Upper Canada lived in constant dread of an 
invasion from the south, a dread that was afterwards shewn 
to be fully justified by the war declared l)y the Ignited States 
in 1812. This war it is now reasonably certain had for its 
main purpose the acquisition of Canada. 

The speech from the Throne by Simcoe recommended an 
early remodelling of a militia bill on account of the war with 
France. The House did not delay, and by July 2nd they 
had agreed upon legislation. 

This authorized the appointment of a Lieutenant in each 
county and riding Avith power to call out, arm, array and 
train militia once a year — each Lieutenant to appoint a 
Deputy-Lieutenant and " a sufficient number of Colonels, 
Lieutenant-Colonels, Majors and other officers '" to do tlic 
training (we have seldom been lacking in colonels) — the 
militia to be composed of all male inhabitants from 16 to 50 
years of age, and in case of emergency to be liable to be 
called on to serve in any part of the Province. Provision 
was made for division into regiments, companies, etc. Sec- 
tion 22 excused " the persons called Quakers, Mennonis-fs and 
Tunkers" from serving, but they were to pay to the Lieuten- 
ant, each, per annum, 20 shillings in times of peace and £5 
in time of actual invasion or insurrection. Special legisla- 



12 

tions for these classes of people will be fouiul more than ouee 
in subsequent J'ears. 

The second chapter was the beginning of our municipal 
system, providing as it did for the election of parish or town 
officers. It authorized the inhabitant householders of any 
parish, town or township, reputed township or place to 
elect a parish or town clerk, assessors, collectors, overseers 
of highways, pound-keepers, town-wardens or church-war- 
dens, high constables, etc. 

Chapter three was the first of our assessment acts, and it 
also provided " for the payment of wages to the Members of 
the House of Assembly." Frequently we hear it said of 
Members of Parliament that they are the servants of the 
ixople; but we do not nowadays hear of them being paid 
'• wages " — the sum paid them is dignified by the name " in- 
demnity." But the blunt plebeian word was that used in 
England so long as the practice itself lasted. From the 
earliest times payment was made to Knights of the Shire 
and Burgesses; and in 1323, by Statute of 16 Edward XL, 
the wages were fixed at four shillings per day for a Knight 
and two for a Burgess or citizen. These payments were made 
I)y the constituency, and continued regularly until the end of 
the reign of Henry VII T. When the time oame to incor- 
porate Wales with England, the Act of Parliament providing 
for representation of Wales, passed in 1535-6, 27 Henry 
YIII., ch. 26, provided that towns should pay wages to their 
i-epresentatives, and the second Act, passed in 1543-4, 34 and 
35 Henry VIII., eh. 2(), had similar provisions. When 
the universities received the right to send representatives to 
Parliament, it was provided that the burgesses were to be at 
the charge and costs of the Chancellor, masters and 
scholars; there is ample evidence that the members for 
the University of Cambridge in 1603-4, nearly if not quite 
the first to represent a university, were allowed five shillings 
per day for their expenses. 

The practice gradually died out. 'i'he ol't-repeated story 
tiiat the well-known Andrew Marvell, who sat for Hull in 
the reign of Charles II., was the last member of the Com- 
mons to receive wages, is not true, for in 16»i, ttiree years 
after Marvell's death, King, who had been M.P. for Harwich, 
obtained a writ from the Chancellor for his expenses as 
member of the House. But so far as appears it may be con- 



13 

sidered that Marvell was the last to receive a regular salary 
in this way. Lord Campbell seems to think that the writ 
never was abolished, but could l>e claimed as of right. How- 
ever that may be, the payment of wages to members died out 
in England more than two centuries ago, and they served 
without remuneration until the other day. 

Many looked upon it as part of the constitution that the 
Commons should serve at their own expense, but it is not 
reported that any very dire calamity has followed the new 
measure. 

It is to be noted that both in England and in Canada the 
present method is payment by the State; but as we shall 
see, the ancient method in England was followed in Upper 
Canada at first, and the constituencies were liable for the 
wages. 

In the Irish Parliament, the practice of paying members 
also prevailed, the freeholders being assessed and the money 
collected by the Sheriff: in 1666 a Bill passed the Irish 
Commons abolishing wages for its members entirely; but 
this was rejected by the Irish House of Lords, and the old 
law continued until the Union in 1800. 

In Scotland as early as 1587 there .was statutory provi- 
sion for wages to be paid to members by the freeholders; 
further legislation took place in 1648 and 1661. The 
" Commissioners " or members for shires were by this 
last Act to receive five pounds Scots (i.e., 8 shillings and 4 
pence sterling) ]>er day. These wages were not paid after 
the Union with England in 1707, the last Act providing for 
them being in 1690: when, seventeen years afterwards, the 
Union came about, all wages and allowances from constitu- 
encies were allowed to lapse. 

However, the "wages" given in 1793 in Upper Canada 
did not alarm by excess. Section 30. after reciting that " it 
was the ancient usage of England for the several members 
representing the counties, cities and boroughs therein, to 
receive wages for their attendance in Parliament," enacted 
that everv' member of the House of Assembly should be en- 
titled to demand from the Justices of the peace of the dis- 
trict in which his riding was situated, a sum not exceeding 
10 shillings per day (i.e., $2) for each day he had been 
engaged in attendance on the House, and been necessarily 
absent from his hous'e, the amounts to be paid out of the 



14 

rates. This was slightly amended ten years after by (1803) 
43 Geo. III., eh. 11.- 

Chapter four provided for laying out and repairing high- 
ways by the agency of Commissioners or overseers, the begin- 

-Tbat this provision for the wages of members of the popuhir 
House was not a dead letter is seen from the records at Osgoode 
Ilall. For example: In Michaelmas Term. 59 Geo. III.. Nov. 13th, 
IMS. in the Court of King's Bench (praes. I'owell, C.J., Campbell, 
and Boulton, JJ.), a niaiidamvs nisi was issued to the Justiices of 
Gore, requiring them to issue an order to the treasurer of the dis- 
trict for the payment to Richard Hall. Esq., a member of the Com- 
mons House of Assembly of t'pper Canada, of the sum of .thirty 
pounds, being the amount of his wages for sixty days' attendance 
at the last session of the rrovincial Legislature, out of the monies 
which may come into his hands under and by virtue of any Act of 
the Provincial rarliament. And a similar order to pay James 
Durand, Esq., Member of the Assembly. 

These were made absolute April 17th. 1819. 
Other instances may be of interest : — 

•• At a meeting of the Quarter Sessions for the District of New- 
castle, holdeu at llaldimand. April lOth. 1804. at which were pres- 
ent Timothy Thompson. Benjamin Richardson, Asa Burnham, Joseph 
Kedcr, Joel Merriman. John Spencer, Leonard Soper, Asa Weller, 
Elias Jones and Richard Lovekin, Esquires, the following order was 
made : " The Magistrates in Quarter Sessions assembled in the 
district of Newcastle, the 10th of April, 1804. order that the sum^ of 
fiirty-five pounds, ten shillings, be collected in the county of Nor- 
thumberland to compensate David M. Rogers for services as Member 
of the House of Assembly for the years 1801, 1.^2. 1803. and 1804. 

" (Sgd.) Tim'y Thompson, 

" Chainnan.'' 
And on April 9th. 1805, this order was made : " Ordered that 
tlie sum of nine pounds, ten shillings, be collected in the county of 
Northumberland for the wages of David Macgregor Rogers, Esquire. 
Slembcr of tlie House of Assembly, representing the counties of 
Hastings and Xorthumlierland, for his services during the first Ses- 
sion of the Fourth I'arliainent. 

"April Sessions. Haldimand, 9th April, 1805. 

" Alex. Chisholm, 

" Chairman." 
On April 8th. 180C). the following: "Ordered that the sum of 
nine shillings and five i)ence halfpenny, be allowed in abatement to 
Benjamin Ewing, collector of the rates for tlie township of Haldi- 
mand, for the year ls05,'for the rates of persons not living in the 
township. The Clerk of the Peace presented the following Assess- 
ment Rolls to the Magistrates for the townships of Murray. 
Cramahe. Haldimand, Hamilton. Hope. Darlington. Ordered that 
tlie clerk transmit a ci>py of the said assessments agreeable to law. 
Ordered that the sum of five pounds, fifteen shillings, Halifax cur- 
rency, be collected for (he payment of the wages of the Member of 
the House of .Vssembly for the second Session of the Fourth Parlia- 
ment in the county of Northumberland. 

" (Sgd.) Benjamin Richardson. 

" (liairmdn." 
On April 14tli. ISOT. tlie following: "Ordered that the sum of 
eleven pounds, five shillings, be collected for the payment of the 
wages of the Slember of .Vssembly repi-esenting the counties of Hast- 
ings and Northumberland, for the third Session of the Fourtli Pro- 
vincial Parlianient. being the proportion of Northumberland." 

Davi<l M. Rogers was also Clerk of the Peace; be lived for a 
time in Prince Edward county and then removed to (Jrafton. Nor- 
thumberland county. He represented his riding from 1790 to 1824. 
with the exception of one Parliament, and was active in military 
matters (as his descendants have been ever since). He became 



15 

iiiiig of the wretched plan of leaving the care of highways 
to local authority. 

Chapter five was of very great public importance. Before 
the conquest in 1759-60, of course, the Eoman Catholic reli- 
gion was practically universal in Canada, ana mere was no 
trouble in procuring the solemnization of marriage. Even 
after the conquest and until the influx from the United 
States, Protestants were few in number, and practically all 
lived in places of some importance like Quebec or Montreal, 
and a Protestant clergyman was there available. If a Pro- 
testant married in a country place it was to a " Canadienne," 
and her priest was good enough. But with the immigration 
into Upper Canada in considerable numbers of a country 
population, many of them Protestants, the situation was 
altered. By the law of England only clergymen of the 
Church of England could perform the ceremony, and these 
were scarce: according to a report made in 1792 by ^Ir. Cart- 
wright, Legislative Councillor, there were none in the East- 
ern District, only two in the Midland, one in the Home and 
none in the Western. There were a few Presoyterian. Luth- 
eran and ^Methodist ministers, and some Eoman Catholic 
priests; but these were not qualified. Marriages had, how- 
ever, been solemnized by these and in some cases even by 
laymen; and some relief was urgently needed. A Bill was 
introduced in the Council by Cartwright, which, with some 
amendments, became law. 

This validated all marriages theretofore contracted 
between persons "not being under any canonical disqualifica- 
tion to contract matrimony," who publicly contracted before 
any magistrate or commanding officer of a post, or adjutant 
or surgeon^ of a regiment acting as chaplain," or any other 

Registrar of Deeds for the united counties of Xorthumlierland and 
Durham, and .Judfi-e of the District Court of XewcastU^ District : h" 
died in 1S24. aped .'.2. 

The Act was interpreted with some strictness, ^^hen the 
Act of (1.S20). m Geo. ITT. ch. 2. authorized reprcsontation f.>r 
towns in which the Quarter Sessions were held and wliich liad ;. 
population of one thousand, and the town of Niagara sent Edwai-d 
McBride as a memher to the Legislative .Assemhly. the Court /'^W. 
that he was not entitled to wages: The Kind e.r rrl. Edward l/c- 
Bridr. Esnuirr. ^r.P.. nqainxt the ■Justice!': of the District of '\\ag'irn 
(1S;2ni. Tav.. ."42. Members for towns had to serve without wages 
till lS3."i, .". Wm. IV.. ch. C 

'It seems to have been not unusual for a surgeon to tie ihe 
matrimonial knot, and it is not at all unlikely that the fol^lowing 
instance accounts for the mention of them in the .Vet. (aptain 
James Mathew Hamilton, of the r>th Nr>rthuml)erland Regiment .>f 
Foot, when stationed at Mackinac, married Louisa, daughter of Dr. 



16 

person in any public office of employment. For the future 
and until there should be five parsons of the Church of Eng- 
land ill any one district, a J.P. might- solemnize the mar- 
riage, using the form of the Church of England. It was of 
course quite too much to expect in the then existing state of 
religious toleration that any parson or minister of any other 
church or sect should receive such authority. The Lieutenant- 
Governor, Simcoe, indeed, wrote to Dundas expressing his 
astonishment that it had even been proposed to give such 
power to ministers of otlier denominations. At all events 
this i)roposition had to be abandoned. The Lieutenant-Gov- 
ernor did not like the Act which was passed, but-public opin- 
ion was too strong for him and he assented to the Bill. 
Simcoe was most anxious for the establishment of the Church 
of England in Tapper Canada, and bent all his energies 
toward that end. 

The provisions of the bill were wholly unsatisfactory to 
ni'any of the settlers. Some were Presbyterians who had come 
from Scotland, where their church was established and where 
Episcopalians were the dissenters; others were Lutherans 
whose church was established in parts of Germany. j\Iany 
had come from the colonies to the south without an estab- 
lished church at all ; not a few were members of the ancient 
Church of Pome, which had been the established Church in 
Canada till a few years before. None of these could see why 
their clergy- were not quite as good as those of the Church 
of England. Petitions were signed and presented to the 
Lieutenant-Governor for a repeal of this marriage Act of 
179,3. These he treated with lofty scorn. He said that he 
thought it proper to say that he looked upon the petition 
as the product of a wicked head and a disloyal heart; but at 
length in 1798 an Act was passed, 38 Geo. IIL ch. 4, making 
it Lawful for a minister or clergyman of any congregation or 
religious connnunity professing to be members of the Church 
of Scotland, or Lutherans, or Calvinists, to celebrate the 




17 

ceremony of marriage for members of their own congregation 
or religious community, upon the minister procuring a pro- 
per certificate from the Quarter Sessions.* Similar marriages 
in the past were also validated. This was so little to the taste 
of the Lieutenant-Governor that he reserved the Bill for His 
Majesty's pleasure. The royal assent was given Dec. 29, 1798, 
and the Bill became law. This made the trouble if anything 
more acute. So long as one Church had the monopoly it was 
not so bad, but when four participated, all those who were 
excluded insistently demanded the reason why. 

The agitation was at length successful. In 1830. by the 
Act of 11 Geo. IV., ch. 36, the power of celebrating marria'-es 
was given to clergymen and ministers of the Church of Scot- 
land, Lutherans, Presbyterians, Congregationalists, Baptists, 
Independents, Methodists, Menonists, Tunkers or Moravians, 
the celebrant to take out a certificate from the Quarter Ses- 
sions. 

The restriction to marriages of persons one of whom 
at least was a member of the denomination, was removed. 
Former marriages " before any justice of the peace, magis- 
trate or commanding officer of a post, or before any minister 
or clerg)-man,"' were validated and confirmed unless either 
of the parties to an invalid marriage had thereafter con- 
tracted matrimony according to law.^ 

*How the license was obtained may Ibe seen fram a concrete 

example. -. ,. tv • 4. 

At a meetine of the (Teneral Quarter Sessions for the District 
of Newcastle, held April 0th. f^O.", at Haldimand : Present. Alexander 
Chisholm. Robert Baldwin. Richard Lovekin. Elias Smith, senior, 
Asa Weller. Elias .Jones. Benjamin Marsh, .Tohn Spencer. Benjamin 
Richardson. Leonard Soper. .Joseph Keeler. Asa Burnham and Joel 
Merriman. Esquires, the following: took place : 

'• Reuben Crandel of Cramahe. appeared, pursuant to notice 
given at the Clerk of the Peace's office, professing himself to be a 
Minister of the Religious Congregation of Calvinists. and having 
called upon John Spencer, Esquire, Moses Hinman, Joseph 1 hillips. 
Joseph J Losie. Benjamin Ewing. Moses Doolittle and John Phinn. 
all of Haldimand. members of the said congregation who openly 
owned and acknowledged the said Reuben Crandel to be their Min- 
ister and the Court being satisfied that he is regularly ordained 
according to the rules of that society, do allow him a certificate to 
enable him to celebrate marriage agreeable to law." 

'The right to solemnize matrimony was of some value, and un- 
authorized celebrants were proceeded against criminally. I give one 

^^^"^ iT Easter Term. 42 Geo.. III.. April 0th. 1S02. before Elmsley. 
C J and Vlkock J., a rule was issued against John Wilson, calling 
on 'him to shew cause why "an information for a misdemeanour 
should not be filed against him . . ._ for having solemnized or 
pretended to solemnize marriage on the .th day f't ;'»nr • • '^?'; 
between Paul Marin, of York, baker, and Jane Butterfield, of the 
same place, spinster, otherwise called Jane Burke, in contemp: ot 



18 

hi 1857, by the Act 20 Vic. eh. 66, the power of celebrat- 
iDg marriages was given to ministers and clergymen of every 
religious denomination in Upper Canada; in 1896, by 59 
Vict., ch. 39, also to an elder, evangelist or missionary of 
the " Congregation of God "' or " Of Christ," i.e., " Disciples 
of Christ," and also to a Commissioner or Staff Officer of the 
Salvation Army. (Quakers are specially provided for.= 

the law, contrary to the statute in such case made and provided, and 
in profanation of religion." 

This last clause is especially fine. 

The rule, after two enlarirements. came on before the Full Court 
(Elmsley. C.J. and Powell and Allcock, JJ.), in Trinity Term, 14th 
July, 1S02, and it was made absolute. 

" The information was a proceeding now practically obsolete, but 
much in use in those days in place of an indictment. 

No doubt Wilson was tried upon the information ordered to be 
issued against him but I do not find any record of the result. 

liev. John Carroll, in the first volume <if his " Case and His 
Contemporaries." p. 148, sec. IT. speaking of Rev. Isaac B. Smith, a 
Methodist missionary, says : " He was courageous. After his ordin- 
ation he ventured to marry a couple within the Province boundaries, 
and was, consequently, prosecuted by the privileged class, who claimed 
the exclusive right to celebrate matrimony. T'nTike the excellent but 
timid Sawyer, who for a time fled the country on a similar charge 
being preferred against him. Smith stood his ground, searched into 
the law on the subject, plead his own cause, and despite the talents 
and legal lore of the prosecuting attorney, and the Judge's brow- 
beating, came off scot-clear. In this he was more fortunate than 
his father-in-law. Mr. Ryan, who, according to report, was banished 
for a similar offence, though afterwards made a subject of the 
Governor's clemency for his known loyalty." 

" Sawyer," was Rev. Joseph Sawyer, who became Presiding 
Elder of the Upper Canada District of the Methodist Episcopal 
ciiurch in 1S0S, having then been a missionary for fourteen years. 

•' Mr. Ryan." was Rev. Henry Ryan, of great fame in the same 
Connexion, but who afterwards was a prominent leader in the divi- 
sion which took place in 1828-9. resulting in the formation of the 
Canadian Episcopal Methodist Church. 

I have not been able to verify the statements made as to these 
three ministers: there is no doubt, however, that ministers of all 
denominations considered it a part of their clerical functions to per- 
form the marriage ceremony, and resented the ban put upon such 
act by the law. 

"There was no dearth of denominations in 18,30, when the 
former Act was passed. . 

William Lyon Mackenzie, in the Introduction to his ' Sketches 
of Canada and" the Tnited States." ISIi.",, says: — 

" There is . . . variety (>nough. if we include the Canadas. 
Within a square of 400 miles may be found the professors of 100 
religions, creeds and systems, from the Menonist, Tunkard, nnd 
<'liild of Peace of lipper Canada, to the Ilopkinsian, the Chrystian 
and T'niversalist across the Niagara." 

The Children of Peace consisted of thirty or forty families in or 
II. 'ar the village of Hope, in the township of East f:wil1iml)ury. about 
.".."» miles from York, and 4i.j miles from Newmarket. David Willson 
was their leader, but they had no written creed. 

At an election nt Niaijara Falls, for the county of T>incoln. July 
2r!th, 1824, Mackenzie says, p. .80: "there were Christians and 
Tieailiens. Meiionites and' Tunkards, Quakers and T'niversalists, 
Presbvterians and P.aptists. Roman Catholics nnd American Metho- 
dists;" there were Frenchmen and Yankees. Irishmen and Mulattoes. 
Scotchmen and Indians. Englishmen. Canadians. Americans and 
Negroes, Dutchmen and Cermans. Welshmen and Swedis, Highland- 
ers and Lowlanders." 



19 

The number of persons with this authorit}' is fairl}- large; 
but no one is justified in getting up a little denomination of 
his own, and claiming the power to celebrate the marriage 
ceremony just because he is the minister of it. One Robert 
Brown tried that; he was the minister of a congregation 
known as " The First Christian Chinese Church, Toronto,'" 
and as such solemnized marriages. The Judge of the County 
Court of Toronto convicted him of the crime of unlawfully 
performing the marriage ceremony and the Court of Appeal 
aflBrmed the conviction: Bex v. Brown (1908), 17 0. L. E. 
197. 

Eeturning now to the Legislation of 1793. 

Chapter 6 fixed the times and places of holding the Quar- 
ter Sessions in each District — in the Eastern District at Xew 
Johnstown and Cornwall, in the Midland at Adolphustown 
and Kingston, in the Home at Newark and in the Western at 
Detroit — also a Court* of Si>ecial Sessions at Michilimackinac. 
Detroit was considered as part of Canada till 1796, and was 
governed accordingly — Michilimackinac was given up about 
the same time. 

Chapter 7 is a most creditable piece of legislation. It 
practically abolished slavery in the Province, repealed for 
Upper Canada, 30 Geo. III., ch. 27, authorizing the importa- 
tion of slaves into a colony. All negroes then slaves con- 
tinued to be slaves, children of female slaves born after the 
Act served the master until the age of 25 years and then 
became free. 

It was the Lieutenant-Governor who was responsible for 
pressing this legislation, though Chief Justice Osgoode and 
Solicitor-General Grey also deserve credit. It was by no 
means popular, on account of the scarcity of labour; and the 
old story of Canaan serving his brethren, Gen. x., 25, was 
made to do duty over and over again. But " the power of the 
Crown" was then something to be afraid of. and Simcoe 
got his wish. 

Upper Canada had reason to be proud of her record in 
respect of Slavery. The number of negro slaves in the 
Province was not very large absolutely-, but in comparison 
with the number of free settlers it was not insignificant; 
many had been captured by the Indians in their incursions 
into United States territory and sold to Canadians at a small 
price, and their labour was very valuable.' 



20 

In the case of the negro Sommersett, to be found in 20 
Howell's State Trials, 29, the Court of Kiug's Bench in 1T?3 
had unanimously decided that as soon as a slave set his 
foot upon the Jjoil of the British Isles he became free. Cowper 
in The Tank, in 1785, sang:— 

'• Slaves cannot breathe in England ; if their lungs 
Receive our air, that moment they are free; 
They touch our country and their shackles fall." 

But that was in the mother country ; in the Colonies the 
curse of negro slavery prevailed to an extent limited only 
by the opportunity of obtaining negroes and the supposed 
need for their labour. Wilberforce had only in 1787 taken 
up the cause — which had been a favourite for many years 
among the Quakers — of the abolition of the slave trade; but 
as yet no British Colony had spoken ; and Upper Canada led 
the way. She had been indeed preceded in 1792, May 6, by 
Denmark, but she led the British Colonies and all other na- 
tions in abolishing this infamous traffic. It was not till 1807 
that it was foi-biddeu for all the British Dominions, and not 
till 1833 was the Act passed abolishing slavery itself. 
August, 1838, saw the end of slavery under the Union Jack. 
Chapter 8 established a Court of Probate in the Province 
and a Surrogate Court in each District. The Governor, Lieu- 
tenant-Governor or Administrator was to preside in the Court 
of Probate, and a Commissioner in each Surrogate Court. 
An appeal lay from the Surrogate Court to the Court of 
Probate. 

This system existed till 1858. In that year, by 22 Vic. 
ch. 93, the Court of Probate was abolished, a Surrogate Court 
for each county organized with a Judge with the same auth- 
ority as a Judge of a County Court, and 33 Geo. III. ch. 8, 
was formally repealed. Our present system is substantially 
that of 22 Vic. ch. 93. 

By cliapter 9 the Lieutenant-Governor was authorized to 
appoint three Commissioners to consult and agree with an 
equal numlxr from Lower Canada as to duties to be im])o^ed 
in the passing of goods from one Province to anotlier. This 
may l)e passed over for the time. 

Cliapter 10 provided for the payment of officers of the two 
houses. Chapter 11 for the payment of a bounty for killing 
bears and wolves, 10 shillings for a bear and 20 shillings for 
a wolf, but tliis was not to extend to the Western District 
nor was anv Indian to receive anv reward for such killing. 



21 

Chapter 1'^ provided for the appointment by the Governor 
of returning otficers, in elections for the Assendjly. 

Chapter 13 provided for salaries of officers of the two 
Houses and for contingent expenses. This is the form; but 
the substance is rather different. By an Act of the Imperial 
Parliament in 1774, it had been provided that a duty of 
£1 16s. sterling should be paid for every license in the Pro- 
vince of Quebec for keeping a house of public entertainment 
or for retailing wine, brandy, rum or other spirituous liquor 
within the Province. The matter of duty upon wine and 
liquor brought into the Province had been up in tlie first 
session, but nothing came of the discussion. A bill passed the 
Assembly October 4th, 1792, but received the three months' 
hoist in the Council October 8th. 

In 1793 the Committee of' Ways and Means in the As- 
sembly reported in favour of a retail license fee of £2 per 
annum, and a bill was introduced accordingly and was sent 
up to the Council July 2nd, 1793; and this bill, after some 
opposition, was passed by that body. As finally passed it 
imposed a further license fee (in addition to the former of 
£1 16s.) of 20 shillings for each retail license, but this was 
not to extend beyond April 5th, 1797. The Receiver-Gen- 
eral was allowed to retain 3 per cent, for himself of all 
money raised by this method. 

During this session, Peter Van Alstine, already men- 
tioned, took the necessary oath, on the second day of the 
session. The day following it was ordered that such Acts as 
had passed or should pass the Legislature should be trans- 
lated into French for the benefit of the inhabitants of the 
Western District and other French settlers who might come 
to reside within the Province, and A. Macdonell, Esquire, 
Clerk of the House, was employed as a French translator 
for this and other purposes of the House. Thus early we 
meet bilingualism. 

A Bill to establish two annual fairs at Xew Johnstown 
did not pass; and the same fate met a proposed "Bill to 
relieve the inhabitants of the Western District from the 
necessity of boltins? the grain they grind at their mills for 
toll.^' 

The House was not unmindful of the privileges attached 
to the position of Member of Parliament. We find on !Mon- 
day, 17th June, this resolution carried: "That the Speaker 
do inform W. B. Sheehan, Esquire, Sheriff of this district, 
that the House entertain a strong sense of the impropriety 



23 

of his conduct towards a member of this House in having 
served a Writ of Capias upon the said member contrary to 
his privilege, and that the House has only dispensed with 
the necessity of bringing him to their bar to be further 
dealt with from a conviction that want of reflection and not 
contempt made him guilty of an infringement upon the 
privileges of the House." 

That the members of the Upper Canada House had the 
same privilege from arrest as a member of the Imperial 
House of Commons is certain — and that, not only during the 
sittings of the House, but for forty days before and forty 
days after: Reg. v. Gamble and Boulton (1832), 9 U. C. E. 
5-iG, and several other cases down to Cox v. Prior (1899), 18 
P. E. 492. Accordingly the sheriff had reason to consider 
himself lucky in escaping the fate of others who had been 
guilty of somewhat similar acts. 

Upon the first day of the first Parliament of James I. in 
1603, a complaint was made that Sir Thomas Shirley, who 
had been elected a member of the House of Commons, was 
arrested four days before the sitting of the Parliament and 
im})risoned in the Fleet. A writ of Habeas Corpus was issued 
and he was discharged. Precedents were looked unto and the 
plaintiff at whose suit and the sergeant by whom the arrest 
was made were sent to the Tower. The Warden of the Fleet, 
who had persisted in refusing to obey the writ of Habeas 
Corpus and deliver up his prisoner, was ordered to be com- 
mitted " to the place called the Dungeon or Little-Ease in 
the Tower." Afterwards " delivering his prisoner " and 
" upon his knees confessing his error and presumption and 
professing he was unfeignedly sorry, the Speaker pronounced 
his pardon and discharge, paying ordinary fees to the clerk 
and the sergeant." And in February, 1606, an attorney who 
had procured the arrest of Mr. James, a member of the 
House of Commons, and the officer who had arrested him, 
were " for their contempt committed to the custody of the 
sergeant for a month, which judgment was pronounced 
against them kneeling at the bar, by Mr. Speaker." 

It is to be hoped that Sheriff Sheehan was duly grateful 
for the clemency shewn him. 

On ^londay, 8th July, the House waited upon the Lieu- 
tenant-Governor with their address to His Majesty, express- 
ing their horror and abhorrence of '' the sacrilegious murder 
in France," and hoping " that a conduct so baneful to every 
precept of Eeligion and law may serve to rivet the loyalty and 



23 

attachment of our fellow-subjects, as it has ours, to the best 
of Kings and of constitutions the most excellent." Louis 
XVI. had been executed the Januar}^ before. This was *' the 
sacrilegious murder," sacrilegious because Louis was King 
by Divine Right — and notwithstanding that his right to the 
Crown was statutory, the doctrine of Divine Right was dear 
to GTeorge III. It was, of course, George III. who was the 
best of Kings," and the constitution as it tlien existed unrc- 
formed, the most excellent of constitutions. Everybody 
knows that it was the perfection of reason acquired by long 
study, observation and experience, and refined by learned 
and patriotic men in all ages — as Simcoe in his speech from 
the throne put it, " equally abhorrent of absolute monarchy, 
absolute aristocracy or tyrannical democracy.^' 

It may not be without interest to see who attended the 
meetings of the Houses of Parliament. 

During the Session of 1792, the following Legislative 
Councillors are noted in the proceedings as being present at 
some time : William Osgoode, James Baby, Robert Hamilton, 
Richard Cartwright, Jr., John Munro, Alexander Grant and 
Peter Russell. In 1793 all these were also in attendance, 
and in addition, Richard Duncan attended, having been 
sworn June 17th, 1793. He had lieon appointed in the pre- 
vious August, and hailed from Rapid Plat. 

As is the case with the Legislative Council, I do not know 
of any record kept of the attendance of members of the As- 
sembly; but from the proceedings it is clear that of the six- 
teen members elected for the assembly in the first Parlia- 
ment at least thirteen were in attendance at some time dur- 
ing the first session. The names of all but Joshua Booth 
and Parshall Terry appear as taking some part — Philip Dor- 
land, of course, could not act. 

In the second session I find the names of thirteen re- 
corded as taking some part in the proceedings, Major Van 
Alstine among them. Those whose names do not appear are 
Hugh Macdonell, Parshall Terry and Nathaniel Pettit. 

This was a very fair attendance, but it does not seem that 
all attended every day, as Sept. 18, 1792',% resolution was 

' Wraxall tells us that it was King George's opposition to the 
claims of his American subjects that was the cause of his unpopu- 
larity with the English people ; and it is. beyond doubt, true that as 
soon as peace was in 17cS.S declared, granting independence to the 
North American Colonies, he recovered all his lost favour with his 
people. There never was a King more generally loved than he. ex- 
cept during the years of the Revolutionary War. 



24 

passed that nine members should make a House; and this 
number was reduced on Oct. 10, to eight. 

There had always been a difficulty in England of securing 
attendance of members of the House of Commons; and one 
statute, G Henry VIIL, ch. 16, was passed punishing the 
absence of a member by deprivation of pay. No other pun- 
ishment has ever been enacted in England. 

Ireland was cursed with absentee members; in one in- 
stance it is said a member was an absentee for twenty years; 
but no means were taken to compel attendance. 

In Scotland absentees were liable to a fine. It is said: 
'' By ancient law absentees were liable to be unlawed and 
amerced in fines''; the fines were substantial, and "without 
prejudice of what further censure Parliament shall think 
fit to inflict.'' 

In the Upper Canada Parliament there does not appear 
to have been any necessity for such measures. 

THIRD SESSION. 

The third session of the first Parliament began June 2nd 
and lasted till July 7th, 1794. 

The first chapter of the legislation of this session regulated 
juries to be called to " serve on trials at any Assizes or Nisi 
Prius, Quarter Sessions or District Court." Not less than 36 
nor more than 48 jurymen were to be returned in any Dis- 
trict or place; those returned, if they did not appear; were to 
pay a fine not less than 20 shillings ($4) or more than £3 
($12). Section 9 provided that every juryman should 
receive one shilling from the plaintiff or liis attorney in ■ 
every cause in which he was sworn — if a view should be 
allowed, six jurymen agreed upon or named by the Judge 
or some officer of the Court had the view and were allowed 
each 10 shillings for each day they were so employed. 
The Court of King's Bench was authorized to order a special 
jury to be struck as in England, the fee of each special jury- 
man to be 5 shillings. 

Chapter two established a Court of Law by the name and 
style of His Majesty's Court of King's Bench for the Pro- 
vince of Upper Canada, with the same authority as the Courts 
of King's Bench, Common Pleas and Exchequer in England. 

Before the conquest of Canada, of course the French 
system of Courts was the only system in Canada. From this 



25 

time until the Koyal Proclamation of 1763. there were 
Courts presided over by the captains of militia. These 
Courts were set up by the conquerors as part of their 
military rule, and could only be temporary. 

By the Proclamation of 1763, it was provided that the 
Governor should have the power of constituting Courts of 
Law and Equity with civil and criminal Jurisdiction to hear 
and determine causes as near as may be agreeable to the laws 
of England. Murray, accordingly, pursuant to his instnictions 
and his Commission, established a Court of King's Bench with 
£ivil and criminal jurisdiction with an appeal to the Governor 
in Council or to the King in certain cases — the Court to sit 
twice a year, in January and June, in Quebec — and a Court 
of Assize and Gaol Delivery once a year in Montreal and 
Three Eivers. A Court of Common Pleas was also estab- 
lished, — an appeal lay to the King's Bench, or if of 
sufficient importance to the Governor in Council or the 
King. Justices of the Peace were also appointed with 
civil jurisdiction up to £5 for a single magistrate or £10 
for two sitting together. Three justices could hold a 
Court of Quarter Sessions with civil jurisdiction from £10 
to £30. 

Several departures from English precedent are mani- 
fest. The Common Pleas administered Equity, and Conser- 
vators of the Peace both singly and in the Quarter Sessions 
had civil jurisdiction. 

Then came the Quebec Act of 1774, 11 Geo. III., ch. 83. 
This revoked the Proclamation of 1763, all ordinances rela- 
tive to the administration of justice and all commissions to 
Judges, etc., made or issued under the authority of the Pro- 
clamation. It further provided for the King constituting 
Courts of civil, criminal, and ecclesiastical jurisdiction and 
appointing Judges and officers thereto. 

The American invasion of Canada prevented anything 
being done at the time — inter arma silent leges — but in 1776, 
Courts were established for the Districts of Montreal and 
Quebec, and a Court of Appeal was also constituted. Courts 
were organized for Three Eivers, and afterwards, when in 
1788, Dorchester divided what was afterwards Upper Can- 
ada into Districts, Courts were instituted also in these four 
Districts, i.e., Luneburgh, Mecklenl)urg, Xassau and Hesse 
(this last including Detroit). These were Courts of Common 



26 

Pleas. Commissions of Oyer and Terminer were also issued 
to the Judges of these Courts, as occasion required. 

Jury trial having been established by chapter 2 of 32 
George III., chapter -i of the same statute abolished smnmary 
proceedings in these Courts, which had formerly obtained 
in cases involving less than £10 sterling. 

The time was now come to abolish these Courts of Common 
Pleas in Upper Canada, and chapter 2 of the third session be- 
came law. This constituted a Court of King's Bench, with a 
Chief Justice and two Puisne Justices (increased to four 
in 1837 by 7 Wm. IV., ch. 1) to sit at a place certain, i.e., 
at the place where the Governor usually resided, and until 
such place should be fixed, at the last place of meeting of the 
Parliament. Four terms were prescribed; the first and orig- 
inal process directed to be a writ of capias ad respondendum; 
special bail also provided for, and the statutes of jeofails, etc., 
as in England, notice of trial, examinations de bene esse, costs, 
etc. The Courts of Common Pleas disappear and their records 
become records of the King's Bench. A Court of Appeal was 
constituted (composed of the Governor or Chief Justice and 
two or more members of the Executive Council) to which 
an appeal lay in matters over £100 ; and a further appeal when 
the amount in controversy exceeded £500 sterling was reserved 
to the Privy Council. 

As indicating the nationality of the inhabitants of Upper 
Canada it may be mentioned that the notice to the defendant 
to be endorsed on the writ was required to be in French (ac- 
cording to the form given) when the " party defendant is a 
Canadian subject by treaty or the son or daughter of such 
Canadian subject": sec. 9. 

This Court of King's Bench (becoming in 1839 by 2 Vic. 
ch. 1, Queen's Bench) continued until, in 1881, it was con- 
solidated in the Supreme Court of Judicature. The former 
Courts of Common Pleas entirely disappeared in 1794, and 
the Court of Common Pleas created in 1849 has no relation to 
tliese whatever. In 1837 a Court of Chancery was established, 
presided over by the Vice-Chancellor of Upper Canada: and 
in 1849, 12 Vic. -ch. 63, a new Common-law Court, the 
Court of Common Pleas, with the same jurisdiction and prac- 
tice as the Court of Queen's Bench. At the same time the 
Court of Cliancery was reconstituted with a Chancellor and 
two Vice-Chancellors, 12 Vict. ch. 64. These three Courts 



27 

continued side by side as the Superior Courts of original 
jurisdiction until 1881. 

By the Act of 1794, as we have seen, the Lieutenant- 
Governor of the Province or the Chief Justice, with two 
or more of the Executive Council, constituted a Court of 
Appeal from the King's Bench, and the same Court be- 
came the Court of Appeal from Chancery in 1837; but in 
1849 this Court of Appeal was abolished and a new Court of 
Error and Appeal was constituted to hear appeals from both 
the Common-law Courts and the Court of Chancery. This 
new Court was much like the Court of Exchequer Chamber 
in England, and consisted of all the Judges of the three Courts 
of first instance. In 1874, 37 Vic. ch. 7, this Court was 
reconstituted and thereafter consisted of Judges permanently 
of the Court of Appeal. In 1881, 44 Vic. ch. 5, the former 
system was abolished; all the Courts, Appeal, Queen's Bench, 
Chancery and Common Pleas, were united and consolidated 
into one Supreme Court of Judicature for Ontario, composed 
of two permanent di^isions : 1, The Court of Appeal for On- 
tario (this had five Judges), and, 2, the High Court of Jus- 
tice for Ontario : and of this High Court of Justice there were 
the three divisions, i.e., the Queen's Bench, Chancery and Com- 
mon Pleas Divisions. Later, another division was added in 
the High Court, viz., the Exchequer Division. Each of these 
divisions of the High Court of Justice had three Judges. 
The still recent reform effected by the Law Refonn Act, 1909, 
need not here be considered. 

I shall later speak of the defects of the original Court. 
It may here be said, however, that William Dummcr Powell, 
who had been commissioned as Judge of the Court of Com- 
mon Pleas for the District of Hesse, and had actually sat as 
such at L'Assomption (Sandwich), was after the passing of 
this Act appointed a Justice of the Court of King's Bench, 
and was afterwards, in 1816, created Chief Justice. 

As the Courts of Common Pleas were abolished, it bo- 
came necessary or at least advisable to constitute Courts 
to take their place for the trial of causes involving small 
amounts. In the Legislative Council, Cart^Tiglit atnd Hamil- 
ton caused to be entered in the proceedings their formal pro- 
test against the one Superior Court for the Province, rather 
than Courts of local and exclusive jurisdiction in each District. 

A Court was by Chapter 3 constituted in each District, 
by the name of District Court, to sit where the Court House 



28 

had been (by 32 Geo. III., ch. 8), directed to be built, except 
" in the ^Yestern District, wliere the said Court shall be 
holden in the Town of Detroit." In 1796, by 36 Geo. III. ch. 
4, s. 3, it was declared no longer expedient to hold the Court 
in Detroit, and it was directed to l)e held at the Parish of 
Assumption (Sandwich), or nearer the Isle of Bois Blanc— 
in 1801, by 41 Geo. III., ch. 6, s. 2, the place was definitely 
fi.xed at Sandwich. 

The District Courts were given jurisdiction in all actions 
of contract from 40 shillings up to £15; this was in 1797, by 
37 Geo. III. ch. G, sec. 1, increased to £40 in cases of con- 
tracts where the amount is liquidated, and to £15 in trespass 
where the title to land was not brought in question. 

After several amendments, the legislation was consolidated 
in 1822 by 2 Geo. IV., Sess. 2, ch. 2, and again with amend- 
ments in 1845 by 8 Vic. ch. 13. At length in 1849 the Dis- 
tricts became so multiplied that their boundaries in many 
eases became identical with the boundaries of Counties, and 
tlie Statute 12 Vic. ch. 78, abolished the division of the Pro- 
vince into Districts for judicial and other purposes and the 
District Courts were made County Courts by sec. 3. In the 
Statutes for that year they are called sometimes County 
Courts, sometimes District Courts and sometimes District 
or County Courts, but thereafter the new name, which still 
continues, is consistently used. 

Chapter 4 authorized the Governor to grant a license to 
any number of His Majesty's liege subjects not exceeding six- 
teen, to act as attorneys and advocates in the Province. The 
reason for this was the scarcity of lawyers acquainted with 
the English Civil law in the Province. Before 1792 of course 
the English Civil law liad not been in force, at least in theory. 
This Act of 1794 suspended for two years for Upper Canada 
the ordinance made in Quebec in 1785 providing for the pro- 
fession. The Act was not abused — only some five gentlemen 
were licensed under it in 1803, one being D'Arcy Boulton, an 
English barrister who afterwards became Judge of the King's' 
Bench, and the ancestor of a distinguished family; another, 
Dr. William AVarren Baldwin, a prominent barrister and 
politician, and fatlier of the still more celebrated Pobert 
Baldwin. 

The formation of the Law Society of Upper Canada in 
1797 we shall have occasion to note when we reach that date. 



Chapter 5 provided for tlie accounting for all fines, etc. 

Chapter 6 was an assessment Act of no great consequence 
except that it ordered the payment in full of the wages of the 
members of the Assembly. 

The Militia received attention in chapter 7, which author- 
ized Cavalry and a Navy. 

Chapter 8 enabled the householders of every District at 
their annual town meetings to determine in what manner and 
at what periods horned cattle, horses, sheep and swine, or any 
of them, should be allowed to run at large, and permitted 
impounding of the offending animals. 

Chapter 9 amended tke Act of the previous session as to 
highways, and was equally futile. 

Chapter 10 allowed the inhabitants of the Eastern District 
to build a gaol (it is called in the Statutes a "goal") and 
Court House in Cornwall, as well as those in Xew Johnstown 
authorized by the Act. 

Chapter 11 laid a duty on "' Stills for tiie purpose of dis- 
tilling spirituous liquors for sale," 1 shilling and 3 pence per 
gallon of the capacity of the still. The owner must procure 
a license, paying a fee for it of course; no one could do any- 
thing in those days without paying a fee for it — except 
(possibly) die. 

Chapter 12 regulated the . manner of licensing public 
houses, requiring the keeper to procure a certificate of his fit- 
ness from the magistrates of the District — the magistrates 
were given the power to limit the number of inns and the 
names of all licensees were to be published in the Upper 
Canada Gazette. 

A bill to regulate the practice of physic and surgery passed 
the Assembly, but the Council amended it in such a way that 
it did not suit the Assembly; a conference was directed to be 
held, but nothing seems to have been done, and the bill did 
not pass this year. It had better luck the following session, 
35 Geo. III. ch. 1. 

In the Council during this session the "following Council- 
lors are noted as taking part: Osgoode, Baby, Hamilton, Cart- 
wright, Munroe, Grant, Kussell and Aeneas Shaw, who pre- 
sented his summons and was sworn in, June 10, 179-1. He 
was a Scotsman, the lineal descendant of Macduff, first 



30 

Thane of Fife : of great mental and bodily vigor, he served in 
the Revolutionary war, and was created a Major-General in 
Upper Canada. At his house, Oakhill, he entertained the 
Duke of Kent, father of Queen Victoria, during his tour 
in Canada in 1799. The Major-General died in 1813 during 
the war with the United States, it is said from over-fatigue. 
We have not the complete record of the Assembly of this 
Session — tiio only available copy extending only to June 
11th; in what is preserved, I find the names of twelve 
members mentioned as taking part — Speaker Macdonell, 
Hugh Macdonell, Alexander Campbell, Ephraim Jones, John 
White, Joshua Booth, Hazelton Spencer, Benjamin Pawling, 
Isaac Swayzie (this name is spelled Swayze in the report), 
Parshall Terry, David William Smith; no trace is found of 
Jeremiah French, Peter Van Alstine, Nathaniel Pettit or 
William Macomb, although they all may have been in at- 
tendance. 

FOUIJTH SESSIOX. 

The fourth session of the first Parliament also met at 
Newark like its predecessors; it lasted from July 6th to 
August 10th, 1795. We have no records of the proceedings 
except the statutes themselves. 

The first chapter regulates the practice of physic and 
surgery. I have thus spoken of it in a paper prepared for 
the Ontario Medical Association, and published in the " Cana- 
dian Journal of Medicine and Surger}'," September, 1911 : — 

" At the time of the separation of our Province, and for 
some time thereafter, there was no regulation as to who should 
practice medicine, or " physic," as it was called. Many of 
the practitioners were old army or navy surgeons; some were 
importations from the United States, but most of those who 
treated disease were mere empirics. There had, indeed, been 
an Act or Ordinance passed by the Council of the old Province 
of Quebec in 1788, forbidding anyone to practise without a 
licence from the CJovernor — which licence was to be granted 
without an examination to all graduates of any British univer- 
sity and to all surgeons of the army or navy; l)ut this was 
largely a dead letter in the newer parts of tlie colony, as our 
country was at that time. 

In 1795 the Provincijil Parliament of Upper Canada 
passed an Act, 35 Geo. Ill, ch. 1, forbidding the sale of medi- 
cine, prescribing for the sick and the practice of physic, sur- 



31 

gery or midwifery by anyone who had not been licensed. The 
Governor was lo appoint a board to examine all who should 
apply for a licence, and those approved of by the Board, upon 
the examination were to be granted a licence, the fee being 
£2 currency, i.e., $8. A penalty of £10, i.e., $40, was imposed 
for selling medicines, prescribing for the sick or practising 
physic, surgery or midwifery without a licence. An excep- 
tion was made for surgeons or surgeons' mates in the army or 
navy, and for those who had been practising at the time of 
the passing of the Act of 1791; these, however, were not to 
take apprentices or students. There is no record of anything 
ever having been done under these provisions; the Act was 
found unworkable, and it was accordingly repealed in 1806 
by 46 Geo. II. ch. 2, and the profession was again much at 
large, although the Act of 1788, already spoken of, was still 
nominally in force. Much public dissatisfaction was the 
result, and at length a new Act was passed in 1815, 55 Geo. 
III. ch. 10, which forbade prescribing for the sick or the 
practice of physic, surgeiT or midwifery without a licence 
— saving the case of graduates of a university in British 
Dominions, surgeons and surgeons' mates in the British x\rmy 
or Xavy, and those wdio had practised before 1791. The pro- 
hibition against these taking apprentices or students was not 
repeated in this Act, nor was the prohibition against selling, 
etc., medicines. And it was expressly provided that women 
might practise midwifery without a licence. The Governor 
was to appoint an examining and licensing Board. 

Nothing seems to have been done under this Act either, 
and it was repealed in 1818 by 59 George III. ch. 13, which, 
however, contained much the same provisions." 

I do not here trace the legislation further. 

Chapter 2 prohibited any person coming from any place 
not within his Majesty's Dominions at the time of the passing 
of the Act, and not being a hana fide subject of His Majesty 
for seven years before the passing of the Act, from voting for 
a member of the House and from being a candidate. This 
was to meet what was tlien and for some years thereafter a 
very real danger. Americans coming into Upper Canada, 
with a hatred of monarchical institutions, obtruded themselves 
among the voters, preached, and, where they dared, practised 
disloyalty. 

Chapter 3 ratified an agreement entered into with Com- 
missioners from Lower Canada as to the division of certain 



duties, and an agreement that the Upper Province would not 
impose duties upon goods imported into Lower Canada and 
passing into Upper Canada, receiving one-eighth of the duties 
levied thereon by Lower Canada. 

Chapter 4 gave jurisdiction to the Court of King's Bench 
similar to that of the Court of Exchequer in England in the 
case of goods seized or contraband. This jurisdiction proved 
of very great value : the old Term Books are full of cases of 
confiscation of goods seized as being smuggled.** 

Chapter 5 is the first of our Eegistry Acts, establishing 
a registry office for each county and riding. Memorials only 
were to be registered, not the deed, etc., itself. 

FIFTH SESSIOX. 

The fifth and last Session of this Parliament met May 
16th, and lasted till June 3rd, 1795. No records of the pro- 
ceedings other than the Statutes are extant. 

Chapter 1 regulated the weight, etc., of coins and their rat- 
ing as legal tender. 

British Guinea . . . .weighing 5 dwt. 6 gr. Troy^£l 3s. 4d. 
Johannes of Portugal, .weigliing 18 dwt. 6 gr. 

Troy==£4 Os. Od. 
Moidore of Portugal .. weighing 6 dwt. 18 gr. 

Troy=£l 10s. Od. 
The milled Doubloon or four Pistole piece of 

Spain weigliing 17 dwt. Troy=£3 14s. Od. 

The French Louis d' or (before 1793) . . . .weigh- 
ing 5 dwt. 4 gr. Troy=£l 2s. 6d. 
Etc., Etc. 
American Eagle, .weighing 11 dwt. 6 gr. Troy=£2 10s. Od. 
American Dollar ^£0 5s. Od. 

* For example, wo liiul in MicliiU'lnias Term. 40 (Teo. III.. Xov. 
14th. ISOS. l).-f(uc Scdtl. <"..T.. ;in(l rowell. .7.: In "7'/ir K\nq v. John 
Young, on the information of Wm. Frith. Esqnire, Atty.-Gen'l, 
prochimation is made in open Court for condemnation of sroods 
seized as forfeited. The Att.v.-Gen'l suggesting that it is his inten- 
tion, on tlie part of the Crown, to take the goods in specie, this, on 
proclamation, is. by the Court, considered deficient.'' Trinity Term, 
.">0 Geo. III.. .July 11th. ISIO. proclamations were made for condem- 
nation of goods seized as forfeited: 10(! gals, of brandy. 75\^ gals, of 
rum. l.CtOO lbs. of tobacco. 00 lbs. of tea. ~^0 lbs. of tobacco, called 
pecan. KS lbs. of snuff, and TtO lbs. of cotton wool ; also 22G gals, of 
whiskey. l.fJOO lbs. of pork. 120 gals, of gin. and the boat tackle 
and furniturt'. In Michaelmas Term the proclamations were renewed 
and, finally, judgment was jiiven for forfeiture. 



33 

Many other gold and silver coins are named and valued. 
The value given to the American dollar shews that in Can- 
adian currency 1 shilling=20 cents (what was known even in 
my day as Halifax currency). 

Counterfeiting was made felony punishable with death 
on conviction " in His Majesty's Court of his Bench." Utter- 
ing, for a first offence, one year's imprisonment and one hour 
in and upon the pillory in some public and conspicuous place ; 
a second offence was punishable with death as a felon without 
benefit of clergy. Importation of false coin was to be pun- 
ished by twelve months' imprisonment. Xo one was to be 
compelled to take more than 1 shilling in copper; every pay- 
ment exceeding £50 currency in gold coin was to be by 
weight. 

Chapter 2 provided for juries at the assizes. 
Chapter 3 made further provision for licensing inn- 
keepers. 

Chapter 4 altered the place of meeting of the Quarter 
Sessions and the District Court of the Western District from 
Detroit, as has already been stated. Detroit was definitely 
abandoned by the British the following year, under the pro- 
visions of "Jay's Treaty," 1794. 

Chapter 5 abolished the bounty for killing bears. Chap- 
ter 6 provided for Commissioners to treat with Commissioners 
from Lower Canada as to duties, etc., and chapter 7 further 
secured those " wages," so often spoken of. 

This is the by no means discreditable or insignificant 
record of the first Parliament of Upper Canada, the only Par- 
liament under Simcoe. 

I shall now say something as to some of these statutes. 
There was very great reason for the protest of Cartwright 
and Hamilton. They had caused to be entered upon the pro- 
ceedings of the Council 3rd June, 1794, a formal protest 
against the proposed Act which effected the abolition of local 
Courts, in the geographical situation of the colony, '"with a 
thin population scattered over so immense an extent of coun- 
try" — all writs issuing from the "fixed place" at which the 
Court sat, and all proceedings to be there filed. It was indeed 
provided that where the first process went to the Sheriff of the 
Home District, fifteen days should elapse between the teste 
and return, forty days in any other District. But the necessity 
of "day's journeys" in procuring process, etc.. must in the then 



34 

condition of the colony have been very annoying; and many 
must have wished the return of the old Common Pleas Court 
in their District. But in 1797, by 37 Geo. III. eh. 4, it was 
provided that the Clerk of the Crown and Pleas should have 
in every district an office and a deputy whom he should fur- 
nish with blank writs, and in which office pleadings should be 
filed ; moreover, a form of writ where special bail should not be 
required was given. This was made quite clear in 1845 by 
Statute 8 Vic. ch. 36 ; it was enacted that the Clerk of the 
Crown should supply his deputies in every district with writs 
of mesne and final process, except writs in ejectment, and the 
deputies were directed to issue such writs in the same manner 
as might be done in the principal office at Toronto. They were 
also authorized to issue rules upon the Sheriff for return of 
mes7ie or final process. Then in 1849, the Act 12 Vic. ch. 63 
altered the office of Clerk of the Crown and Pleas, and made 
the several Clerks of the County Courts ex-officio Deputy 
Clerks of the Crown and Pleas in the Queen's Bench and 
Common Pleas — so that at length there was in each county 
town an office where process could be sued out. Thus, 
most of the advantage of a local Court and all the advan- 
tage of a strong central Court were combined. 

In the Statute concerning coins, reference is made to 
standing in the pillory. This time-honored punishment in 
the English law might be a triumph for the prisoner, or a 
capital punishment, according to the feeling of the populace. 
I find instances of the punishment being actually inflicted or 
at least ordered in Upper Canada, e.g., a case mentioned by 
Read in his life of Chief Justice Elmsley, page 46 ; a prisoner 
convicted at New Johnstown of perjury, Sept. 11th, 1793. 
was sentenced to be pilloried three times.'' The pillory was 
abolished witli us in 1841, by 4 and 5 Vic. ch. 24, sec. 31. 

"A vase well known to all studi'iits of the Constitutional llis;.)ry 
of Canada is the foll<)\ving : — 

In Mioliaelmas Term. 00 Geo. III., Xov. Sth. IRIO. The Kin(j_\. 
liartiinus Fcrf/u.ioii, tin- prisoner was sentenced to pay a fine of £r»0, 
province rurrenoy. and to he imprisoned in the common jraol at 
Niagara for IS months; in the first of these months he was to stand 
in tiie rnl)lic Tillory 'between the hours of 10 a.m. and 2 ji.m. At the 
.■\-I)iration of tlic term lie was to K^ve security for good behaviour 
for seven years himself, in fHOO, ami two sureties in £250 each, and 
to be imprisoned until the fin<> was paid and security ffiven. 

(Present: Powell. CJ.. Camphell and Boulton. .7.T.) 

The prisoner's counsel was Mr. Thomas Taylor, the reporter 
and editor of Taylor's Reports, called in Hilary Term the same year. 
He himself was the editor of the Niagara Spectator, and in his 
journal, in his absence from home, had appeared a letter written and 



35 

A second conviction for uttering, meant felony " without 
benefit of clergy." Xo lawyer is at all likely to think witKsome 
popular writers that this means " without the benefit of clerical 
attention and advice." Of course it originally was the privilege 
allowed to ^ Clerk in Holy Orders, when prosecuted in the 
temporal Courts, of being discharged from such Court and 
turned over to the ecclesiastical Courts — in other words to 
get clear almost altogether. This privilege was gradually 
extended to all who could read, and many a notorious rascal 
escaped well-merited punishment by reading his "neck- 
verse,'' possibly by a recently learned accomplishment. Ulti- 
mately, in 1706, by 6 Anne, ch. 9, the privilege was extended 
to all, whether they could read or not. 

This privilege did not extend to all felonies, but only to 
capital felonies, and even of these some were " without bene- 
fit of clergy '"; moreover, by an early statute (1488), -i Henry 
VII., ch. 13, laymen allowed their clergy were burned in the 
hand, and could not claim it the second time, and the practice 
grew up of imprisoning for life clergymen where the offence 
was heinous and notorious. 

" Benefit of Clergy " was abolished in England by sec 
6 of the Criminal Law Act of 1827, and in Upper Canada in 
1833 by 3 William IV., ch. 3, sec. 25. This Act provided that 
all crimes made by the Act itself punishable with death — 
murder and accessory before the fact to murder, rescue of one 
committed for or found guilty of murder, rape, carnal know- 
ledge of a girl under ten, sodomy, robbery of the mail, burg- 
lary, arson, riot after the reading of the Eiot Act, destruc- 
tion of His Majesty's dockyards, etc. (a sufficiently long list 
indeed) — should be so punished, but that all other felonies 
should be punishable by banishment or imprisonment for any 
term not exceeding 14 years. Thus the counterfeiter escaped 
the punishment of death, to the great grief of many very 
good and very intelligent people who thought that a death 
sentence for the offender was the only safeguard for society. 

Simcoe returned to York at the close of the fifth Session ; 
a short time after his arrival, he received an answer to his 
request of the previous December for leave of absence on the 
ground of ill-health. His request was granted in most flat- 
tering terms. Causing Peter Russell to be sworn in as Admin- 
signed by Gourlay, animadvertinjr on the Administration of the day. 
Ferguson was indicted for libel, and found guilty, with the result we 
have seen. On his making a humble submission, be was relieved of 
some part of the penalty and imprisonment. 



36 

istrator, he left York for Quebec, and thence sailed for London 
in September, 1796, never to return. After effective service 
in the West Indie?, he died at Exeter in 1806. 

A man of great force of character, a devoted patriot, hold- 
ing his Cliurch entitled to loyalty second only to his King, a 
soldier of valor and capacity, his mistakes were for the most 
part the mistakes of his time and his rank, and he well 
deserves the encomium of his epitaph in Exeter Cathedral, 
that " in his life and character the virtues of the hero, patriot 
and Christian were eminently conspicuous.^' 

Of the Executive Council I have said. little; that body took 
no part in legislation. All its members, however, were Legis- 
lative Councillors. 

In the Houses, even at this early date, we see differences 
of opinion, the Council inclining to the aristocratic, the 
Assembly to the democratic view. The embryo of an opposi- 
tion also makes its appearance, even in the select body. Ham- 
ilton and Cartwright seem to have acted together — we have 
seen that they joined in a protest 'against the formation of a 
great central Court, the King's Bench ; Simcoe had no hesita- 
tion in calling Hamilton a republican, and Cartwright he 
thought little, if any better. The custom of dubbing a politi- 
cal opponent a traitor began very early in Upper Canada. 
Simcoe also intimated that Cartwright's position as Judge of 
the Court of Common Pleas for his District had something to 
do with his objection to the abolition of these Courts. How- 
ever, Hamilton was created Lieutenant of Lincoln, and Cart- 
wright of Frontenac, by the Lieutenant-Governor; so we may 
judge that his suspicions of their loyalty were but temporary. 
This was the only Parliament which met at Niagara — 
Simcoe had changed the old name into Newark. The first 
session was held, it is said, in the Freemasons' Hall,'" all the 
others in what Simcoe calls " sheds " — additions built to the 
Barracks of Butler's Rangers by the garrison. 

Simcoe recognized that Newark was too close to the bor- 
der to be the permanent capital; in 1793 he made a some- 

'" Some say that the first session of Parliainout was hohlen in 
"a marquee tent, one remove in the scale of ascending civilization 
from the aboriginal council-lodge." some, that Navy Ilnll was rm 
scene of the meeting. 

Willinin Diiiinner Towell. Chief .Tustice of T'pper Cnnnrla. says, 
in his MSS. Narrative, now in the possession of his great-grandson 
Aemiliiis .Tarvis, Esf)iiire. of Toronto, that the House mot in canvas 
houses, which had hoen prepared for and used by Banks and Solander, 
in their voyage of discovery, i.e., with Captain Cook. ITti^lTTl. 



37 

what extended trip into the interior, and decided tiiat a spot 
at or near to what is now London should be the future capi- 
tal. In the same year he fixed on Toronto as a suitable place 
for fortifieation. He changed its name to York, in considera- 
tion and compliment of the Duke of York's victories in 
Flanders. The Duke of York was a brother of George III., 
and had, earlier in the year, achieved some success against 
the French; but he was recalled not long after, and placed in 
charge at London. He was no great General, but as Adminis- 
trator he was a success, doing much for the comfort of the 
soldiers, whether on active service or on pension.^- 

Dorchester, the Governor-General of Canada, overruled 
Simcoe's selection of a site for the capital, and chose York, 
which, with a change to its old name of Toronto in 1834, 
remained such — with* intermittent intervals after the Union 
of the Canadas in 1841-18-1:2 — till the present time. 

The second Parliament met at York, not at Newark. 

The state of legislation as left by the first Parliament 
deserves consideration. 

The security of the Province from foreign aggression was, 
so far as was possible, secured by the Militia Acts providing 
for infantry, cavalry and navy. 

Simcoe rather favoured the formation of a hereditary 
aristocracy who should have the right of being Lieutenants 
of their counties. This fortunately did not come to 
pass, but like the provision in the Act, 31 George III., ch. 
31, looking to hereditary seats in the Legislative Council, 
was allowed to pass out of notice. Upper Canada has never 
been favourable to hereditary titles. 

The loyalty of the Members of Parliament was secured by 
excluding ahens from House and electorate. Payment to 
members also had been provided for on a moderate but suffi- 
cient scale. 

The Courts were practically what they are now, with the 
exception that in civil matters all Judges are now, even in 
the case of petty claims, trained barristers. The Courts of 

"Every lover of Sir Walter Scott will remember, in the am is- 
ing introduction (1819). to the first edition of the " Legend of Mont- 
rose," his description of Sergeant More M'Alpin. who was induced 
to remain at Gandercleugh when on his way with his sister to Glas- 
gow to take passage to Canada. The Sergeant, an old pensioner, 
" seldom failed to thank Ood and the Duke of York, who had made 
it much more difficult for an old soldier to ruin himself by his folly 
than had been the case in his younger days."' 



38 

Eequests, presided over by magistrates, corresponded to our 
Division Courts; the District Court to our County Courts; 
the King's Bench to the High Court Division of the Supreme 
Court of Ontario. The ultimate Court of Appeal was tlien 
composed of laymen, or it might be so constituted, and this 
was certainly objectionable — while the Court of King's Bench 
had the defects already referred to. The English law was 
introduced, civil as well as criminal. 

Standards of weight and measure, coin, legal tender, had 
been set and fixed, tolls in mills regulated, provision made 
for killing dangerous wild animals, tavern and distilling 
licenses had been regulated, former invalid marriages ren- 
dered valid, and provision for the future solemnization of 
marriage made ; practitioners in the Courts were also provided 
for, and physic and surgery not forgotten. In addition to 
the ordinary Courts of law, a Court of Probate with Surrogate 
Courts was provided. The criminal law was not neglected, 
meetings of the Quarter Sessions were arranged for and Court 
Houses and gaols directed to be built. A satisfactory adjust- 
ment was made with Lower Canada through which prac- 
tically all imports came, except those from the United 
States. The curse of slavery was doomed to early extinc- 
tion — a result in itself well worth all the first Parliament of 
Upper Canada cost in time, labour and money. 

The first foundations of our municipal system were laid — 
afterwards to play such an important part in our national life. 
A later Governor called mimicipal corporations " Sucking 
liepublics"; they are not that, but assuredly they are the 
very nursery for public spirit and capacity to say effec- 
tively what a freeman thinks. 

For a beginning, the provision for the registering of docu- 
ments must be considered creditable. The Registry system 
now much elaborated has been invaluable in saving trouble and 
money. 

I should not omit the provision for highways. It must be 
said tbat highways under local and municipal control have 
not been a brilliant success. Much of tbe failure has no doubt 
been due to the rich soil of a great part of the Province. A 
reverend gentleman who was stationed at Thornhill in the 
third decade of the nineteenth century, complained that 



39 

there Avere no stones to make a road with.^- It may have 
been that nothing better could be devised, but there can be 
no doubt that the roads of the Province have been no credit 
to us. What could be done by a central authority is seen in 
what was done. Practically the only roads wliich deserved 
the name were those built by the Government — Yonge Street, 
built by the soldiers, Uuudas Street from Burlington Bay 
(Coote's Paradise) to London, and then from Burlington Bay 
to Toronto, built in the same way; the Danforth Road built 
on contract by Danforth, an American, in 1799-1800, from 
York to the Bay of Quinte. 

The neglect of municipalities led to the formation of com- 
panies to build toll-roads, plank or gravel, of which many were 
incorporated in the 30's and 40's — and their works do follow 
them even to the present. Perhaps there is nothing which 
pays a country better than good roads; and it is to be re- 
gretted that for so many years road building was neglected. 

But everything cannot be done by a poor country, and 
perhaps no better solution offered itself to our first legislators. 
And when all is said, they certainly have earned the admira- 
tion and gratitude of all who have lived in the Province since 
their time. 

" " Observations on Professions, Literature, Manners and Emi- 
^M-ation in the United States and Canada ... in 1832, by the 
Rev. Isaac Fidler, for a short time missionary of Thornhill on Yonge 
street, near York, Upper Canada, London / . . 18.33." 

In this most entertaining volume, written by a clergyman of 
the Church of England, is found the following : — ' 

" I must here explain . . . that the roads in many parts of 
Canada are composed entirely of earth, of a rich soil, among which 
no stones or gravel is intermingled. Many farms along Yonge street. 
of two hundred acres in extent, have not so much stone on them as 
would serve to lay the foundation of a house. This is a proof of 
the fineness of the land ; hut also of the paucity of materials for 
making solid and substantial turnpikes. . . . ' The heavy rains 
make a road a complete puddle, which affords no sure footingto man 
or beast." 

Most Upper Canadians have seen such roads ; and they are not 
few or far between now. eighty years after Mr. Fidler wrote. 



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