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1
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5
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CtJ
(L
■^:
,.^"■'■'•1
CURIJl CANADBMSES.
If
€urta €anahtnBt0y
OK TBZ
LAW COURTS?
BEINa
^Hi^^f OEM,
DESCRIBING THE SEVERAL COURTS
ov
LAW A^D EQUITY,
WHICH HAVir BEEN ERECTED FROM TIME TO TIME
IN THE CANADAS;
WITH COPIOUS NOTES,
EXPLAMiiTOBT AND.HI8TOBICAL,
AN APPEND^ OAMJVi^ErSEFrL MATTES.
Itur In antiqBnn ^iraiJutalU^aUa ferarum
Frocumbunt^cesM^nM^ctauulpuribus ile:
Fraxlneeeque trabe(vcuilM erltmile robury
Scinditur: acUUvunt ing^otcs qtptibus o/nofr^ViReiL«-
a
BY FL^Stl^^
NDUS.
TORCfT
H. & W. ROWSteLL, KIN$I» STREET.
1843.
Anstey, A\
Admiralty
Agriculture
Appeal, Co
American
Attornies,
Bailli's Cou
British Sov<
Beef, article
Bailiffs' Fee
Boundary C
Barristers, I
t
t
i
Conseil Sou'*
"i
Canada Law
Criminal La
Coutume de
Civil Law oi
Common La^
Circuits, Lo^
Up
Common Pl<
INDEX
ru THE
CONTENTS OF THE POEM AND NOTES.
Anstey, Author of Pleader's Guide, notice of
Admiralty Court
Agriculture, Courts to protect
Appeal, Court of, Upper Canada
American Law and Equity Courts
Attornies, Upper Canada
their number
their qualification
New York
Bailli's Court
British Sovereignty, first exercise of
Articles of Capitulation fur
Beef, article of commerce ... ...
Bailiffs' Fees, Lower Canada
Upper Canada ...
Boundary Court
object of ... ...
manner of holding
Barristers, Upper Canada
their qualification
their number
in England
their number
their fees
PAGE,
... 5
9
... 18
23
... 122
123
... 125
123
... 126
9
... 11
11
... 14
19
... 20
37
38
... 123
125
... 125
125
... 125
125
Conseil Souverain ... ... ... ... ... ... 6
before whom held . . ... ... ... 6
Canada Law to govern civil rights ... ... ... ... 11
Criminal Law of England to be administered ... ... ... 11
Coutume de Paris, origin and history of ... ... ... ... 11
Civil Law of the Romans ... ... ... ... ... H
Common Law of England ... ... ... ... ... 12
Circuits, Lower Canada ... ... ... ... ... U
Upper Canada ... ... ... ... ... 23
Common Pleas, Court of, Lower Canada ... ... ... lo
Divisions in ... ... ... ... 16
Superior terms in, when and where held 1 6
Inferior terms ... ... 17
Upper Canada ... ... ... ... 21
INDEX.
PAOI.
18
... 21
... 23,27
28, 67, 61
97
... 27
24
... 26
..• 35
.«• 38
... 38
..« 38
«•# 38
38, 103
40
... 42
42
.«. 105
Cases, Stradling v. Styles, on a beqaest of black and white horses fil
King y. Phelps, Upper Canada Report : Indian rights ... 53
Bezeaa y. Bonnali, case on the powers in making divisions
of the Province ♦„ „, ... ... 68
Bonnali y. Bezeau ». ..« ... ... ... 83
Doe dem : Griffin y. Roe, for adopting English practice in the
Common Law Courts of the Province ... ...105
Aked y. Aked, Chancery Fees England ... ... 104
Commissioners' Conrt for small causes, Lower Canada ...
Canada, Lower and Upper, original division of
names of divisions ... ...
new divisions ...
Canada, Upper, extent of ... ... ... ...
Lower, extent of
Crown and Pleas, Clerk of ... ...
Caledonia Springs
County Court
Chancery Court
Establishment of
Judges of
Jurisdiction of ... ...
Practice of ... ... ...
Master of
Removal of Court to Kingston
Retnm of Court to Toronto
Chancery Bill, debate on
Dies^rstiof the Romans ««« ... .«.
Districts, first division of Proyince into three ...
division into four
population ... ... ... .
District Courts, Lower Canada, under 4 and 5 Vic. c. 20
Upper Canada,
Acts for establishing
Time and place of holding
Judges of
^ler&s 01 «■•• ... ...
Fees of ... ... ...
Officers of ... ... ••. i
Diyisions Court, Lower Canada, under 4 and 5 Vic. c 20
Upper Canada,
time and place of holding
Experts, powers of ... ... ...
Enqueteurs, Court of
Escheats, Conrt of, Lower Canada,
Equity Draftsman
English Law and Equity Courts
13
... 15
15,57
... 19
33
34
... 34
34
... 34
34
... 19
34
... 34
18
... 20
20
... 43
119
PAOI.
< ••• 18
... 23,27
28,67,61
27
24
... 26
35
•i« ••• 38
.« ... 38
... ..* 38
„ ... 38
38, 103
40
«•• ••• *•
... 105
lite horses 61
ghts ... 63
aking divisions
..• •<• 68
.-. ... Ov
practice in the
... 105
104
13
... 15, 67
... ... IV
... 33
.«• ... S3
34
... 34
34
... 34
34
34
18
... 20
20
43
119
IlfOBX.
France, Institutions of ... ... ...
Ferriere, Claude de, his commentary sur la coutume
Francis, St., District of ... ...
Fee Fund, Lower Canada
Frontenac, Duke of
Gaspt>, Superior Terms in Province of
Heirs and Devisees Court
time and place of holding
Intendant de la Justice, his origin ... .
Justice Royalty, Court of
Judgments ... ... ... ... .
Islands, the thousand
Indian population
Mohawks
Justices of the Peace, Upper Canada
Lower Canada ...
Judges of Superior Courts, Upper Canada ...
Kingston, Incorporation of ...
the capital ... ... ... .
ancientnamo ... ... ...
Land, extent of, granted en seignenrie
Law Society, Upper Canada ...
course of study
MarSchauss^, Prevot de, his origin and jurisdiction
Mackintosh, Sir James, — see Common Law
Montreal, first court ... ... ...
Queen's Bench
City, Incorporation of
Mackenzie's conduct ... ... ...
Niagara River
Osgoode, Judge
Procureur, his office
Pleading, Special
by common sense
by Law
Practice Court, U. C.
Clerk of
Rules of
Probate Court, object of
time and place of holding ...
t
PAas.
12
• •• ••• 19
20
fl • • • • • 43
15
!•• tat oO
at* OO
••• ••• 7
7
• •• ttt Sm
26
48
t * • • t • 3 V
35
• • • • • • 40
••• 36
• t • ••• 4X
42
•t« ttt V
125
ttt ttt X^v
ttt o
ttt ttt lo
• •• ttt 13
tit 36
• •t tat 41
25
• tt ttt ^4
ttt ttt III
22
• tt tat 4/
48
... 24
24
... 24
37
• tt tat 37
iNnK\
Quebec, first CourU io ... ... .,, „,
Quocn'8 Hench,
City, Incorporation of
Qucen'it Bench Court L. C.
U» C, ... ... ,,, ,,,
Banco Sittings of
Quarter Sessiont, U. C.
time and place of holding
Roture, tenure of, lec Tenure ... ...
Request Court of L. C. ...
Uo
• ^-'v ••• ••• ••• •••
Reports, U. C. ... .., ... ... ... ...
ancient English ... ... ... ...
Keporters ... ... ... ... ... ...
Solar jT ... ... ... ... ...
Rebellion ... ... ... ... ... ...
Suits or sectce, etymology of the vord ...
Sulpice St., Seminary of ...
incorporation of ... ... ...
Soccage, origin of the ivord
Seas, the four : opinion of Sir Lionel Jenkins
Statutes repealing existing Laws affecting Courts for small causes
Saratoga Springs
Sheriff's Tourn ... ... ... ... ...
Surrogate Court, object of
time and place of holding ...
Statutes Chronological, Index of all the Judicial Statutes ...
Tenure Seignorial, Lower Canada ...
in free and common Soccage ... ...
Three Rivers first Court ...
Queen's Bench ...
Terms Superior, time of holding and jurisdiction
Inferior, Six, held in Quebec and Montreal
Law, Upper Canada
Township dimensions of do. ...
Toronto City, origin of name
population of 1793 ... ...
do. 1843 ...
University
Incorporation
Court of Record
Union of the Provinces ...
Whirlpool, the
Westminst;::, Practice of the* Courts of
"Wilde, Mi-. Sergeant, his fees in Jjmall v. Attwood
...
••• ...
PACK.
... 1.1
30
... 10
sa
... sa
3S
• •• iJtf
... 18
34
... 24
60
... 84
AO
41 85
5
... 7
8
9 10
... 19
25
... Hi
37
... 37
100
••• 8
8
• ••
13
... 14
... 21
27
... SO
30
... 36
31
... 30
30
... 41
25
... 105
125
causes
PAOK.
tis
■ • t
c
13
ts«
ao
»••
10
t««
92
• ••
22
Itt
35
• ••
35
fl* •
• ••
18
• ••
34
• tt
24
• ••
60
• ••
24
• ••
00
41
85
• ••
6
• ••
7
• ••
8
• ••
9
tt*
10
• ••
19
• ••
25
• ••
as
• ■•
37
• ••
37
• ••
106
t*«
8
• ••
8
• ••
e
• ff •
13
• ••
14
•••
• ••
21
• ••
27
f •«
30
« • •
30
1 ••
3d
%••
31
• ••
36
• ••
36
• ••
41
• ••
25
• •<
105
• ••
125
Curiot (lEana&tnBed.
Vietoriaa domus hio eunctii dominabitar orts*
£t nati iiAtoruin, et qui uMoantur «b UUs.
LOWER CANADA.
Anstey,' a fragment of ny soul)
How it would help the present scroll !
If from the distant Avon's banks
I now could hear of Gudgeon's pranks.
When to the Courts poor John a Gull
Was taken with a broken skull :
Could'st thou but migrate to this world,
See its Tribunes, hear Judgment's hurl'd,
Fresh inspiration thence would spring
John Doe's new lurkings sweet to sing,
And old Ontario's shores repeat
The note her sons would laugh to gpreet*
Tho' sans thy guidance essay's vain
To picture here, the Judges Fane,
Or of its Sectae,* give narrations
Its growing power, or fresh creations ;
1. Mr. Anstey, an amusing author, \vrote the Bath and Pleader's
Guides. The latter contains an entertaining description of a trial for an
election assault between John a Gull, and John a Gudgeon. The scene
of the affray is described at "Toadland's end."
2. Blackstone, — in the third volume of his Commentaries,— »givet the
genealogy of the ancient families of John Doe and Richard Roe. In
former times, (the same learned author states,) the law vrould not put the
defendant to the trouble of answering a charge, till the plaintiff had made
out a probable case by witnesses; and therefore the plaintiff, in his com-
plaint or declaration, concludes with these words, "And therefore he
brings suit, &c.," inde producit sectam, Sfc. ; by which words suit, or
sectam, (a aeguendo)^ were anciently understood the witnesses or fol*
lowers of the plaintiff.
O CURI^ CANADENSES, OR
No musing Tale of Toadland's deeds
Nor speech in Courts when Counsel pleads,
My verse, preten is alone to tell.
Of new Halls fouilt, or old that fell.
Quebec' first raised the legal Courts,
For Roes and Does to hold their sports.
CoNSEiL SouvERAiN, with Judges seven
Intendant, Bishop, (who. to Heaven
Points out the way), and Councilmen, ^
In number just one half of ten,
For Causes civil, and Offence,
To suitors, justice did dispense.
But thib, on last and Grand Appeal. —
Quebec, Three Rivers, Montreal,
In smaller rights the Sceptre swayed, j
And Justice* even balance weighed :
3. Soon af\er the .'onquest of Canada, by tbe French, the judicial
institutions of France were introduced there. These frequently were
embraced in the commissions to the respective Governors, or in acts, or
letters patent granted to companies, created for advancing the newly
acquired Colony. The numerous ecclesiastics sent out to convert the
inhabitants to the Catholic faith, possessed also considerable authority
over the judicial establishments. — See Acte pour F eiablisstment des cents
Associes; Etahlissement de la Cumpagnie des Indes OccidentaleSy pour
le Commerce du Canada^ 29th August, 1627; and Edits de Creation
dune Justice Royal a Montreal. — The Conseil Souverain was created
in 1663. The King, in the Edit, April, 1663, thus eloquently declares
the objects of judicial institutions, " Nous avons cru ne pouvoir prendre
*' un meilleure resolution qu' en etablissant une justice rSgle, et une
" Conseil Souverain dans le dits pays, pour y faire fleurir lett lois, main-
" tenir et uppuyer les bons, chatier les mechants, et coutenir chacun en son
" droit."
This Court sat in Quebec before the Governor, Bishop and five Coun-
cillors, who heard and determined all causes, civil and criminal. A Court
was held at Montreal and Three Rivers for like causes, befoi'e the Lieu-
tenant Governor, with appeal to the Conseil Souverain. The form and
method of proceeding in these Courts were simple; regulated by the civil
code, dividing causes, as in modern times, into principal and summary
causes : causes purely personal under 400 livres, and certain others under
1000 livres, were deemed summary. See Arret, April, 1617. :
THE CANADIAN LAW COURTS.
.^
leadS)
ts.
'en
French, the judicial
Bse frequently were
raors, or in acts, or
ivancing the newly
out to convert the
isiderable authority
jMisstment des cents
f OccidentaleSy pour
Edits de Creation '
tverain was created
elo(}uently declares
ne pouvoir prendre
stice regie, et une
iurir lett lois, main-
itenir chacun en son
ihop and five Coun-
criminal. A Court
befoire the Lieu-
The form and
gulated by the civil
cipal and summary
certain others under
il, 1617.
Tlien if by chance, or worse intent,
The stream b*' tortuous motive bent
Gave to the law unjust restriction,
The " Conseil" was the jurisdiction.
The Holy Band of St. Sulpice
Better to keep in paths of peace,
No longer. Dies Fasti hold
To judge on matters, bought and sold,
But to their Royal Master tender
The judgment Throne, and Courts surrender;
The King, by motion act of grace.
For Nouvelle France, and all her race
New Seats creates, Causes to try.
Before a justice-royal — ty.
For* grosser wickedness, and sin.
As Robbing, Murder, drinking Gin,
The true deserts, were to be found.
In Courts, (in France they much abound)
Before a Judge, called marechausse,
In England named the Marshalsea.
On the first establisliment of the Conseil Souverain, the Intendant did
not exist. The first Intendant de la Justice, was by commission from the
Crown, 23rd March, 1665.
3 a. The Seminary of St. Sulpicius, in Paris, to which had been attached
the territories of the newly-acquired Colony, granted to the Seminary of
St. Sulpice, in Canada, the Island of Montreal, which forms the Seigniory of
that name. This Society possessed judicial patronage, created courts of
law and justice, and appointed the officers. The object of this Seminary
was the education of youth in the higher branches of Philosophy and the
Mathematics. It was founded about the year 1657, by the Abbe Quetus,
commissioned by the Seminary o* St. Sulpice at Paris, to superintend the
settlement and cultivation of their property on the Island, and also to erect
a Seminary there, upon the plan of their own. In March, 1693, by an
arret of the Council of State, made at Versailles, the King accepts the
surrender, by this Seminary, of all the property and judiciary powers pos-
sessed by them, and creates un juge Royal with appeal to the Conseil
Souverain. The ecclesiastics, however, retained the -appointment of the
judge, for the first time, after the surrender, and that of greffier or registrar
Ei
8 ' CURIAE CANADENSES, OR
If^ Lords and vassals took delight
In Pastime now and then to fights
Or tenants wanted, en roture^
Titles to hold, or to assure ;
of the said court in perpetuity. It is probable that thid St. Sulpitius was
Sulpitius Severus, an ecclesiastical historian who was born in Aquitain,
about A. B. 363. He left a Sacred History^ extending from the creation
of the world to the year 410, A. d. ; — also a Life of St. Martin of Tours,,
and some Dialogues and Epistles.
The Seminary of St. Sulpice, at Montreal, was incorporated in 1839,
See 2 Vic. c. 50.
3 b. The Dies Flast^, among the Romans, were the days when the courts
of justice were open, during which it was lawful to transact business.
4 . The Edit for the creation (/e, * office de Preoot de la MarechauasSy
is dated 9th May, 1677.
This officer took cognizance of robberies, murders, and low offences.
He appointed, and had for assistants, six constables, or qfficiers d' archers.
5. See Letters Patent, en forme d*Edit, July, 1714.
The Seigneurs, by the old laws, that have now become obsolete, were
entitled to constitute Courts and preside as judges therein, in what is.
denominated hautef moyen^ et basse Justice, which takea cognizance of all
crimes committed within their jurisdiction, except murder and treason:
this privilege has lain dormant ever since the conquest. — Bonchette^p. 377.
One of the reasons, for the division of Canada iftto two Provinces, was
the difference of the tenure by which the lands in the two departments
were held ; the whole of the earlier French settlements being occupied by
seignorial grants under the feudal system, whilst the disbanded troops, and
more recent settlers, held their lands in free and common soccage.
The seignorial tenure, in Lower Canada, is strictly feudal ; the lands
granted being held by the Seigneurs, or Lords of the soil, en fief that is,
in vassalage to the Crown, under a condition of homage or service ; and,
again, the portions conceded by the Seigneurs to their tenants, or vassals,
called censitaires, are held by tho latter, under the Seigneurs, en roture,
that is, not as freeholders, but subject also to some particular conditions of
service to him, as well as to a small annual rent in money or in produce,
which forms the income of this Feudal Chief, who is considered somewhat
like the ancient Lord of the Manor in England.
These Seigneurs were regarded, under the old French regime, more as.
agents for the settlement of the Province, thaa Barons for its defence or
war-scrvicc ; and the Canadian Seigneur rcgranted his leases in perpetuity,
at a rent certain, not to be raised, and whenever the grantee sold his lease
to another, the Seigneur was entitled to one-twelfth of the sale price, as aa
alienation fine, but to no fine by inheritance: the Seigneur is bound ta
build a grist-mill, and have it going or able to grind every week-day in the
THE CANADIAN LAW COURTS.
this St. Sulpitius was
as born in Aquitain,
ling from the creation
St. Martin of Tours^ ^
ticorporated in 1839,
I days when the courts. ,|
ransact business.
i de la Marechausse^ ^1
rs, and low offences.
or officiers d' archers.
14.
become obsolete, were
s therein, in what i&
:ea cognizance of all
murder and treason:
It. — Bouchette^p. 377.
ito two Provinces, was
the two departments
nts being occupied by m
jdisbanded troops, and
ion soccage.
;ly feudal ; the lands
soil, en fief y that is,^
lage or service ; and^
ir tenants, or vassals^
Seigneurs, en roture^
;ticular conditions of
money or in produce,.
I considered somewhat
pnch regime, more as.
tons for its defence or
leases in perpetuity,
jrantee sold his lease
' the sale price, as an
Seigneur is bound ta
(very week-day in the
Relief on shortened terms, was granted,
By BAiLLi's COURT, who wrong supplanted.
A COURT OF ADMIRALTY,** for TarS,
And wrongs on Seas, or in the Wars,
At divers Ports, now hold their stations
Decrees to give, by Law of nations.
year, and to make the roads required by law ; and the tenant is obliged
also to grind his corn at the Seigneur's mill, where one-fourteenth part is
taken as mouture^ or payment for grinding. Whenever a Seigniory is
disposed of, an alienation fine of one-fifth of the sale price is paid to tlie
Crown, called " Quints" and the one- twelfth to the Seigneur, his lorls et
rentes.
The Act of 4 1 Geo. III., c. 3, was passed for the relief of persons holding
lands of the King en roture.
The total quantity of land granted en sefgneurie in the Province of /
Lower Canada exceeds 15,390 square miles; that laid out in townships
; under /ree and common soccage^ amounts to 6,300,000 acres, of which, in
1829, not more than half was actually granted, and is generally known
I under the denomination of Waste Lands of the Crown, and, as such, liable
\to he gctinted. en fief &ni seigneurie, or in soccage.
The soccage tenure, which is the franc aleu roturier of the feudal system ; \
[JPranc alcu roturier, est teire sans justice, ou seigneurie, pour laquelle, h \< I
dethrcur, ne doit canffkt, rentes, lots et ventes, tii autres redevances.— {n^t^
fCouiume de Paris, art 68. The landholder being wholly unshackled by
lany condition whatsoever, neither rents, corvees, mutation fines, banality,
[or the obligation of grinding his corn at the scignorial mill ; in fact, the
ceage freeholder is bound to no other obligations than those of allegiance
to the King and obedience to the laws. The word Soccage is of Saxon
lerivation, from the word *' Soc," which siguifieth liberty or privilege, and
eing joined to a usual termination, is called Socage, in Latin Socagium..
By the Act of the Imperial Parliament, 6 Geo. IV., c. 59, the conver-
lion of the feudal into the free and conimon soccage tenure is contemplated,
for which purpose the proprietors of fiefs and seignorics are authorized to
ipply to his Majesty for a commutation of the burthens that attach to
^he tenure, and to receive a re-grant of the same, under free and common
>ccage. This commutation the Seigneur is himself bound to grant to his
bensitaires, should any application be made to that effect, in consideration
)f any indenmity to be amicably agreed upon, or fixed by exports or
ippraisers.
5 a. See Regtenierd concernant les Siege d'Amirante, 12e Janvier, 1717.
Sir Lionel Jenkins observes, that besides ihe four seas, which are the
sculiar care of the Crown of England, the King has a concern and autho-
i I
10
CURI^ CANADENSES, OR
H
t I
To^ quicken Justice in her paces.
Were officers of many places ;
First Procureur, the public Right,
And Royal office to keep bright;
Then Greffiers,^ Huissiers, to record,
Or. seize the culprit at a word :
rity, in concurrence with all other Sovereign Princes who have ships and
subjects on the sea^ to preserve the public peace, and to maintain the
security of navigation all the world over : so that not the utmost bound of
the Atlantic Ocean, nor any corner of the Mediterranean, nor any port in
any sea, can prevent, but if the peace be violated upon any of his subjects, .
and the offender be afterwards brought up or laid hold on, in any of his
Majesty's ports, such breach of the peace is to be enquired of and tried, in
virtue of a Commission of Oyer and Terminer, in such county or place as
his Majesty shall please to direct.
He then insists, as he had done in other places, with respect to the ^
civil jurisdiction of the Admiralty, that the enquiries and presentments in [
this Court are to be of things done upon the sea, or in any haven, river,
creek, or place where the Admiral hath, or pretends to have power,
authority, or jurisdiction.
The word pretend, he observes, has been thus commented upon by
Lord Coke, and the uncertainty it seems to import cleared up: that
between the high and low-water marks the Admiral hath jurisdiction,
super aquam, when the sea does flow, and as long as it flows; but the land
is infra corpus comitatus at the reflow. So that of one place, there is
divisum imperium at several times. But not content with this exposition,
Judge Jenkins insists on the words of the Commission, which directs
enquiry of the things done, not only upon the sea, and in havens, creeks,
and rivers, as in the Statute, but also, in all places whatsoever within the
flowing of the water, to the full sea-mark, and in all great rivers, from those
bridges downwards that are next the sea. — Browne's Elements of Civil
LaWf b. 2, p. 464.
The Quatuor Mara, as they are called by foreigners, and in modem
treatises, the British Seas, are those which surround Great Britain:—
1 . The Channel South, between England and France ; 2. The Irish or St.
George's Channel, and the Deucaledonian Sea, washing the West of
Scotland; 3. The Caledonian, or the North of Scotland; 4. The German
Ocean, washing the East of Britain.
6. Procureur, in the se'^se here used, was an officer resembling the
Solicitor or Attorney General. Ue derived his appointment by commis-
sion from the Crown.
Nofa
jf ti
AB
Judi<
And
Thro
7. Registrar and Usher.
8. The Art:
I French, were s:
Ithe part of his
|of the French,
Mames's, on the
Ithe Colony, «' i
I" civil, accordii
1" the laws of ]
Province, called
^t was divided ii
n Geo. HI., c.
passed, by secti
^' controversy, i
*' the laws of (
* causes, that si
" to be appoints
I" heirs and sue*
'* determined ag
By section ele
(bserved as law
lonquest, were i
nown as the C
lation deriving t
the western
othic nations,
loman law, the
>f eminent lawye
ir New Constitu
|o a supplement
_ 9. LaCoutum
^French Customai
l|he judges in that
different customs
|Drdinance of Kin
'evised, digested
THE CANADIAN LAW COURTS.
11
2. The Irish or St.
Notaires, and Avocats in num^
A tout temps pretsy they nev
«
A British King, see now
Judicial Sovereignty,* "
And that of Paris ceas; to'
Throughout the Canada D<
8. The Articles of Capitulation, for the evacuation of Canada by the
I French, were signed by Commander-in-Chief 'M^]or General Amherst, on
Ithe part of his Britannic Majesty, and the Marquis de Vaudreuil, on that
fof the French, 8th September, 1760, and by Proclamation issued from St.
Tames's, on the 7th October, 1763, Courts of Justice were proclaimed in
Ithe Colony, *' for hearing and determining all causes, as well criminal as
K civil, according to law and equity, and as near as might be agreeable to
*' the laws of England." Canada was at the same time formed into one
'rovince, called the Province of Quebec, and so continued till 1791, when
it was divided into the Provinces of Lower and Upper Canada, by the Act
II Geo. III., c. 31. In 1774, the Quebec Act, 14 Geo. III., c. 33, was
lassed, by section eighth of which, it is provided, " That in all matters of
F* controversy, relative to property and civil rights, resort shall be had to
r the laws of Canada, :;s the rule for the decision of the same, and all
r causes, that shall hereafter be instituted in any of the Courts of Justice,
[' to be appointed, within, and for the said Province, by his Majesty, his
r heirs and successors, shall, with respect to such property and rights, be
I* determined agreeably to the said laws and customs of Canada."
By section eleven, the criminal law of England is to be administered and
Observed as law in the Province. The laws of Canada, at the time of the
bonquest, were those of France, comprehending those national customs,
pown as the Coutume de Paris, and those institutions of the French
jiation deriving their authority from the Roman civil law ; this, as> received
the western part of Europe, and adopted by the French with other
Jothic nations, embraced the Institutes, containing the elements of the
loman law, the Digests or Pandects, containing the opinions and writings
bf eminent lawyers, a collection of Imperial Constitutions, and the Novels,
br New Constitutions, posterior in time to the other books, and amounting
|o a supplement to the code.
9. La Coutume de la Prevote et Vicomte de Paris, was the great body of
Trench Customary Law. Before the revision of the customs of France,
Ihe judges in that kingdom were obliged to conform their judgments to the
afferent customs which prevailed in the several provinces, following the
')rdinance of King St. Louis, in the year 1278. These customs had been
jvised, digested and reduced into writing, under letters patent of Charles
IS CUai^ CANADENSES, OR
New Courts arise, but the bright Crown
Fearing to tarnish its renown,
Decreed the Laws should be in French,
Lest Ancient Right it should retrench.
the Seventh. The first inttance of this arrangement was that of Ponthieu,
after the death of this King, under Charles the Eighth, in 1443; and the
others afterwards, under the Kings his successors; that of Paris, was
reduced into writing in the year 1 fi 1 0, under Louis the Twelfth. Towards
the end of the sixteenth century, and at the commencement of the seven-
teenth, many customs had been modified, in consequence of the defects
which had been found to exist among them. That of Paris was revised in
1580, and Paris, anciently a Comte, and the Counts of Paris possesung
great authority, Capet, son of Hugues Capet, Count of Paris, abolished
this dignity with the name of the Count of Paris, united the Comte to the
Throne, and ordained that, thereafler, the territory of Paris should be called
Vicomte, the judge who presided in this district Prevot, and the jurisdiction
Prevote et Vicomte de Paris.— Fife Commentaire mr la Coidume^ M.
Claude de Ferriere, v. 1,J9. 2.
The progress of our Common Law, till the reign of Edward L, bears a
strong resemblance to that of Rome. The primitive maxims and customs
were applied to all new cases, which, appearing similar to them, it was
natural and convenient to subject to like rules. Courts in England,
private lawyers, juridical writers, and absolute monarchs at Rome, in
delivering opinions concerning specific cases, extended the analogy fh)m
age to age, until an immense fabric of jurisprudence vraa at length built
upon somewhat rude foundations. The legislature itself occasionally
interposed to amend customs, lO widen or narrow principles; but these
occasional interpositions were no more than petty repairs in a vast building.
From the reign of Edward I., we possess the Year Books, annual notes of
the cases adjudged by our Courts, who exclusively possessed the power of
authoritative interpretation, scarcely to be distinguished from the legisla-
tion which the tribunals of Rome shared with the imperial ministers, and
with noted advocates, — Edicta Prsetoris, Rescripta Principum, Responsa
Prudentum. In a century afler him, elementary treatises, methodical
digests, and works on special subjects, were extracted from these materials
by Lyttleton, Fortescue, and Brooke. So conspicuous a station at the
head of the authentic history of our uninterrupted jurisprudence, has con-
tributed more than his legislative acts to procure for Edward the ambitious
name of the English Justinian. The Science of Law, which struggles to
combine inflexible rules with transactions and relations perpetually changing,
can obtain no part of its object without the exercise of more ingenuity, and
the use of distinctions more subtle than might be deemed suitable to the
THE CANADIAN LAW COURTS.
13
:h,
« tlMt of Ponthieu,
, in 1443; and the
that of Paris, was
rwelfth. Towards
ment of the seven-
ence of the defects
Paris was revised in
of Paris possesring
of Paris, abolished
;d the Comte to the
aris should be called
and the jurisdiction
rur 2a Coutvme^ M,
r Edward I., bears a
naxims and customs
ilar to them, it was
Courts in England,
larchs at Rome, in
•d the analogy from
IS at length built
itself occasionally
Irinciples; but these
[rs in a vast building,
loks, annual notes of
[ssessed the power of
led from the legisla-
lerial ministers, and
'rincipum, Responsa
realises, methodical
Ifrom these materials
»us a station at the
isprudence, has con-
;dward the ambitious
', which struggles to
terpetually changing,
more ingenuity, and
imed suitable to the
To bring home justice to the door
Of the rich Suitor, or the poor,
The Province into Districts three^^
Canadians now are made to see.
Quebec, the first and foremost City,
Begets the Royal Master's pity :
Then Montreal, for its great trade,
A Judgment Seat is quickly made :
And Rivieres Trois, from old connexion
With Indian fur, demands protection.
At each a Queen's Bench was erected,
With Chief, and Puisnes, three selected
All civil rights and crimes to try.
Of great amount or deepen'd die ;
With power to two in every year,
At Terms Superior Debts to clear
regulation of practice. In time the lawyers, who were commomy eccle-
siastics, were still farther warped, by the excessive refinements of the
scholastic philosophy, which had reached its zenith under Aquinas, and
seemed to have overshot it in the hands of his disciple and antagoaist,
Duns Scotus. A proneness to uninstructive acuteness, and to distinctions
purely verbal, tainted it from the cradle. — History of England, Sir JaiMs
Mackintosh, p. 274.
1 0. By 34th Geo. III., c. 6, Lower Canada was divided into three districts,
viz., Quebec, Momtbgal, Thbee Rivebs. In each district a Court of
King's Bench was established, with a Chief and three Puisne Justices, having
power to hear, try, and determine all matters, civil and criminal : two or more
of these justices held annually, in the cities of Quebec and Montreal,
foxu" Superior Terms, on the first twenty juridical days of February, April,
June, and October; the first and every other juridical day being return
days for all writs and process. These justices took cognizance of causes
exceeding ten pounds sterling ; or, if relating to Gasfe', to twenty pound*.
These Superior Terms were empowered to grant emancipation to minors,
on the counsel of near relations or friends, to hear and determine all mat-
ters for the recision of all contracts and deeds, conformable to the usage
prior to the conquest; and to hear and determine all suits and demands
which might have been heard in the Courts of Prevote Justice Royale,
Intendant, or Supreme Council, under the Governor, prior to 1759.
By section eleven, a Court of King's Bench was erected in the district of
Three Rivers, to be held by two Justices of the Court of King's Bench for
i
14 CURI^ CANADENSES, OR
Above Ten Pounds, whate'er the ground
On which the contract might be found :
Inferior Terms too, Six in number,
When little debts poor men encumber ;
But on complaint of their decision
Those always quick had supervision ;
By plaint to Judge, and meek Petition,
And costs secured, with much contrition.
Then from each District, once a-year
One Justice did all Counties clear,
In Circuits iorT[)id.\ save Counties four,
Which other jurisdiction bore.
No Cause however, here was brought,
If Plaintiff at these Courts e'er sought
More than Ten Pounds, for Goods, or work,
No matter, or for Beef,^^^ or Pork,
Quebec and Montreal, and the Provincial Judge of Three Rivers. The
Court was held in the town of Three Rivers, from the 13th to the last
days of March and September. By 1 0th and 11 th Geo. IV., c. 7, the 34th
Geo. III., c. 6. was repealed, as regarded the appointment of the Provincial
Judge; and one of the Justices of King's Bench for Three Rivers was
directed to be resident^ and to be called the Resident Judge of Three Rivers.
Six Inferior Terms were at the same time appointed in the cities of
Quebec and Montreal, to hear and determine, without appeal, civil suit8>
where the amounts claimed did not exceed ten pounds.
By section ten, if, in the Inferior Terms, there was any exception by the
defendant, the exception was entered of record, and the process, suit and
demand removed into the Superior Terms.
By section nineteen. Circuits were held annually, by one at least of the
Justices of King's Bench, to sit in each county, except the counties of
Quebec^ Montreal, Orleans^ and Gaspe, to hear and determine all matters
under ten pounds.
By section fourteen, a Provincial Court was established in the Infebiob
DisTEicT of Gaspe', to try, in a summary manner and without appeal,
suits not exceeding twenty pounds sterling; and by section seventeen, a
Provincial Judge was appointed. By 2nd Geo. IV., c. 5, the jurisdiction
of this Court was extended to cases not exceeding one hundred pounds.
10 a. Article^ of considerable commerce in Canada. The Statutes
regulating which are numerous.
THE CANADIAN LAW COURTS.
1^
id
work,
irei
e
e Rivers. The
13th to the last
IV., c. 7, the 34th
nt of the Provincial
Three Rivers was
GB of Three Rivers.
ed in the cities of
appeal, civil suits,
y exception by the
e process, suit and
one at least of the
jpt the counties of
ermine all matters
;d in the Infeeiob
id without appeal,
jction seventeen, a
.5, the jurisdiction
nndred pounds.
ia. The Statutes
Gaspe', a distinct Province made,
Where justice summary was displayed,
Twenty Pounds first, then^u« times over
Its jurisdiction well could cover.
St. Francis" too, so far away
From Quebec's City, bred delay,
A District form'd, and Justice seat
Is reared, the Suitors' Plaint to meet.
But now tbe grow'uigs of the State
Arrangements new, do soon create.
Old things must pass away, and other
Take up their place, and make fresh pother.
Instead of Districts Three, now Fottr^*
All Lower Canada explore ;
Quebec, Montreal, take the lead,
Gaspe', and Sherbrooke then succeed.
11. By 3rd Geo. IV., c. 17, from the great extent of the District of
Montreal and Three Rivers, and the increased population in those parts, the
DisTKicT OF St. Francis was formed, and a Judge appointed to hold a Pro-
vincial Court, to take cognizance of causes purely personal, not exceeding
twenty pounds. The Court was held at the Village of Sherbrooke. By
10 and 11 th Geo. IV., c. 7, the distance of the inhabitants from the Supe-
rior Courts of Montreal and Three Rivers, and the loss of time occasioned
in attending the Superior Courts, led to the establishment of a new Court,
to be held at Sherbrooke, before one of the Justices of King's Bench of
Quebec or Montreal, the Provincial Judge of Three Rivers, and the Pro-
vincial Judge of St. Francis, in two terms in every year, viz., the 26th
February to 8th March, 25th August to 4th September.
Sqaare Miles. Inhabitants.
In 1829, the District of Quebec contained 125,717... 143,761
" Montreal " 268,631... 49,769
" ThreeRivers" 51,657... 15,811
" Gaspe « 7,777... 7,389
— See Bouchette^p. 358.
12. By 4th Vic, c 45, the 34th Geo. TIL, c. 6, 3rd Geo. IV., c. 17,
and 10th and 1 1th Greo. IV., c. 7, and so much of any other Act as con-
fers on the Courts of King^s Bench and Provincial CourtSt or on the Judges
16
CVKIJE CANADENSES, OR
For all, there's now but one Queen^a Bench,
One Chief, two Puisnes knowing French,
With Power-appellate, to decide
O'er all Provincial Courts beside ;
Subject alone, no higher Head,
To British Queen by Council led.
Four times a year K. B. does sit
As with the Seasons to befit :
For fifteen days in month November,
August and May, but not September ;
And month of Janus, sleighing weather,
Collects the Judges all together.
any powers, were repealed; Lower Canada is divided into four principal
territorial divisions, namely, Quebec, Montreal, Sherbrooke, and
Gaspe'; a Court of Queen's Bench, or Supreme Court of Record, is to be
held by the Chief Justice of the Province and two Puisne Justices; to have
original criminal jurisdiction throughout the Province of Lower Canada, in
like manner as her Majesty's Court of King's Bench in England; with
supreme appellate jurisdiction, as a Court of Error. This Court was to
be held at any place within the Province, appointed by the Governor and
Executive Council, four times in the year, namely, the first fifteen days of
January, May, August, and November.
By the same Act, a Court of Common Pleas was established, composed
of nine Justices, appointed by Letters Patent under the Great Seal, to have
original civil jurisdiction throughout the Province, to take cognizance of all
civil pleas, causes, and matters whatsoever. The Justices were to sit in
DivisionSf to be distinguished by numbers^ holding Superior and Inferior
Termso
The First Division of Superior Terras, consisting of three or more Justices,
was to sit at Quebec, from 1st to 20th February,
1st to 20th April,
1st to 20th June,
1st to 20th October.
The Second Division, of the like number of Justices, at Montreal, on the
same days.
The Third Division, of two or more Justices, H Sherbrooke, on the same
days.
THE CANADIAN LAW COURTS.
It
nek.
into four principal
Shgrbrooke, and
[of Record, is to be
Justices; to have
Lower Canada, in
in England; with
This Court was to
the Governor and
rst fifteen days of
[blished, composed
treat Seal, to have
cognizance of all
:e8 were to sit in
lerior and Inferior
|e or more Justices,
February,
April,
I June,
October.
Montreal, on the
>oke, on the same
Another Court now, and mosl civil,
Defeats the cheatin^s of the Devil,
Call., i Common Pleas^ held in DivisionSf
To hear all Causes, ^ve Decisions ;
Nine Justices declare the Laws,
Correct abuses, mend all flaws.
Divisions four are thus set out ;
First at Quebec, they go about
Four times a year; pounds above twenty.
Make causes numerous, justice plenty.
The second, third, and fourth likewise,
At Montreal, Sherbrooke, Gaspe rise;
Twenty whole days the Judges sit,
Counsel to hear their cause submit.
Inferior Terms they now set up.
To fill the famished client's cup,
When twenty pounds he claims or less :
One Justice here will grant redress.
Good suitor! let thy claim be small;
Appeal 's shut out alike to all.
The Fourth Division, of one or more Justices, to sit at New Carlisle,
from Ist to 20th March,
from 11th to 30th September,
At Carleton from 1st to 10th July,
At Perce from 1st to 10th August,
At Douglas Town from 16th to 25th August.
In these territorial divisions, Courts were to be held, until 1843, by one
or more of the Justices, to take cognizance, without appeal, of all causes
not exceeding twenty pounds, in Terms, called Inferior Terms.
These Inferior Terms were to be held in the cities of Quebec, Montreal,
and to wn of Sherbrooke, from 21st. to 3 1 st January,
from 11th to
from 2l8t to
from 20th t(
from 21st to
from 2l8t to
19th March,
31st May,
30th June,
31st August,
30th November.
•See 6th Vice. 13.
b2
IS CURI^ CANADENSES, OR
Descend we somewhai; lower still,
And view the Courts for tighter ill,
Courts of Mequestf^* made to dispense
A11^V0 pound rights by common sense.
If Farmer'^ found his hedges broke,
By ruthless cattle, wilful stroke,
A Justice measured out deserts.
By summons granted to Experts;
Hearing the truth of the complaint^
Lay'd penalty, or else distraint;
Mended the fences, filled up ditches,
Cured country ills by legal stitches.
This Justice law 's soon set aside,
Commissioners^'^ the causes tried.
Where feuds thought little now were ended
By neighbours sent and recommended.
1 3. By 47th Geo. III., c. 1 3, in the townships and seigneuries of Dun-
ham, Stanbridge, Sutton, Potton, Shefford, Stukely, Compton, and Hatley,
and seigneuries of Foucault, and St. Armand, and such other townships as
the Governor should think tit, the Governor, by Commission under the
Great Seal, was empowered to appoint such Justices of the Peace, acting
in such Townships, as to him should seem meet, to take cognizance of all
causes, not exceeding five pounds, and to hear and determine agreeable to
equity and good conscience.
14. By 57th Geo. III., c. 14, for the benefit of parties engaged in
Agriculture^ and in matters concerning fences and ditches, and damage
done by beasts of any description, persons aggrieved were to make appli-
cation to the nearest Justice of *he Peace, within the county ; who was
authorized to summon the offender, and, after hearing the parties, to refer
the matter to four experts, two to be named by the plaintiff and two by the
defendant ; and upon their report, the Justice, in the case of fences and
ditches, was to condemn the party to perform the works, or to pay damage,
not exceeding three pounds currency.
15. By 1st G€0. IV., c. 2, the Governor is empowered by commission,
to appoint such and so many persons, in each parish or township, as he
should think fit, to take cognizance of all causes not exceeding four pounds
three shillings and four pence. — See 9th Geo. IV.y c. 22.
THE CANADIAN LAW COURTS.
n
tnded
leigneuries of Dun-
mpton, and Hatley,
other townships as
imission under the
the Peace, acting
e cognizance of all
trmine agreeable to
}arties engaged in
kches, and damage
[ere to make appli-
county; who was
Ihe parties, to refer
Uiffand twobythe
case of fences and
or to pay damage,
red by commission,
Ir township, as he
peding four pounds
The Statute book gives much provision'*
For minor wrongs with quick decision;
To-day, a Justice held the seals,
To-morrow laid him by the heels,
Till the small fry of Courts of Conscience,
Victoria's fourth and Jijih^ made nonsense.'^
Now plodding tradesman, country squire.
To Justice seats no more aspire.
The learned, versed in legal story,
By Littleton and Coke made hoary,
Men who the Civil Code have read,
Alone may sit to hear and plead.
Five Summers' standing and no less
Tresides, and may award redress;
The "Districts" the large came ex^Xore^
** Divisions," six pounds five^ no more.
If either party error sees.
Appeal *8 to Court of Common Pleas.
Bailiffs,^^ now bound, surround the Hall,
With fees defined, no doubt thought small :
16. The 59th Geo. III., c. 10, 3rd Geo. IV., c. 22, 6th Geo. IV., c. 2,
9th Geo. IV., c. 22, 3rd Wm. IV., c. 34, 4th Wra. IV., c. 2, 6th Wm. IV.,
c. 17, 2nd Vic, c. 58, 4th Vic, c. 43, were all of them Acts passed creating
for a short period. Courts for small causes, or continuing existing Acts.
17. By 4th and 5th Vic, c 20, the Governor is authorized to divide
Lower Canada, except the Inferior District of Gasp6, into Inferior Dis-
tricts; to appoint District Courts, to be held in each Inferior District,
with a Judge, to take cognizance in a summary manner of all civil suits,
wherein the sum of money, or the value, 8ht,ll exceed six pounds Jive
shillings^ and not exceed twenty pounds. The Judges are to be Advocates
of five years' standing. Division Courts are also erected in each of the
Inferior Districts, to be held before the District Judge, for causes not
exceeding six pounds five shiUiiigs. This Act very minutely points out
the form of proceedings before the two Courts, the duties and powers of all
officers, and the fees and costs to be taken.
18. Fees payable to Bailiffs under 4th and 5th Vic, c. 20.
liOWER CANADA.
For service of process , Is. Od.
For seizure of goods 4
For sale, including every expence while travelling. . . 4
20
CURIiE CANADENSES, OR
The Official's Fund destroys temptation,
For human heart of quick creation.
Two other Courts, 'twere sin to miss.
The Province helps to legal bliss;
Of Enqueteurs'^ complete to sift,
And draw IVom witness what his drift ;
The Court of Escheats'^" lands when lost
Will give the Seigneur with some cost.
s. d.
For return writs of execution 6
For mileage, per mile, including returning 1
UPPER CANADA.
For the service of every summons, order, &c 6
For taking goods 2
For every mile more than two 4
For taking prisoner to gaol 6
The fees relating to Upper Canada are regulated by a different Act.
J 9. The Court of Enquetes somewhat resembles the Examiners in
the Court of Chancery. It is a Court for examining witnesses only. By
9th Geo. IV., c, .'j, the Governor was authorized to appoint two Commis-
sioners, Enqnr.tevrs, to sit at Montreal, and to whom, or one of whom,
were to be referred the Enquetes, i. e. enquiries or examinations, taken in
in causes pending in the Superior Terms.
By 1st Wm. IV., c. 2, tlie Enquetes are to be taken before a single
Judge or more, as well in term as in vacation. This Act is made perpetual
by 3rd Vic., c. 9.
20. The Gth Geo. IV., c. 59, created the Court or Escheats, and
authorized the Governor, lieutenant Governor, or person administering the
government, to constitute one or more Commissioners of Escheats and
Forfeitures of Land within the said Province. These Commissioners are
empowered to enquire from time to time, on information being made and
filed by the Attorney or Solicitor General of the Province, into the liability
of the lands to escheat, by reason of the non- performance of the conditions
of settlement, and the verdict of a jury of twelve men is to be obtained of
the fact, whereupon the forfeited lands become revested in her Majesty. —
Under this Act a Commissioner of Escheats has been appointed, and the
Court otherwise organized.
Easter Term-
THE CANADIAN LAW COURTS.
21
ost
s. d.
6
1
6
2
4
6
a different Act.
the Examiners in
itnesses only. By
)oint two Commis-
, or one of whom,
linations, taken in
en before a single
is made perpetual
)F Escheats, and
administering the
of Escheats and
Commissioners are
being made and
J, into the liability
of the conditions
to be obtained of
|in her Majesty. —
ipoinved, and the
Gens que virftm truncis et duro robore natn. — Virgil.
UPPER CANADA.
These legal seats of divers ranks,
Have limit to St. Laurent's banks ;
But all beyond, down to Detroit,
Becomes new ground for fresh exploit.
The scene of action now surveyed,
Is Upper Canada, where 'twas said
In four divisions^^ 'twould be found.
From Eastern to the Western bound;
21. Before the division of the Province, the Superior Courts of the
Province of Quebec were the Courts to which the inhabitants of Upper
Canada resorted, with such additional judicatory as the 27tli Geo. III.,
c. 4, and 29th Geo. III., c. 3, provided, when directing the formation of the
"iVeio Districts.^^ These districts were MecMenburgh, Luneberg, Hesse, and
Nassau, since then changed by proclamation. In 1792, the Courts of
Common Pleas, in actions under ten pounds, were abolished. See .32nd
Geo. III., c. 3. — The Courts and proceedings in actions above ten pounds,
at this time, were regulated by the Act of the Province of Quebec, 25th
Geo. III., c. 2. By 34ih Geo. IIJ., c, 2, the Court of King's Bench was
established for Upper Canada, as a Court of Record of Original Jurisdic-
tion, to hold pleas in all manner of actions, or suits, criminal, civil, real,
personal, and mixed, in such manner as the King's Bench, Common Pleas,
or Exchequer in England. This Court was, by this Act, to be held at a
place certain, where the Governor resided, before a Chief and two Puisne
Justices. There are now four Puisne Justices, and the Court is held in
the city of Toronto. By 6th Geo. IV., c. 1, the following were the Terms :
Hilary Term — First Monday after the 25th December, ending Saturday
of the ensuing week.
Easter Term — First Monday next after the 1 6th April, ending Saturday
in the ensuing week.
Trinity Term — Third Monday in the month of June, and ending Saturday
in the week ensuing.
Michaelmas Term — First Monday in November, and ending Saturday in
the week ensuing.
The present Terms are :
Easter Term From 6th to 1 8th February.
Trinity Term From 12th to 24th June.
Michaelmas Term From 7th to 19th August-
Hilary Terra From 6th to 18th November.
i
r :l1
tl
22 CURI^ CANADENSES, OR
Of German names, for sake of Founder,
Which, for more clearness, follow under:
Mecklenburgh first, then Luneherg second,
Nassau and Hesse t'others were reckoned.
A Common Pleas was there erected,
Where Subject's Rights should be protected.
Then a Queen's Bench forthwith arose,
The Suitor's injuries to dispose.
With a Chief Judge and Puisnes four.
At every Term to ope the door:
Four times a year, beginning Monday,
And always ending next to Sunday;
Cum Banco Sittings '^'^ for Judgments, Pleadings,'^
To be digested after readings;
!iti.;
The first and last days of every Term, and e^ cry alternate day from the
first, not including Sunday, are return days.
The Court sits in Banco on the 28th February, 1st March, 4th and 5th
July, 29th and 30th August, 28 th and 29th November.
22. Jus dicere et non Jus dare, is a favourite doctrine of the common
lawyers. — See per Lord Kenyon, 7, T. R. 696. It is rather however
speculatively, than practically correct. "A Court," (says Mr. Ram, in his
valuable Treatise on Legal Judgments), "when it constructs a judgment^
" forms it of certain materials, which are law ; those materials the Court
" does not make, and so far the judgment is not creative of law. But the
^^ judgment, or body into which the materials are wrought, is law ; and is
** law, though the materials are ill chosen, or improperly applied.-* 1 Taunt.
" 292. 14 Ves., 175." In some degree therefore, it would seem, that a
Judgment is creative of law. This opinion is upheld by the known Fulk,
that so long as a judgment, which a Court of Westminster Hall has
delivered, stands unreversed, the case is laic, although a *' shocking deci-
sion," (1 Taunt., 292), an "extraordinary case," (14 Ves., 175). —
Warren, p. 216.
23. Special Pleading, Special Pleaders, — plee in French, in English,
plea, — were anciently used to signify suit or action. While used in this
sense, they gave rise, respectively, to the words pleder and to plead; of
which the primary meaning was, accordingly, to litigate; but which, in the
later English law, have been taken in the limited sense of making allega-
tion in a cause. — Stephen on PI. Warren in note, p. 273. See Appen-
THE CANADIAN LAW COURTS.
sa
5r,
er:
id,
led.
)tected.
se,
h
ts, Pleadings,'
temate day from the
March, 4th and 5th
;r.
ine of the common
t is rather however
ays Mr. Ram, in his
istructs a jiidgment,
materials the Court
fe of law. But the
;ht, is law ; and is
applied.'* 1 Taunt,
would seem, that a
ty the known Fulk,
stminster Hall has
a '* shocking deci-
14 Ves., 175).—
i'rench, in English,
Vhile used in this
and to plead; of
but which, in the
of making allega-
!73. See Appen-
And as Mortalium nemo sapit^ —
Appeal Court^* then the Record capita
Where great and gravest heads do meet,
To make the Law still more complete.
Then skill and science to acquire.
Experience and forensic fire,
24. By 34th Geo. 3, c. 2, the Court of Appeals was to be composed of the
Governor, Lieutenant Governor, or Chief Justice of the Province, together
with any two or more members of the Executive Council, and, since the
establishment of the Court of Chancery, of the Vice Chancellor.
Circuits are held in this Province twice a year, namely, between
Easter arid Trinity Terms, and Michaelmas and Hilary Terms. The
following was the arrangement for the Spring Circuit of 1842 :
EASTEBN CIRCUIT.
His Honor the Chief Justice.
District. Town.
Eastern Cornwall Monday, 16th May.
Ottawa L*Original Tuesday, 24th May.
Bathurst Perth Tuesday, Slst May.
MiDiiAKi) circuit.
His Honor Mr. Justice Hagerman.
Victoria Belleville
FrinceEdward Picton
Midland Kingston
Johnstown Brcckville
HOME CIRCUIT.
His Honor Mr. Justice Macaulay
Newcastle Cobourg
Colborne Peterborough
NIAGARA circuit.
His Honor Mr. Justice Jones.
, Tuesday, 3rd May
Monday, 2nd May.
Monday, 9th May.
Monday, 1 6th May.
Thursday, 26th May.
Monday, 25th April.
Thursday, 5 th May.
Tuesday, 17th May.
Wednesday, 1st June.
Monday, 6 th June.
Niagara Niagara
Gore Hamilton
Talbot Simcoe
Brock Woodstock
western circuit.
His Honor Mr. Justice McLean.
Wellington Guelph Tuesday, 1 0th May.
Huron Goderich Monday, 16 th May.
London London Monday, 23rd May.
Western Sandwich Wednesday, 1st June.
Ill"' 11
0:11
I"- <..■
CM
24
CURIJE CANADENSES, OR
A Practice Court^' behold appended,
That Forms and Rules may be amended.
Now, too, is heard from legal forts
A regular volley of Reports^^^
After command from Osgoode's^ Benches,
And charge from Chiefs in open Trenches.
Thrice happy soil, where, without measure.
Enjoyment may flow o'er with pleasure !
!i
li!
HOME DISTRICT CRIMINAL COURT.
Monday, 28th March.
His Honor the Chief Justice,
ASSIZE AND nisi FRIUS.
Tuesday, 12th April.
His Honor Mr. Justice Jones.
25. -The b;isiness of the Common Law Courts of Upper Canada is
carriea on in the offices of the Clerk of the Crown and Pleas, and Clerk of
the Practice Courts. By 2nd Geo. IV., c. 1, the Clerk of the Crown and
Pleas is directed to have in each district, except the Ottawa, a Deputy,
from which all proceedings, before final judgment, and writs of capias ad
satisfaciendum, after, may issue.
The Rules op Practice, passed Hilary Term, 4th Wm. IV., and the
Provincial Statutes, 7th Wm. IV., c. 3, and 6th Vic, c. 1 9, govern the
proceedings. The principal Statutes and Rules, regulating the Practice of
the (Courts at Westminster, by the Imperial Parliament, are Ist Wm. IV.,
c. 7, 2nd Wm. IV., c. 39, 3rd and 4th Wm. IV., c. 36, 3rd and 4th Wm.
IV., c. 44; and the Rules, Hilary Term, 4 Wm. IV.
26. In 1 823, by Provincial Act 4th Geo. IV., c. 3, a Reporter is directed
to be chosen from among the Members of the Law Society, selected by the
Governor. He is made an officer of the Court, and to submit, on the first
day of each Term, a fair Report of all the decisions given by the Court,
and noted by him, during the last preceding Term; which Report, after
due examination and correction by the whole Court, was, by this Act,
directed to be signed by all the Judges in open Court.
The gentleman who held this office first was Thomas Taylor, Esq.,
followed by Mr. Draper and Mr. Sherwood, and the present Reporter,
John Ilillyard Cameron, Esq. — See Appendix II.
27. Judge Osgoode gave the name to the large handsome building at
the top of York Street, in Toronto, now called Lawyer's Hall, from its
having been occupied by the Law Society.
teristic featu
THE CANADIAN LAW COURTS.
25
For Saratoga,^* or its drinks,
The Whirlpool,'^ or Niagara's'** brinks,
28. Saratoga, in the State of New York, celebrated for its springs and
waters, called tlie Congress Waters, and being of the class called " acidu-
lous saline chalybeate," from having carbonic acid gas, salt, and iron in
them all. Saratoga affords the best opportunity that a stranger can enjoy
for seeing American society on the largest scale. The rich merchant from
New Orleans, and the wealthy planter from Arkansas, Alabama, and
Tennessee, with the more haughty and more polished land-owner from
Georgia, the Carolinas, and Virginia; the successful speculator in real
estate from Kentucky, Ohio, Missouri, and Michigan; the rich capitalist
from Boston and New York; the grave Quaker from Providence and
Philadelphia; the Official Functionary from Washington, and the learned
Professor from New Haven, Cambridge, and Hartford, all mingle together
in strange variety, and present such strikingly different, yet truly charac-
teristic features, that the whole Union is brought before the eye of the
stranger at one view. — Buckingham's Travels in America, v. 2, p. 99.
29. Nearly midway between the Falls of Niagara and the village of
Lewiston, there is a sudden turn in the river. On the American side a
point projects into the stream, and a deep indenture is worn into the bank
on the Canada side ; on the promontory facing the South and West the
basin of the Whirlpool is nrcsented, and for a long distance above, the
rough waters of the river are seen rushing forward, with an impetuosity
irresistible, and with a loud and terrific noise. The banks of the river are
here upwards of 200 feet high. — Legend of the Whirlpool^ Buffalo^ 1840.
30. Niagara River, upon which the Falls are situated, receives the water
of all the upper Lakes, as Erie, St. Clair, Huron, Michigan, Superior, and
a number of smaller ones. The most distant source of the Niagara is, it
is supposed, the river St. Louis, which rises twelve hundred and fifty miles
North- West of the Falls, and one hundred and fifty miles West of Lake
Superior. It is twelve hundred feet above the level of the ocean, and falls
five hundred ar^ fifty-one feet before it reaches the Lake. Lake Superior
is four hundred and fifty-nine miles long, by one hundred wide, and nine
hundred feet deep. It is discharged into Lake Huron, by the Strait St.
Mary, sixty miles in length, making a descent of forty-five feet. This Lake
receives the waters of about forty rivers. Lake Michigan is three hundred
miles, ^y fifty, and about nine hundred feet deep, and empties into Huron,
through the Straits of Mackinac forty miles in length. Connected with
Michigan on the South-west side, is Green Bay, one hundrea miles in
length, by about twenty in width. Lake Huron is two hundred and eighteen
miles, by one hundred and eighty^ and nine hundred feet deep, and is dis-
charged into Lake Erie, through the rivers St. Clair and Detroit, ninety
■^■U
-I '1
26
CURI^ CANADENSES, OR
hlj
! in
3a
Or Caledonia's'' far-famed Springs,
Or the ten hundred sparkling Rings
That deck St. Lawrence, mighty river.
Guarding its spangled tide for ever,
The Judge, from toil may well relieve,
Until his wonted strength retrieve. —
miles, making a descent of thirty-one feet. Lake Erie is two hundred atid
ninety miles, by sixty-three, and one hundred and twenty feet deep, and^pe
hundred and sixty-four above the level of the sea : it empties itself through
Niagara River, thirty-Jive miles in length, into Lake Ontario, making a
descent of three hundred and thirty-four feet, namely, from the Lake to
Schlosser twelve feet, thence down the Rapids Jifty-iwo feet, the perpen-
dicular Falls, one hundred and sixty-four feet, from the Falls to Lewiston
one hundred and four feet, and thence to Lake Ontario two feet. Lake
Ontario is one hundred and eighty miles by thirty-one, and^we hundred feet
deep, and discharges itself through the River St. Lawrence into the At-
lantic Ocean, ^cven hundred and ten miles distant. These great Lakes, or
inland seas, with the countless currents, great and small, that flow into
them, cover a surface of one hundred and fifty thousand square miles, and
contain nearly half the fresh water on the surface of the globe. From
these sources of the Niagara, some idea may be formed of the immense
quantity of water, constantly rushing over the Falls. — Steele's Book of
Niagara Falls, 1840.
Warren, in his Law Studies, thus alludes to the Falls : — " The little
"Instrument by which the modern Conveyancer secures £20 a year, to
" Mary Higgins and her children, is in truth the lever, by which a King
" might have been hurled from his throne, which was applied with con-
"summate craft to the destruction of the banded power of the aristocracy,
"of the huge and gloomy fabric of ecclesiastical domination. Thus the
" water, which might at first have been seen forming part of the magnifi-
" cent confluence of Niagara, and then precipitated, amid clouds of mist
*' and foam, down its tremendous falls, after passing over great tracts of
*' country, through innumerable channels and rivulets, serves at length
"quietly to turn the peasant's mill." — p. 171.
31. Caledonia, a recently discovered mineral Spring, now much es-
teemed, in the District of Ottawa. See Appendix.
32. The immense multitude of Islands dispersed in the St. Lawrence,
have been ascertained to be not less than one thousand. Those most
worthy of note from their magnitude are Cornwall, and ShieKs Island, the
Nui Islonds, Cusson, Duck, Drummond and Sheep Islands, Rowe's Qrena-
dier, and Hickory Islands, and Grand or Long Island. — Bouchette, p. 16.
THE CANADIAN LAW COURTS.
27
I two hundred and
;et deep, and^re
lies itself through
)ntario, making a
from the Lake to
feet, the perpen-
Falls to Lewiston
) two feet. Lake
\Jive hundred feet
ence into the At-
se great Lakes, or
lall, that flow into
I square miles, and
he globe. From
of the immense
-Steele s Book of
[Is:— "The little
es £20 a year, to
by which a King
ipplied with con-
jf the aristocracy,
ation. Thus the
■t of the magnifi-
lid clouds of mist
er great tracts of
serves at length
;, now much cs-
^he St. Lawrence,
id. Those most
^hiek's Island^ the
|s, Howe's OrenU'
\Bovu:hette^ p. 16.
Arrangements new their Worships make
In Districts such as Viceroys^' take :
Boundless the land with such excisions,
Yesterday four, were the divisions ;
But these again as times explore,
Double, and treble, aye, and more :
Bewildered we lose all sensation.
Before we reach our destination.
33. The divisions of Canada for political, judicial, and civil purposes, have
engaged a very considerable portion of legislation. The first grand division
of Canada, as distinguished from the other portions of the British North
American possessions, was by the Quebec Act, 14th Geo. IIL, c. 83,
establishing the Province of Quebec, comprising Lower and Upper Canada.
In 1791, (see 31st Geo. IIL, c. 31), this Province was divided into the two
Provinces of Lower and Upper Canada. Upper Canada, in its superficial
extent, is estimated in round numbers at 141,000 square miles; Lower
Canada contains upwards of 205,863 square statute miles, of which
superficies, about 3,200 miles may be said to be covered by the numerous
lakes, rivers, and streams of the Province, exclusive of the surface of the
St. Lawrence and part of the Gulf, which, together, occupy an area of
nearly 52,500 miles, making the total extent of this Province equal to
258,363 square miles. — Boiichette, p. 182. These Provinces, in 1840,
(see 3rd and 4th Vic, c. 35), were reunited into one Province, now called
the Province of Canada, although, for purposes of the public business, the
same is distinguished as "Canada East," and " Canada West."
For the subdivisions of Upper Canada, or Canada West, the population,
the name of the townships, the capital or principal town for the transac-
tion of public business, and the days on which the Courts of Quarter
Sessions are held, see Appendix III. For divisions of Lower Canada,
see the same Appendix.
The most exact content of ten miles square, the usual dimensions of an
inland township, as prescribed by the Warrants of Survey, is 61,000 acres,
exclusive of the usual allowance of five acres on every hundred for high-
ways. Thio quantity is contained in a tract of ten miles and five chains in
length, by ten miles three chains and fitly links in perpendicular breadth,
or such other length and breadth as may be equivalent thereto. A
rectangular township of this admeasurement contains eleven concessions or
ranges of lots, each lot being seventy-three chains and five links long, and
twenty-eight chains seventy-five links broad. Each range is divided into
twenty-eight lots, so that each township contains three hundred and eight
lots of two hundred acres with the allowance for highways. Of these
lots, two hundred and twenty are granted to settlers, and the remaining
eighty-eight reserved for the Crown and Protestant Clergy. — Bouchette.
i'
in
>l4
m
ii
m
m
m
SS CURIiE CANADENSES, OR
New Governors hew out Districts Twenti^*
With patronage to office, plenty.
This goodly number, well to know
For Sheriffs, or their Bums to go
When Capias^ or Ji fa* s been sent; —
No Writ to have, " non est iKvent,* —
34. Upper Canada, as stated, \(as formed originally into the four divi>
sions of Luneburgh, Mecklenburgh, Nassau, and Hesse. In 1 792, the^c
changed their names into Eastern, Midland, Home, and Western.
The Midland, under 38th Geo. HI., c. 5, comprised the CounHes of
Frontenac, Lenox and Addington, Hastings, and Prince Edwu.d, and
certain Islands in the Ontario. Hastings was formed into a separate
District by 7th Wm. IV., c. .5., and Prince Edward by 1st Wm. IV., c. 7.
London. — This town is beautifully situated on the northern bank of
the Thames, and is the capital of the District. Governor Simcoe predicted,
as far back as 1793, that it would become some day a place of great
magnitude.
The Home District is the largest and most important in the Province^
containing originally, under 38th Geo. III., c. 5, the County of York
divided into four Ridings, and the Counties of Northumberland, Durham,
and Simcoe. By 42n4 Geo. III., c. 2, Newcastle District has been formed,
by taking the Counties of Northumberland and Durham. The District of
Gore, by 56th Geo. III., c. 2, also took some portions of this District, and
Simcoe has recently been proclaimed a separate District.
The Eastern District, by 38th Geo. III., c. 5, comprised originally
the Counties of Dundas, Glengarry, Stormont, Prescott, and Russell. By
56th Geo. III.) c. 2) Prescott and Russell were erected into the District of
Ottawa.
The Ottawa District is in the rear of the Eastern, having its north
front on the River Ottawa, whence it derives its name.
The District of Johnstown comprises the Counties of GrenuUe and
Leeds.
The Bathurst District was formed out of the County of Carleton,
under 2nd Geo. IV., c. 3, and 4th Geo. IV., c. 1.
Dalhousie was formed of Townships, parts of Bathurst, Johnstown,
and the Ottawa Districts, in 183P under Ist Vic, c. 25. It derived ita
name from Earl Dalhousie, Governor General in 1820.
Prince Edward, formerly a County of the Midland Dii.trict, waa
erected into a separate District, under this name, by 1st Wm. IV., c. 7. —
On the 25th July, 1836, the schooner Prince Edward^ Captain Young,
discharged a cargo of salt at the pier then erecting at Wellington, and waa
the first vessel enabled to unload at the pier.
THE CANADIAN LAW COURTS.
^
anty of Carleton,
Head on, and you shall understand
These new Divisions of the Land :
The Midland District first claims pity,
There lies the Governor's proud city,
But whether for short time or long
Puzzles conjecture, right or wrong.
ViCTOBiA, formed of the County of Hastings by 7 th Wm. IV., c. 5.
Niagara District, the oldest in the Province, is situated between the
two lakes, Erie and Ontario, bounded by the Niagara River, by which it is
separated from the United States. It formerly comprised the County of
Lincoln and its four Ridings, and the County of Haldimand. The District
of Gore has been partly formed from this.
Newcastle District, formed of the Counties of Northumberland and
Durham, taken from the Home. This District, it is said, has a greater
chain of lakes and water communication than any other portion of Upper
Canada.
CoLBOBNE, erected into a District by 7th Wm. IV., c. 115, out of
certain townships and territory of the Newcastle District. It takes ita
name from Sir John Colbome, now Lord Seaton, formerly Lieutenant
Governor of Upper Canada.
Wellington, erected into a District by 7th Wm. IV., c. 116, from the
Counties of Halton and Simcoe.
Brock, erected into a District by 7th Wm. IV., c. 30, from the County
of Oxford, formerly part of the London District. Sir Isaac Biock was
President of Upper Canada in 1811. See further Appendix
HcRON, formed into a separate District by Ist Vic, c. 25, from the
Counties of Huron and adjacent territories. It is in this District the
possessions of the Canada Company are principally to be found. This
Company was incorporated by Royal Charter under the provisions 6th
Geo. IV., c. 75.
The Huron Tract, granted to the Canada Company, was one million of
acres.
Lake Huron, which gives the name to this District, presents from its
western side a series of extensive islands, called Manitoulin. One of these
is upwards of seventy-five miles long. A superstitious veneration is
attached to these islands by the Indians, who believe them to be consecrated
by the presence of the Great Spirit, or, in their own language, the "Great
Manitou," and hence has originated the appellation they still bear.— •
Bouchette, 131.
SiMCOE. — This District has recently been proclaimed. — See Appendix
III. J. Graves Simcoe, Esq., was Lieutenant Governor in 1792.
Talbot was erected into a District from the County of Norfolk,
formerly part pf the London District, under 7th Wm. IV., c. 33.
c2
■{'.
h
i-k "j
ao
CURI^ CANADENSES, OR
II ' 'I
i:-:;i
London, they say, sometimes Hochlaoa,'*
(Alpha's not nearer to Omega,)
Have the best claim to be the seat
Where Courts and Palaces should meet
But all agree, the young, and old,
The rich, the poor, the warm, the cold,
The meek-eyed maid, the matron bold,
The wisest, the like truth unfold.
Far distant lands, yea all ! not some.
Admit the truth, there's none like Home.
Nor is there earthly situation
So perfect fitted for the station
Of making Canada a people,
As where you spy St. James's steeple.
By slightest knowledge 'twill be seen.
That brave Toronto's'** always been
WssTEBN contains the two Counties of Kent and Essex, and was formed
under 38th Geo. III., c. 5.
Gore was formed from the Districts Home, and Niagara, under 5 6 lb
Geo. III., c.lQ. F. Gore, Esq., was Lieutenant Governor in 1806.
Lv.NDON driginally comprised the Counties Norfolk, Oxford, and
Middlesex. By 7th Geo. IV., c. 13, the Townships of Walpole and
Ralnham, in the District of Niagara, were added to this District. By 5 th
Wm. IV., c. 45, certain Townships in this District were formed into a
County, and certain Townships attached to the Counties of Middlesex and
Kent. The 3rd Vic, c. 1, defined the limits of the Township of London.
35. Hochlaga, the Indian Village formerly occupying the spot on
which the city of Montreal now stands.
36. Toronto signifies, in Indian language, a Place of Meeting. And it is
not improbable that the spot once called Little York, now the City of
Toronto, was a chosen spot for the Courts and Councils, or rather the
Council Fires, of the Aborigines. The city was formerly called Little
York, in contradistinction to New York, or Great York.
When Bouchette, the Surveyor General, under the orders of Governor
Simcoe, then residing at Niagara, surveyed, in 1793, York Harbour, the
scite of Toronto was a covey for wild fowl. Two Mississauga families were
the only inhabitants; and when the Governor paid a visit in the following
summer, to determine on the future capital of Upper Canada, his residence
was a canvas-covered dwelling. Now, in 1843, the population is estimated
at 17,000, the census of 1841 was 14,249. You here behold a govemor^a
THE CANADIAN LAW COURTS.
$i
ex, and was formed
A place of note, and high renown,
Tho' late attach'd to British Crown :
If its antiquity be doubted,
Indian" Records you *ve never routed ;
For if you had, you there would learn,
In Adam's days, the fires did burn.
Round which the Indian tribes would meet
Their laws to make, and men to eat.
palace, supreme and other law courts, public offices, a college and univer-
sity, banking and other companies, handsome streets lighted with gas,
wharves, and a capacious harbour.
The following brief sketch of the proceedings observed at the ceremony
of laying the foundation-stone of the University of King's College, will
convey to the reader a far more exact notion of the magnitude and
Diagniiicence of the City of Toronto, in 1842: —
The vast procession opened its ranks, and his Excellency, the Chancel-
lor, with the President, the Lord Bishop of Toronto, on his right, and the
Senior Visitor, the Chief Justice, on his left, proceeded on foot through the
Ollege Avenue to the University grounds. The countless array moved
forward to the sound of military music. The sun shone out with cloudless
meridian splendour, one blaze of banners flashed upon the admiring eye.—
The Governor's rich Lord Lieutenant's dress, the Bishop's Sacerdotal
Robes, the Judicial Ermine of the Chief Justice, the splendid Convocation
Robes of Dr. McCaul, the gorgeous uniforms of the Suite, the accoutre-
ments of the numerous Firemen, the national badges worn by the Office
Bearers of the different Societies, and what on such a day (St. George's)
must not be omitted, the Red Crosses on the breasts of England's congre-
gated sons, the gi'ave habiliments of the Clergy and the Lawyers, and the
glancing lances and waving plumes of the First Incorporated Dragoons, all
formed one moving picture of civic pomp, one glorious spectacle which can
never be remembered but with satisfaction by those who had the good
fortune to witness it. The following stanza from a Latin Ode, recited by
Master Draper, son of the late Attorney General, after the ceremony,
expresses in beautifully classical language the proud occasion of all this
joy and splendid pageantry :
lo ! triutnphe ! flos Canadensium t
Est alma nobis mater ; aemnla
Britanniae hoec sit nostra terras-
Terra diu domibas negata I
37. Canada, on its first settlement by Europeans, was chiefly divided
between three gi'eat nations, the Algonquins, the Hurons^ and the Iroqrmsy
or Five Nations. The first held an extensive domain along the northern
banks of the St. Lawrence, about an hundred leagues above Trois Rivieres.
■ 'i-'Ja
i
1 ■ 5
;il :
IIh
32 CURIJE CANADENSES, OR
Then view a^niii the country buck,
Its Port, and Harbour, and the Lac,
Its Public Hails, for Law, and Learninj^,
' The thousand hearths with fires all burninj^,
And hosts of men the money turning:
Bold is the man, of great defiance,
With brains to lead in close alliance,
Who by the word, or in the letter,
Can say Toronto has its better.
Between St. Lawrence, and River Grande,
Eastehn, Ottawa, Johnstown stand;
And Bathurst, and Dalhousie too.
As District Judges well do know.
The Huron territory reached from the Algonquin frontier to the borders of
the Oreat Lake, bearing their name. The Iroquois occupied a long range
of territory on the southern border of the St. Lawrence, from Lake
Champlain to the vrestern extremity of Lake Ontario. This people was
divided into five cantons, viz., the Mohawks, Oneidaa, Onondagas^ Cayugaty
Senecas. The Indians, under Hritish protection, are now dispersed in
small villages and settlements in different parts of the Province. In
consideration of their services, and in compensation for the encroachments
made on their domain, each Indian, on repairing to a fixed station, receives
a certain amount of goods as an annual present. In 1828, the numbers
in Lower Canada amounted to 2,912; U *7"r Canada, 12,919. The
banks of the Grand River, which falls into Lake Erie to the extent of six
miles on each side, was set apart by General Haldimand for the Mohawks
and Six Nations. Some part of this land has been sold, but they still
retain 260,000 acres of an excellent soil on the north-western shore of the
Lake Simcoe ; and on the road to Lake Huron, other extensive tracts of
land are reserved for the Indian tribes. — Murray's History of British
America, v. 1, c. 5.
Mr. Buckingham, in his notice of the Tuscarora Indians, observes :—
" The Nation, for so all the Indian tribes call themselves, has a sort of
" aristocratic rather than republican government. This aristocracy con-
" sists of what are called Sachems, Chiefs, Warriors, and head men of the
" tribe. These, at least, are the nominal ranks of the leaders; and in the
" larger tribes of the West, who retain all their original manners, these
^^ ranks really exist; but among the Tuscaroras, and other tribes settled in
" the State of New York, there are no warriors, and chiefs are the only
THE CANADIAN LAW COURTS*
33
ning,
inde,
:r to the borders of
:upied a long range
rence, from Lake
This people was
wndagasy Cayugas^
now dispersed in
the Province. In
the encroachments
ed station, receives
828, the numbers
a, 12,919. The
the extent of six
1 for the Mohawks
lold, but they still
■estem shore of the
extensive tracts of
History of British
ians, observes:—
Ives, has a sort of
is aristocracy con-
i head men of the
aders; and in the
lal manners, these
er tribes settled in
hiefs are the only
Near to the Bay of Quinte s found,
Wliat now you call " Prince Edward" ground:
And brave and gallant Picton's fame,
Gives to its Capital, his name.
Victoria next, we can't conceal,
Its Court's found sitting at Belleville:
Niagara too, though not the Falls,
Six times a year a Prefecty calls :
Newcastle, Colborne, Wellington, Brock,
Illustrious names, of noble Stock :
Huron distinguished by its Lake,
Where Manatoulin spirits wake :
SiAicoE, and Talbot, Western, Gore;
And last comes London, and no more.
Judges^* arise in all we're told
To Forty Pounds, they're now so bold
" persons usually spoken of. These are neither hereditary nor elected by
'^ the people, but a standing body, in which the vacancies that occur by
" death are filled up by the decision of the remaining members of the class.
" In general, a certain age, and the possession of some qualities to recom-
" mend the individual, are demanded, but not always. The appointment,
'* when made, is for life, and against the decision of the Council of Chiefs
" there is no appeal." — Buckingham, v. 2, p. 152.
The whole Indian population, by a late return from the Office of Indian
Affairs, New York, is stated as follows : —
Indians emigrated east of the Mississippi 49,365
Do do. westside 51,327
Indigenous 231,806
322,498
Assuming every fifth to be a warrior, there would be 66,499 warriors.—
Return from War Office of ii;dian Affairs, U. S., Nov. 22, 1837.
38. The earliest Act establishing Distkict Courts in the Upper
Province, was the 34th Geo. III. ch. 3.: this, with the 37th Geo. III.
c. 6., 38th Geo. III. c. 3., 57th Geo. III. c. 6., were repealed by the
2nd Geo. IV, c. 2., which consolidated the Laws establishing District
Courts, and regulated the Practice.
This Act erected in each District a Court of Record, under the name
"District Court," to bo holden by one or more Judges, appointed
under the Great Seal of the Province, with power to hold Plea, on all
i • •■ I
' I
i
I
'I
h
34
CURI^ CANADENSES, OR
■!•:'
J'^dgment to give, at certain meetings
Held close upon the Sessions greetings :
At one, and all, Courts also sit.
The Ten Pound causes to befit
Every two montlis ; no longer bide
These Jurists, ere they do decide.
To keep good order, peace uphold.
To license Inns, and cure the scold,
!ilV
matters of contract from Forty Shillings to .£15, and when the amount
is liquidated, or ascertained, either by the act of the parties, or the nature
of the transaction, to £40, and also on all matters of tort respecting per-
sonal chattels, when the damages to be recovered should not exceed £15,
and the Title to the Lands should not thereby be brought into question.
The Practice in this Court is partly pointed out by this Act :
By 4th and 5th Vic. c. 8. — The Judge of any District Court must be
a Barrister of the Province, and resident in the District of which he is
Judge. The Judge is to receive a stated Salary, not more than £500,
nor less than £150, instead of being paid by Fees.
The Clerk's Salary is not to exceed £250, nor be less than £70, but
he is entitled to a Fee for every search among the Records ; and the table
of all Fees is directed to be hung up in some conspicuous place in the
office of the District Clerks.
In 1792, under 32 Geo. III. c. 6., Coukts of Requests were held
before two or more Justices of the Peace, the 1st and 3rd Saturday of
every month, within their respective Divisions, for small debts not exceed*
ing 40s., extended by 5f>th Geo. III. c. 5. to £5. These Acts, and the
subsequent Acts regulating these Courts, were all repealed by the 4th
and 5th Vic. c. 3., by which the Quar^or Sessions are empowered to di-
vide Canada West into Divisions, to erect a Court, appoint a District
Judge to preside, and to hear and determine in a summary way all causes
not exceeding £10. The Practice of this Court, the powers and duties
of the Judges and otticers, the costs and fees, are by this Act m'putely
defined.
The District Courts in Upper Canada are held on the Monday of the
week next but one preceding the Quarter Sessions week, and terminate
on the following Saturday.
The Division Courts are held once in two months, at such times and
places, wiihin the Six Divisions of each District, as are appointed by the
Magistrates, and approved by the Judges.
For the legal business in each District there is a Sheriff, a Clerk of the
Peace, a District Clerk, and an Inspector of Licenses, and since the in*
corporation of the Districts, a Warden.
THE CANADIAN LAW COURTS.
S5
when the amount
rties, or the nature
OTt respecting per-
Id not exceed £15,
ght into question,
this Act :
riot Court must be
rict of which he is
t more than £500,
I less than £70, but
>rds ; and the table
uous place in the
;quest8 were held
3rd Saturday of
debts not exceed-
lese Acts, and the
jealed by the 4th
empowered to di-
appoint a District
aary way all causes
powers and duties
this Act oj'putely
he Monday of the
;ek, and terminate
at such times and
e appointed by the
jriff, a Clerk of the
, and since the in*
Benches of Justices appear
In Petitf or Four time^^ a year :
While thousand Squires*" send forth their thunders,
Clerks taking care, they make no blunders. —
In Gothic Hall, no Summons horn
Assembles to the Sheriff's Toum'^^
The County Suitor, who complains
Of wrongs the Vicinage sustains :
39. The times and places of holding the Quarter Sessions are mentioned
in the Appendix III.
40. In the Lower Province the qualification of Justices of the Peace
was regulated by the Statutes of Lower Canada, lOth and 11 th Geo. IV.,
c. 2, and 6th Wm. IV., c. 16. This qualification was real estate, en fief^
en roture, in free and common soccage, in absolute property, or by emphy-
teose, or lease for one or more lives, or originally created for a term not less
than twenty-one years, or by usufruit for his life in lands, tenements, or
other immoveable property above the value of three hundred pounds
currency. In Upper Canada, there appears to have been no qualification
till the last Session (1 842) passed an Act, 6th Vic. c. 3. The amount of
the qualification is now the same as in the Lower Province.
The Magistrates to the year 1838 recorded for the Upper Province
are as follow : —
District. Year.
Eastern 1838 52
Ottawa 1836 29
Bathurst 1833 61
Johnstown 1833 79
Midland 1836 93
Prince Edward 1834 42
Newcastle 1837 107
Home 1837
Gore 1838
Talbot 1838
London 1836
Western 1837
Niagara 1833
164
114
36
123
63
85
1048
41. The Sheriff's Tourn, in England, is a Court held by the Sheriff in
different parts of his county, to investigate and chastise div 'i's minute
offences against the public good, and possesses the same kind of jurisdic-
tion as the Court Leet of Lords of Manors, only more extended. The
County Court there is a Court incident to the jurisdiction of the Sheriff,
.■4
m
i'3
\ ":r
.i '.■
' .»f>>.
1 V:M
iM;1
■if
SCd
CURIiE CAXADENSES, OR
No County Court, the Shillings Forty-
Awards to the successful Party ;
Nor obstinate defendants' names
In open Hall " outlawed" proclaims. —
No Baron here, of ancient blood
Tracing its fountain to the flood ;
For, vain of such to seek the trace
Where modern Courts now hold their place ;
Nor wampum helt,^'^ nor wigwam Hall,
Nor armed Knight, nor Seneschal ;
But Sessions bench, with solemn sounds
The outlaws destiny resounds.
ToRONTo^^ has a Court, tis said,
Sherwood," the Mayor, is now the head.
for holding pleas of debt or damages under the value of forty shillings. — It
is held monthly. It is at this Court that the Sheriff, when unable to find
a defendant, and upon the return to the writ of capias^ alius and pluries
non est inventus, that the writ of exigent was sued out, requiring the Sheriff
to cause the defendant to be proclaimed or exacted in Jive County Courts
successively, to render himself; and if he did not then appear, and was
returned quinto exactus, he was then to be outlawed.
By 55th Geo. III., c. 2, of Upper Canada, there being no County Court
in this Province, the Court of General Quarter Sessions is substituted for
proclaiming outlaws. This Act has been continued. In Upper Canada
t''"; proclamation of the writ of exigent is only at three Courts.
42. The Wampum Belt is a girdle variously decorated, and on which it
is supposed the most important transactions of the Indians are recorded in
their own way. Some of these Wampum Belts arc said to be of great
value. The author saw some offered for sale by the Tuscaroras at the
Niagara Falls.
43. Toronto was incorporated by 4th Wm. IV., c. 23, and a Mayor,
Aldermen and Common Councilmcn were created. A Court of Record
was established, with power to the Mayor and Aldermen to hold Quarter
Sessions for the trial of offenders.
The other Municipal Corporations are—
The city of Kingston, incorporated by 1st Vic, c. 27.
The city and town of Quebec, incorporated by 4th Vic, c. 45.
The city and town of Montreal, incorporated by 4th Vic. c. 48.
44. The Hon. Henry Sherwood is the present Mayor of Toronto.
ilace ;
is
ead,
THE CANADIAN LAW COURTS. 37
With Court of Aldermen, to judge
All wicked cheats, prevent all fudge ;
Four times a-year, to punish sinners.
Justice to grant, and eat good dinners.
The next of kin'*^ are not forgot,
When mortals by the common lot
From all this world's good things are taken,
And friends and relations are forsaken ;
The Probate Court, anon dispenses
Deceased's goods and consequences :
And if on Probate you can't wait,
There lies the District Surrogate.*"*
A Boundary Court,*^ comes now to aid.
So soon as the Commission 's prayed, —
-'I
f forty shillings. — It
when unable to find
IS, alias and pluries
requiring the Sheriff
Jive County Courts
len appear, and was
ng no County Court
»n8 is substituted for
In Upper Canada
Courts.
ited, and on which it
ians are recorded in
said to be of great
e Tuscaroras at the
c. 23, and a Mayor,
, Court of Record
men to hold Quarter
27.
*th Vic, c. 45.
4th Vic. c. 48.
yor of Toronto.
45. Probate and Surrogate Courts were established by the 33rd
Geo. III., c. 8, with power to issue process and hold cognizance of all
matters relative to the granting of probates and committing letters of
administration of the goods of persons dying intestate, having personal
estate within the Province. The Governor, or his assessor, is the Judge of
this Court, and empowered to decree and pronounce judgment in all ques-
tions, causes, or suits that may be brought before him, and to appoint an
Official Principal, Registrar, and other officers.
This Court is held four times in the year in Toronto, namely, the first
Monday in January and June; last Monday in March and September.
46. A Surrogate Judge is appointed in each District.
Where a party dies, leaving goods of the value of five pounds in mon--
than one District, the Will must be proved, or Letters of Administration
obtained at the Probate Court.
The Surrogate Court is held before the Surrogate-
First From the 2nd to 7th January.
Second From 27th March to 1st April.
Third From 5 th to 1 0th June.
Fourth From 25th to 30th September.
Wills can be proved, and letters of administration taken out, at either the
Probate or Surrogate Court any day, at the respective offices.
47. In a country divided auu subdivided, as is the Province of Canada,
into districts, counties, divisions, parishes, scignories, concessions, and lots,
lines of division must frequently create causes of dispute. In the Upper
D
fm
m¥
38 CURIiE CANADENSES, OR
Land-marks to give, on lots, concessions,
And Lines to keep, clear of suppressions.
And, for all Heirs and Devisees^'
Of Royal Bounty made Grantees^ —
Their claims or Titles, if neglected.
Must quick at Kingston be inspected.
Now Chancery^^ last, not least, appear
Thy Justice pure as chrystal clear :
Here, all confiding owners may
Compel the Trustee to repay
Province a Court op Boundary Commissioners was to decide upon
such questions; but by 1st Vic, c. 19, the Governor is empowered to
appoint three fit persons, in each District, to hold a Court to hear and
determine all matters of dispute, touching any lines of boundary, of town-
ships, concessions, or lots; and to ascertain, fix, and determine such lines.
The Court sits at no certain time, but, in case of district bounds being
disputed, the Commissioners for. each District concerned, are to meet on
notice, and the majority decides. In case of township or concession, or
owner of private lots, parties reouiriug the decisions of this Court are to
give ten days' notice to the Commissioners of the District ; who are to
issue a summons to the parties to attend them, not exceeding twenty-one
days from the notice, and the sittings are to be held as convenient as may
be to the disputed boundary, not exceeding ten miles. This Act has
expired. There was no such Court in the Lower Province.
48. The Heirs and Devisees' Court is constituted under the powers
of the 45th Geo. III., c. 2, by commission from the Governor to a certain
number of the Executive Council, the Chief Justice of the Province, and
the Justices of the Court of King's Bench; any three of whom, the Chief,
or one of the Justices to be one, have power to ascertain, determine, and
declare who is, or are heirs or devisees of the nominees of Crown Lands,
in cases where no patent hath issued.
This Court is held at the Seat of Government, on the 1st of July, and
sits for two weeks.
49. The Court op Chancery was established by the 7th Wm. IV., c.
2, the Governor being the Chancellor, with a Vice Chancellor. The juris-
diction of this Court is similar to that in England, with the exception of
bankruptcy practice. In this Province the bankrupt laws do not at
Moi
Tho
And
And
Not
The
Quic
Ifju
Here
Boun
Tho'
Deere
Set a
^is ai
Nole
Tho' J
present exist,
by a law of th
power to settle
and fees, and to
under the Vice
Registrar, Mast<
the Governor; i
Barristers and I
Court. An app
in Council to t
Court may be i
Account ; 3. Fn
6. Trusts. Th
by the Honorab
Chancellor, are
July, 1837, for
hearing, — the (
ceedings, — and
" facilitating the
" t^-A reduction
50. Orator is
proceedings.
THE CANADIAN LAW COURTS.
Monies mispropriate; lands restore,
Though slily held by Fraud before ;
And else, what e'er deceit has taken,
And the just use thereof forsaken.
No damages will now suffice.
The thing itself ra.vi9,i be the prize
Quickly to Orator®'' restored,
If just the case he has implored.
Here, too, the tie of loving Friend,
Bound to a Partner, has an end ;
Tho' close the bond, their Gordian Knot
Decretal Order will uncut;
Set all at liberty, make free
As air, or the Mississippi.
No lengthen'd Bill, complex accounts,
Tho' lost in number or amounts.
39
'i
the Istof July, and
the 7th Wm. IV., c.
ncellor. The juris-
irith the exception of
ipt laws dQ not at
present exist. In the Lower Province they have been recently introduced
by a law of the Provincial Parliament. The Vice Chancellor has the
power to settle forms of process, to define the practice, to regulate officers
and fees, and to make general rules. The funds of suitors are invested,
under the Vice Chancellor's order, in the funds of the Province. The
Registrar, Masters, Accountant, and Sergeant-at-arms are appointed by
the Governor; the Master's Extra, and Examiners by the Vice Chancellor.
Barristers and Attornies of the Courts of Common Law practice in this
Court. An appeal lies to the Governor in Council, and from the Governor
in Council to the Queen in Council. The principal business of this
Court may be ranged under six heads: — 1. Accident and Mistake; 2.
Account; Z. Fraud; A. Infants; 5. Specific Performance of Agreements;
6. Trusts. The rules governing the practice of this Court, established
by the Honorable Robert Sympson Jameson, the first and present Vice
Chancellor, are contained, in the Orders of the 1st June, 1836, and 1st
July, 1837, for regulating the practice in the conduct of a cause to the
hearing, — the Orders, see Appendix, applicable to subsequent pro-
ceedings, — and the Orders of the Ist January, 1842, "for the further
" facilitating the administration of justice in the Court of Chancery, and
" t^^ reduction of expense and delay in suits and proceedings therein."
50. Orator is the technical description of the plaintiff in Chancery
proceedings.
.m
40 CURIiE CANADENSES, OR
Can 'scape the rigid Master's eye*'
When once the order 's given to pry.
If ACCIDENT or mistake arise,
None dares the Chancellor's act despise ;
All blunders prompt his Honour sees,
And rectifies quickly by decrees.
Poor helpless babes, infants in teens,
'Gainst wrongs their weakness can't defend,
Have now impenetrable screens,
By gift of Guardians, or of Friend,
And Idiots' melancholy fate.
Nor less the Lunatic's sad state,
(The precious gift of reason gone.
And left to stand, or fall alone),
Here find relief, support, redress.
This Court, such specially doth bless.
Favour'd Toronto,"'' thine the pride,
That Judges o'er thy Courts preside,
Endow'd with wisdom, skill, and worth,
To spread stern Justice o'er the earth.
May such long flourish, 'till to men
AsTREA comes from Heaven again.
6\. It is the practice of this Court to refer disputed accounts to the
Master, vrith directions to report the result of his investigations to the
Court.
The protection of the interests of infants, idiots, and lunatics, is a very
special branch of the Chancery jurisdiction, together with the appoint-
ment of guardians.
52. The present Judges of the Superior Courts of Upper Canada are,
The Honorable John B. Robinson, Chief Justice.
The Honorable J. B. Macaulay, '\
The Honorable Jonas Jones, f
The Honorable Archibald McLean, t
The Honorable C. A. Hagerman, j
The Honorable Robert Sympson Jameson, Vice Chancellor.
Justices.
THE CANADIAN LAW COURTS.
U
■'{'
;>:ii
Anon Mackenzie's'"'^ maddening zeal,
With fires such as false patriots feel,
Unsheathes the steel, and gives the word
To raise the fratricidal sword.
Colleagued with him, stern Papineau
Contrives the simultaneous blow ;
They shrink not, till with flame unblest,
Fiercely blaze out, both East and West :
And fiery uiusquets' deafening roars,
Are heard throughout our hapless shores.
But soon the din of war is past.
Tranquillity returns at last;
Yet not till Windmill-point attests
The hate of our unbidden guests.
There dauntless once, the undying dead,
Have sternly won their gory bed ;
And countless tearful eyes deplore
The unflinching hearts those heroes bore ;
For their's the unrelenting strife
That neither spared, nor spake for, life.
ustices.
, Vice Chancellor.
Now Peace restored, and Discord o'er.
The volleying thunders cease to roar :
And Canada the near and far
Emerges from the din of war.
The Provinces erewhile divided.
In Legislative Hall united,
Like bride and bridegroom, meet to kiss
At Kingston the metropolis.
From fair Toronto's spire-clad plain.
The Court Vice-regal, and its train
5S. See Appendix.
d2
■Ml
m
42
CURIiE CANADENSES, OR
m
Of Lawyers, Benchers, Pleaders, all
To Kingston drajr tlieir Judgment Hall.
Yet here, the Law perplexed, distrest,
And wandering Justice knew no rest :
Her Practice cramped, and out of place,
Poor Chanceuy felt but ill at ease :
Backward again the vagrant strays.
The stony roads and wooden ways
Of old Toronto to regain, —
Ne'er may she quit that soil again.
Dreary and sad was Frontenac'"'*
Thy Duke ne'er made a clearer sack.
55
Than when the Edict to be gone.
Issued from the Vice-regal Throne.
54. The City of Kingston, formerly Cataracuay, afterwards Fort
Frontenac.
55. The Duke de Frontenac succeeded M. Courcelles as Governor of
Canada in 1672. He erected a famous fort near Kingston, and was a
very successful General in driving out the Iroquois, then infesting that
part of the Province.
In 1693, Count Frontenac invaded the country of the Mohawks from
Canada, but his army, after encountering the greatest hardships, and
losing eighty men killed and thirty wounded, found it necessary to return
without accomplishing any thing material. A great quantity of fur had
been accumulated by the French at Michilimackinac, but the Five Nations
had so effectually blocked up the passage between that place and Canada,
that they had remained useless for several years. At length, however, a
fleet of two hundred canoes, laden with furs, arrived at Montreal. —
Decanesora, who had for many years the greatest reputation among the
Five Nations as a speaker, arrived in Canada with many other deputies to
hold a treaty with the French, "This DecanesoraVas grown old," says
Colden, "when I saw and heard him speak. He had great fluency
" and a graceful elocution, that would have pleased in any part of the
" world. His person was tall and well made ; and his features, to my
" thinking, resembled much the lustos of Cicero." It is not clear how
this treaty terminated, nor whether there was any made ; for we find this
same Decanesoea, very soon afterwards, assuring an English conference,
at Albany, of a fact that could not be very satisfactory to the French. —
Addressing Governor Fletcher, of New York, the orator gave the following
passage, as part of his speec*^ to the Governor of Canada: — '"'' Onnuniio,
Excm
ToL
Littk
Of in
A go<
When
And i
The]
" we will not pe
" there thrice e:
" fort, but the
" make the sun
" see the light
positively refuse
Frontenac deter
sent out three
hunting ground
Ontario), and s
in the summer
Indians to repai
completely succ
The Count, hav
Five Nations ft
troops and the r
gungas, the Quat
the Praying Ind
marched with th
After twelve da^
approaching On<
the French, by a
fire to their poor
destroy a very e:
dispatched with i
belonging to the
and these feats,
welcome the Fre
of this grand en
covery of Ameri(
56. J.G.Spn
Master of the Cc
57. R. J. Tur
Chancery. See
il.
', afterwards Fort
lies as Governor of
ingstoD, and w&s a
hen infesting that
the Mohawks from
est hardships, and
lecessary to return
uantity of fur had
ut the Five Nations
place and Canada,
length, however, a
;d at Montreal. —
jtation among the
y other deputies to
IS grown old," says
had great fluency
in any part of the
lis features, to my
It is not clear how
! ; for we find this
English conference,
■j to the French. —
• gave the following
nada : — " Onnuntio,
THE CANADIAN LAW COURTS. 43
Exeunt omncs, liclter skelter
To Little York again for shelter:
Little no longer, York the new
Of imports such, can b^ast but few;
A goodly freight, without all brag,
When comes, 'mongst others, Master Spragge,'"
And skilful Turner,''^ versed in pleading.
The Kingston exiles gently leading.
" v/e will not permit any settlement at Cataracuay ; you have had your fire
" there thrice extinguished. We will not consent to your rebuilding that
" fort, but the passage through the river shall be free and clear. We
" make the sun clear, and drive away all clouds and darkness, that we may
" see the light without interruption." The Five Nations having now
positively refused to accede to the terms proposed by the French, Count
Frontenac determined to compel them to submission. Having previously
sent out three hundred men, in the hope of surprising them on their
hunting ground, between Lake Erie and Cataracuay Luke, (now Lake
Ontario), and at the same time to view the old French fort there. He,
in the summer of 1695, sent out a considerable body of French and
Indians to repair the fortifications of Cataracuay, in which work they were
completely successful, and restored its former name. Fort Frontenac—
The Count, having secured his fort at Cataracuay, resolved to make the
Five Nations feel his resentment. Having assembled all the regular
troops and the militia of Canada at Montreal, together with the Owena-
gungas^ the Quatoghies of Lorette, the Adironducks, SoJtoMes, Nepicisiniens,
the Praying Indians of the Five Nations, and a few of the Uttawawas, he
marched with this formidable army from that Island on the 4th of July.
After twelve days march, the French army arrived at Cataracuay. On
approaching Onondaga, the Indians hearing of the formidable power of
the French, by a Seneca deserter, thought it prudent to retire, after setting
fire to their poor fort and bark cottages. All the French did here was to
destroy a very extensive field of corn. The Chevalier de Vaudreuil was
dispatched with six or seven hundred men to destroy another field of corn,
belonging to the Oneidas, at no great distance, which was accomplished;
and these feats, with the capture of thirty-five Oneidas, who staid to
welcome the French in one of their little forts, were all the achievements
of this grand enterprise. — Brief Annals of Public Events, from the Dis-
covery of America to the Division of the Province of Quebec, 1839.
56. J. G. Spragge, Esq., the present very highly esteemed and respected
Master of the Court of Chancery.
57. R. J. Turner, Esq., a skilful Equity Draftsman and Solicitor in
Chancery. See Journals of House of Assembly, 1841.
I'j
. ■■);:]
"viijl
m
44
CUllLE CANADENSES, OR
Farewell ToiioNi'o ! of j^reat glory,
Of valour too, in modern story ;
Farewell to Courts, to Lawyer's Hall,
To Justice seats, both ^eat and small ;
Farewell Attornies,'**^ Special Pleaders,
Kquity Draftsmen,'^'^ and their Readers.
Canadian Laws, and Suits, to song
Of future Bard, henceforth belong.
We seek not for this humble strain
The Poet's meed of praise to gain ;
Yet tell, Oil ! tell me, who may be.
This Poet, Lord of minstrelsy ?
'Tis he with soul divinely fired !
'Tis he with holiest zeal inspired !
'Tis he who wins a deathless fame !-
Give him '\c glory of the name.
58. See Appendix.
59. As a Court of Equity insists upon Iiaviiig the whole of the most com-
plicated transactions, be they of never so different parties, and spread over
never so great a space of time, thoroughly ransacked, "in order to raise from
them ingredients of Equity," and will follow fraud through all its tortuosi-
ties, and error through all its mazes of confusion and obscurity, — it may
he easily conceived that the business of the Equity Draftsman, whose
duty it is to inform the conscience of the Court fully on all these subjects,
cannot be otherwise than very arduous and responsible. To state and
arrange all these facts, in such a clear and perspicuous manner as to con-
vince the judgment of their truth, agreement, and consistency with each
other, which is the great characteristic of a complete Draftsman, is a work
worthy the attention of the ablest men. A patient, perspicacious, discri-
minating intellect, will here find full play for its well-trained energies, and
will not fly with terror from the formidable phalanx of bills, cross-bills,
supplemental bills, bills of revivor, interpleader, answers, exceptions, pleas,
demurrers, interrogatories, reports, depositions, each of which,
" Like a wounded snake, drags its slow length along "
the Equity Draftsman's Chambers. — Warren's Law Stud., 206.
DERS,
iers.
i^^'i
APPENDIX.
m
)lc of the most com-
ics, and spread over
order to raise from
ugh all its tortuosi-
obscurity, — it may
Draftsman, whose
n all these subjects,
ble. To state and
I manner as to con-
msistcncy with each
)raftsman, is a work
crspicacious, distri-
ained energies, and
of bills, cross-bills,
s, exceptions, pleas,
which,
ilong"
ud., 206.
ftEii
Let us suppo
about some brol
and therefore aj
each of them to
stating his case
pleasantest thir
and tell us all tl
Landlord. — ]
leave it in good
however, with t'
Tenant. — I o
rae, by this dee(
Landlord. — 1
duress, [i. e. ille
Tenant. — It '
Landlord. — S
Therefore let
the parties.
Here is a rou
Are not these t^
of law with fact,
exaggeration,
law.
The De
In the Comraon
On the 1st G
his Attorney, cc
said Plaintiff, in
to wit, on the 1
certain Indentui
I.
Let us suppose tlmt a Landlord and his Tenant have got to high words
about some broken windows. They cannot settle their dispute together,
and therefore apply to the Law to settle it for them. Let us but imagine
each of them to be blessed with the rare faculty of coming to the point, — of
stating his case in a plain straightforward way, — and it is the easiest and
pleasantest thing possible. Come forward then, Landlord and Tenant,
and tell us all that is in your hearts!
Landlord. — I let that man a house for seven years, and he agreed to
leave it in good repair, when the time us up. lie has left the premises,
however, with twelve broken windows, for which I demand ^3.
Tenant. — I own I left the windows broken, but my Landlord forgave
me, by this deed here, (of release).
Landlord. — That deed is mere waste paper; being obtained from me by
duress, [i.e. illegal constraint].
Tenant. — It was given voluntarily; and I will go before a Jury upon it.
Landlord, — So will I.
Therefore let a Jury come, says the Court, to try this matter between
the parties.
Ilere Is a round unvarnished tale! Here is short work for the Jury! —
Are not these two most exemplary disputants? Here is no intermixture
of law with fact, no irrelevant matter, no prevarication, no concealment, or
exaggeration. Let us now, however, put the matter into the hands of the
law.
The Declaration, or the Landlord's Original Complaint.
In the Common Pleas.
On the 1st day of January, 1835, Middlesex to wit, A. B., by E. F.,
his Attorney, complains of C. D., who has been summoned to answer the
said Plaintiff, in an action of Covenant. For, that whereas heretofore,
to wit, on the 10th day of March in the year of our Lord 1826, by a
certain Indenture then made between the said Plaintiff, of the one part,
■)
, at his and their
eep the said Mes-
ible repair, order,
ind Premises, and
, repair, order, and
the said Term, as
, will among other
e, the said Defen-
the year aforesaid,
}, and became and
of the said term,
iime of the making
filled all things, in
rmed and f'.:lfilled,
ot, during the con-
and keep, the said
tenantable repair,
', order, and condi-
to wit, for the last
ITS of the said Mes-
time were, in every
want of necessary
eft the same, being
the end of the said
Covenant so made
he said Defendant
ovenant so made by
leep the same, with
still refuses, to thi?
brings his suit, &c.
CD
ats.
A. B,
}:
A. B.
agst.
CD,
1
Plea, bi/ way of Confession and Avoidance^ or the Tenanfa Defence.
In the King's Bench.
On the 8th day of January, 1835.
And the said defendant, by G. 11., his attorney, says, that after
the said breach of covenant, and before the commencement of this
suit, to wit, on the 3rd day of June, in the year of our Lord 1834,
the said plaintiff, by his certain deed of release, sealed with his
seal, and now shown to the court here, (the date whereof is the day and
year last aforesaid), did remise, release, and for ever quit claim to the said
defendant, his heirs, executors, and administrators, all damages, cause and
causes of action, breaches of covenant, debts and demands whatsoever,
which had then accrued to the said plaintiff, or which the daid plaintiff then
had against the defendant, as by the said deed of release, reference being
thereto had, will fully appear. And this the said defendant is ready to verify.
Eeflication, by way of Confession and Avoidance^ or the Landlord's
Reply to the Teyianfs Defence,
In the King's Bench.
On the 12th day of January, 1835.
And the said plaintiff says, that the said plaintiff, at the time of
the making of the said supposed deed of release, was unlawfully
imprisoned, and detained in prison by the said defendant, until, by
force and duress of that imprisonment, the said plaintiff made the
said supposed deed of release, as in the said plea mentioned. And this the
s-'id plaintiff is ready to verify.
Rejoinder, by way of Traverse^ or the Tenant's Answer to the Defendants
Reply.
In the King's Bench.
On the 15th day of January, 1835.
C D. ) And the said defendant says, that the said plaintiff freely and
ats. > voluntarily made the said deed of release, and not by force and
A. B. 3 duress of imprisonment, in manner and form as by the said Repli-
cation alleged. And of this the said defendant puts himself upon
the country. And the said plaintiff does the like.* Therefore the Sheriff
is commanded, that he cause to comef here, on the first day of February,
in the year of our Lord 1835, twelve good and lawful men of the body of
his county, qualified according to lav/', by whuiu the truth of the matter
may be better known, and who are in no wise of kin, either to A. B., the
plaintiff, or to C. D., the defendant, lo make a certain jury of the county
between the parties aforesaid, in an action of covenant, because, as well the
said C D. as the said A. B., between whom the matter in variance is, have
put themselves upon that jury, and have there the names of the jurors and
this writ. — Witness, Sir Thomas Denman, &c.
• This is called the " SimUUer."
t The " Venire Facias."
fi-\U\
■hi \\
■ i'ir
■U
50
APPENDIX.
Now if, as Mr. Warren so facetiously states, men could be brought to keep
to the point, it might be of great benefit for the suitor to adopt tlie simple
narratory style; but as experience proves this can uevci long be observed,
the system of leaving the formal complaint and defence to the Professional
Adviser, the Pleader, or Solicitor, must be considered a manifest improve-
ment. The narratory system would involve the personal attendance in
(/Ourt of the plaintiff and defendant's witnesses, and generatly of themselves,
however distant the Court from their residences. The pleadings are now
carried on in writing, the Attorneys of the parties delivering to each other,
on behalf of their respective clients, a formal statement of the complaint
and defence, in the several stages of the suit, the declaration, plea, repli-
cation, rejoinder, &c. All this goes on while the litigating parties are
snugly by theu- fire-side, not a v hit discomposed, unless by the occasional,
but ubiquitous phantom, the ''Bill of Costs." So soon as thi3 written
complaisance is ov/, and the tale told on both sides, the Public Officer of
the Court, in which these pp.pers are led, hands them over to the parties,
in the shape of a Record, for the Judge to refer to, when, in Court, he
attends to try the cause.
II.
STYLE OF AN ANCIENT ENGLISH REPORT.
The English Reports are extan^, in a regular series, from the reign of
King Edward the Second, Anno 1307, inclusive; and from his time to
that of ilenry the Eighth, were taken by the Prothonotaries, or Chief Scribes
of the Court, at the expence of the Crown, and published annually, whence
they are known under the denomination of the Year Books. King James
the First, at the instance of Lord Bacon, (Pat. 15, Jac. 1, p. 18. 17 Rym.
26), appointed two Reporters, with a handsome stipend for this purpose.
Yet that wise institution was soon neglected, and from the reign of Henry
the Eighth to the present time, this task has been executed by many
private and contemporary hands. Blac. Com. v. 1, p. 72.
By 3rd Vic, c. 2, Provincial Parliament; the Law Society of Upper
Canada appoint to the office of Reporter of Queen's Bench, Upper Canada,
with a salary of £150.
.1
f
APPENDIX.
51
e brought to keep
adopt the simple
long be observed,
3 the Professional
nanifest improve-
lal attendance in
lUy of themselves,
pleadings are now
ing to each other,
of the complaint
ation, plea, repli-
cating parties are
by the occasional,
)n as this written
! Public Officer of
ver to the parties,
hen, in Court, he
,T.
from the reign of
from his time to
s, or Chief Scribes
d annually y whence
oks. King James
l,p. 18. 17Rym.
i for this purpose,
the reign of Henry
xccuted by many
2.
Society of Upper
ch, Upper Canada,
SB. ABBUTUNOT S CELBBBATEO BUBLESQUE Or AN OLD BBFOBT.
STRADLING versus STILES.
Le report del case argue en le commen banke devant touts les justices de
le mesme banke, en le quart An. du raygne de roy Jacques^ entre
Matthew Stradlingy plant. & Peter Stiles, def. en un action propter certoa
equos coloratos, Anglice^ p^eD (ovsrs, post per le dit Motthew vers le
dit Peter.
Le recitel Sir John Swale, of Swale- Hall, in Swale-Dale, fast by .he
del Case. River Swale, Kt., made his last Will and Testament: in which,
among other Bequests was this, viz. Out of the kind love and
respect that I bear unto my much honoured and good friend Mr. Matthew
Stradling, gent. I do bequeath unto the said Matthew Stradling, all my
black and tchite horses. The Testator had six black horses, six white
horses, and six pyed horses.
The Debate therefore was. Whether or no the said Matthew
Le point. Stradling should have the said pyed horses by virtue of the said
Bequest.
Pour le pi. Atkins apprentice pour le pi. moy semble que le pi. recovera.
And firbt of all it seemeth expedient to consider what is the nature of
hordes, and also what is the nature of colours ; and so the argument will
consequently divide itself into a twofold way, that is to say, the formal part,
and substantial part. Horses are the substantial part, or thing bequeathed:
black and white the formal or descriptive part.
Horse, in a physical sense, doth import a certain quadrupede, or four-
footed animal, which, by the apt and regular disposition of certain proper and
convenient parts, is adapted, fitted and constituted for the use and need of
man. Yea so necessary and conducive was this animal conceived to be to
the commonweal, that sundry and divers acts of parliament have from time
to time been made in favour of horses.
1st Edw. VL Makes the transporting of horses out of the kingdom no
less a penalty than the forfeiture of £40.
2nd and 3rd Edward VL Takes from horsestealers the benefit of their
clergy.
And the Statutes of the 27th and Zlnd of Henry VIII. condescend so
far as to take care of their very breed: These our wise ancestors prudently
foreseeing, that they could not better take care of their own posterity, than
by also taking care of that of their horses.
And rf so great esteem are horses in the eye of the common law, that
when a Knight of the Bath committeth any great or enormous crime, his
punishment is, to have his spurs chopt off with a cleaver, being, as master
Bructon well observeth, unworthy to ride on a horse.
Littleton, Sect. 31'>, saith, If tenants in common make a lease reserving
for rent a horse, they shaU have but one assize, because, saith the book, the
i
tl
■''.;», I
52
APPENDIX.
law will not suffer a horse to he severed. Another argument of what high
estimation the law maketh of an horse.
But as the great difterence seemeth not to be so nmch touching the sub-
stantial part, horses, let us proceed to the formal or descriptive part, viz.
what horses they are that come within this Bequest.
Colours are commonly of various kinds and different sorts; of which
white and black are the two extremes, and consequently comprehend within
them all other colours whatsoever.
By a bequest therefore of black and white horses, grey or pjed horses may
well pass; for when two extremes, or remotest ends of any thing are
devised, the law, by common intendment, will intend whatsoever is
contained between them to be devised too.
But the present case is still stronger, coming not only within the intend-
ment, but also the very letter of the words.
By the word black, all the horses that are black are devised: by the word
white are devised those that are white; and by the same woi J, with the
conjunction copulative, and, between them, the horses that are black and
white, that is to say, pyed, are devised also.
Whatever is black and white is pyed, and whatever is pyed is black and
white; ergo, black and white is pyed, and vice versa, pyed is black and white.
If therefore black and white horses are devised, pyed horses shall pass
by such devise; but black and white horses are devised; ergo, the pi. shall
have the pyed horses.
Pour le Catlyne Serjeant : moy semblc aV contrary, the plaintiff shall
Defend, not have the pyed horses by intendment ; for if by the devise of
black and white horses, not only black and white horses, but
horses of any colour between these two extremes may pass, then not only
pyed and grey horses, but also red and bay horses would pass likewise, which
would be absurd and against reason. And this is another strong argument
in law. Nihil, quod est contra rationem est licitum ; for reason is the life of
the law, nay the common law is nothing but reason ; which is to be under-
stood of artificial perfection and reason, gotten by long study, and not of
marCs natural reason, for nemo nascitur artifex, and legal reason est summa
ratio ; and therefore if all the reason that is dispersed into so many diffe-
rent heads, were united into one, he could not make such a law as the law
of England; because by many successions of ages it has been fixed and
refixed by grave and learned men ; so that the old rule may be verified in
it, Neminera opo.tet esse legibus sapientiorem.
As therefore pyed horses do not come within the intendment of the
bequest, so neither do they within the letter of the words.
A pyed horse is not a white horse; neither is a pyed a black horse; how
then can pyed horses come under the words of black and white horses?
Besides, where custom hath adapted a certain determinate name to any
one thing, in all devises, feofments and grants, that certain name shall be
made u.*e of, and no uncertain circumlocutory descriptions shall be allowed;
for certainty is the father of right, and the mother of justice.
Le rcste
place.
Le court
deliberation
Judgment
Motion in
thereupon an
Et sur cec
Jrom Report
Bench,
An inquisi
in favour of tl
Geo. IIL, for
their estates i
been permitt(
Epaphrus Loi
stated, that it
ship of Grims
in the fifty-eij
Commissioner
Nelles and otl
sion named, 01
sion specified,
and also on tli
seized of cert
lease for 999
and of other
described), be
the premises i
taken and cau
&c. That on
of the Provinc
year, &c., enti
* Where an i
Statute 54th Ge
lands vested in t
to the defendant
woman) and thr
e2
ent of what high
touching the sub-
criptive part, viz.
t sorts; of which
omprehend within
r pyed horses may
of any thing are
id whatsoever is
within the intend-
tised: by the word
ne woi J, with the
hat are black and
pyed is black and
is black and white.
L horses shall pass
ergo, the pi. shall
the plaintiff shall
if by the devise of
white horses, but
ass, then not only
ass likewise, which
r strong argument
eason is the life of
ch is to be under-
study, and not of
reason est snmma
ito so many diffe-
a law as the law
as been fixed and
nay be verified in
itendment of the
black horse; how
white horses?
nate name to any
tain name shall be
■ shall be allowed;
ticc.
APPENDIX.
53
Le rcste del argument jeo ne pouvois oyer, car jeo fui disturb en mon
place.
Lc court fuit longement en doubt* de c*est matter; et apres grand
deliberation eu,
Judgment fuit donne pour le pi. nisi causa.
Motion in arrest of judgment, that the pyed horses were mares; and
thereupon an inspection was prayed.
£t sur ceo lc court advisare vult.
from Reports of Cases argued and determined in the Court of King's
Bench, in York, Upper Canada. By T. Taylor, Esq., Barrister.
THE KING against PHELPS.*
November 12, 1823.
An inquisition in this case had been found against Epaphrus L. Phelps,
in favour of the Crown, under the provisions of the Provincial Statute, 54th
Geo. III., for declaring certain persons therein described aliens, and vesting
their estates in his Majesty. By a subsequent Statute, Esther Phelps had
been permitted to traverse the inquisition found against her husband,
Epaphrus Lord Phelps. The record, which was of Trinity Term, 1821,
stated, that it had been found by an inquisition indented, &c. at the Town-
ship of Grimsby, in the District of Niagara, on the 28 th day of January,
in the fifty-eighth year, &c., before Abraham Nelles, Esquire, one of the
Commissioners of the late King, &c., to enquire, &e., by the oath of William
Nelles and others, (the Jury), that Epaphrus Lord Phelps, in the commis-
sion named, on t^e day of committing the high treason in the said commis-
sion specified, to wit, on the first day of June, in the fifty-third year, &c.,
and also on the day of the outlawry of the said Epaphrus L. Phelps, was
seized of certain parcels or tracts of land, to wit, the unexpired term of a
lease for 999 years, made to him by Captain Brant, of 1000 acres of land,
and of other land on the Grand River, (in the record and inquisition
described), being part of the Indian lands, &c., and that the Commissioners,
the premises aforesaid, into the hands of the said late Lord the King, had
taken and caused to be seized, &c., as by the commission was commanded,
&c. That on Satiirday, the last day of Trinity Term, by force of an Act
of the Provincial Parliament of this Province, made and passed in the second
year, &c., entitled, an Act to afford relief to one Samuel Hull and the said
* Where an inquisition had been found against the defendant, under the Provincial
Statute 54th Geo. III., the Court refused to set the same aside, on the ground that the
lands vested in the Crown by that inquisition had been granted by the Mohawk Indiana
to the defendant for a term of 999 years, in trust for the support of his wife (a Mohawk
woman) and three children.
£2
"f
J'
I
i>4
APPENDIX.
Esther Phelps, comes the said Esther Phelps, in said Act named, wife of
the said Epaphrus L. Phelps, in said commission named, by her Attorney,
and prays Oyer, &c., which being read, &c., she complains that she, by
colour of the premises, is grievously vexed and disquieted, and protesting
that the commission and inquisition are not sufficient in law, and to which
she has no necessity nor is bound by the law of the land to answer, for plea
saith, that on the 25th day of October, in the year 1724, the Grand River,
in the said District of Gore, in the said Province of Upper Canada, consti-
tuted and formed part of the Province of Quebec, that the Mohawk Indians,
and others of the Six Nations of North American Indians, being on the
same day, &c., and long before, the faithful and attached allies of his late
Gracious Majesty king George the Third, and especially in the war then
lately before that time carried on between his said late Majesty and the
United States of America, by the event and pressure of which war the said
Indians were obliged to withdraw irom their settlements and possessions
within the said States, and his said late Gracious Majesty, in consideration
of that fidelity and attachment so early manifested to his interest, by the
said Mohawk Indians, and of the loss of their settlements and possessions
which they thereby sustained, was pleased to direct that a convenient tract
of land, under his protection, should be chosen as a safe and comfortable
retreat for them, the said Mohawks, &c., who had either lost their settle-
ments within the territory of the said American States, or who wished to
retire from those States to the British; and Sir Frederick Haldimand, the
said late Majesty's Captain General and Governor in Chief of the Province
of Quebec and the territories depending thereon, &c., having, in obedience
to such his late Majesty's directions, and at the desire of many of the said
Indians, &c., purchased a tract of land from the Indians, that is to say, the
aboriginal Indians, occupying the same, situate between the Lakes Ontario,
Erie and Huron, did afterwards, to wit, on the same day, &c., and while
the said Province of Upper Canada formed part of the Province of Quebec,
at the Castle of St. Louis, at Quebec, &c., by instrument under his hand
and seal at arms, as Captain General, &c., and in his said late Majesty's
name, authorize and permit the said Mohawk nation, &c., to take posses-
sion of and settle upon the banks of the river commonly called the Ouse,
or Grand River, running into I .ake Erie, that is to say, the said Grand
River, &c., allotting to them, for that purpose, six miles deep from each of
the said rivers, beginning at Lake Erie and extending in that proportion to
the head of the said river. To them and their posterity for ever; by which
said authority, permission and allotment, the said Mohawk nation, &c.,
afterwards, on the same day, &c., did enter upon and tako possession of the
aforesaid allotment ; and being so possessed, &c., they, the said Six Nation
Indians, afterwards, to wit, on the first day of May, in the year 1804, at
Grand River, &c., by indenture bearing date the same day and year, &c.,
and made between them, the said Six Nation Indians, residing, &c., by
Captain Joseph Brant, principal Chief and Agent for them, the said Six
Nation Indians, duly authorized, Didf in consideration of the rents,
covenants anc
demise, lease
heirs, execut
(land mentioi
999 years, fo
and three chili
is to say, in tn
woman and th
Six Nations.
the indenture
the woman mc
the indenture
traverser, on t
the day of the
time of taking
indenture, posi
land in said m
things, &c. T
hands of our ai
to her posse8si(
time perceived,
Crown, demur
to amove the h
tenements afore
in the hands an
Boulton, Sol
in this case is
woman, and th
the manner stat
but it shews no
ser's own shew;
to hold lands tli
are bound by tl
Even if the ti
man cannot hoL
Should the i
vested by the fi
without the tra^
Baldwin, cor
neither can imp
those deeds, (if
The foundati
treaty, and as e
Justice will recc
The Indians i
they were trans
AWENDIX.
55
ct named, wife of
by her Attorney,
tins that she, by
id, and protesting
aw, and to which
answer, for plea
, the Grand River,
;r Canada, consti-
Mohawk Indians,
ans, being on the
1 allies of his late
ly in the war then
Majesty and the
vhich war the said
s and possessions
y, in consideration
is interest, by the
ts and possessions
a convenient tract
fe and comfortable
sr lost their settle-
or who wished to
tk Haldimand, the
ef of the Province
ing, in obedience
many of the said
lat is to say, the
le Lakes Ontario,
y, &c., and while
evince of Quebec,
nt under his hand
lid late Majesty's
, to take posses •
called the Ouse,
the said Grand
deep from each of
lat proportion to
)r ever; by which
lawk nation, &c.,
possession of the
,e said Six Nation
he year 1804, at
ay and year, &c.,
residing, &c., by
lem, the said Six
m of the rents,
covenants and agreements in the said indenture mentioned, &c., grant,
demise, lease, and to farm let unto the said Epaphrus Lord Phelps, his
heirs, executors, administrators and assigns. All that certain tract, &c.,
(land mentioned in the inquisition). To hold the same for the term of
999 years, for providing for one of the women of the said Mohawk nation^
and three children, horn of her the said woman, by the said Epaphrus, that
is to say, in trust, for the purpose of providing for and maintaining the said
woman and the said three children, according to the custom of the said
Six Nations. Averments, that the lease mentioned in the inquisition and
the indenture last set forth are one and the same; and that traverser is
the woman mentioned in the indenture, and that the land mentioned in
the indenture is the same with that mentioned in the inquisition; that the
traverser, on the first day of June, in the fifty-third year, &c., and also, on
the day of the outlawry of the said Epaphrus Lord Phelps, and also at the
time of taking the said inquisition, was and still is, by virtue of said
indenture, possessed of the issues and profits of the parcels and tracts of
land in said inquisition mentioned, to wit, &c., and all and singular which
things, &c. The traverse concludes with a prayer for judgment, that the
hands of our said Lord the King be thence amoved, and that the traverser
to her possession, together with the issues and profits therein in the mean
time perceived, be restored. The Solicitor General, on the part of the
Crown, demurred to the traverse generally, as not being sufficient in law
to amove the hands of the said Lord the King from the possession of the
tenements aforesaid, and prayed judgment, and that the tenements, &c.,
in the hands and possession of the said Lord the King may remain, &c.
Boulton, Solicitor General, in support of the demurrer. — The traverse
in this case is insufficient. It sets out that the traverser is an Indian
woman, and that there is a custom among the Indians to bestow lands in
the manner stated, and that Brant made auch a conveyance for her benefit,
but it shews no good t?tle in him or the Indians to do so. By the traver-
ser's own shewing, she is a foreigner, and consequently no more entitled
to hold lands than a Frenchman, or any other foreigner; for the Indians
are bound by the Common Law.
Even if the title were good, it only conveyed a chattel interest, which a
man cannot hold in trust fm his wife.
Should the inquisition have been ill found, yet the lands being once
vested by the finding in the Crown, they cannot afterwards be divested,
without the traverser shews a better title, as appears in Dyer.
Baldwin, contra. — Where both parties claim under the same deed,
neither can impugn it for defects, and therefore defects in titles, under
those deeds, (if such there be), cannot be set up by the Crown.
The foundation of the title from General Haldimand is evidently a
treaty, and as such must be recognized by the Court, for all Courts of
Justice will recognize treaties, as is constantly seen in cases of seizure, &c.
The Indians must be considered as a distinct, though feudatory people;
they were transported here by compact ; they are not subject to mere
m
I
iS
■•: J
'/-■«■■
m
m
56
APPENDIX.
positive laws, to statute labour, or militia duty, though perhaps to punish'
merit for crimes against tlie natural law, or law of nations.
It may be considered as a ridiculous anomaly, but it appears from
Vattel that these sort of societies, resident within and circumscribed by
another territory, though in some measure independent of it, frequently
exist, anl that the degree of independence may he infinitely varied ; and
however barbarous these Indians may be considered, the treaty under
which they migrated to and reciide in this country, is binding.
Phelps had not such an estate as he could forfeit ; it is a trust limited
to him for providing for tie traverser, Esther Phelps and her children,
plainl)' expressed in the woris of the deed, and as laid down in Shepherd's
Touchstoae, not forfeitable for his treason, though it perhaps might be by
that of the cestui que trust. Should the Court consider this instrument
as a trust deed, founded upon puificieut consideration, namely, that
expressed in it, of supporting ivirs. Phelps, then ihey will docide in favour
of the traverser ; and, on the other hand, if insufficient, the inquisition
will be (^uashed as nugatory, Phelps having nothing to forfeit, as the trust
resulted fur the benefit of the grantors.
Boulton, Solicitor General, contra. — If the title placed in the Crown
by this inquisition is at ail consistent, it cannot be disturbed, though
special circumstances might induce the down to regrant the land. The
supposition that the Indians are not subject to the laws of the country, is
absurd ; they are as much so as the French Loyalists who settled here
after the French Revolution, who came to this Province from a country
perfectly independent and of which the independence was never doubted ;
and supposing them not to be so, confesses the grant from General Haldi<
mand to be (as it was in fact) not warranted by law. As to the pretended
consideration of the deed, it is perfectly nugatory; it purports to be made
for the support of Phelp's wife and children, whom he was bound to sup-
port himself, nor could an husband be a trustee of a chattel interest to the
use of his wife; and even supposing her to be a bona fide cestui que use,
she could not dispute the legal estate of the Crown once vested.
Per curiam. (Absente Powell, Chief Justice).
Judgment in favour of the Crown. — Tayloi's Reports, 15.
Romney, Bos
Moore, Zone, E
Dover, Howard,
Rochester, Mai
Maiden.
Population, 5
Sessions, Jauuai
Colborne, M(
Hibbert, Goder
Williams, Blancl
Capital, Goi
April 4, July 4,
Adehiide, Lol
ter, Dorchester,
Dunwich,
Population, (i
holding Quarter
Woodhouse, W
ham, Townsend.
Population, 9,(
January 10, Apri
Nissouri, Oxf«
Norwich, Oaklant
Population, 15
Sessions, January
APPENDIX.
57
>erhRps to punish*
ns.
t it appears iVom
circumscribed by
, of it, frequently
litely varied ; and
the treaty under
nding.
is a trust limited
I and her children,
own in Shepherd's
rhaps might be by
er this instrument
ion, namely, that
II docide in favour
rit, the inquisition
forfeit, as the trust
aced in the Crown
disturbed, though
mt the land. The
i of the country, is
a who settled here
ice from a country
ras never doubted ;
om General Haldi-
L3 to the pretended
iirports to be made
was bound to sup-
ittel interest to the
ide cestui que use,
e vested.
ts, 15.
III.
UPPER CANADA.
WESTERN DISTRICT.
Romney, Bosanquet, Warwick, Plympton, Sarnia, Brooke, Enniskillen,
Moore, Zone, Dawn, Sombra, Orford, Camdeii, Chatham, East and Wcbt
Dover, Howard, Harwich, Raleigh, Tilbury Eafit, Tilbury West, Anderdon,
Rochester, Maidstone, Sandwich, Mersea, Gosfield, Colchester, Huron,
Maiden.
Population, 23,026 ; Capital, Sandwich place of holding Quarter
Sessions, January 10, April 11, July 1 1, October 10.
HURON district.
Colborne, McKillop, Logan, Ellice, East Thorpe, Downie, Fullarton,
Ilibbert, Goderich, Hay, Usborne, Biddulph, Stephen, McGillivray,
Williams, Blanchard, Hullett, Stanley, Tuckersniith.
Capital, Goderich place of holding Quarter Sessions, January 3,
April 4, July 4, C^itober 3.
LONDON district.
Adehiide, Lobo, London, Mesa, Ekfrid, Caradcc, Delaware, Westmins-
ter, Dorchester, Aldborough, Yarmouth, Malahide, Bayham, Southwold,
Dunwich.
Population, (including Huron), 32,257; Capital London place of
holding Quarter Sessions, January 10, April 11, July 11, October 10.
TALBOT district.
Woodhouse, Windham, Middleton, Charlottcville, Houghton, Walsing-
ham, Townsend.
Population, 9,637; Capital, Simcoe placa of holding Quarter Sessions,
January 10, April 11, July 11, October 10.
BPOCK DISTRICT.
Nissouri, Oxford, Burford, Blandford, Blenheim, Dereham, Zorra,
Norwich, Oakland.
Population, 15,621; Capital, Woodstock place of holding Quarter
Sessions, January 24, xVpril 25, July 11, October 10.
''■ 1:
f ;.
58
i;^ts
APPENDIX.
WELLINGTON DISTRICT.
Waterloo, Wilirot, Guelph, Erratnosa, Etin, Garrafraxa, Nichol, Wool*
wicli, Proton, Meluncthon, Luther, Amaranth.
Population, 13,851 ; Capital, Guelph, place of holding Quarter
Sessions.
GORE DISTRICT.
Brantford, Binbrook, Barton, Saltfleet, Ancaster, Glanford, Durofries,
Beverly, Trafalgar, Esquesing, Nelson, Nassagaweya, Pusliach, Flam-
borough East and West.
Population, 42,577; Capital, Hamilton place of holding Quarter
Sessions, Juuuary 10, April 11, July 11, October 11.
NIAGARA district.
Canborough, Shcrbrooke, Cayuga, Moulton, Dunn, Haldimand, Rain-
ham, Walpule, Caistor, Gainsburough, Wainfleet, Ilumberstone, Bertie,
Willoughby, Crowland, Stamford, Niagara, Thorold, Grantham, Loutb^
Pelham, Clinton, Grimsby.
Population, 34,.'>77; Capital, Niagara place of holding Quarter Ses-
sions, January 10, April II, July 11, October 10.
HOME district.
St. Vincent, Tay^ Mulmur, Uphrasia, Medunte^ Mono, Artemisia, Oro,
Sunnidule, Collingwood, North and South Orillia, Tosorontio, Osprey,
Adjala, Match edash, Nottawasaga, Tecumseh, Gwillimhunj West, Flos,
Essa, Iimisjil, Vespra, Tiny, Zero, Whitchurch> Brock, Gwillimbury North,
Gwillinibury East, King, Albion, Brock, Reach, Toronto Gore, Whitby,
Pickering, Markham, Toronto, Uxbridge, Scarborough, Chinguacousy,
Scott, York, Etobicoke, Caledon, Georgina, Vaughan, Rama, Mara, Thora.
Note. — The Townships in italics have hy Proclamation, 11th January, 1843, been
declared to form the District of Simcoe. — See post.
Population, 64,401 ; Capital, Toronto place of holding Quarter
Sessions, January 3, April 4, July 4, October 3.
DALUOUSIG district.
Nepean,Goulburn, March, Torbolton, Fitzroy, Gloucester, Marlborough,
North Gower, Osgoode, Huntley.
Population, (including Bathurst), 27,635; Capital, Bttown place of
holding Quarter Sessions, January 10, April U, July 18, October 17.
Cumberlan
Longucuil, Si
Population,
Sessions, Jam
Crosby No
Yonge, Leedfl
South, Wolfor
Population,
Sessions, Febr
Finch, Loci
Osnabruck, Ro
Population,
Sessions, Janu?
Richmond, A
Fredericksburgl
Hinchinbrooke,
Osa, Pittsburg!
Population,
Sessions, Janua
Pembroke, I
housic, Sljcrbr
Beckwith, Pake
Population ii
Quarter Sessioi
Belmont, Ma
Harvey, Bexley
of Monaghan, A
fraxa, Nichol, Wool-
of holding Quarter
Glanford, Dumfrieti,
>ya, PuBliDch, Flam-
of holding Quarter
1.
n, Haldimand, Rain-
Uumberstone, Bertie,
d, Grantham} Louth,
holding Quarter Ses-
ror«o, Artemisia, Oro,
Tosorontio, Osprey,
pimburi/ West, Flos,
1, Gwillimbury North,
jronto GofL, Whitby,
)ugh, Chinguacousy,
Rama, Mara, Thora.
|lth January, 1843, been
of holding Quarter
zester, Marlborough,
|kl, Bytown place of
18, October 17.
APPENDIX.
OTTAWA. DiaTRICT.
59
Cumberland, Russell, Cambridge, Clarence, Plantagcnet, Caledonia,
Longueuil, Seigniory of, Ilawkesbury, Alfred.
Population, 9,324; Capital, L' Original place of holding Quarter
Sessions, January 17, April 18, July 20, September 19.
JOHNSTOWN DI9TBICT.
Crosby North, Bastard, Lansdowne, Burgess, Kitlcy, Crosby South,
Yonge, Leeds, Oxford, Elizabeth Town, Montague, Augusta, Gower
South, Wolford, Edwardsburgh.
Population, 35,952; Capital, Brockvillk place of holding Quarter
Sessions, February 21, May 10, August 8, November 14.
EASTERN DISTRICT.
Finch, Lochiel, Mountain, W^lnchester, WMlliamsburgh, Lancaster,
Osnabruck, Roxbon ugh, Cornwall, Matilda, Kenyon, Cbarlottenburgh.
Population, 30,279; Capital, Cornwall place of holding Quarter
Sessions, January 24, April 25, July 1 1, October 1 0.
midland DISTRICT.
Richmond, Adolphustown, Ernesttown, Anglesea, Camden East, Barric,
Fredericksburgh, Sheffield, Kennebec, Kaladar, Portland, Clarendon,
Hinchinbrooke, Loughborough, Olden, Bedford, Kingston, Palmcrston,
Osa, Pittsburgh.
Population, 32,208; Capital, Kingston place of holding Quarter
Sessions, January 24, April 25, July 11, October 10.
DATHURST DISTRICT.
Pembroke, Levant, McNab, Darling, Lanark, Ramsay, Horton, Dal-
housic, Sherbrooke Soutli, Shcrbrooke North, Bailiurst, Drummond,
Beckwith, Pakeiiham, Kenniore, Ross, Westmcath.
Population included with Dalhousie; Capital, Perth place of holding
Quarter Sessions, March 21, June 13, September 19, December 19.
COLBORNE DISTRICT.
Belmont, Mariposa, Methuen, Ennismore, Smith, Eldon, Ops, Burleigh,
Harvey, Bexley, Dummer, Verulani, Somerville, Seven Rear Concessions
of Monaghan, Asphodel, Emily, Fenelon, Douro, Otonabee.
r^f:;iiil
eo
APPENDIX.
MBWCASTLK DI8TBICT.
Cartwright, Darlington, Clark, Manvers, Cavan, Hope, Hamilton,
Cramahe, Seymour, Monaghan, Ualdimand, Percy, Murray. \
Population, (including Colborne), 88,396; Capital, Amiibrst place
of holding Quarter Scasions, January 10, April 1 1, July 1 1, October 10.
PRINCE BDWABD DISTRICT.
Ameliaaburgh, Sophiasburgh, Marysburgh, Hillier, Hallowell, Athol.
Population, 14,661; Capital, Picton place of holding Quarter Ses'
•ions, January 3, April 4, July 4, October 3.
VICTORIA DISTRICT.
Lake, Thurlo^v, Madoc, Grimsthorpe, Marmora, Huntingdon, Elzevir,
Rawdon, Uungerford, Sidney, Tudor, Tyendinaga.
Population, 13,111 ; Capital, Bbllbvillb place of holding Quarter
Sessions, January 10, April 11, July 11, October 10.
SIMCOB DISTRICT.
West Gwillimbury, Tecumseh, Adjala, Mono, Mulmur, Tosorontio,
Essa, Innisfil, Nottawasaga, Sunnidale, Vespra, Oro, Orillia, (North and
South Division), Medonte, Flos, Tiny, Tay, and Matchedash, together
with the Islands in Lakes Huron and Simcoe, lying wholly or in greater
part opposite thereto.
LOWER CANADA.
Under the Act of the British Parliament, Olst Geo. HL, c. 1, Sir
A. Clarke, the Lieutenant Governor, by Proclamation, dated 7th May,
1792, divided the Provinces into Counties, Cities and Towns. By 84ih
Geo. III., c. 6, for amending the judicature, the Province is divided into
the three Districts of Quebec, Montreal, and Thbe." iliVERS. In
1 827, the extension of the old settlements, and the formation of new ones in
remote parts of the Province, rendered a new subdivision of the Province
necessary. This was effected by the 9th Geo. IV., c. 73.
The folio
Province of
Townships,
N.B.— The •
CONTAINS
Counties,
Acadic ...
Beauhamois
Berthicr....
Chanibly . .
Lachenayc.
La Prairie ..
L'Assomptic
Missisqui ..
Montreal . .
Ottawa
S
AC A
Setgni
De Lery
La Colle
Tuwni
Sherrington
M
Aux Noix
Aux Tet6
BEAUH-^
Seigni
Beauharnois
APPENDIX.
61
, Hope, Hamilton,
[urray.
tal, Amiibrst place
uly 11, October 10.
The tbllowing, nt tliitt time, were the Divisions and Subdivisions of tho
Province of Lower Canada into Districts, Counties, Seigitories, Fiefs,
Townships, &c. : —
N.B. — The Townships marked with an asterink arc uioluded in and oompoie th«
Inferior Diatrict of St. Francis.
MONTREAL DISTRICT
Hallowell, Athol.
lolding Quarter See-
O0NTAIN8 19 COUNTIES, 70 8KIUMORIE8, G FIEFS, AND 59 TOVrWSHlPS.
luntingdon, Elzevir,
of holding Quarter
).
\Iulmur, Tosorontio,
Orillia, (North and
atchedash, together
wholly or in greater
Counties, 19.
In each County,
o
•c
o
a
to
Acadie
Dcauharnois
Berthicr
Chanibly
Lachenayc
La Prairie
L'Assoinption
Missisqui
Montreal
Ottawa
2
1
8
5
2
4
1
I
1
1
a,
o
1
3
2
2
3
8
Counties.
In each County.
••••••••••••
Richelieu .....
Rouvillc .....
St. Ilyacinthe
Shefford
Stanstcnd
Terrebonne ...
Two Mountains
Vaudrcuii
Verchcres
Projected Townships
t
•c
o
1
en
8
7
3
<2
.a
4
3
4
8
I
8
6
3
G
1
• • •
14
Geo. HI., c. 1, Sir
>n, dated 7th May,
d Towns. By 34lh
vince is divided into
HREr illVERS. In
ationofnewonesin
sion of the Province
.73,
Seigniories,
ACADIE.
Seigniories,
De Lery
La Colle
Tuiviiships.
Sherrington
Isles.
Aux Noix
Aux Tet6
BEAUHARrO'c
Seignioi tes.
Beauharnois
Fiefs, Townships, S^r, in each County.
D'Aillebout
D' Autraye and Augmen-
tation
De Ramzay
Isle Dupas
Lanaudi^re, part of
Lanauraie and Augmen-
tation
Lavaltrie
Townsldps.
Godmanchester
llcmtningford
Uinchinbrooke
Indian lands.
Islands.
Grande Isle
Isles de la Paix, part of
BERTHIER.
Seigniories.
Berthier and Augmenta-
tion
* Fiefs.
Antaya
Chicot
DuSabl^orYork
s
''!',
i!i'.'
62
Petit Bruno
Handin
Townships.
Brandon
Kildare
Isles.
Randin
St. Ignace
CHAMBLY.
Seigniories.
Boucherville
Chambly, West
Longueuil, Barony
Montarville
Fiefj.
Trerablay
Isles.
Isles Communes
Percees
LACHENAYE.
Seigniories.
Lachenaye
L'Assomption
Tow7iships.
Kilkenny
Wexford
Isles.
BoCirdor
LA PRAIRIE.
Seigniories.
Chateauguay
La Prairie
La Sr'le
Sault St. Louis
Isles.
A la Paix, (jart of
Aux Ilurons
St. Bernard
APPENDIX.
L'ASSOMPTION.
Seigniories.
St. Sulpice
ToivtisJtips.
Chertsey
Rawdon
Isles.
Borchard, Lower Isle
MISSISQUL
Seigniories.
St. Armand
Townships.
Durham
Stanbridge
Sutton
MONTREAL.
County^ Island, end
Seigniory.
Nun's Island
St. Helen
St. Therese
OTTAWA.
Seigniories.
La Petite Nation
Townships.
Bristol
Buckingham
Clarendon
Deny
Ef.rdley
Hull
Lichfield
Lochaber and Augmen^
tation
Onslow
Portland
Templeton
Wakefield
RICHELIEU.
Seigniories.
Bonsecours
Bourehemin
Bourgmarie
St. Charles
St. Denis
St. Ours and Augmen-
tation
Sorel
Isles.
De Grace
St. Ignace
Ronde
ROUVILLE
Seigniories.
Bleury
Chambly, East
Foucault
Monnoir and Augmen-
tation
Noyan
Rouville
Sabrevois
ST. HYACINTHE.
Seigniories.
Bourehemin
De Ilamzay
St. llyacidthe
SIIEFFORD.
Townships.
Brome
Ely
Farnham and Augnio!,
tation
Grauby
Milton
Iloxton
Shefford
Stukely
STANSTl
Townshl
♦Barford
♦Barnsion
♦Bolton, part
♦Hatley
Potton
*Stanst«.-d
TERREB(
Seignior
Blainvllle and
tation to
Cheae, S.
Desplaines ac
mentation
Isle Jesus
Terrebonne ai
mentation
Toivnshij
Abercromby
Chatham Gore
Howard
CONTAINS 13 <
Counties.
Beauce
Bellechasse ..
Dorches* er . .
Kamouraska ..
L'Islet
Lotbiniere
Megantic
RICHELIEU.
Seigniories.
isecours
irchemin
irgmarie
Charles
Denis
Ours and Augmen-
ation
el
Isles.
Grace
Ignace
ide
ROUVILLE
Seigniories.
iiry
ambly, East
acault
nnoir and Augmcn-
ation
f^an
iville
revois
T. HYACINTHE.
Seigniories.
irchemin
lamzay
Ilyacinthe
SIIEFFORD.
ToionshijKs.
ine
iham and AuKnut,-
STANSTEAD.
Townships.
♦Barford
*Barnsion
♦Bolton, part of
♦Hatley
Potton
*StanstL:.d
TERREBONNE.
Seigniories.
Blainvllle and Augmen-
tation to Riviere du
Cheae, S.
Desplaines and Aug
mentation
Isle Jesus
Terrebonne and Aug-
mentation
Toivnships.
Abercromby
Chatham Gore
Howard
APPENDIX.
TWO MOUNTAINS,
Seigniories.
Argenteuil
Lac desdeux Montagnes
Riviere du Chene
Townships.
Arundel
Chatham
Grenville
Harrington
Howard
Wentworth
Isles.
Isle Bizard
VAUDREUIL.
Seigniories.
Nouvelle Longueuil
Rigaud
Soulange
Vaudreuil
Townships.
Newton
63
Isles.
Aux Pins
Aux Tourtes
Perrot Isle
St. Genevieve Isle
St. Giles
VERCHERES.
Seigniories.
Bellevue
Beloeil and Augmenta-
tion
Cap St. Michel
Contrecceur
Cournoyer
St. Blain
Varennes
Vercheres
Fiefs.
Guillaudidre
La Trinite
Isles.
Bearigard
Bouchard, Upper Isle
DISTRICT OF QUEBEC
CONTAINS 13 COUNTIES, 79 SEIGNIORIES, 12 FIEFS, AND 38 TOWNSHirS,
Counties.
Beauce
Bellechasse
Dorches'er
Kamoui'aska
L'Islet
Lotbiniere...
Megantic ...
In each County.
CD
CO
a>
Oi
•c
o
J3
c
03
C
60
o
^
{»
1^
H
7
• • •
9
7
2
4
1
• • •
• • a
7
1
3
r
3
1
8
• • •
• « •
• • •
...
16
Counties.
Montmorenci
Orleans
Portneuf
Quebec
Rimouski
Saguenay
In each County.
CO
1
1
13
4
15
6
1^
3
2
CO
a,
••i
2
2
1
■>
.1 /
> fi
t)4
BEAUCE.
ISLET.
LOTBINIERE.
Seigniories.
Seigniories.
Seigniories.
Aubert de I'lsle
Bonsecours
Ronsccours
Aubtrt Gallion
Cap St. Ignace
Dcscliaillons, or Riv. du
JolHet
Ible Verte
Chene and Augmca-
St. Etienno
Lepinay
tation
St. Joseph
Lessard
Desplaines
St. Marie Nouvelle
L'Islet
Gaspe
Beauce
St. Claire
Lotbini^re and AugmcD-
Vaudreuil
St. Jean Port Joli
tation
St. Roch dcs Annais
St. Croix
Townships.
Vincelot and Augmenta-
St. Giles
Cranbourne
tion
Tilly, or St. Antoinc.
Ditchfield
Fiefs.
MEG ANTIC.
Frampton
Fournier
Townships.
Jersey
Gagne
Adstock
Marlow
Reaume
Broughtou
Risborough
Colraine
Spalding
Townships.
Dorset
1 O
Watford
Ashford and Augmenta-
Gayhurat
Woburn
tion
Halifax
Islands.
Invcrnesa
BELLECHASSE.
Isles aux Grues et Oies
Ireland
Seigniuries..
Leeds
Beaumont and Augmen-
KAMOURASKA.
Nelson
tation
Seigniories.
Oulney
Livaudiero
Granville
Shenley
St, Jervais
Granville and Lachenayc
Somerset
St. Michel ) i ?3
St. Valier and [- ^ |
Islet du Portage
Thctford
Kamouraska
Trine
Augmentation 3 ^ g
River Quelle and x\ug-
Wiuslow
Vinccnnes
mentation
St. Anne de la Pocadiert
MONTMORENCI.
Fiefs.
La Martiniere
Terrcbois
Seigiiiorics.
Fiefs.
Cote do Bcaupre
SIcntapeine
St. Denis
ORLEANS COUNTV.
Island and Seigniory
Townships.
Toionships.
Armagh
Bungay
PORTNEUF.
Buckland
Ixworth
Seigniories.
Standon
Woodbridgt
Beluir and Augmcnta
Ware
tion
Isles.
Bourglouis
DORCHESTER.
Hare Island, part of
Cap Santo
Seigniories.
Isle Verte
D'Autcuil
Lauzon
Kamouraska Islands
Deschambault
Desmiure, or|
gustu.")
Faussembault
Grondines
Guillaume Bor
Jacques Cartiel
Neuville, or Pvl
Trembles
Perthuis
Portneuf
Fiefs.
Gaudarville
La Chevroti^re
La Tesserie
QUEBEC
Seigniorie
Beauport
Notre Dame des
St. Gabriel
Sillery
Fiefs.
Hubert
St. Ignace
TH
CONTAINS 6 CO
Counties.
Champlain....
Drummond .».
Nicolct
r2
APPENmX.
65
TBINIERE.
•cigniories,
sura
illons, or Riv. du
le aud Augmcu-
n
ines
Desmiure, or St. Au
Faussembault
Grondines
Guillaume Bonhomme
Jacques Cartier
Neuville, or Pointe aux
Trembles
Perthuis
Portneuf
Flefa.
Gaudarville
La Chevroti^re
La Tesserie
QUEBEC.
Seigniories.
Beauport
Notre Dame des Anges
St. Gabriel
Sillery
Fiefs.
Hubert
St. Ignace
Toionahips.
Stoneham
Tewkesbury
RIMOUSKI.
Seigniories.
Bic
Dartigay
De Peiras, or Mitis
Isle Verte
Lac Matapcidiach
Lac }.lhi3
Le Page and Tivierge
Lessard
Madawaska and Temis-
couata
Matane
Richard Rious
Rimouski
River du Loup
St. Barnabe
Trois Pistoles
Pachot
Fiefs.
Townships.
Matane
St. Denis
Islands.
Bic
Biquette
Green Island
St. Barnabe
SAGUENAY.
Seigniuries.
Eboulemcns
Isle aux Coudres
Mille Vaches
Mount Murray
Murray Bay
Terra Firma de Mingan
Townships.
Settrington
Isles.
Isles et Islets de Mingan
Isle of Anticosti
>,. 'i I
)W
NTMORENCI.
Seigiuorics.
o Beuupre
lANS COUNTY.
id and Seigniory.
lORTNEUF.
Seigniories.
and Augiacnta-
THREE RIVERS DISTRICT
CONTAINS 6 COUNTIES, 35 SEIGNIORIES, 9 FIEF3I, AND 53 TOWNSHIPS.
In each County.
In each County.
OB
03
•
6Q
•
CO
Counties.
v..
1
.'SP
'3
1
Counties.
0^
•1
•s
CO
8
Township
Champlain
Drummond .».
6
1
St. Maurice
5
3
• • t
• t •
19
Sherbrooke
• • •
• • •
26
Nicolct
4
4
2
Yamaska
8
t ••
Ki'- 'I-
r2
66
APPENDIX.
Seigniorien,
CHAMPLAIN.
Seigniories.
Batiscan
Cap de la Magdeleine
Champlain and Aug-
mentation
Ste. Anne and Augmen'
tat. on
Ste. Marie
Toivnships.
Radnor
Ides.
Du Large
St. Marguerite
St. Ignace
DRUMMOND.
Townships.
Acton
Arthabaska
Aston and
tion
Bulstrode
♦Chester
♦Durham
♦Ham
Horton
Grantham
♦Kingsey
Simpson
Stanfold
♦Tingwick
Upton
Warwick
Wendover
Wickham
♦Wolfstown
♦Wotton
NICOLET.
Seigniories.
Fiefs^ Townships, ^c. in each County.
sheiTbrooke.
Townships.
Livrard or St. Pierre les
Becquets
Nicolet and Augmenta-
tion
Augmenta-
Fiefs.
Belair
Cournoyer
Godefroi
Roquetaillade
Townships.
Blandford
Maddington
Isles.
Moran
ST. MAURICE.
Seigniories.
Grandpre
Grosbois or Machiche
Lanaudiere, part of
Maskinonge
Pointe du Lac
Riviere du Loup
Ste. Marguerite
St. Maurice
Fiefs.
Carufel
Dumontier
Gatineau and Augmen
tation
St. Etienne and Lands
of the Forges
*A8COt
♦Auckland
♦Brompton
♦Bury
♦Chesham
♦Clifton
♦Clinton
♦Compton
Croydon
♦Dittan
♦Drayton
♦Duds well
♦Eaton
♦Emberton
♦Garthby
♦Hampden
♦Hereford
♦Lingwick
♦Marston
♦Melbourne
♦Newport
♦Orford
♦Shipton
♦Stoke
♦Stratford
♦Weedon
♦Westbury
Whitton
♦Windsor
YAMASKA.
Seigniories.
Baie St. Antoine or du
Febvre
Becancour
Gentilly
St. Jean and Augmonta- Bourgmarie East
tion
Townships.
Caxton
Hunterstown
New Glasgow
Courval
Deguir
Lussaudiere
Pierrcville
St. Francois.
Yamaska
CONTAINS
the 17th, 18t
I"
APPENDIX.
67
County.
iheiTbrooke.
TownsJiips.
:ot
ckland
>mpton
csham
floD
nton
mpton
j'don
ttan
ayton
dswell
ton
iberton
Tthby
impden-
sreford
(igwick
arston
jlbournc
iwport
ford
ipton
)ke
■atford
edon
stbury
itton
ndsor
YAMASKA.
Seigniuries.
St. Antoine or du
ebvre
rgmarie East
rval
uir
audiere
reville
i'rancois.
aska
GASPE DISTRICT.
CONTAINS 2 COUNTIES, 1 SEIGMOBT, 6 FIEFS, AND 10 TOWNSHIPS.
Coanties.
Bonaventure.
Gaspe
In each County.
Seigniories. Fiefs. Townships.
•• 1 ••• ••• ••• /
•• ... .*« o ... u
BONAVENTURE.
Seigniories
Shoolbrcd
Townships.
Carleton
Cox
Hamilton
Hope
Aiaria
Number 7
Richmond
GASPE'.
Firfs.
A nee k Beauiils
Ance de I'Etang
Bonaventure Isle
Grande Vallee des Monts
Magdeleine
Ste. Anne
Toumships.
Mngdalen Isles
Number 8
Number 9
By the 3rd Geo. IV. c. 17. so much of the Townships of Stanstead,
Barnston, Barford, Hatley, Compton, Oxford, Ascot, Brompton, and of
the 17th. 18th, 19th, 20th, and 2l8t Ranges of Bolton as are comprised
within the limits of the District of Montreal, together with the remaining
parts of the Townships of Barnston, Hatley, Compton, Orford, Ascot and
Brompton in the District of Three Rivers; nd the Townships of Hul-
ford, Drayton, Emberton, Auckland, Clifton, Eaton, Newport, Dittan,
Chesham, Clinton, Marston, Hampden, Stratford, Longwick, Bury, Duds-
well, Westbury, Stoke, Melbourne, Durham, Kingsey, Shipton, Windsor,
Watton, Weedon, Garth, Wolfstown, Tingwick, Chester, and Ham were
formed into the Inferior District of St. Francis. By the 3rd and 4th
Vic. c. 35. of the Imperial Parliament, the Counties of Montmorency and
Orleans were to be united into and form one County, to be called the
County of Montmorency, and the Counties of L' Assomption and La Ches-
naye to form the County of Leinster, and the Counties of L'Acadie and
La Prairie to form the County of Huntingdon, and the Counties of Dor-
chester and Beauce, to form the County of Dorchester. By the 4th Vic.
c. 43, being an ordinance to provide for the easy and expeditious admi-
nistration of Justice in Civil causes and matters of small pecuniary value,
it is directed, that the Province should be divided into such a number of
Districts, as the Governor, with the advice of the Executive Council,
should deem expedient. And by 4th and 5th Vic. c. 20. the Governor
is authorized to divide Lower Canada, except the Province of Gaspe, into
inferior Districts, and the limits of the same to be fixed by Proclamation.
By the 6th Vic. c. 13. intituled "An Act to repeal certain ordinances
" of the Governor and Special Council of the late Province of Lower
"Canada relative to the administration of Justice," the 3rd and 4th Vic.
68
APPENDIX.
c. 45. 4th Vic. c. 19. 4th Vic. c. 15. and 4th "and 5th" Vic. c. 20. "or
" of any other Act, Ordinance or Law, as authorizes the Governor of this
" Province by Proclamation to fix the time from or after which the said
"Ordinances (Acts) or either of them, shall have force and effect, or as
" vests any power in any Court or Officer to be constituted or appointed
" under either of the said ordinances, or directs that any proceeding be
" had, in consequence of the coming into force of the said Ordinances or
" either of them, shall be repealed, and the said Ordinances and all such
"Provisions of Law as aforesaid, are hereby repealed accordingly."
DISTRICT COURT, QUEBEC.
1st march, 1842.
Action for £17 1 1«. 2ri the Ist December, by his Excellency
Sir Richard D. Jackson, for dividing Lower Canada into new Districts, for
judicial purposes, is a nuDiry, because no power was given to his Excellency
by the Statute to issue that Proclamation ; and therefore no Proclamation
has issued. Thxt the CVcvii ; lay be represented and the f : ovcrnnioMi wi
the Provliv' cfirti i o'j :>; vii'V;> of thr< e distin. t pcrsoiH, the Governor,
Lieutenant Goveooor, . t AiniiMiBtrator of the Government, but that when
the Provincial ''arliji' >cut hhi. given a power to only one of them, that one
alone can exercise the j-ower.
Tliat Statutes conferring {;o alterius. TJic 90th clause of the Provincial
Statute, i. c. tlie interpretation clause, was c-led, to show that there it ivas
not mentioned, that the words Governor of the Province should mean
Adir'iiistrator of the Government, and reference was had to the 93rd Sec-
tion, to show that for a certain purpose, mentioned in that Section, the
admin istra or of the Government jwas named, inferring therefrom that it
was n.)t the intention of the Legislature to grant the power of issuing the
Proclamation to a' i y other person than the Governor of the Province, as in
the clause relating to the issuing of tliat Proclamation, no other person was
named.
On 't'>.e other s'de, it was argued that the pretended principle ^^expressio
unius est exclusio alterius,''^ is a sophistry, that is, stated so to be by Mr.
Toull'cr, in his loth vol., p. 448, and cannot be supported by logical
reasoning. That the powers confided to the Administrator of the Govern-
ment result from the same source as those confided to the Governor. —
That they are the same powers, and are derived from one and the same
commission. That the Acts of the Legislature, in order to ascertain its
intention, are to be construed as the will of a testator, and a Statute made
for the public convenience must always have a liberal interpretation, so as
to give it effbc
72 ^ and 722, a
I '■ slaturc, of
au.'1'nistciing tl
hav ) comprised
/-.ptessio eoritn
f^^■ ,)ose th^j Leg
vv ould be to per
Amids* the ;
which obtains i
Legislature in pi
of construction,
interpreting that
Some of the
literally or to th(
Legislature did s
thoy meant to sa
lay it down as a
controlled by thi
by the obvioos ir
3t shall not be t
maker of it.f
With respect
our guidance to (
est exclusio alter
grounds, and mal
is called hasty gr
from the number
warranted i-.i rcje
the present cause
Beforr ( procc
the powert, and a
Province.
I have tal n
Canada, rcainl
perceive, by the
son, dated at K
Government of C
sions in that Pro(
Lord Sydenham,
whereby', I presu
mission of ev?cy(
" resignation, or i
* Dwarris, p. 721
t Espinaswe p. 3
18 Plowd 366. K
APPENDIX,
71
itemplate them
importftuce of
rt ot the defen-
r his Excpllency
!W Districts, for
:> his Excellency
10 Proclamation
r.ovcrnnif^ML t,i
, the Governor,
, but thnt whun
■ them, that one
y, and Espiuasse
;o the dcsignatio
in any particular
se, is tlie express
also cited on the
ays: "Where an
■essly, all others
irsued' ;" and a
2s vs. Smart, 1st
dierc that Judge
omission on the
)f Law, for that
The 6th vol of
if that principle,
f the Provincial
tliat there it ivas
ce shoidd mean
to the 93rd Sec-
lat Section, the
therefrom that it
rer of issuing the
le Province, as in
other person was
itciple ^^expressio
d so to be by Mr.
ported by logical
or of the Govern-
the Governor. —
one and the same
cr to ascertain its
id a Statute made
erpretation, so as
to give it effect; and Dwarris, on Statutes pages fi65, 690, 712, 713,
72 ' and 722, arc cited. That the insertion, in Acts of the Provincial
I ■ ilature, of the tvords Gi veriiur, Limtenaut Governor, or person
ad.i'nistciing tlie Govrrnnient, was unnecessary, (he woid Governor would
hav ) comprised the whole, the otlicr w< u-i were mcio siirplusage.—
Cpressio eorum quce tacite insurd nihil operatur" Dwarris, 665. T'tat to
f ii ,)ose th'j Legislature intended vetatiou to suppose ^ "st
they meant to say; whilst others of them, anw by far tlie greater nun;.t>i.'
lay it down as a rule, that the intention of the Legislature can dp 1 be
controlled by the letter or wording of the statute; but the wordinr; :n« .,
by the obvioos intention, for a thing may be within the leiier of a .?■ ttute.
3t shall not be taken as within it, unless it be within the intention < .■ the
maker of it.f
With respect to ascertaining the "intention," when :t is attempted for
our guidance to deduce a general principle, such as iliat '''■ Exprcssio unius
est exclusio alleriuft,^^ from a limited number of decisions, on particular
grounds, and make that principle applicable to every other case, this is what
is called hasty gcoerali/Jng, wIin h, if trusted, will lead us inio error; and,
from the number o^ contrary decisions to be found in the books, we are
warranted ia rejecting that pretended principle altogether, as applicable to
the present cause.
Befor< [ proceed further, it may not be improper to inqii'Ve, What are
the powert. nnd attributes of an Administrator of the Government of the
Province,
I have tal n an extract from the Commission of an early Governor of
Canada, regaining in the Provincial Secretary's Office at Quebec, and
perceive, by the Proclamation of his ExcelLncy Sir Richard Downcs Jack-
son, dated at Kingston, the 24tli September last, announcing that the
Government of Canada had d-^volvetl upon his Excellency, that the expres-
sions in that Proclamation, taken from the Commission of the late lamented
Lord Sydenham, are the identical expressions contained in this extract,
whereby, I presume, that the same words have been inserteil into the Com-
mission of ev?fy Governor, they are as follows: — "And if, upon your death,
" resignation, or absence out of our said Provinces, there be no person upon
♦ Dwarris, p. 721, 6 B. and C. 475.
t Espinosxe p. 34 2 Roll: 318. 11 mod. IGl Litt. Rep. 212— 3 Co: 59riowd:
18 Plowd 366. 10 Co . 57. 4 T. Rep. 2.
mil
m
72
APPENDIX.
" the place commissioned or appointed by us to be our Lieutenant Rover-
" nor, or appointed by us to administer our Gov»'rnment within our said
" Provinces, our will and pleasure is, that the senior officer, for the time being
*' commanding our forces in Canada, shall take upon him the Administra-
" tion of the Government, and execute mr conwmnion and inslrwtions^ and
" thi several potvers and authorities therein contained, to all intents and pur-
" poses, as other our Governors, Lieutenant Governors, or persons Adnnuis'
" /cring our Government, wntil our fut jre pleasure be known."
It will hr ^jcrceived by this that the power and authorities of the
Governor .id Adinitiistriitnr are identically the same, and that quoad the
admin" .ration of the Government they differ in nothing but in name.
\ lie question to be decided is this : — The Provincial Parliament pass
^11 Act for the public advantage purporting to be for the more easy and
expeditious administration of Justice in Civil causes, and the Governor
of the Province is directed to issue his Proclamation, with the consent of
the Excc\itivc Council, on or before the Ist December, for the purpose
of putting tiie Act into force. The Governor dies in the interim, and
the administrator of th<^ Government, vith the advice of the Executive
Council, issues the Proclamation and puts the law in force. Shall we
ascribe to the Legislature the " intention" of having such a narrow con-
struction put upon the words "Governor of the Province" as will render
nugatory the whole Act? — and it must be remembered thj.t after the 1st
day of December, that Act could not be put into force, for when a Statute
imposes a term and prescribes a thing to be done within a certain time,
"^^en the l;>pse of a day is fatal, it cannot be; done afterwards.*
.' cannot shut my eyes to ninety-four clauses of the Act, for the purpose
of cc-^struing one other clause in a manner \o annihilate the whole — be-
cause "il^e most natural and genuine way of construing a Statute is to
construe one part by another part of the same Statute, for this best ex-
prcsseth the meaning of the makers thereof, such construction is moreover
ex vicerihus uctus,^''^ and because — "The words of a Statute ought to bo
so construed as to give effect to the Statute Verl a ita sunt intelUgenda \d
re 7nagis valeat quam percat,'" I and because — "such construction ought
to be put upon a Statute as may best answer the intention tlie makers of" it
had in view, fo*- qui herd in litera heret in cortice,'"^ and — " a Statute which
concerns the public good ought to be construed liberally," || also — "such
construction ought to be put upon a Statute as does not suffer it to be
eluded,"*[[
To shew that the express designation of one person for a particular
purpose is not the express exclusion of all others for the same purpose,
• Dwarris & 5 Bro : V. C. 448.
t Bacon's a\mdg. P. 645- Ist lust.
X 2d vol: Pwarris, p. 689.
§ Bacon's aliridg. Verbo Statute p. 647. 2d Dwarris, 690. 2. rep. 73.
II Dwarris, 650.
i lb. 652.
we find that "
" Justices to e:
" press words «
an Act speaks c
if the Crown d(
The remedy
always cxtende
ground is plain
II existe (sa^
raigument trivi
which are inter]
considered as ci
Croke Car. pag
the Judges, to I
Whereas a m
was enrolled, ha
a conductor, to
self and run a
within the mean
c. 1). Three c
Statutes mentio
a special named
departs ought tc
a Captain in the
to guide soldiers
conductors are
against three, t
Statutes. -
This is an o
distinction betw
that the laws of
age.
It must be ob
exalted persona
It was the office
law into force,
would be a pres
the terras " Govi
any person whon
and as it has air
* Espinasse p. I
t 2d Dwarris, p
X 2d Dwarris, p
§ 10 vol. p. 448
II " Verba genen
Dwarris, 689.
APPENDIX.
70
wc find (hat " when a Statute makes a new Law and appoints certaui
*' Justices to execute it, although the Justices of the K. B. are not by ex-
** press words authorized to execute it, yet they may execute it,*** and" if
an Act speaks of the King generally and indefinitely it extends to a Queen,
if the Crown descend to a female.f
The remedy given by the 9th Ed. III. c. 3. against executors, has been
always extended by an equitable construction to administrators, and the
ground is plain that it reaches to all others in a like degree.}
II existe (says Mr. Toullier§) peu de raisonnement plus vicieux que
Taigument trivial, qui dicet do uno negat de altera. Even in penal statutes
which are interpreted the most strictly, the mention of one name may be
considered as comprehending another, as in the Soldier's case reported in
Croke Car. page 7 1 . This case was propounded by his Majesty to all
the Judges, to be by them resolved: —
Whereas a man had received press-money, to serve the king in his wars,
was enrolled, had taken pay, and was dclivere;!, amongst other soldiers, to
a conductor, to be brought to the sea side, did, afterwards, withdraw him-
self and run away without licence, — whether this departure be felony,
within the meaning of the Statutes (7th II. VII., r. 1, and 3rd II. VIII.,
c. 1). Three of the Judges conceived that it was not felony, because the
Statutes mention only the departure of soldiers from their Captain, who is
a special named person, and of special note and place, and the soldier who
departs ought to be delivered unto him as his Captain, and he ought to be
a Captain in the wars; and a conductor is such a person only who ii^ hired
to guide soldiers in the way or part of the way to their Captain, and such
conductor?, are new officers, &c. But it was resolved by nine Judges
against three, that a conductor is a Captain within the meaning of the
Statutes.
This is an old authority, and the defendant's counsel would make a
distinction between old and new divisions : I should do so also, were it not
that the laws of reason and good sense are immutable and common to every
age.
It must be observed that it was to the office of Governor, and not to the
exalted personage who filled it, that the power was intended to be given.
It was the officer, and not any particular man, who was directed to put the
law into force. To say that the Provincial Legislature intended otherwise,
would be a presumption that they meant a thing beyond their control, for
the terms "Governor of the Province" are general terms, || and comprehend
any person whom her Majesty may be pleased to appoint to that high office,
and as it has already been shewn that her Majesty has granted the same
* Espinasse p. 12, 11 Co: 64. b.
t 2d Dwarris, p. 669, 12 Uep: 110.
X 2d Dwarria, p. 722.
§ 10 vol. p. 44d.
II " Verba generalia restriuguntur ad habilitatem personee vel ad aptitudincm rei."—
Dwarria, 689.
, r
'' I
i:^i
74
APPENDIX.
idcnticnl powers, and by the same commiHsIon, to the AdininUtrutor of the
Government, the terms Governor of the Province and Administrator of tiic
Government, ought to be considc-ed in law, as they are in fact, synonimous.
Entertaining, as I do, this view of the subject, I shall now proceed to
examine whether there is any thing contained in the authorities cited by
the defendant's counsel, that can militate against it. And first, as to the
authority fVom Espinassc, p. 13, with respect to the "designatio pcrsonac,"
1 find these words in the paragraph which follows tliat a-Uhority: — " Hut
" this rule must be taken to apply generally only, where the Statute gives
" or creates a new right, to or for any person, whicli right was not in us;*,
" or in the enjoyment of any other person before; for if any person befoic
" was authorized to do the same act, by reason of any antecedent right or
" statute, he is not thereby excluded, but they shall have concurrent juris-
" diction or right." Now the words, " to the sanu act," nmst mean any
similar act, and as the act required to be done by the Governor of the
Province was an act similar to what the Administrator of the Government,
in the absence of the Governor, was always authorised to do, n.unely, the
issuing of a proclamation to put the law into force, the Administrator,
according to this authority, is not excluded by the Statute from issuing the
proclamation, more particularly as the Statute contains no negative words
to exclude him ; and in page 11, of Espinasse, from whence the other
authority is quoted, I find these words, " To the rule laid down there is
" this exception, that in cases of public concern, and where there are no
" negative words in the Statute, the Court will allow ex necessito, a latitude
" of construction."
The case of Jones vs. Smart, in 1st vol. T. Rep., to which so mucli
importance was given in the argument, was whether a diploma, conferring
the degree of Doctor of Physic, granted by cither of the Universities in
Scotland, gave a qualification to kill game under the 22 nd and 23rd Car.
2, cap. 25, and it was there decided that it did not; and that, according to
the words of the Act, "a« Esquire, or other person of higher degree, as
" such, is not qualijied under that Act, though th" son of an Esquire, or the
" son of another person of higher degree is qiu lifed." Lord Mansfield,
C. J., and the three Puisne Judges, who heard the cause, admitted tliat
absurd consequences would follow from giving a privilege to the son
which the father had not, — that it was not the intention of the law-maker,
purposely to exclude the father, — that the blunder was committed without
meaning it: and three of the Judges decided that they were bound to take
the Act of Parliament according to the meaning of the words, and that an
omissus casus cannot be supplied by a Court of Law, for that would be to
make laws; but Mr. Willes, the senior Puisne Judge, "a very great com-
mon lawyer," (according to Lord Eldon),* and who was afterwards Chief
Justice, expressed his dissent to that judgment in the strongest tnrms, and
pronounced the construction put by his brother Judges upon the Statute
to be unnatural and unreasonable.
nor, Lieutenant G>
* 7. Price, 509.
Divarris, 701. 4
f.'ill
APPENDIX.
7(>
m
iniHtriitor of the
inistrator of the
ict, Bynonimous.
now proceed to
)ritie8 cited by
1 Hrst, as to the
natio pcrsonap,"
thority: — " lUit
ic Statute gives
was not in use,
ly person befoic
eccdent rigiit or
oncurrcnt juris-
nmst mean any
[lovernor of the
he Government,
do, namely, the
; Administrator,
from issuing the
) negative words
hence the other
1 down there is
ere there are no
^cssito, a latitude
which 80 much
oma, conferring
c Universitiea in
d and 23rd Car.
lat, according to
igher degree, as
Esquire, or the
iord Manstield,
e, admitted that
ege to the son
the law-maker,
mmitted without
:e bound to take
(rds, and that an
:hat would be to
very great com-
.fterwards Chief
ngest torms, and
pon the Statute
If, however, that decision, which had not the sanction of an unnnimoua
Court, and is only a decision upon the Game Laws, could at all be applied
to the present case, it would go to prove that the Provincial Legislature
did what was unreasonable and absurd, or that there is a casus omiaavu iu
the Act, wliich we cannot presume from what has been already stated.
One of the learned counsel has put a case hypothetically, and it seemed
that this was the strongest portion of the argument, namely, whether, if by
a Statute tlie Chief Justice were empowered to perform some new judicial
duty, any of the I'uisnc Judges could, in his absence, perform the same
duty? The answer would be that they could not; but then this supposed
case is one not of legitimate hypothesis, as applicable to the present, because
there is no antecedent circumstance from which you can interpret that the
intention of the law was to give the power to any other than the Chief
Justice, and he alone being mentioned, the others arc excluded,
I shall put tliis case, — suppose tliat an Act of the Provincial Parliament
authorised the raising, within a limited time, of an army, to be quartered
at Quebec, and directed that the Lieutenant General sljould, on or before
a certain day, issue an order for marching off the army from Quebec, to
take up a position elsewhere, and that the Lieutenant General either died
or was absent before the day mentioned had arrived — could the Major
General, or next senior officer, legally issue the order? Most certainly he
could; because the private name of the Lieutenant General not being
mentioned in the Act, the Legislature must have intended by the words
" Lieutenant General," any person having command of the army for the
time being, any otlicr interpretation would swerve from their intention and
i'njstrate the object they had in view in raising the army.
There is another point of view in which this question is perhaps suscep-
tible of being decided.
It is a rule that where Acts are in pari materia, if the same word be
used in both Statutes, a distinction made in the one is a legislative exposi-
tion of the sense in which it is to be understood in the othei*.'*
By the Imperial Statute, the "Act to re-unite the Provinces of Upper
" and Lower Canada, and for the Government of Canada," uU the powers
and authorities expressed in that Act, in relation to tho Government, are
to be exercised by " the Governor of the Province of Canada," subject to
her Majesty's orders and instructions. These words, "Governor of the
Province," are found in many clauses of that Act, and then a distinction ia
made in the interpretat; i clause, that the words " Governor of tho
Province of Canada," are to be understood as comprehending the "Gover-
nor, Lieutenant Governor, or person authorised to execute the office or
the functions of Governor oi tlie said Province." The clause of the
Provincial Statute is in pari materia, because it directs an Act of the
Executive Government to be performed, the issuing of a proclamation;
both Statutes mention the same words, "Governor of the Province," and
one of these Statutes explains to us what these words shall comprehend.
Dwarris, 701. 4 T. R., 419. King, G. T. Smith.
76
APPENDIX.
In proceeding to deliver the opinion of the Court upon the second ground
of objection, I shall not stop to enquire how far the proof adduced in sup-
port of it is regular, or whether any consent or admission of facts given by
suitors here could have the effect upon an appeal to another tribunal, to
justify such tribunal in deciding whether this Court has or has not juris-
diction. This ma- he a question elsewhere, but knowing personally that
the ^.dmission of ft.'its filed contains the truth, I am desirous, so as not to
evade the question, to waive the irregularity and decide the objection upon
its merits.
It was contended, for the defendant, that the Crown has exceeded its
power by appointing one person to the office of Judge of three separate
Districts, that the three offices are incompatible in law, and cannot be held
by one and the same person.
That the Judge of each of these Districts should reside during the whole
year within the limits of the District, which h described In the Statute to
be a local limited jurisdiction, and that the appointment of one Judge to
these three offitres is a complete dencgation of justice to the poor. — That tho
object of the Statute, which purports to be for the more easy and expedi-
tious administration of justice, is frustrated, and the old cry, that justice
ought to be brought to every man's door, is yet unavailing. — That the woids
of the Statute, which authorise the Governor to "appoint a District Judge
" for each and every of the said Intliior Districts, in which a Court shall
" be established," could never be so construed as to give the power to
appoint one person as Judge of three Districts. — That it is a principle of
law, where offices are incompatible^ the acceptance of a second office vacates
the former. — Thnt although each of the commissions is in itself legal, yet,
by the acceptance of the three, they are become forfeited. — That as the
Crown could not have issued the three coniniisRions, the one after the
other, for in that case the one would vacate the other, it can have no power
to issue the three, at one and the same time. — That it was the duty of the
Judge not to have accepted of more than one commission, and to give for
reason to the Government that, if he accepted the three, he would render
himself subject to a criminal prosecution. — Tluit as the Judge miif,t be
occasionally absent from each of tliesc Districts, no writs of sai.sie g'j<;t'rt'i\
saifiie arret, or saisie revende'caliou, can issue in his absence, and these aro
all writs which can admit of no delay; likewise, that no appenl can be
obtained in the absence of the Judge, who is bound to certify tl)e record.
— That the presence of the Judge in one DiNtrict would not justify lii.-.
absence from the other, because such absence would be a voluntary and a
criminal absence, and could not be given as ;ui excuse tigainst an action ol'
da. iingcs, which any party aggrieved might bring against him. — That if the
proclamation had not made so many Districts, the mischief would have
been avoided, but that as it is, there has been no compliance with the
btter or the spirit of the Statute.
The incompatibility and inconvenience alluded to, occiipied a wide range
of argument, in support of which the following authc rities were cited lor
the defendant : —
APPENDIX.
77
le second ground
' adduced in 8up<
of facts given by
ther tribunal, to
or has not juris-
g personally that
rous, so as not to
le objection upon
has exceeded its
jf three separate
id cannot be held
i during the whole
In the Statute to
of one Judge to
? poor. — That tho
easy and expcdi-
cry, that justice
— That the woids
t a District Judge
hich a Court shall
;ive the power to
it is a principle of
•end office vacates
itself legal, jet,
ed. — That as the
le one after the
in have no power
as the duty of the
>n, and to give for
lie would render
Judge ni\is.t be
of same g'Ji;rrh\
ice, and these aro
no appc;il can be
ertify the record,
d not justiiy hi-.
a voluntary and a
liii.st an action ol'
ini.—That iftlio
•hicf would have
ipliance with the
pied a wide range
<,ic8 were cited tor
Chitty on Prerog., page 76, 83, 84, 87. Comyn's Di,;est, vo. Office
Letter U., p. 136. Petersdorf Office, p. 5, and the note. 2nd vol. Terra
Reports, p. 81. Douglas, 398, note 2. Comyn's vo. Prerog, p. 61, D.
29. Comyn's v. Office, 190, B. 6, 191. Croke Car. 127, 128. 2nd
vol. T. Rep. 87. Comyn's vo. franchise, Letter F. 24, p. 363. 1st Coke
onLit. p. 238. 1st vol. Hawkins, p. 412. 1 st Russel on Crimes, p. 1 4 1 ,
142, 501. Jarvis, p. 08. 3rd vol. Atkins's Reports, p. 184.
It was said, .n answer, that the three offices were not in law incompatible,
but that even if they were, the three commissions would not be annulled,
one of them would still be good. — That if the Courts were to be held on
the same day, which is not the case, there would be incompatibility. — That
the commissions do not require actual residence, and that if incompatibility
should arise it must appear and be proved. — That the greatest inconve-
nience may arise, but it is a matter of fact, of which the Court here cannot
take notice.
That tlie defendant's counsel admit that each commission was originally
a nullity, and they invoke forfeiture ; but forfeiture is the consequence of
absence or neglect, and must first appear and be proved, and for this pur-
pose a scire facias is the proper remedy. — That it was said the chamber
business could not be conducted in the absence of the Judge, but the 23rd
section of the Act authorises the Governor, in case of the sickness or
absence of the Judge, to appoint a deputy in his place, and there is no
proof that a deputy has not been appointed. — That the question of incom-
patibility is defective, 1st. Because it cannot be admitted that the accep-
tance of three commissions at one and the same time annuls and vitiates
the whole three. — 2nd. That supposing it works a forfeiture, it is not
alleged in the exception. — 3rd. Supposing the forfeiture to exist, and that
there were an allegation of it, the Judge sitting here cannot be held to
declare the forfeiture, because it is his own cause, and next, because it can
only be proved by matter of record. — That the plea requires the Court to
declare that it is no Court, and the Judge cannot declare that he has no
jurisdiction. — That this plea is not known either by the French Law or
tlie English Law, for the object of it is to try whether the patent given is
a legal patent or not.
Authorities cited on the part of the plaintiff. -4 Burrow, 2005. Chitty
on Prerog., p. 87. Croke Car. 491, 203, 128, 600. Bacon's Abridgt.
Verbo Office, 208. Croke Eliz., 534. 2nd Term Rep., p. 87.—
5th Term Rep., 466, repertoire de Jurisp. verbo incompetence, verbo
declinatoire.
From a careful investigation of all the precedents cited on this second
ground of objection to the jurisdiction, I find that they are referable to
three heads or classes of cases.
The 1 St. — Incompatibility of offices, i. e., where a person cannot hold at
the same time two offices, one of which is subordinate to and under the
control of the other, for in such case the office which tho person first held
is impliedly surrendered or vacated by the acceptance of the new situation,
c2
78
APPENDIX.
2nd Class. — Forfeiture of office, as where an officer wilfully, or from
gross negligence, ceases to perform the duties of his office, on account of
'rhich he may be not only removed from the office, but prosecuted crimi-
nally for his wilful negligence, and to this class the authorities cited from
Hawkins and Russel on crimes belong.
3rd Class. — Gross ignorance of the law in offices of a judicial nature
which renders the grant of, or the election to, the office void, and the party
disabled by law to take the office — as where a grant of an office is made to
a man totally unexpert, and who hath no skill or scence to execute the
same, and as in the case of a recorder elected by a corporation, where the
charter requires qtiod sit peritus in lege^ he may be removed for a grosa
ignorance in the law.
With reference to the first class of precedents, they are all found in
JJacon's Abridgment — Office and Officer, and again cited in the case of
Millward against Thatcher, 2nd volume. Term Reports, from pages 81 to
89, and fully establish the principle that, where offices are incompatible,
the acceptance of the latter vacates the former; but this incompatibility
consists (and I have not been able to find a single case to the contrary)
where one office has in some manner a control over or is subordinate to the
other. It is true that a dictum is found in Bacon, and repeated in nearly
the same words by Mr. Chitty, to this effect, that " Offices are said to be
incompatible and inconsistent, so as to be executed by the same person,
when, from the multiplicity of business in them, they cannot be executed
with care and ability, or when their being subordinate to or interfering with
each other, it induces a presumption that they cannot be executed with
impartiality and honesty." But when these authors direct us back to the
decisions from whence they draw this inference, we find that every case of
iucompatitMity is on account of the subordination, as where a Justice of
the C. B. is appointed a Justice of the 13. R., the former office becomes
void, because the latter court controls and corrects the errors of the former.
This was Dyers own case. The case in Douglas, 393, is the same thing.
If a Town Clerk be made an Alderman, tlie office of Town Clerk is thereby
vacated, because the Town Clerk is subject to the control and direction of
the Alderman. The case of Milward against Thatcher is a similar case.
And this principle of law is a principle of reason and good sense, for the
union of two such offices in one person, he would be subject in one of his
capacities to his own control in the other, which would be a gross absurdity.
The precedents therefore in this class of cases are not at all analogous
to the present, and the principle there established cannot apply here,
because the District Courts are Courts of concurrent jurisdiction, neither
of them interfering with nor controlling the other. And although they arc
called, in the preamble of the Act, Courts of local limited Jurisdiction, yet
they are in fact but different scats of the same jurisdiction.
With respect to the second class of cases, referring to forfeiture of office,
unreasonable absence is a sufficient ground of forfeiture, and the case 3rd
volume Atkins, Rep., p. 184, goes to show that a coroner, elected by a
APPENDIX.
79
wilfully, or from
ce, on account of
irosccutcd crimi-
arities cited from
a judicial nature,
)id, and the party
I oflice is made to
e to execute the
(ration, where the
noved for a gross
are all found in
ed in the case of
from pages 81 to
are incompatible,
is incompatibility
to the contrary)
subordinate to the
•epeated in nearly
ces are said to be
the same person,
mnot be executed
5r interfering with
be executed with
ct us back to the
that every case of
here a Justice of
r office becomes
•ors of the former.
is the same thing.
) Clerk is thereby
1 and direction of
is a similar case.
)od sense, for the
ject in one of his
I gross absurdity.
t at all analogous
nnot apply here,
risdiction, neither
although they arc
Jurisdiction, yet
orfeiture of office,
and the case 3rd
Bcr, elected by a
county, may be removed for non residence in the com tv The case in
Jarvis, p. 68, goes further and shews that if a coroner r.well in the extreme
part of the county, so that he cannot conveniently exercise the duties of
his office, he may be removed by a writ conoratore cxonorandu ; but all the
authorities agree that if an officer, who holds his office by patent, commit
an act incurring forfeiture, he cannot be turned out without a scire facias,
for his right appearing of record, the same must be defeated by matter of
as high a nature.
The District Judge of the Inferior District of Quebec is required to
hold a sitting of the Court at Quebec in every month of the year, and tc
hold two sittings in each of six months — in all, eighteen terms at Quebec
yearly. He will be absent from this District three and a half months in
the year, and at no one period longer than eighteen days, and it remains to
be seen whether this absence will hereafter create a forfeiture of the offices,
or whether it can be considered as a criminal absence.
There is no man, whose understanding is trained to the investigation of
truth, who will not distinguish between an ab.'icnce on the public service
and a wilful and criminal absence, nor will he easily presume that the chief
magistrate of the co-antry, from whom the three commissions are derived,
and whose province it is to promote virtue and discountenance vice, will
hold out to any one an encouragement to commit crime.
The Crown is the fountain of all power and authority, and has the
nomination to all offices originally.* It has an interest in its subject, and
a right to his service ;f and instances are not wanting in this country to
shew that Judges have been called away from their Bench to give their
services in another department — one Puisne Judge from Montreal sits at
Quebec in the Court of Appeals. The Provincial Judge at Three Rivers
absents himself from this District, also to sit at Quebec in appeal. If this
absence be contrary to the principles of law, no custom can sanctify it ; but
I presume it to be a legitimate absence at the call of the Sovereign, and
therefore that that which those high legal functionaries have not deemed
improper, will not, on the part of the more humble District Judge, be
considered as a crime.
With respect to the cases cited, which I have placed in the 3rd class,
it is not necessary for me to notice them, as they have no relation to the
plea filed, nor was any applicaiion made of them in the argument.
The Proclamation, it is said, made too many Districts, as it became
requisite tliat a Judge should reside in each, and that there has been no
compliance with tlie let*er or the spirit of the Statute.
In the making of this statement, important and essential considerations
have been ieft out of view, and a place a.id an importance given to those
which arc incidental and trivial ; for instance, it was lost sight of, that
the Statute gave to the Executive Government the full and absolute
power of making the Districts large or small, and of carrying out the
system in such manner as it should see best fitting for the public advantage.
• Black's Com., B. 1, Ch. 7— Comyn's Vo. Offic«.
t 1 Salk, 169. 4 Mod, 273.
80
APPENDIX.
There was no way in which that could be done without some accom-
panying inconvenience, and the mode which offered the greater public
advantage and lesser inconvenience, was that which seems to me to have
been adopted.
If the Districts were made large, so as to give sufficient occupation to
a Judge, many uf the inhabitants would have to travel 90 miles to the
District Court, which would not be in that case a Court according to the
words of the Statute, " To which easy access may be afforded to Her
Majesty's subjects for the attainment of justice," but it would verify
what was said in the argument, of justice not being brought to the poor
mail's door. On the other hand, where the Districts are small you have
thvee District Courts, instead of one, and these at convenient distances
to suit the wants of the people, — again, — there are twenty-two Districts,
'And it never could be the intention of the Legislature to have twenty-two
District Judges in Lower Canada, for in such case each District Judge,
(those of Montreal and Quebec excepted,) would have very little to do,
and his office would be almost a sinecure.
To make the Districts therefore sufficiently large so as to give occupa-
tion to a Judge, would not supply the public exigency as required by the
law, but would frustrate the object of the Statute.
To appoint a District Judge for one small rural District only, would
be unreasonable, and could not be the intention of the law maker.
By a Legislative Ordinance passed by the late Special Council for the
establishment of District Courts in Lower Canada, similar to those esta-
blished by the present Statute, the Lower Province was to have been
divided, by the Governor's Proclamation, into Districts, each to be under
the jurisdiction of a Sheriff, and by an amendment afterwards made by
the Council to that ordinance, the Governor was empowered to appoint
one Sheriff to two or more of these Districts.
The Proclamation not having issued, the ordinance was not carried
into effect, and although it was not, it nevertheless proves in what manner
that Legislative body considered the subject as most conducive to the
public good. And as there are no words in the present Statute to direct
that the Judge shall reside within the Inferior District, or to prohibit His
Excellency fVom appointing one person to be the Judge of three, the ordi-
nance in question may be considered as a legislative interpretation of what
was right to be done by the government in this respect.
The words of the Statute relied upon in favour of the Defendant's
pretension are these : " It shall be lawful for the Governor of the Province
"for the time being to appoint a District Judge for each and every of tl^
"said Inft'rioi Districts in which a Court shall be established." These
T.on!.8 niiiy uo considered ambiguous, but they mean nothing to prevent
ont' p( rson under three separate commissions from being " a District
" Jad'>" fir e.uh and every f *'the said (three) Inferior Districts." If we
k<.ifc to the 8th iliiuse of (h =t Act we find these words . "And be it enacted,
'' tl^at vhe D/v^rict Judge of the Inferior DisfrictSt respectively, shall from
APPENDIX.
81
"time to time appoint a sufficient number of Bt and proper persons to act
"as Bailiffs for the service and execution of the process of the said Dis-
"trict Courts respectively." — And again in the 16th clause, "And be it
"enacted, that it shaii be lawful I'jr the District Judge of the several Dis-
^^tricts, in which a District Court is estal'lished as aforesaid in civil,
"causes and matters legally cognizable in such District Court, to issue
"writs of attachment returnable in the siid District Courts respectively."
In the foregoing expressions, accurdirig to the grammatical construction
of words in a sentence, it would appear that one Judge is to act for sc. aral
Districts, but I attach no other iinportance to what may be considered
inaccuracies of expression than to shew, in connexion with the considerations
already mentioned, that it is a misapplication of the reasoning powers to
argue that the appointment jf o.ic Jadge to three Districts is either
against the letter or the spirit of the Statute.
It is very true that suitors may suffer i)\convrnience and loss by the
absence of the Judge from the District, wl>f n hi' Jiut may be required for
writs of attachment, which ad>iiit of no d<^iay, but it is premature to say
that the proper author/-;. m\\ f*ot m/tnt rf move thin incorivenitnce either
by the jpointment of a ^Hi^f m A tf rt^>; 23rd clau***- of the Act, or by
the Legislature givnig a p^-iy |($>ilrth# Cu;'^^ (A tV j/-*rict C(/u#t8 ty
receive the necessa>ry <>ath« i^ A »» «*g n^H* *4 »tt:; fiKo-.and aW fo
certify records of app«»i •*l\^^^^Ai^ ^: f/U^ or / >re o< the A A%e. A
similar power was gi'cn t>v 'V.>fi l^tli) <'/-•/> \S , ^ /> Mw I'rot "notaries
at Quebec, and was afterwiw^K extd*;*4 counsel 'or
the defendant, though not mcntif/fjed in Court, but which I w'j'i pret^ume
were intended to be mentioned. I«t. Whore a Judge from rtiation.shij.
or interest i* incompetent to try a cause, tl/" hardsliip of a suitti ^on
proceeding to another District and then again u> another, and findii, ' •
same person to be tlie Judge ifi eiuh. 2ri'l- The inconvenience, riUicujie
and absurdity of the District Judge of O/iobec, addressing to himself a
commission rogatoire as District Judge at 5agu#nay.
I shall use no epithet to characterise *h!j; mode / reasoning int ^iniply
state, that if the three Districts had bet^t only one District, as Wi, con-
tended they ougtit to be, under the jurisdiction of one Judge, the suitor
when the Judge was interested, wr ild have to apply to the Judge of the
next large District, and such ap^ lication would not render his journey
shorter, nor his situation better, than it is now. And when the Judge
would be required to address a Com. Ilog. he would address a commission
in the nature of a Commission ilogatoire to Commissioners, wlion- lie
would name and who would make to him their return, and there is not . g
at present to prevent him from doing the same thing.
'!i*
Wi^.
'I* !•■ ■ .-•■i't
h ' 'It
%
32
APPENDIX.
I make a distinction between inconvenience and incompatiliility,— the
inconvenience may be removed in the manner I have already shewn, but
the incompatibility cannot, except by the removal of the officer fj-om the
office. I shall suppose that a District Judge was appointed to, and con-
stantly resident in, one District, wherein the business was so great that
no one man could possibly transact it ; this would be a public inconve-
nience for which the proper authority would have to apply a remedy, but
it would not be said that what the Judge did would be illegal, or that he
had no jurisdiction, or could not hold his office, because of his inability to
perform the whole business of the District.
Perfection in any system is not to be obtained suddenly, it is the work,
of time, and there is no Judicature Act amongst ou»' Provincial Statutes
which has not after experience been altered or amended, or in which
some defect may not be pointed out.
It is whilst the District Courts are being organized throughout, that
the plea in the present case has been got up, requiring, in anticipation of
a future inconvenience, to have what has already been done by the Go-
vernment, set aside. It is :; case ., (luoiit ok-jrerit impcratvu.
t Kv|». dc. Jiirwf vo. ln«imi>»tibilit^.
: \()1. l.p 39C
^ Rep. di lurisp. vo. C<»n -itihlliie, p. 26(».
tl Ik ♦«• -lugesdfiS* ,> . pp 60a, 0(^
APPENDIX.
83
The .'eason as it seems to me, (and I advance it with much diffidence,)
why Courts of Justice in England and France are empowered to decide
upon the incompatibility of offices, and without interfering with the Royal
Prerogative, is that when the Sovereign grants an office to a person, incom-
patible with one already held by such person, there is an implied agree-
ment that the office first held shall be given up, and the Courts of Justice
do no more than carry that agreement into effect, but should the Crown
of England grant two or three incompatible offices at the same time, to
one person, which grant may be considered as equivalent to the Lettres
de Compiitibilitc of the King of France, the question would become a
delicate one, how far a Court of Justice, in th*? absence of any statute
law to the contrary, might interfere. The inquiry, however, is unneces-
sary in this cause.
From the desire which I have had to examine the present case upon
its merits alone, I have not alluded to the close and apposite argument of
the learned counsel for the plaintiff, which seemed to me to be technically
decisive.
Upon the whole, I am of opinion that His Excellency the Administrator
of the Government, had the power to issue the Proclamation, which power
was legally and duly exercised. — That there is no incompatibility in the
appointment of one person to be Judge of three Districts, and u '>t this
Court is legally constituted, and has jurisdiction.
The plea of declinatory exception is therefore dismissed with costs,
and the defendant ordered to plead to the merits of the action.
For the Plaintiff, Mr. Aylwin.
For the Defendant, Messrs. Duval and Ross.
A similar judgment was rendered in the case of Dale vs. Fitzgerald.
m
lOi
t
f
I
>r«Kvii ^.tjim iastar
UONNALI, Pltf. v. BEZEAU, Deft.
The Report of the Judgment of the Chief Justice of the Court of
Queen's Bench, Quebec, in this case, was as follows: —
A wide field of argument has been gone into, in the discussion of this
case, and a multitude of authorities have been cited; but the considera-
tion, as well of the argun)ents which have been used, as of the authorities
which have been cited, is rendered altogether unnecessary, by the view
which the Court takes of this subject.
The Statute referred to in the pleading, after enacting that the
Province shall be diviiied into Inferior Districts, and that the District
Court shall be held at a place to be appointed in each, then proceeds, in
the fourth section, to enact, "that the said District Courts, to be held as
" aforesaid, shall severally have, except in the cases therein after men-
" tioned, cognizance of, and from and after the first day of January next,
" after the passing of this Act, shall have exclusive cognizance of, and full
** power, jurisdiction, and authority, to hear, try, and determine in a
t It
km
84
APPENDIX.
" summary manner, all suits or actions (those purely of Admiralty jmis-
" diction excepted) wherein the sum of money, or the value of the thint;
" demanded, shall exceed six pounds five shillicgs, currency, and shall
" not exceed twenty pcund.», sterling."
This jlauae imports a repeal of the jurisdiction of this Court, in respect
of tlic suits therein mentioned, from and after the first January last, the
words ^'■cxclnsioe cognizance,'' as they are found in this clause, having the
same effect as if, in express and formal terms, it had been declared that,
from and after that day, this Court should cease to have jurisdiction over
such suits. The case has been argued, as if the power of this Court was
to cease, not on a certain day, but on the esta' '.ishment of District Courts,
and if such had been the language of the Legislature, the validity of the
establishment of those Courts, iiivol.itig that of the Proclamation referred
to, would have come in question, under this declinatory exception. But
the Legislature has not thus expressed itself. On the contrary, by the
clause above recited, the Legislature fixed prospectively a future day, on
which the jurisdiction of the Courts of King's Iknch, throughout Lower
Canada, was to cease, — the moment that day was past, the jurisdiction of
this Court became extinguished, without reference to the legality or
illegality of the establishment of the District Courts. The only question,
then, before us, being whether this Court has or has not jurisdiction, and
our jurisdiction having been clearly taken away, we are not called upon,
and it would be foreign to our duty, to inquire, whether the newly
established Courts, to which it was the intention of the Legislature to
transter the jurisdiction of the Courts of King's Bench, have been legally
constituted or not; it is sufficient, for the determination of the question
raised f i this issue, that this Court has, by the enactment of the Legisla-
ture, been deprived of its jurisdiction, over the subject matter of this suit.
The Cou.i being of this opinion, the judgment is, that the declinatory
exception be maintained, and that this action be dismissed with costs.
IV.
The following brief account of the transactions which occurred during
the late rebellion in Upper Canada, has bc*;n compiled from authentic
documents. Its correctness may generally be relied on. We seek to
give umbrage to no one ; but have every where endeavoured to observe
that strict impartiality which is indispensable to true history : and shall
be glad to retract any misstatements we may happen to have admitted,
undesignedly, on being convinced of our error: —
The rebellion which broke out in Upper Canada, in December, 1837,
is stated in the Foem to have been a simultaneous movement on the part
of the Upper Cf
Province. Thi
in an account o
document he
" understanding
" arbitrary impi
" follow the ant
" Lower Canad:
To effect this
the Home Disti
day, the 7 th of
evening, the '
respective Capt
Street, a few m
thousand stand
keeping of the A
proclaim a rcpul
IJy somj misii
seded the sealed
place on the Mo
on the evening o
armed with rifle?
the object of the
but imprudent of
to make his way
apprize the gove
the rebel band,
across the road :
permission, he fl
four rifles were
wounded, and dii
Thus the first
During the enact
quailed at the n
possessed no sin
city, to surprise
four others for th
Esq., since Mayc
out from the eil
Powell, who had
on being made pi
denied having an
of Mackenzie's
their way thither,
was resolved to e
the government c
II
APPENDIX.
85
of the Upper Canada insurgents, in concert with the outbreak in the Lower
rrovinco. This fact is attested by the declaration of Mackenzie himself,
in an account of that rebellion which he dated from Navy Island. In this
document he informs us, that he and his colleagues "kept up a good
" understanding with the reformers of Lower Canada; and concluding that
" arbitrary imprisonments and a declaration of military execution would
" follow tlie anticipated movement at Ivlontreal, we resolved to second the
" Lower Canada movements by others equally prompt and decisive."
To effect this object, it was agreed on, by twelve leading reformers of
the Home District, during the month orNoveinber, 1837, that on Thurs-
day, the 7th of December ensuing, between the hours of six and ten in the
evening, the " Friends of Freedom" in the several Townships, led by their
respective Captains, should meet at Montgomery's Tavern, on Yonge
Street, a few miles in the rear of Toronto, march to the city, seize four
thousand stand of arras which were deposited in the City Hail in the
keeping of the Mayor and Constables, dis "38 Sir Francis Bond Head, and
proclaim a republic.
By somj misunderstanding, originating from a verbal order which super-
seded the sealed commands of Mackenzie, the rising of the insurgents took
place on the Monday preceding the day of appointment ; and accordingly,
on the (jvening of Monday, 4th December, a considerable number of men,
armed with rifles and pikes, had assembled at Montgomery's Tavern. As
the object of their rendezvous could be no secret. Colonel Moodie, a gallant
but imprudent officer, who lived some distance beyond the tavern, attempted
to make his way through the ranks of the insurgents into town, in order to
apprize the government of their danger. He was stopped by a guard of
the rebel band, stationed for such objects at a barrier they had placed
across the road : as he insisted on being allowed to pass, and was refused
permission, he fired his pistol at the guard, but without injury ; instantly
four rifles were levelled at his breast, he fell to the ground mortally
wounded, and died in about two hours.
Thus the first blood was shed ; but it remained not long unexpiated.—
During the enactment of this tragedy, Mackeni,'.e, who appears to have now
quailed at the magnitude of an enterprise for which he seems to have
possessed no single qualification, instead of advancing directly upon the
city, to surprise it with his band of patriots, rode down in company with
four otliers for the purpose of reconnoitering. Here he met John Powell,
Esq., since Mayor of Toronto, and A. McDonnell, Esq., who had ridden
out from the city for the very same object from the opposite party, —
Powell, who had nothing for his defence but a small pair of pocket pistols,
on being made prisoner by Mackenzie, and ordered to give up his arms,
denied having any. He and McDonnell were then given in charge to two
of Mackenzie's followers, to be brought back to their guard-house. On
their way thither, Powell, having heard that Colonel Moodie had been shot,
was resolved to effect, if possible, his escape at all hazard: , and to apprize
the government of their impending danger. Accordingly he endeavoured
\
I
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I
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86
APPENDIX.
to drop behind, although threatened by Anderson, the second in command
of the insurgents, in whose custody he was, witlt instant death if he
attempted to make liis escape. Finding, liowcvcr, all other methods fruit-
less, he watched his opportunit". hot Anderson dead on the spot, and fled,
accompanied by McDonnell, t< Is the city, followed by the pistol ball
of Anderson's companion. On their way thither they again encountered
Mackenzie, who f-od his pistol at Powell, but without effect. Powell
contrived to make his way to the city, down the College Avenue, and
apprized Sir Francis Bond Head of the approach of the rebels. McDonnell
was recaptured, and brought back prisoner to the rebel guard-house.
Sir Francis Bond Head immediately repaired to the City Hall, at the
Market Square, where four thousand stand of arms and accoutrements were
deposited. One of the first persons he met with here was the Chief Justice
Robinson, with a musket on his shoulder. He immediately ordered the
arms to be unpacked, and the alarm bell rung : speedily he was joined by
a whole host of gallatit fellows, who were soon armed and provided with
ammunition. They manned the windows of the City Hall and those of
the houses opposite ; then the Lieutenant (iovernor, having stationed one
of his Aides-de-Camps, the Hon. Mr. Justice Jones, with a piquet of thirty
men near the rebel post on Yonge Street, tranciuilly waited for the morning.
On the next day, Tuesday, the rebel numbers, according to Mackenzie's
account, amounted to eight hundred ; but ill equipped however with arms
and ammunition.* About noon tlicy received intelligence that the force
in the city amounted only to one hundred and fifty, including the pupils of
the College, who, although but beardless school-boys, would in pU proba-
bility have displayed more pluck than was exhibited aoon afterwards by
Mackenzie's Sons of Freedom. They knew that your bullet, so it be well
directed, never stays to inquire whether it was a man, a woman, or a boy,
who pnlled the trigger. At one o'clock, a flag of truce arrived from Sir
Francis Bond Head, (after Colonel Moodie had been detained and murdered
on the King's high-way!) borne by Dr. Rolph and Mr. Baldwin, to inquire
what terms would satisfy the malcontents. They answered, with a firm-
ness that was worthy of a bette" cause, "lNDEPENDENCE."f Immediately
after the dismissal of these messengers, Mackenzie gave orders for an
advance on the city, directing Colonel Lount to occupy a post near the
Lawyer's Hall. When he had proceeded down Yonge Street, as far as the
College Avenue, he was met by another polite message from Sir Francis,
who also answered in one word, "Never!" He still continued to
approach, when, being within musket shot, he either quailed at the coming
peril, or, according to nis own assertion, received a message from the
* Sir Francis Bond Head estimates them at between four hundred and five hundred.
f Doctor Rolph, who was to have been the first Governor of the new republic, in
the event of the insurgents' success, drew Mackenzie aside, after delivering his message,
sHd advised him to attack Toronto instantly. This person had offered his services to
the government, to be the bearer of the Hag of truce, iu order, as be represented, to
prevent the effusion of blood.
APPENDIX.
87
EXECUTIVE of the rebels, to defer his attempt till evening. This indeei-
sion and delay transfused his own timidity into his adlierents, and proved
the utter ruin of all his idle, wicked and malieious hopes.
In the mean time the little band of citizens, who adhered to the govern-
ment, although unaided by a single military man, and narrowly watched in
every movement by the residents who were in Mackenzie's interest; although
unapprized of the extent of their danger from without, and naturally dis-
posed to magnify it by reason of the uncertainty of intelligence; expecting
also an attack at every instant, were resolved to die game, and to omit no
precaution which would enable them to retrieve, in the event of being
coiiipe'.led to abandon the city to the enemy. Accordingly, the specie was
taken from the coffers of the banks, and placed on board a steamboat in
the bay, whither Sir Francis also bestowed the more precious freight of his
lady and family; the Upper Canada Bank was converted into a little
fortress, all tlie lower sashes of the upper windows being removed and
replaced by wood work rendered bullet-proof, and loopholed for musketry;
a barrier was placed at the northeastern angle of the Market Square, in
which the nmch-sought arms were deposited ; and cannon were stationed,
in order to sweep the streets, as soon as the enemy might make their
appearance ; a considerable number of active young men were sworn as
special constables by the magistrates, to prevent disorders in the city ;
the city militia was raised and armed, and had their orders whither to
repair in the event of an attack. Sir Francis Bond Head garrisoned the
Government House with fifty stout fellows, who were always at their post;
and the residences of private individuals were prepared against assault, or
foi" the annoyance of the enemy, according to the means and probable
exposure of the occupant. The following anecdote, which may be relied
on as authentic, will serve to shew both the alarm which prevailed within
the city, and the decision and determination of the little band who felt
themselves charged with its defence.
On Wednesday, Ur. Morrison was arrested on a charge of being impli-
cated in the conspiracy, and was conveyed to the old Gaol, now the
Lunatic Asylum. At the time of which we write, the Wellington Buildings
were not in existence, and there lay an open area in front of the Gaol and
the Court House, on which area that block of buildings at present stands.
As the Doctor was being accompanied to prison by the officer who arrested
him, a vast concourse of the citizens, apprehensive of no danger, ran in a
crowd to witness the fun. Happily a farmer, who was well acquainted
with the city, and who had been detained in town by the impressment of
his waggon and liorses for the uses of the government, had left the crowd
considerably sooner than the rest, and having business beyond the mnrket
place, had proceeded near the large gate at the northern entrance to the
market, when he perceived that the gunner, who stood at a cannon pointed
at the returning crowd and loaded with grape, held a portfire lighted in his
hand, and was just about to apply it to the piece, in order to discharge it
on the multitude, supposing them to be a large body of Mackenzie's people,
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SMAGE EVALUATION
TEST TARGET (MT-3)
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Hiotographic
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(716)873-4503
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88
APPENDIX.
advancing to seize the arms in the market place. Knowing the truth, with
great presence of mind the farmer cried out to the gunner to stay his hand,
for they were his friends. But for this timely interference, more lives
would perhaps have been sacrificed on this occasion., than were lost during
all this winter besides. A cannon, once fired in Edinburgh into a crowd,
during a time of civil commotion, is reported, by Hume the historian, to
have destroyed a hundred persons.
During the night of Tuesday, Mackenzie represents himself as having
moved upon Toronto, and states that his attempt was rendered abortive by
an unaccountable panic which seized his gallant myrmidons.* Indeed, if
one might be allowed to form a judgment from the conduct of Sir Francis
Bond Head throughout, it would seem more likely that his object was to
draw Mackenzie into Toronto, by inspiring him with the vain confidence
likely to be produced by his seeming to sue for terms from a rebel band,
after the murder of Colonel Moodie. Had he succeeded in enticing
Mackenzie in, there is little doubt that the traitor would have had such
terms in fire and steel, as would have made him for ever forget his demands
of independence. Yet, to a gallant band, under a spirited leader, the
city must have fallen an easy prey. But the Lieutenant Governor was
too acute an observer of human nature not to know with whom he had to
do, and accordingly he openly avowed, in a despatch to Lord Glenelg, that
be thought **the more he encouraged them to consider him defenceless the
"better."
Sir Francis, who had ordered strong reinforcements of volunteers from
Cobourg, Hamilton, Niagara, and other places, to repair promptly to
Toronto, as the city was threatened with an hourly attack by a body of
insurgents stationed on Yonge Street, within about three miles of the city,—
resolved on adopting a different course from that which he had pursued
hitherto, of standing on the defensive. Had the ancient legend of the
sowing of the dragon's teeth been realised, and men sprung in vigor of
raar hood from the bowels of the ground, the city of Toronto could not have
been better garrisoned than on Wednesday, which was consumed by the
rebel chief in heartless robberies of the helpless, and in carrying away the
mail, stage, horses, and all, from Dundas Street, with wise precaution for
futurity. Mean time, there were not arms sufficient for those who sought
them in the city, and the welkin resounded with perpetual discharges from
the newly distributed guns, which not even the orders of Sir Francis Bond
Head could repress, as each militiaman tried his musket, knowing that on
the very next day he was to prove iti.i goodness in open field with the
enemy.
Thursday came, and the arrangements for the attack on the rebels were
ably made by Colonel Fitzgibbon, who was entrusted with that onerous
duty. Sir Francis Bond Head has been reprehended for having superseded
Fitzgibbon in the command, just as the arrangements were completed, and
* In fact, his host had encountered an advance piquet, under the command of Mr.
Sheriff Jarvis, who drove them back with the loss of one kUlod and several woupd^,
APPENDIX.
89
nng the truth, with
er to stay his hand,
orence, more lives
\n were lost during
)urgh into a crowd,
ae the historian, to
3 himself as having
endered abortive by
dons.* Indeed, if
duct of Sir Francis
at his object was to
the vain confidence
from a rebel band,
:ceeded in enticing
luld have had such
r forget his demands
spirited leader, the
enant Governor was
liih whom he had to
o Lord Glenelg, that
r him defenceless the
s of volunteers from
repair promptly to
attack by a body of
e miles of the city, —
ich he had pursued
ncient legend of the
sprung in vigor of
>ronto could not have
iras consumed by the
in carrying away the
wise precaution for
for those who sought
itual discharges from
of Sir Francis Bond
let, knowing that on
open field with the
ck on the rebels were
with that onerous
for having superseded
were completed, and
Jer the command of Mr.
and several wouod^d,
the gallant militia were in movement to the attack. This charge however
is not true, Sir Francis appearing on the field only in his capacity of civil
governor. Fitzgibbon therefore j ustly bears the credit of the arrangements,
and has since been rewarded for bis services to the government, on this and
other occasions, by a grant of five thousand acres of wild land. Simul-'
taneously with the movement of the volunteers from the city, — who just
knew enough of military matters to be aware which end of the gun they
were to point towards the enemy, — was a detachment dispatched by Mac-
kenzie, which, by a circuitous route, was to proceed and fire the Don
Bridge. This detachment, consisting, according to Mackenzie's account,
of forty riflemen and twenty others, arrived at their destination after the
loyalists had quitted the city, (which, however, was not left defenceless),
and proceeded immediately to set fire to the bridge and the house adjoin-
ing. A cry of fire was instantly raised by some persons who observed not
its cause, and the firemen, being exempted by Statute from military duty,
speedily repaired to the spot. The rattling of their engines induced
Mackenzie's gallant Sons of Liberty to fancy they heard the wheels
of the artillery. Without waiting to see the danger, they courageously
took to their heels, and scampered off. — Mean time, the militiamen from
the city advanced steadily up Yonge Street to the sound of martial music,
disdaining to take the Sons of Freedom by surprise. The morning had
been wasted by the rebels in fruitless consultation, which was still unfinished
when word came that the loyalists were advancing upon them with music
and artillery. Speedily the roar of cannon followed the announcement;
this was soon succeeded by musketry. Mackenzie's corps fired a volley,
by which three men were wounded, one in the head, one in the hand, and
one in the foot. Although he reporjs that several vollies were fired by the
rebels, and that several of the enemy were killed. Soon, however,
considering flight the best part of valour, they fled, leaving behind them
seven of their party dead. A considerable number of prisoners was taken,
all of whom Sir Francis Bond Head, (after giving them a severe lecture on
the wickedness and insanity of their conduct), whether despising their
pusillanimity, or actuated by motives of clemency, but most probably for
both reasons, forgave on the spot, and ordered to be set at liberty. This
was a magnanimous set-off for the mild and honorable treatment which
Mackenzie had extended to several respectable persons who had acciden-
tally fallen into his hands, and were detained by him during his stay on
Yonge Street.
After the discomfiture and dispersion of the rebel host, Mackenzie fled
to the United States, with a reward of £1000 set upon his head by the
Canadian government. Previous to this, and immediately after returning
from his traitorous message to Mackenzie, took place the disappearance of
Dr. Rolph from the city of Toronto; for whose apprehension £500 were
offered, as soon as his treachery was detected. Several other of the rebel
chiefs were also gazetted about this time, with large rewards for their
apprehension. And, after a little time, Colonel Lount and Captain
h2
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90
APPENDIX.
Mathews were taken by the loyalists. They underwent a trial before the
Chief Justice Robinson, were found guilty of high treason, and hanged at
Toronto during the administration of Sir George Arthur; Sir Francis
Bond Head having been recalled, soon after the occurrences we are here
relating. °«
During the early part of the week which was spent on Yonge Street,
Mackenzie had caused a large impression of the Colonial Advocate, a
newspaper of which he was the editor, to be struck off and transmitted to
the west, wherein the Sons of Freedom were informed, that their brethren
were in arms at Toronto; that Sir Francis Bond Head was closely blockaded
in the market place, and had been compelled to sue for terms from the
insurgents. All this, which lied like truth, was propagated industriously
in the west, and loyalty had begun for a few days to look extremely bltte.
During this interval, a large body of about three hundred rebels had arisen
in the London District, and placed themselves under the command of
Duncombe, Alway, and other rebel chiefs. Speedily, however, the
appalling news of the disaster of Mackenzie succeeded to this lying gasco-
nade; and Duncombe, hearing that Colonel, since Sir Allan McNab, (who
had raised a vast body of volunteers in a few days, by Sir Francis Bond
Head^s directions), was proceeding by hasty strides to overwhelm him,
mounted his horse, and abandoned to their fate the misguided creatures
who had hazarded their all to follow his ill-fated standard. He took
refuge in the United States, and thus escaped at once the double vengeance
of the government against which he had revolted, and of the victims of his
treachery. Large numbers of these surrendered to Sir Allan McNab, who
treated them with much compassion and humanity: and this gallant
Colonel marched in triumph through the west, without striking a single
blow.
During the progress of McNab through the western counties, several
little acts of petty aggression were practised by individuals of the victorious
army, and sometimes, perhaps, even with the connivance of their officers,
upon the property of persons who were known to be disaffected to the
government. Indeed, it was not to have been expected, that a large body
of young men, roused from their, homes to bear the rigors of a Canadian
winter, and to face a rebel f'^e, who were denied the little kindness of a
draught of cold water, or the use of a vessel to draw it, when thirsty on
then: march, would not feel a just indignation at a churlishness on the part
of fellow-subjects, which would not be practised by a generous enemy, and
which was so openly at variance with the proverbial hospitality of the
Canadian farmer. Several little acts of aggression were accordingly prac-
tised, probably in retaliation for this ungenerous conduct, which served to
augment the growl of discontent. Amongst ether insults, the sign-posts
of taverns kept by disaffected individuals were generally cut down, and
other little acts of a similar kind, although it is to be hoped not much more
heinous, were committed. Yet so highly were these indignities resented,
that numbers of the disaffected sacrificed their properties for a mere trifle,
APPENDIX.
91
and fled to Detroit, or other places on the Michigan frontier. Scarcely a
day passed which did not bring fugitives into that State, who represented
the condition of the Canadians, under the aggressions of the government
and its adherents, as utterly insupportable. As all who came told the
same story, and supported their representations by narratives of incidents,
related with all the aggravations of hatred, they easily wrought upon the
simplicity and credulity of an unsuspecting people like the Americans, who
had, in many instances, been from hifancy taught to associate the British
name with injustice and oppression, and who, of course, were utterly igno-
rant of Canadian affairs, but from the report of those who were blinded by
resentment and enraged by defeat. A similar course was practised, with
similar effects, by Mackenzie and the other refugees who had fled across
the Niagara frontier, and taken shelter in tlie State of New Yorl?. These
represented the (^anadians as engaged in a glorious struggle for indepen-
dence, which was only defeated by a casual mistake in tne time appointed
for the rising; exaggerated beyond all bounds the number and influence of
their adherents; and aggravated the exclusion, the injustice, and alleged
imbecilicy of the Canadian government. Brother Jonathan easily lent
bis ear to the tale, and the more so, perhaps, because it piomised to the
speculations of individual selfishness a rich reward: he flattered himself
into belief that the British Lion had fallen fast asleep upon his post, and
could easily be stolen upon, and knocked in the head. But the monstrous
brute was never more wide awake ; he but lay motionless on the ground,
with his eyes glancing around in every direction, marking strictly what
passed on all sides within his view, and ready to make his spring at a
moment's warning.
The representations of Mackenzie and his colleagues, who claimed for
their ill-timed and worse-conducted revolt, a kindred object with that of
the Revolution of the United States, being infused into ears unfriendly to
the British, begat for them speedily a substantial sympathy all along the
line of the Niagara frontier. Agents were despatched to a distance, and
Committees were formed at various places, to collect subscriptions, and
to raise recruits to aid the cause of the suffering Canadian Patriots. At
Rochester, Buffalo, and other places in the State of New York, bodies of
men were raised, and forwarded to Fort Schlosser, on the Niagara River.
At Cleveland, Cincinnati, and several other towns in Ohio, like subsidies
of men and money were procured ; and all along the frontier of Michigan,
similar preparations were simultaneously in progress. The public arse-
nals of the United States were robbed of tneir musquets, their cannon,
and their ammunition. And report was rife that all this was not done
without the connivance of the United States authorities. The arms of
the Brady Guards in Detroit, which were carelessly piled, as was the cus-
tom, in the corners of the lobbies of an open building, occupied by lawyers
for their offices, and dentists for their chambers of practice, were also
seized. And the whole Canadian frontier exhibited one busy scene of
bustle and activity, for the invasion of Upper Canada, by an army of self-
I J. n
M
98
APPENDIX.
Styled Patriots, who were said to be io reality, with a few exceptions, the
citizens of the neighbouring republic.
It is certain that many of the wiser and more respectable of the inha-
bitants of Buffalo were in possession of the truth as to Mackenzie's insane
attempt on Toronto : but it was not to such persons as either would, or
could possess accurate information, or weigh consequences, that this arch-
rebel would apply himself for assistance. Accordingly on the 1 3th of
December 1 837, some hundreds of the citizens of the State of New York,
as an armed body, under the command of a Mr. Van Rensselaer, an Ame-
rican citizen from Albany, openly invaded, and took possession of Navy
Island, a part of Upper Canada situate in the Niagara river. Here they
commenced to entrench themselves, and threatened speedily to make a
landing on the Canadian side of the river. To keep them in check, a
body of Militia was hastily collected, and stationed on the frontier, under
the command of Colonel Cameron, who was soon succeeded by Colonel
McNab, on his return from the suppression of the rebellion in the London
District. His instructions were, to act on the defensive only, and care-
fully to avoid any course of conduct, which the United States Govern-
ment might interpret into a breach of neutrality.
The piratical force which had occupied the Island, immediately com-
menced to open upon the Canadian shore a cannonade, which they con-
tinued for several days, without intermission ; taking care during all this
time to fortify their position. On the 28th of December, Colonel McNab
received information that a small steamboat of about 50 tons burden,
called the Caroline, had been hired by the Patriots, and was to be em-
ployed in carrying down cannon, men, and stores, between Fort Schlosser
on the American shore, and Navy Island. She was accordingly observed
to transport a piece of artillery, and other stores, and made repeated pas-
sages during tlie day, between the Island and the American shore. In
the night, a party of Militia was sent in boats, with orders to take or de-
stroy her. They found her moored to the wharf opposite to the inn,
which was the head-quarters of the Pirate band at Fort Schlosser. On
the deck was an armed party, and a sentinel who demanded the counter-
sign. After a resistance, in which some desperate wounds were inflicted
on the assailants, she was carried. But a man was killed belonging to
the other party; and the alleged murder of this man, whose name was
Durfee, gave rise subsequently to the famous trial of Alexander McLeod
Esq., a British subject, at the city of Utica.
Previously to the taking of the Caroline, not a single gun had been fired
by the force under the command of Colonel McNab. The party who
seized the vessel, being armed with cutlasses only, loosed her from the
wharf; and finding it impossible to tow her against the stream of the
river, set her on fire, and let her drift down the current. The light of
the burning schooue" was seen as far off as the Township of Pickering, in
the Home District, and suddenly disappeared, as she took her headlong
leap down the fearful precipice of the stupendous cataract.
APPENDIX.
93
a few exceptions, the
e gun had been fired
The party who
The Patriots on the Island, and their enemies on the Canadian shore,
continued to exchange salutes, with little or uo execution on either side,
until the 13th of January, 1838. As neither party seemed desirous of
coming to any closer engagement, the Island was then evacuated, having
been then occupied by a number of persons variously stated from 700 to
1200. Thus was broken up the first grand division of the Patriot army
of Canada.
During the progress cf these proceedings at Navy Island, the sympathies
of the American people had been wrought upon in the manner above
represented, all along the frontier bordering on the river Detroit. Emis-
saries were also sent, as we have stated, into Ohio, to create the necessary
asperity of feeling ; which was easily effected, and operated powerfully
on a class of citizens already too susceptible of unkindly emotion towards
the British, and their Government. Committees were every where ap-
pointed to collect subscriptions, and public benefits were given at the
Detroit theatre, in aid of the suffering Canadian Patriots. The press
teeined with the most exaggerated and exciting accounts: Volunteer
Companies raised : the arms in the United States arsenals, and those of
the Brady Guards in Detroit, as has been already observed, were seized
and appropriated. The steamboat Erie brought up 70 or 80 volunteers
from Cleveland: the Brady, a similar number from Monroe, with two
pieces of artillery, and 400 stand of arms, that had been pillaged from
the arsenal. Tv/o large pieces of artillery were taken from Fort Gratiot ;
and 400 stand of arms from the public prison at Detroit. Armed Com-
panies were to be seen on drill in the open day. A person named Suth-
erland, who had been editor of a paper, and who was said to have been
convicted of a capital offence in the State of New York, was entrusted
with the command, under the title of Brigadier- General of the Second
Division of the Patriot army, although it contained only a few of the
Canadian refugees, none of whom held any higher rank than that cf Cap-
tain. And so forward were the preparations reported to be, that had not
the early part of the winter proved unusually mild, and the invasion of
Canada been in consequence deferred, with the daily expectation that the
ice would form, t,.td facilitate a march across it, there is little room to
doubt, that an armed force would have planted its footsteps on the Cana*
dian shore early in the month of January. To meet this hostile arma«
ment, there would only have been about 300 Volunteers, who had orga-
nised themselves at Windsor, Sandwich, and Amherstburgb. These
poor fellows were almost worn out, being constantly on guard, and many
not retiring to rest for ten or twelve days together.
The delay of the Patriots in making their irruption, wis improved by
the Loyalists on the opposite shore to the utmost advantage. All the
powder which could be found was secured : lead was put in requisition,
and cast into balls : jarti dges were made, The blacks turned out to ^
man : the Militia from the lake shore came forward cheerily. But the
gallantry of the Kent Volunteers was most conspicuous and enthusiastic,
■M
. • ''is
94
APPENDIX.
These brave fellowii in two days organised to the number of 120, under
Captain Bell, and Lieutenants Baby and McCrue. By forced inarches
part of the time up to the waist in water during a Canadian January, they
reached Windsor in two days more. The St. Thomas Cavalry arrived in
Amherstburg by the Talbot road about the same time. Simultaneous
with the arrival of these reinforcements to the loyalists, was the seizure
of the arms by the Patriots from the authorities in Detroit, and two steam-
boats were cut out of the ice, for the use of the invading army.
On Monday, January 8, the piratical armament, consisting of the armed
schooner Ann, a sloop or brig which acted as a trader, two large scows,
and a number of boats, carrying about 700 men, and twelve hundred
stand of arms, five pieces of artillery, p.nd a vast quantity of ammunition,
set sail from Siii;ar Island, belonging to the State of Michigan, which
place they had for some time previous made their rendezvous. At first
they appeared disposed to seize upon Bois Blanc, nn island near to the
former, and belonging to Canada : but this was quickly occupied by Co-
lonel Prince, witli about 300 Volunteers. They contented themselves
therefore with firing two cannon from the schooner against this force ;
nnd shaped their course forthwith towards Amhcrstburg. On perceiving
their intention, Colonel Prince evacuated the island, and advanced to the
support of Amiierstburg, which was defended by only about 400 Militia
and Volunteers, imperfectly armed, with only three bayonets amongst
them, and n few rounds of ammunition each. The town of Amhcrstburg
was fired upon several times during that evening; and on the next day
was cannonaded for two hours together, without any loss of life or per-
sonal injury sustained by its inhabitants. On that day also. General
Sutherland gallantly carried Bois Blanc, there being no one to oppose
him, and marched round the island in triumph with banners and music.
Soon after sunset, the schooner sailed down the river, cannonading
Amhcrstburg as before, and with a similar result. The Volunteers fol-
lowed her down, leaving 150 of their number to defend the town from an
expected attack by the brig, scows, and boats. She had hitherto kept
beyond the reach of rifles ; but now on coming within reach, she was fired
upon by the St. Thomas Cavalry. As she neared Elliott's point, a well
directed fire of musquetry was poured into her, by the Kent and Windsor
Volunteers, which disabled some of her sails; and cither killed, or com-
pelled the helmsman to abandon his post. The wind blowing fresh in
shore, she drifted, and ran aground a little below the point. Several of
the Essex Militia speedily arrived, together with a detachment of the
blacks ; and a galling fire was kept up upon the schooner, which was for
some time returned with great spirit by those on board. At last, how*
ever, finding no intermission, they were obliged to cry for quarter, when
the victors waded into the river, boarded the schooner, and made prisoners
General Theller, Colonel Dodge, Captain Davis, and Colonel Brophy,
with sixteen others of less note ; together with one nine-pounder cannon,
two si^-pounders, Z50 stand of arms, with bayonets &c. complete, a large
APPENDIX.
95
umber of 120, under
By forced inarches,
inadian January, they
las Cavalry arrived in
time. Simultaneous
lists, was the seizure
etroit, and two steam-
iding army.
msisting of the armed
ier, two large scows,
and twelve hundred
intity of ammunition,
( of Michigan, which
rendezvous. At first
nn island near to the
.•kly occupied by Co-
;ontented themselves
er against this force ;
3urg. On perceiving
, and advanced to the
ily about 400 Militia
20 bayonets amongst
town of Amhcrstburg
and on the next day
»y loss of life or per-
fit day also. General
ng no one to oppose
}anners and music.
river, cannonading
The Volunteers fol-
nd the town from an
had hitherto kept
reach, she was fired
lUott's point, a well
Kent and Windsor
ther killed, or com*
ind blowing fresh in
point. Several of
detachment of the
aoner, which was for
ard. At last, how*
y for quarter, when
and made prisoners
id Colonel Brophy,
ine-pounder cannon,
cc. complete, a large
quantity of ammunition, r.nd 630 dollars in specie. And what was most
remarkable of all, not a single man of the victors was even wounded.—
One indeed did die, but a longtime after, in consequence of a cold caught
io wading the river, to capture the surrendered schooner.
Nothing daunted by the loss of their vessel together with its inmates,
the Patriots, after taking breath to recover their courage, possessed them-
selves of Fighting Island, a long strip of land belonging to Canada, situate
in the river Detroit, nearly midway between Sandwich and Amherstburg.
This occupation of the island took place on the 24th of February, 1838.
Meantime the lion. Colonel Maitland had arrived at Amherstburg with a
body of Regulars ; and as soon as the rebels were known to have occupied
the island, the Rev. Mr. Johnson, of Sandwich, (since dead,) took upon
himself the charge of repairing to Amherstburg in person; and represent-
ing to Colonel Maitland the danger of sutTeriiig such a bund of pirates,
who were in daily expectation of supplies and strong reinforcements, to
concentrate themselves on a point of the frontier, which afToided them
opportunity of selecting their time and place for attack ; and exposed
several considerable frontier villages to the tender mercies of such a des-
perate band of rapacious invaders. In consequence of this representation,
Colonel Maitland despatched Major Townsend to proceed at three o'clock
next morning, with two Companies of the Regulars, one of the 32nd, and
one of the 83rd Regiments, together with a detachment of the Royal Ar-
tillery, bringing with them a nine-pounder piece of Ordnance, under the
command of Captain Glasgow. Speedily Colonels Elliot and Askin of
the Militia joined this force, with a body of about 400 men. As soon as
these troops had assembled at the village opposite to Fighting Island, a
place was selected a little lower down, by which the Infantry proceeded
to cross over in single files. At the same time a fire was opened on the
Patriots from the cannon, and they fled after the second discharge, with
the utmost precipitation, leaving behind them one small cannon which had
been but once discharged ; together with rifles, musquets, pistols, swords,
powder, shot, and other munitions. Three were said to have been killed,
and four wounded by the fire of the artillery : and as soon as the runaways
had reached the American shore, they formed a line, and fired upon the
British, but without injury. This little success had the effect of checking
the presumption of the pirates, who before had threatened Amherstburg ;
so that the troops were kept in perpetual alarm, expecting hourly an at-
tack by a body which fame rated so high as fifteen hundred or two thou-
sand. The brigands had affected also .;o believe a calumnious report
respecting the Provincial Militia, which they themselves had forged and
propagated with the greatest industry; denying strenuously that that
body of men would fight against the Patriots. The behaviour of the
Militia at Fighting Island flung the foul falsehood in the teeth of those
who had fabricated it ; and evinced that on that occasion, as well as oa
every other where their prowess had been tried, they were resolved to
make up by steady valour, and a determination to conquer or die, for what-
ever they were defective in point of military skill, or suitable equipment.
I' ;
\\
96
APPENDIX.
Slill unconvinced by the preceding proofs of the iniianity of Patriotim^
the pirates poHsesscd themselves of Point au PelC> Island, containing about
1 2,000 acres of excellent land, and occupied by several wealthy settlers.
This iHland is situated in Lake Erie, distant about 18 or 20 miles from
AinluTstburg, and opposite to Sandusky. It belongs to Canada, and
being utterly defenceless, its inhabitants were pillaged in the most nierci-
less manner by the invading Patriot army. On receiving information of
tlicse facts, the Hon. Colonel Muitland proceeded by night over the ice,
with two six-pounders, and a small body of Regulars and Militia, and
arrived about duybroak at the Northern poir* of the island, which is said
to be about nine miles long. Its piratical occupants fled on the approach
of the evening towards the Southern extremity ; where were posted about
80 of the 32nd Regiment, supported by about 26 of the Sandwich and
St. Thomas Cavalry; which had been stationed there for the purpose of
intercepting their retreat. The brigands drew up in line on perceiving
the paucity of their foes, and opened a regular Are, being in number about
300, completely equipped, and taking the precaution to avail themselves
of a quantity of broken ice, behind which they were to a certain degree
protected, and which enabled them to take the deadlier aim. Captain
Brown, who commanded the 32nd, seeing several of his men fall, with
great presence of mind gave the order to charge. Soon as the pirates saw
the cold steol coming, they took to their heels, but were compelled to
leave behind them their commander, Colonel Bradley, Major Houdley,
Captains Van Rensselaer and McKeon, and seven dead. Several were
taken prisoners, some of whom were wounded severely. The fugitives
were enabled to carry olff about forty wounded, by means of sleighs, with
which they were provided. They abandoned a tricolor flag, about forty
stand of Americr arms, ammunition, swords. Three of the 32nd
Regiment are said to have been killed, and about twenty-eight wounded.
A Mr. Parish, a St. Thomas volunteer, also fell in this action. But a
victory, achieved by such a handful of men over a force so vastly superior,
ought to have convinced the most obstinate of the fruitlessness of pro-
tracting so unequal a contest. Yet, as we shall just now see, the truth
was not permitted to transpire, so as to reach and influence those whom
it most concerned.
The following was the account with which the American public was
abused, relatively to the affair at Point au Pele Island, in the Detroit
Morning Post Extra, March 5, 1838: —
" The British attacked the Patriots at Point au Pele Island on Satur-
" day morning. There were 600 regulars and some 1 000 of militia. —
*' The latter were not callod into action. The regulars were met upon
" the ice, between the island and the British shore. Three of the regu-
" lars were killed, and sixty wounded, of whom six died on Saturday night,
" and. many more are supposed to be mortally wounded. The loss on the
'' part of the patriots, known, is five — wounded not known — three priso-
" nera to the enemy. The patriots retired in order to the island, and the
APPENDIX.
97
innonity of Patriotim,
iland, containing about
iveral wealthy settlers,
t 18 or 20 miles from
longs to Canada, and
{ed in the most nierci*
ceiving information of
by night over the ice,
liars and Militia, and
le island, which is stid
ts fled on the approach
bere were posted about
of the Sandwich and
(lere for the purpose of
p in line on perceiving
being in number about
ion to avail themselves
ere to a certain degree
eadlier aim. Captain
il of his men fall, with
Soon as the pirates saw
but were compelled to
Major Houdley,
idlcy,
dead. Several were
erely. The fugitives
means of sleighs, with
color flag, about forty
Three of the 32nd
twenty-eight wounded,
this action. But a
brce so vastly superior,
e fruitlessness of pro*
ust now see, the truth
influence those whom
American public was
sland, in the Detroit
Fele Island on Satur>
ne 1 000 of militia.—
;ulars were met upon
Three of the rega-
led on Saturday night,
ded. The loss on the
t known — three priso-
' to the island, and the
^ British to the nuun-land. It was a Miyor, not Colonel Seward, killed.
** The British did not go upon the island.''
The piratical career of General Sutherland, who figured so conspicuously
in this border warfare, had now approached its conclusion. Colonel Prince
and his iViend, Mtgor Lachlan, had both acted as volunteers at the Point
au Pel£ island. The former of these was returning in a sleigh along the
ice of Lake Erie, accompanied by a friend named Haggerty, when, with
eagle eye, he discovered another sleigh bearing Sutherland and his Aide.
He immediately directed his horses so as to intersect the direction of hii
enemy, who forthwith commenced a flight ; but was obliged to bring to,
fearing the execution of the threat, that Mr. Prince's favorite deer-gui.
would speedily enforce obedience. The General's sleigh was stopped; and
that gallanl hicf, with his Aide, Captain Spencer, was made prisoner by
Colonel Prince and his companion, and lodged in triumph in the garrison
at Maiden, whence they were forwarded the next day to Toronto. This
capture was made on Sunday, March 4, 1838.
About the miuJle of this month, an event occurred which deserves to
be recorded, as forming a striking counterpart to the alleged conduct of
other American officers, entrusted by their own government with the charge
of putting down the aggressions which were daily being committed by
American citizens upon the British frontier. An American ofllcer, Colonel
Worth, had received information that many hundred men had left the
vicinity of Buffalo, with the design to invade Canada, at or near to Point
Abino, above Fort Erie, on the Niagara fVontier : he accordingly followed,
and found them established within the British lines, under a temporary
shelter erected on the ice. He was proceeding to disperse them, when
they asked him, how he dared to offer them violence in her Britannic
Majesty's dominions ? The Colonel, no way deterred by this subterfuge,
demanded them to lay down their arms, and gallantly displayed his deter-
mination to enforce obedience. Our heroes, deterred by his resolute con-
duct, quickly dispersed and flod. Thus did the spirit of this gallant of'lcer,
by preventing in all probability much destruction of property and blood,
confer an obligation on both governments, acting, as he did, under the
unshaken conviction, that no captious exception would be taken to his
conduct on the part of the British government. May the sons of Britain
often find such invaders, in cases of aggression from a foreign foe.
About the 19th or 20th of June, a small party of eight of Major
Magrath's Troop of Lancers, stationed at St. John's, about eight miles
from the Niagara frontier, were unexpectedly attacked by a large body of
pirates, and after a desperate defence, in which two of their number were
wounded, one of whom died next day, they were made prisoners; not,
however, until the house in which tliey were posted was set on fire over
their heads. It is thought that in the conflict four of their assailants were
either killed or desperately wounded. They were lefl at liberty, after
having bet:i plundered of their horses and arms. The banditti who com-
mitted this outrage, had been brought over from the United States in small
f!:' A
I, :i
I' k\
H
liili
APPENDIX.
parties by the steamer Red Jacket, and landed on the Canada shore, a little
distance above Chippawa. They were speedily pursued by a party of the
Lancers, who captured nine of their number; a tenth, their lender, by
name Chandler, being shot by Lieutenant Heath, who lost his horse by
pursuing the ftigitiveq into a morass. On this man's perHon were found
one thousand c'ollars and many papers. Speedily atVerwards no less than
twenty more of the pirates were taken, amongst whom was one Moreau, for
whose apprehension X500 had been oifercd by Sir George Arthur. He
was taken prisoner by a solitary Suotchmnn, who brought him bound in his
waggon to the Pavilion, at the Niagara Falls, when he first discovered the
large amount of the reward to which his good fortune entitled him. This
affair was subsequently better known as the Shoit IlillH* outrage.
After the proceedings which have been above detailed, the frontier war
appears to have terminated for the season. It may naturally excite inquiry,
why the season of inclemency should have been selected by the aggressors,
for their inhuman purposes of invasion and rapine ? During other times of
year, employment of one description or another might be obtained by all ;
and therefore, many of those who, in winter, would be thrown out of work,
would, on the return of the milder weather, be withdrawn from the more
dangerous temptations ^vhich PatriotiHtn held out to the more peaceable
and honester pursuits of livelihood by industry. Add to this, that during
the winter a military force could not be forwarded from Great Britain,
unless at vast loss of time and expense; and therefore the invaders, or
insurgents, would have unrestricted choice of what force they were to
oppose ad along the frontier, and on what point to make their attack.—
Previously to the rebel outbreak at Toronto, there was not a single military
man in the Upper Province. The small detachment of six or eight artillery
men, whose chief duty it was to Are the garrison noon-gun, were indeed
retained by Sir Francis Bond Head to take charge of the garrison, but their
services weie not employed at the battle of Gallow's Hill, on Yonge Street.
So that with every advantage in their favor, — choice of time, and place,
and mode of attack, — the revolutionists of Upper Canada were forced to
shew their backs in disgrace at every encounter, although opposed only by
their own fellow-citizens.
The summer returned, and, as it came, seemed to have brought back
with it a temporary oblivion of the rage which had maddened men's minds
during the preceding winter. Sometimes, indeed, the monotony of
tranquillity would be interrupted by a cold-blooded murder, perpetrated
under circumstances of aggravated atrocity, upon some solitary individual,
who had awakened the blood-thirsty vengeance of malice ; or by a deed of
heart-chilling incendiarism, enacted during the unsuspecting stillness of
. midnight. Acts like these, although they indicated the demoniac mind,
yet told less fearfully than the burning of a town and the massacre of its
defenders. They showed that the spirit of mischief watt abroad, and waited
but an opportunity to display its energies in the commission of atrocity.—
And as the autumn glided away, and the cold chill of winter returned once
APPENDIX.
more to fireeiv any generous feeling which still might cling lingering to the
inhuman brvast, war again displayed its fVont^ which was now to be
distinguished by deeper marlcs of determined desperation.
On Sunday, the 11th of November, 1898, during the night, the
"United States'* steamer landed, on the Canada shore, between three
hundred and four hundred well armed men, together with two pieces of
artillery. Several of tliese had provided themselves with a newly-invented
species of rifle, which admitted of firing six or seven shots successively,
w' tliout the delay of loading for each ; and the whole body took up a strong
position, mnny of them being covered by a stone wall, about a mile and a
half below Prcscott, and having in their rear three or four tone houses, and
a stone mill, whose walls were several feet in thickness. .^hey were under
the command of one Von Shultz, a Pole, a man of considerable military
skill and great determination. Captain Sandom, of the Iloyal Navy,
having had previous information of the movements of the brigands, landed
at PrcHC'ott a detachment of about forty of the 83rd and a party of the
Marines, who formed a junction with Colonel Plomer Young's force of
Militia. These united troops, amounting to about two hundred men,
formed two columns, and speedily compelled the patriot pirates partly to
disperse, and partly to occupy the mill and houses, iVom the windows of
which they Iccpt up a galling fire, being themselves in secutlty, as the
Military were unaided by artillery.
The British force was then disposed by the commanding officer under
shelter, in order 'to blockade the enemy until the arrival of ordnance from
Kingston. During this attack, several boat loads of armed men attempted
to cross over from the United States to raise the Hiege and liberate the
pirates in the mill, but were compelled to put back by Captain Sandom,
who had three armed steamers assisting. The ** United States" steamer
also, attempting to cross for the same object, was thrice driven back by the
little steamer "Experiment." And several boat loads, loaded with the
runaway brigands, attempting to go over from the Canada shore, were
either captured or compelled to return. Meantime several bodies of the
Provincial Militia arrived, who poured incessant volleys of musketry into
the mill and houses ;^ and on Wednesday, the Hon. Colonel Dundas
appeared with a battering train from Kingston. The brigands, who had
been for some time l}efore compelled to fire stone from their cannon for
want of balls, surrendered at discretion on Thursday, (afler the destruction
of the stone houses), by hoisting a white flag at the mill. This surrender
in reported to have been made indispensable on their part, by the fact that
their provisions l}eing exhausted, they must soon have fallen victims to
famine. It is remarkable, that although some companies of the 8drd
accompanied the Hon. Colonel Dundas, yet the Militia, by particular desire,
requested the reduction of the rebels to be lefl entirely to themselves and
the Artillery, that they might have an opportunity of effacing, with the
blood of their enemies, the foul stain which their slanderous tongues had
■i
100
APPENDIX.
m$
MTrA
sought to affix to the reputation of tlif T*rovincial Militia. The following
official document will put the results of this desperate and protracted
conflict in the clearest light: —
TorordOy November 19tt, 1838.
Afteb District General Order.
His Excellency Major General Sir George Arthur feels the greatest
gratification in announcing to the Queen's Regular Troops, and to Her
Majesty's Militia of the Province, now so happily engaged hand in hand
in the defence of their country, against internal disaffection, and against
the most cruel and unjust aggression from abroad, that their united efforts
have proved decidedly effectual in overcoming a gang of desperadoes, who
lately had the temerity to make a descent, from the United States, on the
Canadian Shore of the St. Lawrence, between Prescott and Johnstown.
The Pirates, on landing, took posseosion of some Stone Houses, and a
Stone Mill, of extraordinary strength of masonry, about one and a lialf
mile below the former place ; of these they held possession for some time,
closely blockaded by the loyal Militia, under Colonel Plomer Young,
Particular Service, until reinforced by Colonel the Honourable Henry
Dundas, with a Demi Field Battery of the Royal Artillery, and some
Companies of the 83rd Regiment, from Kingston. Against such a force,
when supplied with heavy Artillery, it was impossible for the enemy long
to hold out ; and after the Stone Houses had been destroyed, a white flag
was hoisted at the Mill, and its occupiers were permitted to surrender at
discretion.
The fruits of these gallant proceedings, consisted of about one hundred
and sixty-seven Prisoners^ exclusively of about sixteen toounded.
It is reported, that not less than tifty-six of the Enemy were killed
during the operations.
Color -"l the Honourable Henry Dundas, Colonel Plomer Young, and
Captain S ndom. Royal Navy, Commanding the Naval Flotilla, speak in
the very hi^ ^est terms of the gallantry, good conduct, and extraordinary
forbearance, of the whole of Seamen and Marines, the Regular Force, the
Militia and the Volunteers, employed on the occasion.
The British loss consists of Lieutenant Johnson, 83rd Regiment;
Lieutenant Dulmage, of the Grenville Militia, killed ; and Lieutenant
Parker, Royal Marines, and Lieutenant Parslow, of the Militia, wounded ;
with about forty-five Rank and File killed and wounded.
The loss of the Brigands was particularly severe in Officers, among
whom were the self-styled Generals Brown, and Phillips.
His Excellency Major General Sir George Arthur cannot sufficiently
applaud the alacrity and firmness with which Colonel Plomer Young, at-
tacked the Brigands, with a very inferior force, on their first appearance
on the Canada Shore; and the gallantry with which the Detachments of
the 83rd Regiment, and Royal Marines, with the Militia under his coaio
APPENDIX.
101
veniber 19^A, 1838.
inand, drove them to seek a temporary security in the Mill and Houses :
in which, however, they found it totally ir practicable long to maintaiu
themselves against British valour and persevering intrepidity.
The Maj - General also offers his warmest thanks to Colonel Dundas,
for the able disposition of his Force, and his indefatigable exertions ; to
Colonel McBean, R.A.; to Colonel R. Duncan Fraser; to Lieutenant
Colonel Gowan ; and Captain George Macdonald ; and to all the Officers
of the Militia and Volunteers, whose names he is alone prevented from
particularising, by the casual absence of the Despatch from Colonel
Young, which enumerated them; and His Excellency is confident that
the gallant example now shewn, will be followed with equal loyalty and
spirit, by all the Militia of the Province, should their services be called for.
To Captain Sandom, Commanding the Royal Navy, likewise are His
Excellency's thanks most fully due, for his vigilance and able co-operation;
and to Lieutenant Fowell, Royal Navy, who so gallantly commanded Her
Majesty's Steamer " Experiment," which ahhough so inferior in point
of size and power, obliged the enemy's Steamer " Umtep States," to
seek refuge in an American Port.
His Excellency the Lieutenant Governor, likewise, has much pleasure
in congratulating Colonel Carmichael, Particular Service, and the loyal
and gallant Glengarry Militia Regiments, under Colonels McDonell,
Fraser, Chisholm, and McDonell, whose ready aid in moving into the
Lower Province, mainly contributed to the le-capture of iha^* Henry
.brougham,'* and has earned for them the high approbation of His Excel-
lency the Commander of the Forces.
Py Command,
C. FOSTER, Colonel,
Assist. Adft. GeiCl.
m
On the fourth of December 1839, the anniversary of Mackenzie's ap-
pearance on Yonge Street, a body of about 450 Brigands, at two o'clock
in the morning, stole the steamer Champlain, (belonging to a merchant
in Detroit named Julius Eldred,) with which they effected a landing on
the Canada shore, at the two windmills, a little below the foot of Hog
Island in the river Detroit. Here they remained until about five o'clock,
after which they moved towards Windsor, setting fire in their route to
the British steamboat Thames, belonging to Duncan McGregor Esq., of
Chatham. They were then challenged by a sentinel of Captain Lewis's
Company, whom they shot dead on the spot. Twenty men who were
stationed in the guard-house returned their fire, and killed a brigand Cap-
tain Lewis. The guard-house was immediately set on fire, and was burned
to the ground, together with two other houses : in the former two brave
fellows were burned to death. Their gallant comrades were all captured,
i2
m
102
APPENDIX.
but eventually succeeded in escaping. The brigands then proceeded to
murder in cold blood a Mr. Hu ne, Assistant Staff Surgeon, stationed at
Sandwich, who had mistaken them for a body of Volunteers, and walked
up to Windsor to assist professionally. Not content with firing several
balls through his body, they stabbed him with bowie knives, and mangled
him with an axe. They also assassinated a black man who had refused
to join them : and during these iuhuman proceedings the air was rent with
cheers issuing from persons on the Detroit shore of the river, that city
being directly opposite to the village of Windsor in Canada.
These chilling atrocities speedily brought on their own punishment,
which was severe and signal. At six o'clock in the morning, Colonel
Prince, at Sandwich, received news that Windsor, two miles above, was
in possession of Brigands and Pirates from Michigan, which tidings were
instantly confirmed by the appearance of a fire in the direction of Windsor.
He immediately despatched a guest of his to Maiden, for a reinforcement
with a field piece, from Colonel Airey. Meantime, with a force of about
130 meii, commanded by Captains Sparke, Fox, Thebo, and Elliott, to-
gether with several gentlemen volunteers from Sandwich, he marched
directly for Windsor. About the entrance to Sandwich village they were
joined by Captain Bell, of the Provincial Volunteers. As they advanced
towards Windsor they were informed, that the village was occupied by a
large body of brigands, and that another considerable force had left
Windsor and was marching on Sandwich.
Speedily a body of about 150 were discovered in an orchard in the
rear of Windsor, at a distance of nearly 250 yards. Captain Sparke's
Company which led, immediately wheeled up, and opened a well-directed
fire : and the Militia and Volunteers at the same instant moved rapidly
up on the enemy's left flank, and poured in their fire also. On receiving
these two fires, they fled to the woods most precipitately. As the force
under Colonel Prince approached the woods, he ordered them to halt ;
and fearing that Sandwich might be captured in his absence, that place
having been left defenceless, he returned thither speedily in double quick
time. On his return he found that they had not attempted an attack on
the village, but had been seen in the groves in its rear in large numbers.
He then received information that upwards of 300 brigands were still in
Windsor — that they continued to receive reinforcements from Detroit, —
but that they abstained from further outrage. Being unwilling to divide
his little force, he resolved to remain at Sandwich, where in about an
hour's time h- was reinforced by Captain Broderick, with a body of Regu-
lars and a field-piece.
Of the brigands, 2 1 were killed, and four prisoners were brought in
wounded immediately after the battle, all of whom Colonel Prince ordered
to be shot upon the spot. Subsequently 26 other prisoners were taken :
and in this list of killed and wounded were several notorious offenders,
who had long been a terror to the frontier. The British lost one man of
Captaia Elliott's Company killed, with two men slightly wounded. The
APPENDIX.
103
8tandard*bearer of the brigands was shot dead by an Ensign in Captain
Tbebo'^ Company, and the standard itself captured by Lieutenant Rod-
kin, of Captain Sparke's Company. It was a tri-colour, with a crescent
and two stars, in the lower corner, near the staff.
After being reinforced by Captain Broderick, the whole force returned
to Windsor, but found that the brave heroes who had come over to give
Liberty to Canada had utterly disappeared.
After the affair of Windsor, placards were posted in Detroit, offering a
reward of 800 dollars for the capture of Colonel Prince, alive or dead.
It was also reported subsequently that that gentleman, dreading assassi*
nation in his own house, was compelled to set man-traps and spring-guns
in the grounds around his dwelling ; having previously given his friends
notice by posted handbills not to approach his premises before a certain
hour in the morning, nor after a certain hour in the evening.
The account of" the battle of Sandwich," published by the Biiffulonian
newspaper, is said to have represented the British as having lost 40 to oO
killed, whilst the patriots had only three killed and three wounded.
Long after these events, and in the subsequent summer or autumn,
eight human skeletons or bodies in a very advanced state of decomposi-
tion, were said to have been found in the woods, in the neighbourhood of
Sandwich and Windsor. They were supposed to have been the remains
of so many of these brigands, who were in all probability frozen to death
at the foot of a large tree, where they had been found ; this being the
only manner in which such an extraordinary distrovery could, with any
appearance of likelihood, be accounted for.
V.
COURT OF CHANCERY.
By 3rd and 4th Vic, c. 1, the Governor is authorized to issue a Com-
mission, directed to the Vice Chancellor and any two or more Judges,
authorizing them to make Rules for the Practice of this Court.
In addition to the Orders for regulating the Practice of this Court,
mentioned in the note page 39, there are additional Rules and Orders,
passed since : the last were those made 3rd March, 1843, for regulating
the making and taking Office Copies. The substance of which are as
follows :—
All Copies of Proceedings and Pleadings (save and except copies of
minutes, decrees, orders, and depositions) to be made and delivered by the
Solicitor or Agent, with whom the draft shall originate, that such copies,
before being delivered, shall be examined and certified by the Registrar.
ill-" ^llii
K
104
APPENDIX.
No answer shall be considered as filed until a copy thereof, authenticated
as in the preceding order, shall have been served on the Solicitor or Agent
of the plaintiff.
The originals of any affidavit, in support of, or in opposition to any
application, by motion, petition, or otherwise, may be read at the hearing,
instead of Office Copies, as heretofore, and that any party requiring a copy
of nny such affidavit, shall be entitled to demand and receive the same,
authenticr.ted by the Registrar, in manner before mentioned, from the party
61ing such affidavit, who shall be obliged to furnish the same within such
time, as by the present practice, the same may be obtained from the
Registrar.
It shall not be necessary to file any affidavit of the service of a notice
of motion, or any affidavit which proves the mere service of a paper, and to
take an office copy thereof for use, but the original affidavit may be read,
in the same manner as the office copy.
That the Solicitor or Agent, of whom any Office Copy may be spoken,
shall have the same ready for delivery within forty-eight hours thereafler,
copied in clear and legible characters.
That where a bill is amended and a re-engrossment thereof tiled, and a
copy served on the opposite party, it shall not be necessary to pay to the
opposite party, the usual sum of 208.
In the case of Aked vs. Aked, recently (January .31, 1843), determined
before the Vice Chancellor of England, it has been decided, that notwith-
standing the recent abolition of the office in England of the Six Clerks,
Sworn Clerks, and Waiting Clerks, under the Act of the 4th and 5th Vic,
c. 103, it had not abolished the business transacted by means of it, and that
the Fees for an Office Copy of the Bill, before allowing the defendant to
file his answer, were yet compulsory, and might be received by the Clerk
of the Records and Writs.
The Fees in England for Office Copies of Documents lefl for Exhibits,
are, per folio 4d.
For all other Office Copies 10
PRACTICE <
DEBATE ON THE CHANCERY BILL.
Home of Assembly, February 2, 1837.
A great part of this day was occupied in discussing the Chancery Bill,
in Committee of the whole House ; and a good deal of warm debate took
place, principally between the Solicitor General and Mr. Prince, in an
amendment moved by the latter gentleman, to allow Barristers and Solici-
tors of three years standing in the Court of Chancery in England and
Ireland, who produced proper certificates, &c., to practice in the Court of
Chancery in this Province. The amendment was adopted, and the blU
ordered for a third reading to-morrow.
APPENDIX.
105
*■' ;
February 3.
Pursuant to the order of the day, the Chancery Bill was read the third
time, and on the question for passing the same, the Solicitor General,
seconded by Dr. Rolph, moved, to expunge the clause introduced by Mr.
Prince yesterday. This motion brought on a lo'^g debate. Messrs.
Solicitor General, Robinson, Jarvis, Murney, Sherwood, McKay, Aikman,
and Rolph, spoke in favour of the motion for expunging; and Messrs.
Prince, Thorbum, Gowan, MacNab, Gibson, Norton, Boulton, Parke,
McDoncU of Glengarry, and Dunlop, spoke against it. The motion was
carried, 24 to 22, and the clause was expunged.
Mr. Gowan, seconded by Captain Dunlop, then moved the same clause,
leaving out the word Barristers, which was carried by a majority of 8, and
the bill was amended accordingly.
Mr. Gibson, seconded by Mr. Mcintosh, moved, that the Solicitors and
Counsel in any cause, in the said Court, shall not he alloioed more than one-
half of the amount of the property in dispute for the costs incurred by the
plaintiff and defendant. Lost, yeas 1 1 , nays 3 1 .
Mr. Prince, seconded by Mr. Gowan, moved a Schedule of Fees, to be
paid by the suitors in a suit, instituted for the specific performance of any
contract or agreement, and that the same should serve as a precedent, to
guide the Master in taxing costs in otlier suits. Total amount — Thirteen
Pounds Seventeen Shillings and Six Pence! Which was carried, yeas 27,
nays 27.
.m
PRACTICE OF THE COURTS AT WESTMINSTER, IN CANADA.
IN THE CASE OF SOE DEMISE OF GRIFFIN VS. HOE.
The Court (K. B. Upper Canada) were of opinion, that as Tidd's
Practice^ was that to which the Practitioners usually referred, for authority
in this country, and as the English Rule, Easter Term, 2 Geo. IV. had
not, as appeared, been published in that Work, it would be unreason-
able that Suitors or Practitioners should be surprised by its production,
and directed that the edition of 1817, should be considered as that which
regulated the Practice of this Court. — Taylor's Report, 'i69. Hil. Term,
1825.
In Mead r«. Bacon, Michs. Term, 1824. — Rolph in shewing cause
against a Rule for setting aside an Interlocutory judgment for want of a
Plea, stated, that in this point of practice, we must be governed by that
of the King's Bench in England, it being a case not provided for by
our own Statute, the regulations fur which, respecting the times for
pleading, are expressly confined to actions not bailable. That in all cases
nut provided for by our own Statute, we are referred to the English Pbac*
tice, by the Rule of this Court.
\ .
106
APPENDIX.
CHRONOLOGICAL INDEX
To the several Statutes and Ordinances of Lower and Upper Canada, and
Canada, relating to the Judicial Institutions of the Province, the
Practice, and Proceedings therewith connected:—
LOWER CANADA.
BELATINO TO 8VPBBI0B COUBTS OF CIVU. JUBI8DICTI0H.
1793. 34th Geo. Ill, c. 6. — For the Division of the Province, and for
amending the Judicature.
1795. 35th Geo. Ill, c. J. — To explain and amend the last Act.
1807. 47th Geo. Ill, c. 6. — To amend the 34th Geo. Ill, c. 6, as to
the Superior Terms in Three Rivers.
1818. 58th Geo. Ill, c. 13.— To extend the 34th Geo. Ill, c. 6.
1823. 3rd Geo. IV, c. 9. — To amend the 34th Geo. Ill, c. 6.
3rd Geo. IV, c. 17. — For establishing Courts of Judicature in
the District of St. Francis.
1824. 4th Geo. IV, c. 18. — For directing Circuit Courts to be held in
the School Houses (temporary).
1825. 5th Geo. IV, c. 2. — To alter the 25th Geo. Ill, c. 2, to regu-
late proceedings of Civil Judicature.
5th Geo. IV, c. 23. — To continue the 3rd Geo. IV, c. 9.
1826. 6th Geo. IV, c. 26. — To continue the 3rd Geo. IV, c. 17,
1 829. 9th Geo. IV, c. 49. — lit.
1 830. 1 0th and 1 1 th Geo. IV, c. 7. — lb.
10th and 1 1th Geo. IV, c. 17. — To repeal in part the 34th Geo.
Ill, c. 6.
, 10th and 1 1th Geo. IV, c. 22. — To amend the same as to Three
Rivers.
1832. 2nd Wm. IV, c. 8. — For regulating appeal from the Provincial
Court of the District of St. Francis,
and to establish Circuits.
1833. 3rd Wm. IV, c, 18. — To continue the Act as to the Inferior
District of St. Francis.
1838. 2nd Vic, c. 13. — For one or more Assistant Judges, for K. B.
for the District of Quebec, Montreal,
and Three Rivers, in case of sickness.
2nd Vic, c. 2. — For an Assistant Judge of Three Rivers, to sit
in K. B., St. Francis.
1839. 3rd Vic, c. 3. — To render permanent certain Acts relative to
the District of St. Francis.
1840. 3rd Vic, c 24. — To amend 2nd Vic, c 13.
4th Vic, c 26. — To facilitate the dispatch of business now
before K. B., Montreal.
4tb Vic, c 45. — To establish new Territorial Divisions, and to
alter and amend the Judicature.
BELATINi
1838. IstV
1797. 37th G<
1823. 4th G(
1832.
1834.
1837.
1838.
1823.
1840.
APPENDIX. 107
UPPER CANADA.
BELATING TO 8UPBBIOB C0UBT8 OF CIVIL JUBISDICTIOM.
2nd Wm. IV, c. 8. — For regulating the sittings of K. B.
4th Wm. IV, c. 8. — To repeal the 2nd Wm. IV, c. 8.
7th Wm. IV, c. 1. — To increase the number of Judges and
alter the Terms.
1st Vic, c. 15. — To amend the 7th Wm. IV, c. 1, as to Hilary
Term.
BEPOBTEB.
4th Geo. IV, c. 3. — For providing a Reporter for the K. B.
3rd Vic., c. 2.— For better regulating the Office of Reporter.
COURT OF CHANCBRT.
1837. 7th Wm. IV, c. 2. — To establish this Court.
1838. 1st Vic, c. 14. — To amend the last Act.
COURTS FOB THE BECOVEBT OF SMALL DEBTS.
1 792. 32nd Geo. Ill, c. 6. — For the easy recovery of Small Debts.
1794. 34th Geo. Ill, c. 3. — To establish Courts for the cognizance of
Small Causes in each District.
1797. 37th Geo. Ill, c. 6.— -To extend the Jurisdiction and regulate
the Proceedings of the District Court,
and Court of Requests.
1816. 56th Geo. Ill, c. 5. — To extend the Jurisdiction of the Court
of Requests.
1819. 59th Geo. Ill, c 9. — To repeal and amend the 34th Geo. Ill,
and 37 th Geo. Ill, c. 6.
1833. 3rd Wm. IV, c 1. — To repeal, amend and reduce the several
Laws for the recovery of Small Debts.
1837. 7th Wm. IV, c. 12. — To amend the Laws.
DISTBICT COURTS.
1822. 2nd Geo. IV, c. 2. — To reduce into one Act the Laws establish*
ing District Courts.
1832. 2ndWm. IV, c. 9. — To make valid certain proceedings in the
Home District Court.
PABTICULAB DISTBICT COURTS.
1 797. 37th Geo. Ill, c. 9. — To enlarge the time for holding the Assizes
for the Home District, and for altering
the time cf holding the Sittings.
1823. 4th Geo. IV, c. 2. — To provide for the establishment of Courts
in the District of Bathurst.
108
APPENDIX.
LOWER CANADA
COURTS rOR SMALL SEBTSt
1808. 48th Geo. Ill, c. 15.— Expired.
1817. fi 7th Geo. Ill, c. 14. — For administration of Justice in Small
Causes in Country Parishes.
1819. 59th Geo. Ill, c. 1 0. — To facilitate the recovery of Small Debts.
59th Geo. Ill, c. 13. — To continue the 58th Geo. Ill, c. 12.
59th Geo. Ill, c. 20. — To continue the 57th Geo. Ill, c. 14.
1821. lat Geo. IV, c. 2. — For the Summary Trial of Small Causes.
I St Geo. IV, c. 3. — To continue the 57th Geo. Ill, c. 14.
1823. 3rd Geo. IV, c. 1. — To continue the 1 st Geo. IV, c. 2.
8rd Geo. IV, c. 2. — To continue the 57th Geo. Ill, c. 14.
3rd Geo. IV, c. 22. — To extend the Acts to Magdalen Islands.
1824. 4th Geo. IV, c. 24. — To extend the Trial of Small Causes to
St. Francis.
1825. 5th Geo. IV, c. 24. — To continue the 57th Geo. Ill, c. 14.
1826. 6thGeo. IV, c. 2. — To provide for the Summary Trial of
Small Causes.
1827. 7th Geo. IV, c. 9. — To amend the last Act.
1829. 9th Geo. IV, c. 22. —To continue the 6th Geo. IV, c. 2, and
7th Geo. IV, c. 9.
1833. 3rd Wm. IV, c. 34. — For the Summary Trial of Small Causes.
1 : 34. 4th Wm. IV. c. 2.— 7ft.
1836. 6th Wm. IV, c. 1 7.— /ft.
1840. 4th Vic, c. 43. — For the easy and expeditious administration of
Justice in Civil Causes of small value.
COURTS OF REQUEST.
1839. 2nd Vic, c. 58. — To establish Circuit Courts of Request in
Queber, Montreal, and Three Rivers.
COMMISSIONERS EKQUETEURS.
1829. 9th Geo. IV, c 5. — To provide Commissioners to take evi-
dence in the District of Montreal.
1831. 1st Wm. IV, c 2. — Tofacilitatethe Administration of Justice
respecting Enquetes.
1832. 2ndWm. IV, c. 6. — To extend the last Act.
BANKRUPTCY COMMISSIONERS.
1839. 2nd Vic, c 36. — For establishing Bankruptcy Law.
REGULATING PRACTICE IN CIVIL COURTS.
1795. 3oth Geo. Ill, c 10. — For regulating the Proceedings in Superior
Terms K. B., Montreal.
1801. 41st Geo. Ill, c 7. — For regulating the Forms of Proceeding,
and to facilitate Administration of
Justice.
1793. 38r
1811. 51s
APPENDIX.
109
rial of Small Causes.
1793.
1814.
1815.
1818.
1821.
1839.
1792.
1797.
1800.
1808.
UPPER CANADA.
PROnATB AND SUBBOGATB COUkTB.
33rd Geo. Ill, c. 8. — To establish these Courts.
COUNTY COURTS.
54th Geo. Ill, c. 13. — To supply the want of County Courts.
55th Geo. Ill, c. 2. — To repeal 54th Geo. Ill, c. 13, and to
make further provision in Outlawry.
58th Geo. Ill, c. 11. — To continue 55th Geo. Ill, c. 2.
2nd Geo. IV, c. 9.— /i,
2nd Vic., c. 7,— /i.
BOUNOART COMMIS8IOKSRS* COVUJ.
1st Vic, c. 19. — To establish a Court of Boundary Commis-
sioners.
REGULATING PRACTICE.
32nd Geo. Ill, c. 4. — To abolish summary proceedings in Com-
mon Pleas Actions under £10.
37th Geo. Ill, c. 13. — For better regulating the Practice of the
Law.
7. — To regulate proceedings in case of Crimi-
nal Conversation.
4. — For preventing vexatious Suits, and to
• authorize levying Poundage in certain
cases, and to regulate Sales by Sheriffs.
1811. 51st Geo. Ill, c. 3. — To extend Personal Arrest to the sum of
40s., and to regulate Practice in case
of Personal Arrest.
7. — To regulate time of Penal Actions.
4. — To regulate Costs in certain cases, K. B.
59th Geo. Ill, c. 25. — To prevent the abatement of any action
against a Joint Obligor, Contractor, or
Partner, on account of the other Joint
Parties not being defendants.
7. — To regulate the service of Process out of
K. B. and the District Court.
1. — To repeal part and amend the Laws
respecting the Practice of K. B.
5. — To repeal part and amend 37 th Geo. Ill,
c. 13.
4th Geo. IV, c. 20. — To alter the times of holding the Terms
of Hilary and Michaelmas.
6th Geo. IV, c. 1. — To remove doubts as to commencement of
Michaelmas in the last, and Hilary
• Term in the present, and to appoint the
* period of holding the several Law Terms.
1812.
1818.
1819.
1821.
1822.
1824.
1825.
40tli Geo. Ill, c.
48th Geo. lil, c.
52ndGeo. Ill, c.
58th Geo. Ill, c.
2nd Geo. IV, c.
2nd Geo. IV, c.
2nd Geo. IV, c.
no
At>PENOK(«
1812.
1817.
1821.
1824.
1827.
1830.
1833.
1834.
1839.
1840.
1801.
1808.
1812.
1823.
1824.
1829.
1836.
1839.
1831.
1833.
1839.
LOWER CANADA.
52nd Geo. Ill, c. 8. — For regulating Habeas Corpus proceedings,
57th Geo. Ill, c. 18.— 'For amending 34th Geo. Ill, c. 6, giving
an additional Superior Term.
57th Geo. Ill, c. 30. — For repealing the 29th Geo. Ill, regu-
lating the Practice and providing for
dispensation of Justice.
1st Geo. IV, c. 8. — For regulating further proceedings under
Habeas Corpus.
4th Geo. IV, c. 1 7. — For regulating appearance of defendants
residing in different Districts.
7th Geo. 1% c. 8. — For facilitating proceedings relating to
Habeas Corpus, and Attachment.
10th and 11th Geo. IV, c. 26. — To repeal the 27th Geo. Ill, c.
4, requiring Writs of Attachment to be
endorsed.
3rd Wm. IV, c. 5. — To facilitate proceedings in Actions in
District of Three Rivers.
4th Wra. IV, c. 4.— To amend 4th Geo. IV, c. 17.
2nd Vic, c. 49. — For regulating the Practice.
3rd Vic, c. 9. — To facilitate Administration of Justice in
Civil Matters.
BELATINO TO EVIDENCE IN CIVIL SUITS.
41st Geo. Ill, c. 8. — For determining the Relationship of
Witnesses.
41st Geo. Ill, c. 15. — Relating to the Decisory Oath.
48th Geo. Ill, c. 22. — Relating to the Judges' powers to delegate
Administration of Oaths.
52nd Geo. Ill, c. 11. — To continue and make perpetual last Act.
BELATINO to EXECUTIONS.
3rd Geo. IV, c. 1 1 .—To make Sheriffs' Sales less expensive.
4th Geo. IV, c 12. — To explain and amend last Act.
4th Geo. IV, c. 1 3. — For regulating Proceedings affecting
Debtors' effects.
9 th Geo. IV, c. 3. — To exempt Debtors' Bedding and Wearing
Apparel from seizure.
9th Geo. IV, c. 26. — To prevent Fraudulent Seizure of Lands.
6th Wm. IV, c. 26.— lb.
2ndVic, c48.— /ft. *
Ist Wm. IV, c. 4. — rFor exempting certain Articles from
Execution.
3rd Wm. IV, c. 11. — To continue 9th Geo. IV, c. 8, and 1st
Wm. IV, c 4.
2ndVic, c28.— /ft.
1827.
7th <
1830.
11th (
1831.
1st '
1833.
3rd
3rd\
1834.
4th \
4th \
4th \
1835.
5th T
5th \
1837.
7th V
1840. 3rd\
1811. 51st C
'/I
tn of Justice ia
Relationship of
APPENDIX.
UPPER CANADA.
Ill
1827. 7th Geo. IV, c. 6. — Fo** preventing frivolous Suits.
1830. 1 1th Geo. IV, c. 4. — To extend the provinions of the Laws of
set off, and to prevent vexatious Suits.
183 J. 1st Wm. IV, c. 2. — To prevent a failure of Justice by im-
niRtcriul variances in certain Law Pro-
ceedings, and to require all Courts to
take Judicial notice of Private Acts.
1833. 3rdWm. IV, c. 6. — To revive 55th Geo. Ill, c. 2, and to
make further provision for proceeding
to Outlawry.
3rd Wm. IV, c. 8. — To facilitate proceedings against Corpora-
tions.
1834. 4th Wm. IV, c. 5. — To grant relief to Bail, and to regulate
puttiug in, and perfecting Bail in vaca-
tion.
4th Wm. IV, c. 7. — To facilitate remedy in Replevin.
4th Wm. IV, c. 9. — To amend 2nd Geo. IV, c. 1, regulating
the Practice of the Law.
1835. 5th Wm. IV, c. 1 . — To prevent multiplication of Suits on Bills
of Exchange.
5th Wm. IV, c. 2.— To allow Writs of Error from K. B.
1837. 7th Wm. IV, c. 3. — For the further amendment of the Law,
and for the better advancement of
Justice.
7th Wm. IV, c. 5. — To amend the Law respecting proceedings
on Bills of Exchange.
7th Wm. IV, c. 9. — To revive a i continue 3rd Wm. IV, c. 8.
1838. Ist Vic, c' 16. — To regulate the Costs of levying Distresses for
' small Rents and Penalties.
1840. 3rd Vic, c. 8. — To make perpetual 5th Wm. IV, c. 1.
PRACTICE OF COURT OP CHANCERY.
1 840. 3rd Vic, c. 1. — To authorize the appointment of Commissioners
to regulate the Practice of this Court.
PRACTICE OP DISTRICT COURTS.
1811. 5 1 St Geo. Ill, c. 6. — To amend Process of District Courts, and
also further to regulate the proceedings
of Sheriffs in the Sale of Goods taken
' ' in Execution.
1835. 5th Wm. IV, c. 14. — To enable Suitors in District Cr arts, to
procure attendance of Witnesses and to
' '•' make Affidavits.',
1840. 3rd Vic, c. 5. — To provide for the continuance of Suits in cases
of formation of New Districts.
112
1827.
1832.
1836.
1829.
1833.
1836.
1839.
1836.
1821.
1830.
1833.
1804.
1826.
1839.
APPENDIX.
LOWER CANADA.
INBOLVEHT DEDTORR.
7thG«). IV, c. 7.— For their reUef.
2ndWni.IV, c. 1.— /ft.
6th Wm. IV, c. 3.— 7ft.
6thWni.lV, c. 4.— /ft.
DBDTOB8 TBAUDULENT.
9th Geo. IV, c. 27. — To prevent Fraudulent Debtors evading
Creditors.
9th Geo. IV, c. 26. — To prevent Fraudulent Seizure of Lands.
3rd Wra. IV, c. 27.— To ievivc 9th Geo. IV, c. 27.
6th Wm. IV, c. 26.— /ft.
2nd Vic., c. 48.— /ft.
6th Wm. IV, c. 9. — To prevent Debtors wasting property
under Seizure.
COCBTS OP CRIMINAL JURISDICTION.
1st Geo. IV, c. 15. — To extend to Three Rivers the 27th Gea
III, c. 6, for establishing Courts of
Criminal Jurisdiction.
10th and 11th Geo. IV, c. 16. — To amend the 34th Geo. Ill, c.
6, as fltr as relates to Criminal Jurisdic-
tion.
3rd Wm. IV, c. 3. — To continue 9th Geo. IV, c. 28, and 1 0th
and UthGeo. IV, c. 16.
SVIDENCB IN CRIMINAL CASES.
44th Geo. Ill, c. 7. — Regulating the administration of Oaths to
the Grand Jury.
PRACTICE.
6th Geo. IV, c. 6. — To delay sentence of death in certain cases.
2nd Vic, c. 23. — For abolishing the Traverse of Indictments for
misdemeanors b'^forc Court of Oyer and
Terminer.
1832. indVI
1829. 10th Gii
1838. 4th Wi
1834. 4th Wi
JUSTICES OF THE PEACE.
1802. 42nd Geo. Ill, c. 1 1.— Giving power to regulate Apprentices.
1803. 43rd Geo. Ill, c. 4. — To embrace the last Apt.
1807. 47th Geo. Ill, c. 4.— To continue 42nd Geo. Ill, c. 1 1.
1811. 51st Geo. Ill, c. 13. — To continue the Acts expired.
1823. 3rd G^o. IV, c 12. — To e.^tend the. Powers of Justices of the
Peace.
APPENDIX.
UPPER CANADA.
118
1803.
1837.
1838.
Debtors evading
1832.
Seizure of Lands,
c. 27.
1835.
1839.
1840.
wasting property
era the 27th Geo.
ishiiig Courts of
1805.
1822.
1827.
1830.
•
1 34th Geo. Ill, c.
Criminal Juriadic-
1829.
ration of Oaths to
e Apprentices.
1833.
1835.
1833.
1832.
1838.
1834.
1794.
1795.
1804.
1810.
EXHCVTIOMt.
43rd Geo. Ill, c. 1. — To nilow time for the Sale of Lands and
Tenements by the Sheriff.
7th Wni. IV, c. 19. — To amend the Lawd for the Sale of Landi
for Taxes.
1 St Vic. c. 20. — To postpone Snlc of Lands for arrears of Taxes.
ABSCONDING ORUTOB8.
2ndWm. IV, c. 5. — To afford means for Attaching their
property.
5th Wm. IV, c. 5. — To amend last Act.
2nd Vic, c. 5. — To continue 5th Wm. IV, c. 5.
3rd Vic. c. 7. — lb.
INSOLVENT DEllTORS.
45tli Geo. Ill, c. 7.— For the relief of.
2nd(irco. IV, c. 8. — To regulate weekly maintenance
8th Geo. IV, c. 8. — For the relief of.
nth Geo. IV, c. 4.-/6.
IMPRISONMENT OF BEnTORS.
10th Geo. IV, c. 2. — To authorize the detention of Debtors in
certain cases.
4th Wm. IV, c. 6. — To extend last Act.
6th Wm. IV, c. 3. — To mitigate imprisonment.
DEBTORS ON MESNE TROCESS.
4th Wm. IV, c. 3. — To relieve persons confined.
PROPERTr lilABLE FOR DEBTORS.
2nd Wm. IV, c. 6. — To make the Stock of Companies liable.
Ist Vic, c. 7. — To amend the Law, with respect to the liability
of the legal Representatives of Joint
Contractors and of Defendants, on Joint
Judgments.
4th Wm. IV, c. 10.— To extend the Limits of Gaols, and to
facilitate payment of Debts from Defen-
dants in execution.
SUPERIOR COURTS OF CRIMINAL JURISDICTION.
34th Geo. Ill, c. 2. — To establish a Court, and regulate Court
of Appeal.
35th Geo. Ill, c. 4. — To explain and amend 34th Geo. ITI, c. 2.
44th Geo. Ill, c. 3. — To repeal part 34th Geo. IIa, c. 2.
50th Geo. Ill, c. 9. — To repeal 44th Geo. Ill, c. 3.
k2
lil
114
APPENDIX.
LOWER CANADA.
1824. 4th Geo. rV, c. 19. — For Justices to account for Fines ami
Penalties.
1833. Srd Wm. IV, c. 10. — To regulate the Fees of persons employed
by Justices of the Peace in country
parishes.
1830. 10th and 1 1th Geo. IV, c. 2. — Fixing qualification of Justices.
1836. 6th Wm. IV, c. 16. — Fixing further qualification of Justices.
1 839. 2nd Vic, c. 20. — For information of the Governor and public, cf
prosecutions before Justices of the
Peace.
1837. 7th
JGBIES.
1829. 9th Geo. IV, c. 10. — For extending Jury Trials.
1832. 2ndWm. IV, c. 22. — Regulating qualification and summons of
Juries.
SHEBIFFS.
1829. 9th Ceo. IV, c. 6.— Regulating office of Sheriff.
JUDGES.
1811. 5 1 St Geo. Ill, c. 4. — To prevent Judges sitting in the House of
Assembly.
BARBISTEBS AND ATTORNEYS.
1815. 55th Geo. Ill, c. 13. — For Relief to Students, who have served
in the Militia.
1826. 6th Geo. IV, c. 6. — For amending 25th Geo., as to admission.
1836. 6th Wm. IV, c. 1 0. — To repeal certain Acts concerning persons
admitted to practice.
1807.
47th
1815.
55th'
55th <
Q
1835.
5th'
1816.
56th (
1818.
58th (
1821.
2nd(
1823.
4th (
1829.
10th <
1830.
llth(
1840.
3rd^
1797.
37th (
1800.
40th <
1819.
59th (
1833.
3rd^
1839.
2nd^
1826.
7th (
3unt for Fines and
of persons employed
e Peace in country
ication of Justices,
cation of Justices,
vernor and public, cf
re Justices of the
'rials.
ion and summons of
ting in the House of
ts, who have served
?o., as to admission,
concerning persons
1837.
1793.
1798.
1801.
1815.
1835.
1816.
1818.
1821.
1823.
1829.
1830.
1840.
1797.
1800.
1819.
1833.
1839.
1826.
APPENDIX. 115
UPPER CANADA.
OYER AND TERMIN£B.
7th Wm. IV, c. 38. — To authorize Justices of the Peace to hold
Courts of Oyer and Terminer, and
Assize in Ottawa District.
QUARTER SESSIONS GENERAL ACTS.
33rd Geo. Ill, c.
36th fieo. Ill, c.
41st Geo. Iir, c.
1807. 47th Geo. Ill, c.
55th Geo. Ill, c.
55th Geo. Ill, c.
6. — To fix time and place of holding Courts.
4. — To amend 33rd Geo. Ill, c. 6.
6. — To remove doubts respecting the authorit}',
under which the Courts have been
erected and holden, and other matters
relating to the Administration of Justice,
and to fix time for holding the Courts.
1 1 . — To fix the Fees of the Clerks of the Peace,
and to regulate the Fees in the several
Cruris.
9. — To amend 41st Geo. Ill, c. 6.
16. — To repeal 41st Geo. Ill, c. 6.
QUARTER SESSIONS OF PARTICULAR DISTRICTS.
5th Wm. IV, e.
56th Geo. Ijl, c.
58th Geo. Ill, c.
2nd Geo. IV, c.
4th Geo. IV, e.
10th Geo. IV, e.
11th Geo. IV, e.
3rd Vic, c. 26.-
2. — To alter the time of the Quarter Sessions
for the Niagara District.
1.— To alter the time, as to the London and
Johnstown Districts.
2. — To repeal 56th Geo. Ill, c. 1 .
16. — To regulate Home District.
30. — To. repeal 2nd Geo. IV, e. 16.
6. — To regulate (3ttawa District.
8. — To regulate Niagara District.
— To fix time for the Home District Court.
PRACTICE CRIMINAL CASES.
37th Geo. Ill, c. 15. — Authorizing the apprehension of Felons.
40th Geo. Ill, c. 1. — For the further introduction of the Crimi-
nal Law.
59th Geo. Ill, c. 10. — Authorizing Trial of Crimes within the
limits of any described Township.
3rd Wm. IV, e. 3. — Hegulating Bail in certain cases.
2nd Vie., e. 3. — To provide for the payment of costs in certain
cases of information at the suit of the
Crown.
7th Geo. IV, c. 3. — To dispense with the necessity of pro-
nouncing sentence of death in certain
cases.
116
APPENDIX.
UtPER CANADA.
1839.
1833.
1837.
3rd Win. IV, c. 4.-
Ist and 2nd Vic, c. 2. — To remove doubts as to jurisdiction
over offences upon the Lake. '
To reduce the number of cases in which
capital punishment may be inflicted, to
provide other punishment for offences,
to abolish the benefit of Clei^y, and to
make alteratior in certain criminal
proceedings before and after eonvictioL.
5. — To take away corruption of blood in
certain cases.
6. — To provide for the punishment of certain
offences, and to enable the Governor to
commute sentence of death.
7. — Regulating transportation of convicts.
3rd Wm. IV, c.
7th Wm. IV, c.
7th Wm. IV, c.
JURIES.
1794. 34th Geo. Ill, c. 1. — For the regulation of Juries.
1796. 36th Geo. Ill, c. 2.--To amend 34th Geo. Ill, c. 1.
1808. 48th Geo. Ill, c. 13. — For the better regulation of Juries.
SHERIFFS.
1806. 46th Geo. Ill, c. 1. — To make provision for certain Sheriff^,
1814. 54th Geo. Ill, c. 19. — To continue 46th Geo. Ill, c. 1.
1817. 57th Geo. Ill, c. 8. — To continue 46th Geo. Ill, c. 8
1822. 2ndGeo. IV, c. 8. — lb.
1827. 8th Geo. IV, c. 10. — lb.
1815. 55th
1837. 7th
BARRISTERS AND ATTORNET8.
1794. 34th Geo. Ill, c. 14. — To authorize the Govertaor to license
Practitioners.
1798. S8th Geo. Ill, c. 2. — To repeal 25th Geo. Ill, c. 2, concerning
Advocates, Attomies, and Notaries.
1803. 43rd Geo. Ill, c. 2. — To authorize the Governor to license
Practitioners.
1803. 43rd Geo. Ill, c. 8. — To authorize Attomies now practising, or
hereafter to be admitted, to take a
certain number of Clerks.
1807. 47th Geo. Ill, c. 1. — For the relief of Clerks to Attomies who
may have served their clerkship without
being bound by contract in writing.
47th Geo. Ill, c. 8. — To authorize Practitioners to take such a
number of Clerks as therein mentioned.
4th Wm. IV, c. 9. — To qualify 2nd Geo. IV, as to the Attor-
ney and Solicitor Generals.
9 as to jurisdiction
the Lake. '
ir of cases in which
; may be inflicted, to
ishment for offences,
jfit of Clci^y, and to
in certain criminal
and after convictioL.
jption of blood in
inishment of certain
able the Governor to
of death,
ition of convicts.
Juries.
Ill, c. 1.
tion of Juries.
r certain Sheriffs,
o. Ill, e. 1.
[}. Ill, c. S
ovehior to license
II, c. 2, concerning
s, and Notaries,
ovemor to license
8 now practising, or
mitted, to take a
lerks.
:s to Attornies who
ir clerkship without
ract in writing,
ners to take such a
therein mentioned.
V, as to the Attor-
nerals.
APPENDIX.
UPPER CANADA.
117
1815. 55th Geo. Ill, c. 3. — To afford relief to Barristers and Attor-
neys, and to provide for the admission
of Law Students. '
1837. 7th Wm. IV, c. 15. — To amend the Law for the admission of
Barristers and Attorneys.
JCSTICBS OF THE PEACE.
1800. 40th Geo. Ill, c. 4. — Summary powers in sale of spirits.
42nd Geo. Ill, c. 2. — To provide for Administration of Justice
in District of Newcastle.
45th Geo. Ill, c. 5. — To alter part of 42nd Geo. Ill, c. 2.
2nd Wm. IV, c. 4. — To facilitate summary proceedings before
Justices of the Peace, and to afford
them protectjon.
2nd Vic, c. 4. — To provide for the summary punishment of
petty trespasses and offences.
6th Vic, c 3. — Fixing the qualification of Justices of the Peace.
1802.
1805.
1832.
1839.
1842.
JUDICIAL STATUTES PASSED BY THE PARLIAMENT OF
CANADA.
1841. 4th and 5 th Vic, c. 3. — To repeal the Law for the recovery of
Small Debts in Upper Canada, and to
make other provision.
4th and 5th Vic, c. 5. — To facilitate the dispatch of business
K. B.
4th and 5 th Vic, c. 8. — To alter the Law regulating District
Courts in Upper Canada.
4th and 5th Vic, c 12. — For Justices making returns of con-
victions.
4th and 5 th Vic, c 20. — For the more easy and expeditious
Administration of Justice in Civil
Causes, and matters involving small
pecuniary value in Lower Canada.
4th and 5th Vic, c 22. — To provide for Administration of
Justice in Magdalen Islands.
4th and 5th Vic, c. 24. — For improving the Administration of
Criminal Justice.
4th and 5th Vic, c 25. — For consolidating and amending the
the Laws in this Province, relative to
Larceny and other offences.
4th and 5th Vic, c. 26. — Regulating proceedings in cases of
malicious injuries of property.
(*f
I
I! I
i:
h
t iSttt
it
118 APPENDIX.
4th and 5th Vic, c. 27.— Regulating proceedings on offences
against the person.
6th Vic, c. 3. — Fixing the qualification of Justices of the Peace.
6th Vic, c. 10. — To continue 4th Vic, c 26.
6th Vic, c. 11. — To continue 2nd Vic, c 49, and 4th and 5th
Vic, c. 1.
6th Vic, c. 18. — To repeal 3rd and 4th Vic, c. 45, 4th Vic,
c 19, 4th Vic, c 15, and 4th and 5th
Vic, c 20,
. M
LAW
Home of Peera
Exchequer Cha
Queen* s Bench.
Common Pleas,
Exchequer,
Bail Court.
High Court of I
Rolls Court.
Vice Chancellor
Court of Commi
Court of Pie Pu
Court Baron.
County Court.
Court of Admira
Archdeacons*
Consistory
Of Arches
Of Peculiars
Prerogative Cou\
Delegates
Commission of I
The Forest Cour
Commissioners oj
Marshalsea and .
Court of the 1
Lancaster^
Of Devonshire a
edings on offences
APPENDIX.
LAW AND EQUITY COURTS IN ENGLAND.
House of Peers.
Exchequer Chamber.
Queen* 8 Bench.
Common Pleas,
Exchequer.
Bail Court.
High Court of Chancery.
Rolls Court.
Vice Chancellor's Courts.
Court of Commissioners of Bankrupts.
Court of Pie Poudre.
Court Baron.
County Court.
Court of Admiralty.
Archdeacons'
Consistory
Of Arches
Of Peculiars
Prerogative Court
Delegates
Commission of Review
119
>- ECCLESIASTICAI. CoUKTS.
COURTS OF SPECIAI, JURISDICTION.
The Forest Courts.
Commissioners of Sewers.
Marshalsea and Palace Court.
Court of the Duchy of Lancaster, Counties Palatine of Chester,
Lancaster, Durham, and the Royal Franchise of Ely.
STANNARY COURTS.
Of Devonshire and Cornwall,
120
APPENDIX.
ENGLISH COURTS.
The several Courts within the City of London, and other Cities,
Boroughs, and Corporations, throughout the kingdom, held by Prescription,
Charter, or Act of Parliament: these are for local objects, Civil and
Criminal ; the Civil corresponding in some degree to the District Courts
and Courts of Request:
The Chancellors^ Courts in the Unioersities.
The High Court of Parliament.
Lord High Steward.
King's Bench.
Chicalry.
Adiiiiralti/.
Courts of Oyer and Terminer and Gaol Delivery.
Quarter Sessions.
Sheriffs' Tourn.
Court Leet.
Clcrh of the Marhet.
Coroners.
There are a few other Criminal Courts of greater dignity than many ol
these last, but of a more confined and partial jurisdiction, extending onlj
to some particular places.
The Courts
the District
Art. 3, Sec. 2^
By the Law
StTPRBMB Cou
nature, where j
and except als(
which latter w
also exclusive
ministers, and I
of suits by am
a vice-consul is
Courts in civil
The CiRCOi
concurrently wi
dispute exceeds
or an alien is a
the suit is bro
jurisdiction of a
United States,
jurisdiction wit!
therein. It has
The DisTKic
all crimes and o
committed with;
ment than whip]
hundred dollars,
be inflicted; anc
admiralty and n:
of Import, Navi
are made on wai
burthen, within
suitors, in all ca
has also original
those above men
all suits for peni
also cognizance <
of all cases, wh(
Nations, or a tre
Law, where the
one hundred doll
of all suits aga
Ml
APPENDIX.
121
in, and other Cities,
, held by Prescription,
:al objects. Civil and
to the District Courts
:er dignity than many o
sdiction, extending onlj
LAW COURTS IN AMERICA.
The Courts of the United States are, the Suprbme, the Circuit, and
the District Cocbts: their jurisdiction is limited by the Constitution^
Art. 3, Sec. 22.
By the Law of 1789, c. 20, (1 Story's Laws, U. S., 58, f. 13), the
Supreme Court has exclusive jurisdiction of all controversies of a civil
nature, where a State is a party, except between a State and its citizens,
and except also between a State and citizens of other States or aliens; in
which latter case it has original, but not exclusive, jurisdiction. It has
also exclusive jurisdiction of all suits against ambassadors, or other public
ministers, and their domestics; and original, but not exclusive, jurisdiction
of suits by ambassadors, or other public ministers, or in which a consul or
a vice-consul is a party. It has also appellate jurisdiction from the Circuit
Courts in civil actions.
The Circuit Court is next in rank. It has original jurisdiction,
concurrently with the State Courts, of all civil suits, where the matter in
dispute exceeds five hundred dollars, and the United States are plaintiffs,
or an alien is a party, or the suit in between a citizen of the State, where
the suit is brought, and a citizen of another State. It has exclusive
jurisdiction of all crimes and offences cognizable under the authority of the
United States, except when specially otherwise provided ; and concurrent
jurisdiction with the D.strict Courts of the crimes and offences cognizable
therein. It has also appellate jurisdiction from the District Court.
The District Court has jurisdiction, exclusive of the State Courts, of
all crimes and offences, cognizable under the authority of the United States,
committed within its district or upon the high seas, where no other punish-
ment than whipping, not exceeding thirty stripes, a fine not exceeding one
Imndred dollars, or a term of imprisonment not exceeding six months, is to
be inflicted; and also has exclusive original cognizance of all civil causes of
admiralty and maritime jurisdiction, including all seizures under the Laws
of Import, Navigation, or Trade of the United States, where the seizures
are made on waters navigable from the sea, by vessels of ten or more tons
burthen, within its district, as also upon the high seas; saving to the
suitors, in all cases, the Common Law remedy, where it is competent. It
has also original jurisdiction of all seizures on land, or other waters than
those above mentioned, made under the Laws of the United States, and of
all suits for penalties and forfeitures incurred under those laws. It has
also cognizance concurrently with the State Courts and the Circuit Courts,
of all cases, where an alien sues for a tort only, in violation of the Law of
Nations, or a treaty of the United States, also of all suits at Common
Law, where the United States sue, and the matter in dispute amounts to
one hundred dollars. It also has jurisdiction, exclusive of the State Courts,
of all suits against consuls or vice-consuls, except for offences above the
! 1
'
12^
AI>PENDIX.
AMERICAN COURTS.
description above mentioned. It also has a concurrent jurisdiction in suits
of Common Law, where the United States, or any officer thereof, under
any Act of Congress, sue, although the amount is under one hundred dollars.
In addition to these, there are also Cousts Mabtial, and Naval
Courts, for the Army and Navy.
In the State of New York, the highest Court is the Coubt of Ebbobs,
consisting of the Senate, the Chancellor, and tlie Judges of the Supreme
Court: it is also the Court for the trial of Impeachments.
A Writ of Error, from the decisions of the Supreme Courts, lies to this
Court, and then the Justices of that Court merely assign the reasons of
their decision without voting. An Appeal lies to it from the decision of
the Chancellor.
The Chancellor has the same equity powers as the Chancellor of
England; Appeals also lie to him, from the decisions of the Vice Chancellor,
and in some cases from the decisions of Surrogates.
The Sdpbemb Court has jurisdiction in all Common Law cases. It is
uded in practice, almost entirely relieved, from the trial of causes, as the
Circuit Judges try issues of fact, in all civil Common Law causes; and with
two of the Judges of the County Courts, are the Judges of the Court of
Oyer and Terminer. The Circuit Judges are also the Vice Chancellors
of their own Circuit, and Appeals lie to them, in some cases, from the
Surrogates of their counties.
In the first Circuit, including the city of New York, the offices of Vice
Chancellor and Circuit Judge are distinct.
Courts of Common Pleas arc appointed for each county, and have
cognizance of all local actions, within their county : and of all transitory
actions, and of appeals from the Justices' Courts, except in the city of New
York, where the decisions of the Justices' Courts are reviewed by the
Superior Court for the city on a certiorari.
In each town there are Justices' Courts, having jurisdiction, generally of
personal actions, when the amount in controversy does not exceed fifty
dollars, and the title to lands does not come in qr^stion. There is also in
the city of New York, the Superior Court, hav.ng the same powers gene-
rally as the Common Pleas Courts, with this addition, that however large
the amount in controversy may be, causes cannot be removed from it, to
the Supreme Court, before judgment.
In the city of New York is also the Mabinb Coubt, having the same
jurisdiction as the Justices* Courts; also jurisdiction, in such cases, to the
amount of one hundred dollars, and in all controversies between sailors and
the masters of ships.
In addition to
in each county, f(
The Subbooa
cognizance of all
Courts Mari
by Law for the ]Vf
There is no Ec(
•^o far as they rela
Surrogate ; so far
Chancery. — (See
BARB
So intimately c
affecting Barristei
*25 th Geo. Ill, c. 4
Advocate, Soliciti
articled in writing
in the Province^ o
years, unless such
he shall have been
Advocates, and At
the presence of th
Majesty's Courts <
Notwithstandinj
supply of lawyers ;
Province, was susp
to admit, not exce<
cates. Although,
Province, so grea'
*' several parts of
" persons duly autl
Governor was aga
having the Certitici
to their ability,
repealed, so far as
tioners at the bar r
students five years
Irish Barristers, ci
establishment of th
ikii, and NAVAii
APPENDIX.
AMERICAN COURTS.
123
In addition to these Courts, are the General and Special Sesmohi,
in each county, for the trial of crimes.
The Surrogate of each county is also constituted a Court, and has
cognizance of all matters conceriiing the estates of deceased persons.
Courts Martial are also appointed annually, in the manner directed
by Law for the Militia of the State.
There is no Ecclesiastical Court in the State; the powers of such Courts,
so far as they relate to the estates of deceased persons, are executed by the
Surrogate ; so far as they concern divorces, are executed by the Court of
Chancery. — (See the Revised Statutes of New York.)
1
cases, from the
le offices of Vice
BARRISTERS AND ATTORNIES.— CANADA.
So intimately connected with Courts are its Officers, that the Laws
affecting Barristers and Attornics claim some notice. The Act of the
'iSth Geo. Ill, c. 4, provided that no person should practice as a Barrister,
Advocate, Solicitor, Attorney, or Proctor, who should not have been
articled in writing to some Advocate or Attorney, admitted and practising
in the Province, or in some other part of his Majesty's dominions, for six
years, unless such person should have been called to the Bar; and until
he shall have been examined by some of the first and most able Barristers,
Advocates, and Attornies, in the Courts of judicature in the Province, in
the presence of the Chief Justice, or two or more Judges of some of his
Majesty's Courts of Common Pleas.
Notwithstanding this provision. Upper Canada enjoyed an inadequate
supply of lawyers; the above Act, therefore, as regarded this part of the
Province, was suspended by 34th Geo. Ill, c. 4, to enable the Governor
to admit, not exceeding sixteen licentiates, to act as Attornies and Advo-
cates. Although, in 1797, the Law Society was established in the Upper
Province, so great, six years afterwards, was the inconvenience "in
•' several parts of this Province, from a want of a sufficient number of
" persons duly authorized to practice the profession of the Law," that the
Governor was again empowered to admit six additional practitioners,
having the Certificate of the Chief Justice, or the senior Puisne Judge, as
to their ability. By the 2nd Geo. IV, c. 5, the 25th Geo. Ill, c. 4, is
repealed, so far as relates to the Province of Upper Canada, and practi-
tioners at the bar must be admitted into the Law Society, and continue
students five years, with an exception in favour of English, Scotch, or
Irish Barristers, on their becoming members of the Society. On the
establishment of the Court of Chancery, in 1837, the Vice Chancellor baa
124
APPENDIX.
the power of admitting six persona, qualified to practice In that Court, in
addition to those who were qualified by a provincial education. Barristers
and Attorneys of the Common Law Courts have power to practice in this
Court. See 7th Wni. IV, c. 2.
By 4th Geo. IV, c. 3, and 3rd Vic., c. 2, the Attornies of the Upper
Province are required to take out Annual Certificates, and this, by the
latter Act, must be before or during Michaelmas Term ; such Certificate
to be given by the Cleric of the Crown and Pleas, upon the production of
a receipt from the Treasurer of the Law Society, for such sum as the
Benchers shall determine.
THE LAW SOCIETY.
This Society waa established in the Upper Province, in 1797, under
the 37th Geo. Ill, c. 1 3, and was constituted of the persons then practicing
at the Bar, under the inspection of the Judges as Visitors; the six senior
members, or more, with the Attorney and Solicitor General, were to form
a quorum, and to act as (iovernors, or Benchers. In Michaelmas Term,
40th Geo. Ill, the then Attorney and Solicitor General, and thirteen
members, were chosen Benchers,, and in Trinity Term, 59th Geo. Ill, the
Treasurer was directed to be chosen annually. The proceedings of the
Benchers, in Cci. ocation, by rule. Trinity Term, 1st and 2nd VVm. IV,
c. 4, to be in conformity to the ordinary parliamentary mode, and their
election, by the majority of the votes of Benchers in Convocation. In
January, 1800, the Benchers were declared Governors of the Society,
with full power to make such rules and regulations as should be necessary,
subject to the inspection of the Judges ; and by 2nd Geo. IV, c. 5, the
Society was incorporated.
There is also another Society, or Class, formed from the members of
the Law Society, who have not taken any degree, and which is under the
superintendance of the other members of the Society. This Society, or
Class, is called the "Trinity Class," and is organized and regulated by
the Benchers in Convocation. The Terms of the Society are the same
with those of the Court of King's Bench. The Standing Convocation
days in each Term, are :
The first Monday First Examination day.
The first Saturday Second Examination day.
The second Tuesday Admission day.
The Annual Examination of the Trinity Class, takes place on the first
Thursday after the Michaelmas Session of the Class.
By the latest existing regulations, candidates for admission to the Law
Society, are subjected, if they are designed for the Optime Class, to be
examined in the Hecuba of Euripides, the first twelve books of Homer's
appendix;.
125
Iliad, Salluat, EucHd, (1st, 2nd, 3rd, 4th, 6th and 1 1th books), Algebra,
Trigonometry, Bridge's Mechanics, Astronomy, Geography, and in Moral
Philosophy, Metaphysics, Rhetoric, the Belles Lettres, and the English
Language.
The Senior Class, in the Analccta Greca Minora, or, instead of this, if
he prefers it, in Moral Philosophy, the Odes of Horace, Euclid, (Ist, 2nd»
3rd, 4th and 6th books). Bridge's Algebra, to the end of Quadatrio
Equations, Astronomy, English, Roman, and German History, Geography,
and the English Language.
The Junior Class, in the first two books of Virgil's iEneid, the first
book of Euclid, English History or Geogr.iphy, and the English Language.
One of the Standing Orders of the Convocation, Michaelmas Term,
3rd Wm. IV, directed for purposes of examination, a division of Classes,
denominated, the Junior, Senior, and Optiiiics.
i!
The number of Barristers in Upper Canada, admitted since
TrinityTerm,l797,i8 ' 291
The number of Attornies 333
624
A great number of these Attornies, are Barristers also.
The number of gentlemen belonging to the English Bar, or, who are
qualified to practice in the Courts of Westminster, is nearly six thousand.
Some of them derive from their profession incomes as high as £5,000,
£6,000, £8,000, and even £12,000. The retaining fees given to
distinguished Counsel, in important cases, are often very large. One
thousand guineas has on many occasions been given; two and three
hundred are of frequent occurrence. In the case of Small and Attwood,
Mr. Sergeant Wilde's retainer was eight thousand guineas.* — The Bench
and the Bar, p. 36.
* In this celebrated case, Mr. Serg^eant Wilde received five thousand gnincas with
his brief, and got fifty guineas every day he appeared in the case, which was nearly
forty days altogether, He got, in addition, twenty guineas a-daj', in the shape of
consultation fees. The case not being concluded the first session, it was brought before
the House of Lords, and was rc-argued, when the learned Sergeant got an additional
five thousand guineas, with the before mentioned fifty guineos every day be appeared,
and the twenty guineas per day for consultation feea.
1.2
t I
136
APPENDIX.
The number of persons beloDgln^- to the Legal Profession, In New]
York alone, exceeds seven hundred, of whom about fifty only are Judges!
in all the Courts together. The remainder are Barristers and Attorneys,!
which are here not separate professions as in England, but united in the!
same individual.
The younger members, who have any practice at all, as Attorneys,!
readily make an income of 3,000 dollars, or fVom £600 to £700 a-year,
rising iVom this minimum to as much as 10,000 dollars, or about £2,000
sterling a-year. The smallest fee of a Barrister of any standing, and in
almost any cause, is one hundred dollars, or about twenty pounds. The
greatest fee to the most distinguished Barrister, in any regular cause tried |
in the City Courts, is five thousand dollars, or about one thousand pounds.
•^Buckingham's America, v. 1, p. 130,
ERRATA.
Page 9. — For detereur read deth. a,. jr.
" cenntts " cents.
" 10.— " Quatuor Mara... " Quatuor Maria.
«' 30.— « 5 6th Geo. Ill, c. 2 " 5 Qth Geo. Ill, c. 1 9.
on, in New!
•ra Jttdgetl
I Attoraeyi,|
aited in the
I Attorney!,
JTOO •-yetr,
>out X2,000
iding, and in
lunda. The
r cause tried |
land pounds.
Maria.
\o. Ill, c. 19.