UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY
 
 Some Early Legislation 
 
 and Legislators m 
 
 Upper Canada 
 
 By 
 THE HONOURABLE MR. JUSTICE RIDDELL. 
 
 L.H.D.. LL.D.. &c. 
 
 •r^^^r<^2 
 
 1 M I ; 
 Tiir: Carswei.l Co., Limited, 
 
 TORONTO
 
 Wanted to Purchase 
 for Cash 
 
 All early publications of 
 the various Governments or 
 Governors-in-Council of Van- 
 couver Island, British Col- 
 umbia, Hudson's Bay Com- 
 pany, North-west Territories, 
 Manitoba. 
 
 THE CARSWELL COMPANY LIMITED 
 
 19 Duncan Street, Toronto.
 
 Some Early Legislation 
 
 and Legislators m 
 
 Upper Canada 
 
 By 
 
 THE HONOURABLE MR. JUSTICE RIDDELL, 
 
 L.H.D., LL.D., &c. 
 
 ^s^<ytr<r^ 
 
 19 13 
 The Cakswell Co., Limited, 
 
 TORONTO
 

 
 Some Early Legislation and Legis- 
 lators in Upper Canada. 
 
 By The HONOURABLE MR. JUSTICE RIDDEIL. 
 L.H.D.. LL.D.. &c. 
 
 It is a matter of regret that the early statutes of Upper 
 Canada are not available for the ordinary practitioner; they 
 are full of interest, historic-ally and otherwise. 
 
 Of course, it is well known that at the time of the con- 
 quest of Quebec — and consequently of Canada — in 1T59 and 
 1760, what was afterwards Upper Canada, was not settled. 
 Accordingly, the proclamation of 1763 which introduced or 
 purported to introduce the English law, civil and criminal, 
 into Canada, did not practically affect that district. The Que- 
 bec Act of 1774, 14 Geo. III., ch. 83, did, however; for, before 
 it was repealed. Upper Canada had a considerable number of 
 inhabitants, chiefly from the revolting colonies to the south. 
 This Act reintroduced the French civil law, although it left 
 the English criminal law in full force. Much discontent was 
 manifested by the English-speaking colonists of Upper 
 Canada at being subjected to French law ; and when the Act 
 of 1791, 31 G<^o. III., ch. 31, made Upper Canada a separate 
 |)rovince, her first Parliament abolished the old Canadian or 
 French law, and introduced the law of England for the 
 decision of all matters of controversy relative to ])r()pcrty 
 and civil rights, and also introduced the English rules of 
 evidence. This is found in the very first chapter of the 
 statute of the first session of the first Parliament of I^jiper 
 Canada. 
 
 The second chapter established trial by jury in all actions, 
 real, personal and mixed, and authorized the jury, if so 
 minded, to bring in a sjjecial verdict. In the French system 
 the jury had no place: and the French-Canadian did not 
 hesitate to express his wonder that the English should think 
 their property safer in the determination of tailors and 
 shoemakers than in that of their Judges.
 
 The third chapter established " one just beam or 
 l.ahince, one certain weight and measure, and one yard, 
 according to the standard of His Majesty's Exchequer 
 in England." The lineal and superficial measures were 
 the same then as now, l)ut the gallon, etc., somewhat 
 smaller, being the same as those still used in the United 
 States. 
 
 Chapter 6 made a Court for small debts, the ancestor of 
 the present Division Court. It authorized any two or more 
 Justices of the Peace to sit and hold a Court, to be called a 
 Court of Eequests, on the first and third Saturday in every 
 month, to try any claim not exceeding 40 shillings, Quebec 
 currency. This was what was also known as Halifax or Pro- 
 vincial currency, a shilling equalled 20 cents. These Courts 
 remained practically unchanged till 1833 — their jurisdiction 
 was extended in 1797, by 37 Geo. III., ch. 6, and in 1816 by 
 o() Geo. III., ch. 5 — in 1833, by 3 Wm. IV., ch. 1, it was 
 provided that Commissioners should be appointed by the 
 Governor or Lieutenant-Governor to sit and hold the Court 
 of Requests. This Act after being amended in 1837 by 7 Wm. 
 IV., was itself repealed in 1841, by 4 & 5 Vict., ch. 3, which 
 provided for Division Courts to be presided over by the 
 Judge of the District Court of the District in which the Divi- 
 sion Court was situated. This introduced substantially the 
 present system. We shall have occasion to consider the Dis- 
 trict Court later. 
 
 Chapter 7 regulated the tolls to be taken in flour mills, 
 fixing them at not more than one-twelftli. This has 
 come down unchanged to the present time, R. S. 0. (1897), 
 ch. 140, sec. 1. 
 
 Chapter 8 ])rovided for a gaol and court-house in every 
 district. Lord Dorchester, the Governor of Canada, had, 27th 
 July, 1788, by procLamation, divided what afterwards became 
 Upper Canada, into four Districts, Lunenburgh, .Mecklen- 
 liuigh, Nassau and Hesse. The Upper Canada Act which we 
 are now considering, changed the names to Eastern, Midland, 
 Home and Western, and directed that the gaols and court- 
 houses should be placed in New Johnstown (Cornwall), 
 Kingston, Newarlc (now Niagara), and for the Western dis- 
 trict "as near to the present court-house, as conveniently 
 may l>e." 
 
 In 1810, it was directed that the gaol and court-house for 
 the Home district should be erected at York (now Toronto), 
 of, Geo. III., ch. IS.
 
 We shall meet these Districts again, and ])ass over them 
 for the time being. 
 
 Chapter 4, abolishing the summary proceedings in the 
 Court of Common Pleas in actions under £10 sterling, and 
 chapter 5, providing for the appointment of firemen, we 
 also pass over. 
 
 The above constitutes the legislation of the first Parlia- 
 ment of Upper Canada during its first session at Newark 
 beginning Monday, September 17th, and ending Monday, 
 October 15th, 1792. 
 
 But there were other matters of great interest at this 
 session. 
 
 On the 19th September, the Secretary of the Province 
 ' presented for the consideration of the House, a signed and 
 sealed instrument delivered to him by Philip Borland of 
 Adolphustown in the county of Lennox. This set out n 
 " certain writ under the great seal of this Province of Upper 
 Canada . . . directed to the returning oflScer of the 
 County of Prince Edward and District of the Township of 
 Adolphustown '' requiring him " to send one knight girt 
 with a sword, the most fit and discreet to represent the said 
 County"; also an election by the freeholders, of Philip Dor-, 
 land; "that he, Philip Dorland, being "one of the persons 
 commonly called Quakers," could not take the oath pre- 
 scribed for members of the House, but he would make a 
 declaration to the same effect. He then asked that if he 
 could not sit without the oath, a new writ might issue. The 
 House ordered a new writ to issue, as Dorland " was incom- 
 petent to sit or vote in the House without having taken and 
 subscribed the oath set forth in the Act of Parliament." 
 
 On Saturday, September 29th, Mr. Colin McNabb, as 
 preventative officer, was " ordered to attend at the Bar of the 
 House to give information respecting the contraband traffic 
 carried on in this district, as far as the same has come within 
 his knowledge." 
 
 It is time, now, that we enquire into the personnel of 
 the Legislature. Much of my information, as to those I owe 
 to two papers by C. C, James, Esq., C.M.G., LL.D., 
 contributed to the Eoyal Society of Canada, in 1902 and 
 1903,— vol. 8, sec. 2, pp. 93 sqq., and vol. 9, sec. 2, i))). 1-15 
 s^qq., respectively. 
 
 We may disregard \joxA Dorchester, the celeln-ated Sir 
 Guy Carleton, who was Governor-General of Canada — but
 
 6 
 
 Lieutenant-Colonel Jolin Graves Simcoe, the Lieutonant- 
 Governor, is not negligible, for it is certain that he took a 
 personal interest in much of the legislation. 
 
 There was a Legislative Council appointed ])y the 
 Crown for life, and a Legislative xVssembly to be periodically 
 elected by the people; the electoral franchise was almost 
 universal suffrage, as the qualification was placed very low — 
 in counties, land worth 40 shillings sterling per annum, and 
 in towns the possession of a dwelling house and lot worth £5 
 per annum, or being resident for 12 mouths and having 
 paid rent to the amount of £10 sterling. 
 
 There was also an Executive Council referred to in an 
 indefinite way in sec. 38 of the Act; the members were 
 appointed by the Crown, and were not necessarily members 
 of either House — they held office at the will of the Crown. 
 They corresponded more nearly to the cabinet of the Presi- 
 dent of the Tnited States than to anything now extant in the 
 Briti-^h world; and were not unlike the Privy Council as it 
 then existed in England. 
 
 Of course, the Executive Council formed no part of the 
 Parliament, but there can be no doubt of the accuracy of 
 the following passage to be found in an address to the King 
 by the Legislative Council, April l!»th, 1836: — 
 
 " For many years the Legislative Council of I^pper 
 Canada consisted of but four or five members, connected 
 witli the Executive Government by the most confidential rela- 
 tions, and forming in reality a body scarcely distinct from 
 the Executive Council of the Colony." 
 
 A number of legislative councillors, lour in all. had 
 lieen a])poiiitcd by the Home (Jovernment before Simcoe 
 arrived in Canada. One of these was William Osgoode, who 
 was the first Chief Justice of Upper Canada, and al'tciwards, 
 in 1794, api)ointed Chief Justice of Lower Canada: he was 
 an English barrister of good standing. Osgoode Mall is 
 called after liim. 
 
 Peter Pussell was also appointed in England. He became 
 Administrator of the Governim nt in I"!*."), on Simcoe's resig- 
 nation; and some scandal was attached to his name, arising 
 from his practice of making grants of Crown lands to him- 
 self and his sister, while ho was Administrator. 
 
 Alexaiuler Grant was tln' only eounoillor a]i])ointed 
 among the fir-^t lot who was at the time in Camida. He was 
 commonly known as Commodore Grant. He also became-
 
 Administrator — this was in 1805, on the deatli of Lieuten- 
 ant-Ciovernor Hunter. 
 
 William Rohertson had also been appointed; he had beien 
 a resident of Detroit, then and until 1796 part of Canada; 
 but had gone to England in 1790, and never afterwards came 
 to Canada. He resigned shortly afterwards, being in June, 
 1793, replaced by ^neas Shaw. 
 
 There were consequently only three councillors with 
 Simcoe; and as the Act, 31 Geo. III., ch. 31, sec. 3, required 
 at least seven councillors, these were not a majority — and 
 conseciuently not a quorum — of the council. Accordingly 
 Simcoe had James (Jacques) Baby appointed — he lived in 
 Detroit, and was of a well-known French-Canadian family. 
 
 Osgoode and Eussell 'arrived in Canada in June, 1793, 
 and Osgoode, Eussell, Grant and Baby were sworn in as 
 members of the Executive Council at Kingston, in July, 1792 
 •• — writs of summons calling them to the Legislative Coun- 
 cil, were on the 16th of that month issued to these four, and 
 also to Eichard Duncan, AVilliam Eobertson, Eobert Hamil- 
 ton, Eichard Cartwright, Jr. and John Munro (of Matilda), 
 Hamilton took part in the prosecution of Gourlay in 1819, 
 and was said to have acquired 100,000 acres of Crown lands 
 from the lots granted to sons and daughters of U. E. 
 Loyalists. Cartwright was the ancestor of those of that 
 name familiar in Canadian legal, military and political 
 annals. He was the grandfather of Sir Eichard Cartwright, 
 and was even before his appointment to the Legislative 
 Council, a Judge of the Court of Common Pleas (the Court 
 of Common Pleas, we shall meet again). J. S. Cartwright, 
 the present Master in Chambers, and J. R. Cartwright, the 
 Deputy Attorney-General, are also grandsons. 
 
 Osgoode wa- the speaker of the Legislative Council, being 
 appointed by the Lieutenant-Governor under sec. 13 of the 
 Act ; and Messrs. Baby, Hamilton, Cartwright, Munro, Grant 
 and Eussell all attended during the session. 
 
 A provision in sec. 6 for hereditary rank entitling to a 
 seat in the Legislative Council, never was in fact brought 
 into force. 
 
 On Monday, July, 16th, 1792, Simcoe issued a Eoyal 
 proclamation, dividing L^pper Canada into 19 counties; and 
 directing the holding of elections for 16 representatives in 
 the House of Assembly. We are sometimes apt to say that 
 Ontario is divided into counties, and the counties into town-
 
 8 
 
 ships; but historically, in many cases, the townships came 
 first, and the counties were formed by a grouping of town- 
 ships. 
 
 The counties formed by Simcoe's proclamation were: 1, 
 Glengarry; 2, Stormont; 3, Duudas; 4, Grenville; 5, Leeds; 
 6, Frontenac; 7, Ontario; 8, Addington; 9, Lenox; 10, 
 Prince Edward; 11, Hastings; 13, Northumberland; 13, Dur- 
 ham; 14, York; 15, Lincoln; 16, Norfolk; 17, Suffolk; 18, 
 Essex; and 19, Kent. All these names are still used except 
 Suffolk; but "Ontario" is now applied to a different part 
 of the province: what is now Ontario was in those early 
 times almost wholly destitute of inhabitants — " Ontario 
 County " was then the islands west of the Gananoque river. 
 
 Glengarry had two members. For the first riding Hugh 
 Macdonell was returned; for the second, his brother John, 
 who became the Speaker of the first House. As he was a 
 lioman Catholic, he occupied a dignity which he could not 
 at that time occupy in any other part of the British Domin- 
 ions, except Lower Canada. These two brothers were U. E. 
 Loyalists, and w^ere the maternal uncles of Lt.-Col. John 
 Macdonell, who was Brock's aide-de-camp, and was killed 
 with his chief at the Battle of Queenston Heights in the 
 war of 1812. He was also Attorney-General of Upper 
 Canada ; a mural plate to liis memory is to l>e found in the 
 east wing of Osgoode Hall. 
 
 Stormont wa/S represented by Lieutenant Jeremiah 
 French, a U. E. Loyalist from Vermont. 
 
 Dundas sent Alexander Campbell, of whom little is 
 known, or at least recorded. 
 
 Grenville sent another TJ. E. Loyalist, Ephraim Jones, 
 the father of Jonas Jones, afterwards a Judge of the 
 (King's) Queen's Bench; he had also two Pon?-iu-law. 
 who achieved the same distinction, Levins P. Sherwood and 
 Plenry John Boulton. 
 
 Leeds and Frontenac were allotted one member: John 
 "White, an English barrister, who had been appointed by the 
 Home Government, Attorney-General of Upper Canada, and 
 had come out in tl.une, 1702, was by Simcoe's influence 
 elected member. He was killed in a duel some years after. 
 
 Addington and Ontario sent Joshua Booth, a U. E. 
 Loyalist, who died in the war of 1812. 
 
 Lenox, Hastings and Northumberland had one represen- 
 tative — and Lieut. Hazelton Spencer, also a U. E. Loyalist,
 
 9 
 
 was elected. ("Leuox'" was the spelling at that time; now 
 the word is spelled with two n's). 
 
 Prince Edward and Adolphustown had one member (for 
 the township of Adolphustown was detached from Lenox 
 for electoral purposes). Philip Borland was elected, but not 
 taking the oath required by sec. 29 of the Act, 31 Geo. III., 
 ch. 31 (as he was a Quaker) a new writ was issued, and 
 ]\rajor Peter Yanalstine was elected in his place — they were 
 both U. E. Loyalists. 
 
 Durham, York and first Lincoln sent Nathaniel Pettit, of 
 Grimsby, a member of the Land Board of Nassau District. 
 
 The second riding of Lincoln sent Col. Benjamin Paw- 
 ling, who had been in Butler's Rangers during the Revolu- 
 tionary war. 
 
 The third riding of Lincoln sent Isaac Swayzie, who had 
 been a noted scout on the British side. His enemies called 
 him a " spy " — a mere difference in terminology. He later 
 took a prominent part in the prosecution of Gourlay; and it 
 is said narrowly escaped prosecution for the murder of Wil- 
 liam Morgan, who had threatened to disclose the secrets of 
 Freemasonry, and who mysteriously disappeared. The mys- 
 tery has never been wholly cleared u]); l)ut it \vas made evi- 
 dent that Swayzie had nothing to do with ^lorgan's abduc- 
 tion and death, notwithstanding hisJ^oast that he had.^ He 
 undoubtedly was a Freemason, however. 
 
 The fourth riding of Lincoln and Norfolk together had 
 one representative. Parshall Terry was elected; he was one 
 of Swayzie's bondsmen (v. the note^) and afterwards was 
 drow'ned in the Don in 1808, having removed to York when 
 Siracoe made the change. 
 
 ^This is told of him in Dout's "Upper Canada Rebellion," and 
 should be taken cinn yruno. That he had enemies was to be expected, 
 and indeed is fairly certain : there is on record a petition by him. of 
 April, 1700, to the Laud Board of Nassau District. " setting forth 
 that from his character having been traduced he had been prevented 
 from enjoying the privileges of other loyal citizens." The Board 
 found that he had produced sufficient proof that his character had 
 been misrepresented; and lu'ld that he should receive the (lu.iiitity 
 of land his services entitled him to as a volunteer in the British 
 army at New York 
 
 He was not a member of the second Pauliament. When that 
 was in existence, the following mi-sfortune befel him (or some other 
 of the same name, unknown to fame) as appears by the Term 
 Books at Osgoode Hall: On Monday, .\pril 20th. ]7!>r). an infor- 
 mation for sedition was filed by the .\ttorney-neneral. .Tohn White, 
 against Isaac Swavz^, and a capiat was granted to bring him before 
 the Court to answer it. The Court of King's Bmich, on that appli- 
 cation, was composed of William Duminer Powell. PuisuT' .Justice, 
 and Peter Russ(>ll. sitting on Spi'cial Comnu'ssion. On Wednesday. 
 .\pril 22nd. Mr. Swayz^ appeared and pleaded '* not guilty." giving
 
 10 
 
 Suffolk and Essex sent Francis Baby, a prominent Can- 
 adian of Frencli descent, and like the Macdonells a Eoman 
 Catholic. 
 
 Kent sent William IMacoml) and David William Smitli.f 
 the former of North of Ireland descent, and the latter, sou of 
 the coiniiiaudant at Detroit. 
 
 This first session was held it is said by some — but there 
 seems to be a doubt — in Freemasons' Hall at Newark (see 
 note 10 post 36). The first name of what is now Xiagara- 
 on-the-Lake was Niagara, then it was successively called 
 Lennox, Nassau and Newark. As Newark it was the 
 cai)ital of Tpper Canada until after the selection of 
 Toronto was made — the name being changed by Simcoe 
 from Toronto to York in honour of the Duke of 
 York, the King's brother. Newark had been chosen by 
 reason of the proximity of forts lield by the British ; Simcoe 
 expected that the British would continue to occupy the forts 
 on the right side of the Niagara Kiver. A guard from the 5th 
 Kcgiment was kept on duty during tiie whole session — the 
 Lieutenant-Governor attended in state accompanied by a 
 guard of honour and opened Parliament by a speech from 
 the Throne in traditional British form — and Upper Canada 
 was fairly launched on her free career. 
 
 It was no doubt dut^to the presence of such lawyers as 
 Chief Justice Osgoode and Attorney-General White in the 
 two Houses, that the legislation is couched in such accurate 
 and efficient language. 
 
 two siirc'tit's. Parsliall Terry aiul Essni Daiton, in £-"0 each, liiin- 
 sflf in £1(M), to appoar on Fridav next to ^inswcr to tho informa- 
 tion asrainst liini. Friflay, April 'J4th. a voiirr was directed to issue 
 retiu-nahlc Fridav next to try the issue, and Mr. Swayze ?iive new- 
 sureties. .Toiin Wilson and Samuel Pew. May 1st. a jury was sworn, 
 whose names are given, and these, on May 2nd. '" bv their foivrnan. 
 Andrew Tenipleton. find the defendant jruilty." He then found 
 sureties, William Reid and -Tohn ITainer to appear for judgment the 
 first day of Trinity Term. .Tulv 2()th. On that day he eutei'cd into 
 a refosnizanee himself in £2fK) I'.M. (i.e.. provincial money), and 
 Oeorse I*^lrsyth and .Toseph F-dwards in £100 each, to appear Fridny, 
 July 24th. There the <'ourt senteneed liim to pay a fine of £10 P.^I. 
 and stand committed until it sliould he i)aid. an(T also to enter into 
 a recognizance with two suretii-s for his pood behaviour for two 
 years. 
 
 He nfterwards jvas eleeted for the tliird. fourth, sixth and 
 seventh Parliaments, dying in 1S2S. 
 
 The name is spelled " Swayzie." " Sway/.e." '• Swayze." 
 "Snavze" and " Swavzv " in different places. 
 
 iDavid William Smith. Deituty .Tudge .\dvocate. of Newark, 
 receivi'd a license dated at .V.ivy Hall, .Tuly 7th. 17i^>.">. under the hand 
 and seal-at-arms of Governor Simcoe. count(>rsigned by W. Mayne. 
 Acting Secretary, authorizing him to be and appear as an advocate 
 or attorney in all and every of His Ma.iestv's Tourts. He afterwards 
 removed to England, became a Baronet in 1R21, and died in England, 
 IS.",?, at the age of 7."].
 
 11 
 
 SECOIS'D SESSIOX. 
 
 The second set^sion of the first Parliament met iit Newark. 
 Friday, 31st May, 1793, the Legishitive Councillors present 
 being Osgoode, Eussell, Grant, Cartwright, Baby and Hamil- 
 ton. The session lasted till Tuesday, 9th July, and was not 
 unfruitful. 
 
 The first chapter provided for the better regulation of the 
 militia of the Province. Before this time a regulation passed 
 at Quebec in 1777, had been in force, but it was now repealed; 
 it had, indeed, given great offence even in Quebec, long 
 before. It had provided for compulsory service on very 
 insufficient pay, for payment at fixed rates for labour ren- 
 dered, etc. ; and generally had all the defects and faults and 
 few of the advantages of a system of corvee. It was petitioned 
 against; and the attempts of Hamilton, the Lieutenant-Gov- 
 ernor to enact a new militia law led to his recall in 1785. 
 
 War was in 1793 going on between France and England; 
 the people of the United States (speaking generally) were 
 strongly in favour of France, and although Washington 
 issued a proclamation of neutrality, the people and the Gov- 
 ernment of Upper Canada lived in constant dread of an 
 invasion from the south, a dread that was afterwards shewn 
 to be fully justified by the war declared l)y the Ignited States 
 in 1812. This war it is now reasonably certain had for its 
 main purpose the acquisition of Canada. 
 
 The speech from the Throne by Simcoe recommended an 
 early remodelling of a militia bill on account of the war with 
 France. The House did not delay, and by July 2nd they 
 had agreed upon legislation. 
 
 This authorized the appointment of a Lieutenant in each 
 county and riding Avith power to call out, arm, array and 
 train militia once a year — each Lieutenant to appoint a 
 Deputy-Lieutenant and " a sufficient number of Colonels, 
 Lieutenant-Colonels, Majors and other officers '" to do tlic 
 training (we have seldom been lacking in colonels) — the 
 militia to be composed of all male inhabitants from 16 to 50 
 years of age, and in case of emergency to be liable to be 
 called on to serve in any part of the Province. Provision 
 was made for division into regiments, companies, etc. Sec- 
 tion 22 excused " the persons called Quakers, Mennonis-fs and 
 Tunkers" from serving, but they were to pay to the Lieuten- 
 ant, each, per annum, 20 shillings in times of peace and £5 
 in time of actual invasion or insurrection. Special legisla-
 
 12 
 
 tions for these classes of people will be fouiul more than ouee 
 in subsequent J'ears. 
 
 The second chapter was the beginning of our municipal 
 system, providing as it did for the election of parish or town 
 officers. It authorized the inhabitant householders of any 
 parish, town or township, reputed township or place to 
 elect a parish or town clerk, assessors, collectors, overseers 
 of highways, pound-keepers, town-wardens or church-war- 
 dens, high constables, etc. 
 
 Chapter three was the first of our assessment acts, and it 
 also provided " for the payment of wages to the Members of 
 the House of Assembly." Frequently we hear it said of 
 Members of Parliament that they are the servants of the 
 ixople; but we do not nowadays hear of them being paid 
 '• wages " — the sum paid them is dignified by the name " in- 
 demnity." But the blunt plebeian word was that used in 
 England so long as the practice itself lasted. From the 
 earliest times payment was made to Knights of the Shire 
 and Burgesses; and in 1323, by Statute of 16 Edward XL, 
 the wages were fixed at four shillings per day for a Knight 
 and two for a Burgess or citizen. These payments were made 
 I)y the constituency, and continued regularly until the end of 
 the reign of Henry VII T. When the time oame to incor- 
 porate Wales with England, the Act of Parliament providing 
 for representation of Wales, passed in 1535-6, 27 Henry 
 YIII., ch. 26, provided that towns should pay wages to their 
 i-epresentatives, and the second Act, passed in 1543-4, 34 and 
 35 Henry VIII., eh. 2(), had similar provisions. When 
 the universities received the right to send representatives to 
 Parliament, it was provided that the burgesses were to be at 
 the charge and costs of the Chancellor, masters and 
 scholars; there is ample evidence that the members for 
 the University of Cambridge in 1603-4, nearly if not quite 
 the first to represent a university, were allowed five shillings 
 per day for their expenses. 
 
 The practice gradually died out. 'i'he ol't-repeated story 
 tiiat the well-known Andrew Marvell, who sat for Hull in 
 the reign of Charles II., was the last member of the Com- 
 mons to receive wages, is not true, for in 16»i, ttiree years 
 after Marvell's death, King, who had been M.P. for Harwich, 
 obtained a writ from the Chancellor for his expenses as 
 member of the House. But so far as appears it may be con-
 
 13 
 
 sidered that Marvell was the last to receive a regular salary 
 in this way. Lord Campbell seems to think that the writ 
 never was abolished, but could l>e claimed as of right. How- 
 ever that may be, the payment of wages to members died out 
 in England more than two centuries ago, and they served 
 without remuneration until the other day. 
 
 Many looked upon it as part of the constitution that the 
 Commons should serve at their own expense, but it is not 
 reported that any very dire calamity has followed the new 
 measure. 
 
 It is to be noted that both in England and in Canada the 
 present method is payment by the State; but as we shall 
 see, the ancient method in England was followed in Upper 
 Canada at first, and the constituencies were liable for the 
 wages. 
 
 In the Irish Parliament, the practice of paying members 
 also prevailed, the freeholders being assessed and the money 
 collected by the Sheriff: in 1666 a Bill passed the Irish 
 Commons abolishing wages for its members entirely; but 
 this was rejected by the Irish House of Lords, and the old 
 law continued until the Union in 1800. 
 
 In Scotland as early as 1587 there .was statutory provi- 
 sion for wages to be paid to members by the freeholders; 
 further legislation took place in 1648 and 1661. The 
 " Commissioners " or members for shires were by this 
 last Act to receive five pounds Scots (i.e., 8 shillings and 4 
 pence sterling) ]>er day. These wages were not paid after 
 the Union with England in 1707, the last Act providing for 
 them being in 1690: when, seventeen years afterwards, the 
 Union came about, all wages and allowances from constitu- 
 encies were allowed to lapse. 
 
 However, the "wages" given in 1793 in Upper Canada 
 did not alarm by excess. Section 30. after reciting that " it 
 was the ancient usage of England for the several members 
 representing the counties, cities and boroughs therein, to 
 receive wages for their attendance in Parliament," enacted 
 that everv' member of the House of Assembly should be en- 
 titled to demand from the Justices of the peace of the dis- 
 trict in which his riding was situated, a sum not exceeding 
 10 shillings per day (i.e., $2) for each day he had been 
 engaged in attendance on the House, and been necessarily 
 absent from his hous'e, the amounts to be paid out of the
 
 14 
 
 rates. This was slightly amended ten years after by (1803) 
 43 Geo. III., eh. 11.- 
 
 Chapter four provided for laying out and repairing high- 
 ways by the agency of Commissioners or overseers, the begin- 
 
 -Tbat this provision for the wages of members of the popuhir 
 House was not a dead letter is seen from the records at Osgoode 
 Ilall. For example: In Michaelmas Term. 59 Geo. III.. Nov. 13th, 
 IMS. in the Court of King's Bench (praes. I'owell, C.J., Campbell, 
 and Boulton, JJ.), a niaiidamvs nisi was issued to the Justiices of 
 Gore, requiring them to issue an order to the treasurer of the dis- 
 trict for the payment to Richard Hall. Esq., a member of the Com- 
 mons House of Assembly of t'pper Canada, of the sum of .thirty 
 pounds, being the amount of his wages for sixty days' attendance 
 at the last session of the rrovincial Legislature, out of the monies 
 which may come into his hands under and by virtue of any Act of 
 the Provincial rarliament. And a similar order to pay James 
 Durand, Esq., Member of the Assembly. 
 
 These were made absolute April 17th. 1819. 
 Other instances may be of interest : — 
 
 •• At a meeting of the Quarter Sessions for the District of New- 
 castle, holdeu at llaldimand. April lOth. 1804. at which were pres- 
 ent Timothy Thompson. Benjamin Richardson, Asa Burnham, Joseph 
 Kedcr, Joel Merriman. John Spencer, Leonard Soper, Asa Weller, 
 Elias Jones and Richard Lovekin, Esquires, the following order was 
 made : " The Magistrates in Quarter Sessions assembled in the 
 district of Newcastle, the 10th of April, 1804. order that the sum^ of 
 fiirty-five pounds, ten shillings, be collected in the county of Nor- 
 thumberland to compensate David M. Rogers for services as Member 
 of the House of Assembly for the years 1801, 1.^2. 1803. and 1804. 
 
 " (Sgd.) Tim'y Thompson, 
 
 " Chainnan.'' 
 And on April 9th. 1805, this order was made : " Ordered that 
 tlie sum of nine pounds, ten shillings, be collected in the county of 
 Northumberland for the wages of David Macgregor Rogers, Esquire. 
 Slembcr of tlie House of Assembly, representing the counties of 
 Hastings and Xorthumlierland, for his services during the first Ses- 
 sion of the Fourth I'arliainent. 
 
 "April Sessions. Haldimand, 9th April, 1805. 
 
 " Alex. Chisholm, 
 
 " Chairman." 
 On April 8th. 180C). the following: "Ordered that the sum of 
 nine shillings and five i)ence halfpenny, be allowed in abatement to 
 Benjamin Ewing, collector of the rates for tlie township of Haldi- 
 mand, for the year ls05,'for the rates of persons not living in the 
 township. The Clerk of the Peace presented the following Assess- 
 ment Rolls to the Magistrates for the townships of Murray. 
 Cramahe. Haldimand, Hamilton. Hope. Darlington. Ordered that 
 tlie clerk transmit a ci>py of the said assessments agreeable to law. 
 Ordered that the sum of five pounds, fifteen shillings, Halifax cur- 
 rency, be collected for (he payment of the wages of the Member of 
 the House of .Vssembly for the second Session of the Fourth Parlia- 
 ment in the county of Northumberland. 
 
 " (Sgd.) Benjamin Richardson. 
 
 " (liairmdn." 
 On April 14tli. ISOT. tlie following: "Ordered that the sum of 
 eleven pounds, five shillings, be collected for the payment of the 
 wages of the Slember of .Vssembly repi-esenting the counties of Hast- 
 ings and Northumberland, for the third Session of the Fourtli Pro- 
 vincial Parlianient. being the proportion of Northumberland." 
 
 Davi<l M. Rogers was also Clerk of the Peace; be lived for a 
 time in Prince Edward county and then removed to (Jrafton. Nor- 
 thumberland county. He represented his riding from 1790 to 1824. 
 with the exception of one Parliament, and was active in military 
 matters (as his descendants have been ever since). He became
 
 15 
 
 iiiiig of the wretched plan of leaving the care of highways 
 to local authority. 
 
 Chapter five was of very great public importance. Before 
 the conquest in 1759-60, of course, the Eoman Catholic reli- 
 gion was practically universal in Canada, ana mere was no 
 trouble in procuring the solemnization of marriage. Even 
 after the conquest and until the influx from the United 
 States, Protestants were few in number, and practically all 
 lived in places of some importance like Quebec or Montreal, 
 and a Protestant clergyman was there available. If a Pro- 
 testant married in a country place it was to a " Canadienne," 
 and her priest was good enough. But with the immigration 
 into Upper Canada in considerable numbers of a country 
 population, many of them Protestants, the situation was 
 altered. By the law of England only clergymen of the 
 Church of England could perform the ceremony, and these 
 were scarce: according to a report made in 1792 by ^Ir. Cart- 
 wright, Legislative Councillor, there were none in the East- 
 ern District, only two in the Midland, one in the Home and 
 none in the Western. There were a few Presoyterian. Luth- 
 eran and ^Methodist ministers, and some Eoman Catholic 
 priests; but these were not qualified. Marriages had, how- 
 ever, been solemnized by these and in some cases even by 
 laymen; and some relief was urgently needed. A Bill was 
 introduced in the Council by Cartwright, which, with some 
 amendments, became law. 
 
 This validated all marriages theretofore contracted 
 between persons "not being under any canonical disqualifica- 
 tion to contract matrimony," who publicly contracted before 
 any magistrate or commanding officer of a post, or adjutant 
 or surgeon^ of a regiment acting as chaplain," or any other 
 
 Registrar of Deeds for the united counties of Xorthumlierland and 
 Durham, and .Judfi-e of the District Court of XewcastU^ District : h" 
 died in 1S24. aped .'.2. 
 
 The Act was interpreted with some strictness, ^^hen the 
 Act of (1.S20). m Geo. ITT. ch. 2. authorized reprcsontation f.>r 
 towns in which the Quarter Sessions were held and wliich liad ;. 
 population of one thousand, and the town of Niagara sent Edwai-d 
 McBride as a memher to the Legislative .Assemhly. the Court /'^W. 
 that he was not entitled to wages: The Kind e.r rrl. Edward l/c- 
 Bridr. Esnuirr. ^r.P.. nqainxt the ■Justice!': of the District of '\\ag'irn 
 (1S;2ni. Tav.. ."42. Members for towns had to serve without wages 
 till lS3."i, .". Wm. IV.. ch. C 
 
 'It seems to have been not unusual for a surgeon to tie ihe 
 matrimonial knot, and it is not at all unlikely that the fol^lowing 
 instance accounts for the mention of them in the .Vet. (aptain 
 James Mathew Hamilton, of the r>th Nr>rthuml)erland Regiment .>f 
 Foot, when stationed at Mackinac, married Louisa, daughter of Dr.
 
 16 
 
 person in any public office of employment. For the future 
 and until there should be five parsons of the Church of Eng- 
 land ill any one district, a J.P. might- solemnize the mar- 
 riage, using the form of the Church of England. It was of 
 course quite too much to expect in the then existing state of 
 religious toleration that any parson or minister of any other 
 church or sect should receive such authority. The Lieutenant- 
 Governor, Simcoe, indeed, wrote to Dundas expressing his 
 astonishment that it had even been proposed to give such 
 power to ministers of otlier denominations. At all events 
 this i)roposition had to be abandoned. The Lieutenant-Gov- 
 ernor did not like the Act which was passed, but-public opin- 
 ion was too strong for him and he assented to the Bill. 
 Simcoe was most anxious for the establishment of the Church 
 of England in Tapper Canada, and bent all his energies 
 toward that end. 
 
 The provisions of the bill were wholly unsatisfactory to 
 ni'any of the settlers. Some were Presbyterians who had come 
 from Scotland, where their church was established and where 
 Episcopalians were the dissenters; others were Lutherans 
 whose church was established in parts of Germany. j\Iany 
 had come from the colonies to the south without an estab- 
 lished church at all ; not a few were members of the ancient 
 Church of Pome, which had been the established Church in 
 Canada till a few years before. None of these could see why 
 their clergy- were not quite as good as those of the Church 
 of England. Petitions were signed and presented to the 
 Lieutenant-Governor for a repeal of this marriage Act of 
 179,3. These he treated with lofty scorn. He said that he 
 thought it proper to say that he looked upon the petition 
 as the product of a wicked head and a disloyal heart; but at 
 length in 1798 an Act was passed, 38 Geo. IIL ch. 4, making 
 it Lawful for a minister or clergyman of any congregation or 
 religious connnunity professing to be members of the Church 
 of Scotland, or Lutherans, or Calvinists, to celebrate the
 
 17 
 
 ceremony of marriage for members of their own congregation 
 or religious community, upon the minister procuring a pro- 
 per certificate from the Quarter Sessions.* Similar marriages 
 in the past were also validated. This was so little to the taste 
 of the Lieutenant-Governor that he reserved the Bill for His 
 Majesty's pleasure. The royal assent was given Dec. 29, 1798, 
 and the Bill became law. This made the trouble if anything 
 more acute. So long as one Church had the monopoly it was 
 not so bad, but when four participated, all those who were 
 excluded insistently demanded the reason why. 
 
 The agitation was at length successful. In 1830. by the 
 Act of 11 Geo. IV., ch. 36, the power of celebrating marria'-es 
 was given to clergymen and ministers of the Church of Scot- 
 land, Lutherans, Presbyterians, Congregationalists, Baptists, 
 Independents, Methodists, Menonists, Tunkers or Moravians, 
 the celebrant to take out a certificate from the Quarter Ses- 
 sions. 
 
 The restriction to marriages of persons one of whom 
 at least was a member of the denomination, was removed. 
 Former marriages " before any justice of the peace, magis- 
 trate or commanding officer of a post, or before any minister 
 or clerg)-man,"' were validated and confirmed unless either 
 of the parties to an invalid marriage had thereafter con- 
 tracted matrimony according to law.^ 
 
 *How the license was obtained may Ibe seen fram a concrete 
 
 example. -. ,. tv • 4. 
 
 At a meetine of the (Teneral Quarter Sessions for the District 
 of Newcastle, held April 0th. f^O.", at Haldimand : Present. Alexander 
 Chisholm. Robert Baldwin. Richard Lovekin. Elias Smith, senior, 
 Asa Weller. Elias .Jones. Benjamin Marsh, .Tohn Spencer. Benjamin 
 Richardson. Leonard Soper. .Joseph Keeler. Asa Burnham and Joel 
 Merriman. Esquires, the following: took place : 
 
 '• Reuben Crandel of Cramahe. appeared, pursuant to notice 
 given at the Clerk of the Peace's office, professing himself to be a 
 Minister of the Religious Congregation of Calvinists. and having 
 called upon John Spencer, Esquire, Moses Hinman, Joseph 1 hillips. 
 Joseph J Losie. Benjamin Ewing. Moses Doolittle and John Phinn. 
 all of Haldimand. members of the said congregation who openly 
 owned and acknowledged the said Reuben Crandel to be their Min- 
 ister and the Court being satisfied that he is regularly ordained 
 according to the rules of that society, do allow him a certificate to 
 enable him to celebrate marriage agreeable to law." 
 
 'The right to solemnize matrimony was of some value, and un- 
 authorized celebrants were proceeded against criminally. I give one 
 
 ^^^"^ iT Easter Term. 42 Geo.. III.. April 0th. 1S02. before Elmsley. 
 C J and Vlkock J., a rule was issued against John Wilson, calling 
 on 'him to shew cause why "an information for a misdemeanour 
 should not be filed against him . . ._ for having solemnized or 
 pretended to solemnize marriage on the .th day f't ;'»nr • • '^?'; 
 between Paul Marin, of York, baker, and Jane Butterfield, of the 
 same place, spinster, otherwise called Jane Burke, in contemp: ot
 
 18 
 
 hi 1857, by the Act 20 Vic. eh. 66, the power of celebrat- 
 iDg marriages was given to ministers and clergymen of every 
 religious denomination in Upper Canada; in 1896, by 59 
 Vict., ch. 39, also to an elder, evangelist or missionary of 
 the " Congregation of God "' or " Of Christ," i.e., " Disciples 
 of Christ," and also to a Commissioner or Staff Officer of the 
 Salvation Army. (Quakers are specially provided for.= 
 
 the law, contrary to the statute in such case made and provided, and 
 in profanation of religion." 
 
 This last clause is especially fine. 
 
 The rule, after two enlarirements. came on before the Full Court 
 (Elmsley. C.J. and Powell and Allcock, JJ.), in Trinity Term, 14th 
 July, 1S02, and it was made absolute. 
 
 " The information was a proceeding now practically obsolete, but 
 much in use in those days in place of an indictment. 
 
 No doubt Wilson was tried upon the information ordered to be 
 issued against him but I do not find any record of the result. 
 
 liev. John Carroll, in the first volume <if his " Case and His 
 Contemporaries." p. 148, sec. IT. speaking of Rev. Isaac B. Smith, a 
 Methodist missionary, says : " He was courageous. After his ordin- 
 ation he ventured to marry a couple within the Province boundaries, 
 and was, consequently, prosecuted by the privileged class, who claimed 
 the exclusive right to celebrate matrimony. T'nTike the excellent but 
 timid Sawyer, who for a time fled the country on a similar charge 
 being preferred against him. Smith stood his ground, searched into 
 the law on the subject, plead his own cause, and despite the talents 
 and legal lore of the prosecuting attorney, and the Judge's brow- 
 beating, came off scot-clear. In this he was more fortunate than 
 his father-in-law. Mr. Ryan, who, according to report, was banished 
 for a similar offence, though afterwards made a subject of the 
 Governor's clemency for his known loyalty." 
 
 " Sawyer," was Rev. Joseph Sawyer, who became Presiding 
 Elder of the Upper Canada District of the Methodist Episcopal 
 ciiurch in 1S0S, having then been a missionary for fourteen years. 
 
 •' Mr. Ryan." was Rev. Henry Ryan, of great fame in the same 
 Connexion, but who afterwards was a prominent leader in the divi- 
 sion which took place in 1828-9. resulting in the formation of the 
 Canadian Episcopal Methodist Church. 
 
 I have not been able to verify the statements made as to these 
 three ministers: there is no doubt, however, that ministers of all 
 denominations considered it a part of their clerical functions to per- 
 form the marriage ceremony, and resented the ban put upon such 
 act by the law. 
 
 "There was no dearth of denominations in 18,30, when the 
 former Act was passed. . 
 
 William Lyon Mackenzie, in the Introduction to his ' Sketches 
 of Canada and" the Tnited States." ISIi.",, says: — 
 
 " There is . . . variety (>nough. if we include the Canadas. 
 Within a square of 400 miles may be found the professors of 100 
 religions, creeds and systems, from the Menonist, Tunkard, nnd 
 <'liild of Peace of lipper Canada, to the Ilopkinsian, the Chrystian 
 and T'niversalist across the Niagara." 
 
 The Children of Peace consisted of thirty or forty families in or 
 II. 'ar the village of Hope, in the township of East f:wil1iml)ury. about 
 .".."» miles from York, and 4i.j miles from Newmarket. David Willson 
 was their leader, but they had no written creed. 
 
 At an election nt Niaijara Falls, for the county of T>incoln. July 
 2r!th, 1824, Mackenzie says, p. .80: "there were Christians and 
 Tieailiens. Meiionites and' Tunkards, Quakers and T'niversalists, 
 Presbvterians and P.aptists. Roman Catholics nnd American Metho- 
 dists;" there were Frenchmen and Yankees. Irishmen and Mulattoes. 
 Scotchmen and Indians. Englishmen. Canadians. Americans and 
 Negroes, Dutchmen and Cermans. Welshmen and Swedis, Highland- 
 ers and Lowlanders."
 
 19 
 
 The number of persons with this authorit}' is fairl}- large; 
 but no one is justified in getting up a little denomination of 
 his own, and claiming the power to celebrate the marriage 
 ceremony just because he is the minister of it. One Robert 
 Brown tried that; he was the minister of a congregation 
 known as " The First Christian Chinese Church, Toronto,'" 
 and as such solemnized marriages. The Judge of the County 
 Court of Toronto convicted him of the crime of unlawfully 
 performing the marriage ceremony and the Court of Appeal 
 aflBrmed the conviction: Bex v. Brown (1908), 17 0. L. E. 
 197. 
 
 Eeturning now to the Legislation of 1793. 
 
 Chapter 6 fixed the times and places of holding the Quar- 
 ter Sessions in each District — in the Eastern District at Xew 
 Johnstown and Cornwall, in the Midland at Adolphustown 
 and Kingston, in the Home at Newark and in the Western at 
 Detroit — also a Court* of Si>ecial Sessions at Michilimackinac. 
 Detroit was considered as part of Canada till 1796, and was 
 governed accordingly — Michilimackinac was given up about 
 the same time. 
 
 Chapter 7 is a most creditable piece of legislation. It 
 practically abolished slavery in the Province, repealed for 
 Upper Canada, 30 Geo. III., ch. 27, authorizing the importa- 
 tion of slaves into a colony. All negroes then slaves con- 
 tinued to be slaves, children of female slaves born after the 
 Act served the master until the age of 25 years and then 
 became free. 
 
 It was the Lieutenant-Governor who was responsible for 
 pressing this legislation, though Chief Justice Osgoode and 
 Solicitor-General Grey also deserve credit. It was by no 
 means popular, on account of the scarcity of labour; and the 
 old story of Canaan serving his brethren, Gen. x., 25, was 
 made to do duty over and over again. But " the power of the 
 Crown" was then something to be afraid of. and Simcoe 
 got his wish. 
 
 Upper Canada had reason to be proud of her record in 
 respect of Slavery. The number of negro slaves in the 
 Province was not very large absolutely-, but in comparison 
 with the number of free settlers it was not insignificant; 
 many had been captured by the Indians in their incursions 
 into United States territory and sold to Canadians at a small 
 price, and their labour was very valuable.'
 
 20 
 
 In the case of the negro Sommersett, to be found in 20 
 Howell's State Trials, 29, the Court of Kiug's Bench in 1T?3 
 had unanimously decided that as soon as a slave set his 
 foot upon the Jjoil of the British Isles he became free. Cowper 
 in The Tank, in 1785, sang:— 
 
 '• Slaves cannot breathe in England ; if their lungs 
 Receive our air, that moment they are free; 
 They touch our country and their shackles fall." 
 
 But that was in the mother country ; in the Colonies the 
 curse of negro slavery prevailed to an extent limited only 
 by the opportunity of obtaining negroes and the supposed 
 need for their labour. Wilberforce had only in 1787 taken 
 up the cause — which had been a favourite for many years 
 among the Quakers — of the abolition of the slave trade; but 
 as yet no British Colony had spoken ; and Upper Canada led 
 the way. She had been indeed preceded in 1792, May 6, by 
 Denmark, but she led the British Colonies and all other na- 
 tions in abolishing this infamous traffic. It was not till 1807 
 that it was foi-biddeu for all the British Dominions, and not 
 till 1833 was the Act passed abolishing slavery itself. 
 August, 1838, saw the end of slavery under the Union Jack. 
 Chapter 8 established a Court of Probate in the Province 
 and a Surrogate Court in each District. The Governor, Lieu- 
 tenant-Governor or Administrator was to preside in the Court 
 of Probate, and a Commissioner in each Surrogate Court. 
 An appeal lay from the Surrogate Court to the Court of 
 Probate. 
 
 This system existed till 1858. In that year, by 22 Vic. 
 ch. 93, the Court of Probate was abolished, a Surrogate Court 
 for each county organized with a Judge with the same auth- 
 ority as a Judge of a County Court, and 33 Geo. III. ch. 8, 
 was formally repealed. Our present system is substantially 
 that of 22 Vic. ch. 93. 
 
 By cliapter 9 the Lieutenant-Governor was authorized to 
 appoint three Commissioners to consult and agree with an 
 equal numlxr from Lower Canada as to duties to be im])o^ed 
 in the passing of goods from one Province to anotlier. This 
 may l)e passed over for the time. 
 
 Cliapter 10 provided for the payment of officers of the two 
 houses. Chapter 11 for the payment of a bounty for killing 
 bears and wolves, 10 shillings for a bear and 20 shillings for 
 a wolf, but tliis was not to extend to the Western District 
 nor was anv Indian to receive anv reward for such killing.
 
 21 
 
 Chapter 1'^ provided for the appointment by the Governor 
 of returning otficers, in elections for the Assendjly. 
 
 Chapter 13 provided for salaries of officers of the two 
 Houses and for contingent expenses. This is the form; but 
 the substance is rather different. By an Act of the Imperial 
 Parliament in 1774, it had been provided that a duty of 
 £1 16s. sterling should be paid for every license in the Pro- 
 vince of Quebec for keeping a house of public entertainment 
 or for retailing wine, brandy, rum or other spirituous liquor 
 within the Province. The matter of duty upon wine and 
 liquor brought into the Province had been up in tlie first 
 session, but nothing came of the discussion. A bill passed the 
 Assembly October 4th, 1792, but received the three months' 
 hoist in the Council October 8th. 
 
 In 1793 the Committee of' Ways and Means in the As- 
 sembly reported in favour of a retail license fee of £2 per 
 annum, and a bill was introduced accordingly and was sent 
 up to the Council July 2nd, 1793; and this bill, after some 
 opposition, was passed by that body. As finally passed it 
 imposed a further license fee (in addition to the former of 
 £1 16s.) of 20 shillings for each retail license, but this was 
 not to extend beyond April 5th, 1797. The Receiver-Gen- 
 eral was allowed to retain 3 per cent, for himself of all 
 money raised by this method. 
 
 During this session, Peter Van Alstine, already men- 
 tioned, took the necessary oath, on the second day of the 
 session. The day following it was ordered that such Acts as 
 had passed or should pass the Legislature should be trans- 
 lated into French for the benefit of the inhabitants of the 
 Western District and other French settlers who might come 
 to reside within the Province, and A. Macdonell, Esquire, 
 Clerk of the House, was employed as a French translator 
 for this and other purposes of the House. Thus early we 
 meet bilingualism. 
 
 A Bill to establish two annual fairs at Xew Johnstown 
 did not pass; and the same fate met a proposed "Bill to 
 relieve the inhabitants of the Western District from the 
 necessity of boltins? the grain they grind at their mills for 
 toll.^' 
 
 The House was not unmindful of the privileges attached 
 to the position of Member of Parliament. We find on !Mon- 
 day, 17th June, this resolution carried: "That the Speaker 
 do inform W. B. Sheehan, Esquire, Sheriff of this district, 
 that the House entertain a strong sense of the impropriety
 
 23 
 
 of his conduct towards a member of this House in having 
 served a Writ of Capias upon the said member contrary to 
 his privilege, and that the House has only dispensed with 
 the necessity of bringing him to their bar to be further 
 dealt with from a conviction that want of reflection and not 
 contempt made him guilty of an infringement upon the 
 privileges of the House." 
 
 That the members of the Upper Canada House had the 
 same privilege from arrest as a member of the Imperial 
 House of Commons is certain — and that, not only during the 
 sittings of the House, but for forty days before and forty 
 days after: Reg. v. Gamble and Boulton (1832), 9 U. C. E. 
 5-iG, and several other cases down to Cox v. Prior (1899), 18 
 P. E. 492. Accordingly the sheriff had reason to consider 
 himself lucky in escaping the fate of others who had been 
 guilty of somewhat similar acts. 
 
 Upon the first day of the first Parliament of James I. in 
 1603, a complaint was made that Sir Thomas Shirley, who 
 had been elected a member of the House of Commons, was 
 arrested four days before the sitting of the Parliament and 
 im})risoned in the Fleet. A writ of Habeas Corpus was issued 
 and he was discharged. Precedents were looked unto and the 
 plaintiff at whose suit and the sergeant by whom the arrest 
 was made were sent to the Tower. The Warden of the Fleet, 
 who had persisted in refusing to obey the writ of Habeas 
 Corpus and deliver up his prisoner, was ordered to be com- 
 mitted " to the place called the Dungeon or Little-Ease in 
 the Tower." Afterwards " delivering his prisoner " and 
 " upon his knees confessing his error and presumption and 
 professing he was unfeignedly sorry, the Speaker pronounced 
 his pardon and discharge, paying ordinary fees to the clerk 
 and the sergeant." And in February, 1606, an attorney who 
 had procured the arrest of Mr. James, a member of the 
 House of Commons, and the officer who had arrested him, 
 were " for their contempt committed to the custody of the 
 sergeant for a month, which judgment was pronounced 
 against them kneeling at the bar, by Mr. Speaker." 
 
 It is to be hoped that Sheriff Sheehan was duly grateful 
 for the clemency shewn him. 
 
 On ^londay, 8th July, the House waited upon the Lieu- 
 tenant-Governor with their address to His Majesty, express- 
 ing their horror and abhorrence of '' the sacrilegious murder 
 in France," and hoping " that a conduct so baneful to every 
 precept of Eeligion and law may serve to rivet the loyalty and
 
 23 
 
 attachment of our fellow-subjects, as it has ours, to the best 
 of Kings and of constitutions the most excellent." Louis 
 XVI. had been executed the Januar}^ before. This was *' the 
 sacrilegious murder," sacrilegious because Louis was King 
 by Divine Right — and notwithstanding that his right to the 
 Crown was statutory, the doctrine of Divine Right was dear 
 to GTeorge III. It was, of course, George III. who was the 
 best of Kings," and the constitution as it tlien existed unrc- 
 formed, the most excellent of constitutions. Everybody 
 knows that it was the perfection of reason acquired by long 
 study, observation and experience, and refined by learned 
 and patriotic men in all ages — as Simcoe in his speech from 
 the throne put it, " equally abhorrent of absolute monarchy, 
 absolute aristocracy or tyrannical democracy.^' 
 
 It may not be without interest to see who attended the 
 meetings of the Houses of Parliament. 
 
 During the Session of 1792, the following Legislative 
 Councillors are noted in the proceedings as being present at 
 some time : William Osgoode, James Baby, Robert Hamilton, 
 Richard Cartwright, Jr., John Munro, Alexander Grant and 
 Peter Russell. In 1793 all these were also in attendance, 
 and in addition, Richard Duncan attended, having been 
 sworn June 17th, 1793. He had lieon appointed in the pre- 
 vious August, and hailed from Rapid Plat. 
 
 As is the case with the Legislative Council, I do not know 
 of any record kept of the attendance of members of the As- 
 sembly; but from the proceedings it is clear that of the six- 
 teen members elected for the assembly in the first Parlia- 
 ment at least thirteen were in attendance at some time dur- 
 ing the first session. The names of all but Joshua Booth 
 and Parshall Terry appear as taking some part — Philip Dor- 
 land, of course, could not act. 
 
 In the second session I find the names of thirteen re- 
 corded as taking some part in the proceedings, Major Van 
 Alstine among them. Those whose names do not appear are 
 Hugh Macdonell, Parshall Terry and Nathaniel Pettit. 
 
 This was a very fair attendance, but it does not seem that 
 all attended every day, as Sept. 18, 1792',% resolution was 
 
 ' Wraxall tells us that it was King George's opposition to the 
 claims of his American subjects that was the cause of his unpopu- 
 larity with the English people ; and it is. beyond doubt, true that as 
 soon as peace was in 17cS.S declared, granting independence to the 
 North American Colonies, he recovered all his lost favour with his 
 people. There never was a King more generally loved than he. ex- 
 cept during the years of the Revolutionary War.
 
 24 
 
 passed that nine members should make a House; and this 
 number was reduced on Oct. 10, to eight. 
 
 There had always been a difficulty in England of securing 
 attendance of members of the House of Commons; and one 
 statute, G Henry VIIL, ch. 16, was passed punishing the 
 absence of a member by deprivation of pay. No other pun- 
 ishment has ever been enacted in England. 
 
 Ireland was cursed with absentee members; in one in- 
 stance it is said a member was an absentee for twenty years; 
 but no means were taken to compel attendance. 
 
 In Scotland absentees were liable to a fine. It is said: 
 '' By ancient law absentees were liable to be unlawed and 
 amerced in fines''; the fines were substantial, and "without 
 prejudice of what further censure Parliament shall think 
 fit to inflict.'' 
 
 In the Upper Canada Parliament there does not appear 
 to have been any necessity for such measures. 
 
 THIRD SESSION. 
 
 The third session of the first Parliament began June 2nd 
 and lasted till July 7th, 1794. 
 
 The first chapter of the legislation of this session regulated 
 juries to be called to " serve on trials at any Assizes or Nisi 
 Prius, Quarter Sessions or District Court." Not less than 36 
 nor more than 48 jurymen were to be returned in any Dis- 
 trict or place; those returned, if they did not appear; were to 
 pay a fine not less than 20 shillings ($4) or more than £3 
 ($12). Section 9 provided that every juryman should 
 receive one shilling from the plaintiff or liis attorney in ■ 
 every cause in which he was sworn — if a view should be 
 allowed, six jurymen agreed upon or named by the Judge 
 or some officer of the Court had the view and were allowed 
 each 10 shillings for each day they were so employed. 
 The Court of King's Bench was authorized to order a special 
 jury to be struck as in England, the fee of each special jury- 
 man to be 5 shillings. 
 
 Chapter two established a Court of Law by the name and 
 style of His Majesty's Court of King's Bench for the Pro- 
 vince of Upper Canada, with the same authority as the Courts 
 of King's Bench, Common Pleas and Exchequer in England. 
 
 Before the conquest of Canada, of course the French 
 system of Courts was the only system in Canada. From this
 
 25 
 
 time until the Koyal Proclamation of 1763. there were 
 Courts presided over by the captains of militia. These 
 Courts were set up by the conquerors as part of their 
 military rule, and could only be temporary. 
 
 By the Proclamation of 1763, it was provided that the 
 Governor should have the power of constituting Courts of 
 Law and Equity with civil and criminal Jurisdiction to hear 
 and determine causes as near as may be agreeable to the laws 
 of England. Murray, accordingly, pursuant to his instnictions 
 and his Commission, established a Court of King's Bench with 
 £ivil and criminal jurisdiction with an appeal to the Governor 
 in Council or to the King in certain cases — the Court to sit 
 twice a year, in January and June, in Quebec — and a Court 
 of Assize and Gaol Delivery once a year in Montreal and 
 Three Eivers. A Court of Common Pleas was also estab- 
 lished, — an appeal lay to the King's Bench, or if of 
 sufficient importance to the Governor in Council or the 
 King. Justices of the Peace were also appointed with 
 civil jurisdiction up to £5 for a single magistrate or £10 
 for two sitting together. Three justices could hold a 
 Court of Quarter Sessions with civil jurisdiction from £10 
 to £30. 
 
 Several departures from English precedent are mani- 
 fest. The Common Pleas administered Equity, and Conser- 
 vators of the Peace both singly and in the Quarter Sessions 
 had civil jurisdiction. 
 
 Then came the Quebec Act of 1774, 11 Geo. III., ch. 83. 
 This revoked the Proclamation of 1763, all ordinances rela- 
 tive to the administration of justice and all commissions to 
 Judges, etc., made or issued under the authority of the Pro- 
 clamation. It further provided for the King constituting 
 Courts of civil, criminal, and ecclesiastical jurisdiction and 
 appointing Judges and officers thereto. 
 
 The American invasion of Canada prevented anything 
 being done at the time — inter arma silent leges — but in 1776, 
 Courts were established for the Districts of Montreal and 
 Quebec, and a Court of Appeal was also constituted. Courts 
 were organized for Three Eivers, and afterwards, when in 
 1788, Dorchester divided what was afterwards Upper Can- 
 ada into Districts, Courts were instituted also in these four 
 Districts, i.e., Luneburgh, Mecklenl)urg, Xassau and Hesse 
 (this last including Detroit). These were Courts of Common
 
 26 
 
 Pleas. Commissions of Oyer and Terminer were also issued 
 to the Judges of these Courts, as occasion required. 
 
 Jury trial having been established by chapter 2 of 32 
 George III., chapter -i of the same statute abolished smnmary 
 proceedings in these Courts, which had formerly obtained 
 in cases involving less than £10 sterling. 
 
 The time was now come to abolish these Courts of Common 
 Pleas in Upper Canada, and chapter 2 of the third session be- 
 came law. This constituted a Court of King's Bench, with a 
 Chief Justice and two Puisne Justices (increased to four 
 in 1837 by 7 Wm. IV., ch. 1) to sit at a place certain, i.e., 
 at the place where the Governor usually resided, and until 
 such place should be fixed, at the last place of meeting of the 
 Parliament. Four terms were prescribed; the first and orig- 
 inal process directed to be a writ of capias ad respondendum; 
 special bail also provided for, and the statutes of jeofails, etc., 
 as in England, notice of trial, examinations de bene esse, costs, 
 etc. The Courts of Common Pleas disappear and their records 
 become records of the King's Bench. A Court of Appeal was 
 constituted (composed of the Governor or Chief Justice and 
 two or more members of the Executive Council) to which 
 an appeal lay in matters over £100 ; and a further appeal when 
 the amount in controversy exceeded £500 sterling was reserved 
 to the Privy Council. 
 
 As indicating the nationality of the inhabitants of Upper 
 Canada it may be mentioned that the notice to the defendant 
 to be endorsed on the writ was required to be in French (ac- 
 cording to the form given) when the " party defendant is a 
 Canadian subject by treaty or the son or daughter of such 
 Canadian subject": sec. 9. 
 
 This Court of King's Bench (becoming in 1839 by 2 Vic. 
 ch. 1, Queen's Bench) continued until, in 1881, it was con- 
 solidated in the Supreme Court of Judicature. The former 
 Courts of Common Pleas entirely disappeared in 1794, and 
 the Court of Common Pleas created in 1849 has no relation to 
 tliese whatever. In 1837 a Court of Chancery was established, 
 presided over by the Vice-Chancellor of Upper Canada: and 
 in 1849, 12 Vic. -ch. 63, a new Common-law Court, the 
 Court of Common Pleas, with the same jurisdiction and prac- 
 tice as the Court of Queen's Bench. At the same time the 
 Court of Cliancery was reconstituted with a Chancellor and 
 two Vice-Chancellors, 12 Vict. ch. 64. These three Courts
 
 27 
 
 continued side by side as the Superior Courts of original 
 jurisdiction until 1881. 
 
 By the Act of 1794, as we have seen, the Lieutenant- 
 Governor of the Province or the Chief Justice, with two 
 or more of the Executive Council, constituted a Court of 
 Appeal from the King's Bench, and the same Court be- 
 came the Court of Appeal from Chancery in 1837; but in 
 1849 this Court of Appeal was abolished and a new Court of 
 Error and Appeal was constituted to hear appeals from both 
 the Common-law Courts and the Court of Chancery. This 
 new Court was much like the Court of Exchequer Chamber 
 in England, and consisted of all the Judges of the three Courts 
 of first instance. In 1874, 37 Vic. ch. 7, this Court was 
 reconstituted and thereafter consisted of Judges permanently 
 of the Court of Appeal. In 1881, 44 Vic. ch. 5, the former 
 system was abolished; all the Courts, Appeal, Queen's Bench, 
 Chancery and Common Pleas, were united and consolidated 
 into one Supreme Court of Judicature for Ontario, composed 
 of two permanent di^isions : 1, The Court of Appeal for On- 
 tario (this had five Judges), and, 2, the High Court of Jus- 
 tice for Ontario : and of this High Court of Justice there were 
 the three divisions, i.e., the Queen's Bench, Chancery and Com- 
 mon Pleas Divisions. Later, another division was added in 
 the High Court, viz., the Exchequer Division. Each of these 
 divisions of the High Court of Justice had three Judges. 
 The still recent reform effected by the Law Refonn Act, 1909, 
 need not here be considered. 
 
 I shall later speak of the defects of the original Court. 
 It may here be said, however, that William Dummcr Powell, 
 who had been commissioned as Judge of the Court of Com- 
 mon Pleas for the District of Hesse, and had actually sat as 
 such at L'Assomption (Sandwich), was after the passing of 
 this Act appointed a Justice of the Court of King's Bench, 
 and was afterwards, in 1816, created Chief Justice. 
 
 As the Courts of Common Pleas were abolished, it bo- 
 came necessary or at least advisable to constitute Courts 
 to take their place for the trial of causes involving small 
 amounts. In the Legislative Council, Cart^Tiglit atnd Hamil- 
 ton caused to be entered in the proceedings their formal pro- 
 test against the one Superior Court for the Province, rather 
 than Courts of local and exclusive jurisdiction in each District. 
 
 A Court was by Chapter 3 constituted in each District, 
 by the name of District Court, to sit where the Court House
 
 28 
 
 had been (by 32 Geo. III., ch. 8), directed to be built, except 
 " in the ^Yestern District, wliere the said Court shall be 
 holden in the Town of Detroit." In 1796, by 36 Geo. III. ch. 
 4, s. 3, it was declared no longer expedient to hold the Court 
 in Detroit, and it was directed to l)e held at the Parish of 
 Assumption (Sandwich), or nearer the Isle of Bois Blanc— 
 in 1801, by 41 Geo. III., ch. 6, s. 2, the place was definitely 
 fi.xed at Sandwich. 
 
 The District Courts were given jurisdiction in all actions 
 of contract from 40 shillings up to £15; this was in 1797, by 
 37 Geo. III. ch. G, sec. 1, increased to £40 in cases of con- 
 tracts where the amount is liquidated, and to £15 in trespass 
 where the title to land was not brought in question. 
 
 After several amendments, the legislation was consolidated 
 in 1822 by 2 Geo. IV., Sess. 2, ch. 2, and again with amend- 
 ments in 1845 by 8 Vic. ch. 13. At length in 1849 the Dis- 
 tricts became so multiplied that their boundaries in many 
 eases became identical with the boundaries of Counties, and 
 tlie Statute 12 Vic. ch. 78, abolished the division of the Pro- 
 vince into Districts for judicial and other purposes and the 
 District Courts were made County Courts by sec. 3. In the 
 Statutes for that year they are called sometimes County 
 Courts, sometimes District Courts and sometimes District 
 or County Courts, but thereafter the new name, which still 
 continues, is consistently used. 
 
 Chapter 4 authorized the Governor to grant a license to 
 any number of His Majesty's liege subjects not exceeding six- 
 teen, to act as attorneys and advocates in the Province. The 
 reason for this was the scarcity of lawyers acquainted with 
 the English Civil law in the Province. Before 1792 of course 
 the English Civil law liad not been in force, at least in theory. 
 This Act of 1794 suspended for two years for Upper Canada 
 the ordinance made in Quebec in 1785 providing for the pro- 
 fession. The Act was not abused — only some five gentlemen 
 were licensed under it in 1803, one being D'Arcy Boulton, an 
 English barrister who afterwards became Judge of the King's' 
 Bench, and the ancestor of a distinguished family; another, 
 Dr. William AVarren Baldwin, a prominent barrister and 
 politician, and fatlier of the still more celebrated Pobert 
 Baldwin. 
 
 The formation of the Law Society of Upper Canada in 
 1797 we shall have occasion to note when we reach that date.
 
 Chapter 5 provided for tlie accounting for all fines, etc. 
 
 Chapter 6 was an assessment Act of no great consequence 
 except that it ordered the payment in full of the wages of the 
 members of the Assembly. 
 
 The Militia received attention in chapter 7, which author- 
 ized Cavalry and a Navy. 
 
 Chapter 8 enabled the householders of every District at 
 their annual town meetings to determine in what manner and 
 at what periods horned cattle, horses, sheep and swine, or any 
 of them, should be allowed to run at large, and permitted 
 impounding of the offending animals. 
 
 Chapter 9 amended tke Act of the previous session as to 
 highways, and was equally futile. 
 
 Chapter 10 allowed the inhabitants of the Eastern District 
 to build a gaol (it is called in the Statutes a "goal") and 
 Court House in Cornwall, as well as those in Xew Johnstown 
 authorized by the Act. 
 
 Chapter 11 laid a duty on "' Stills for tiie purpose of dis- 
 tilling spirituous liquors for sale," 1 shilling and 3 pence per 
 gallon of the capacity of the still. The owner must procure 
 a license, paying a fee for it of course; no one could do any- 
 thing in those days without paying a fee for it — except 
 (possibly) die. 
 
 Chapter 12 regulated the . manner of licensing public 
 houses, requiring the keeper to procure a certificate of his fit- 
 ness from the magistrates of the District — the magistrates 
 were given the power to limit the number of inns and the 
 names of all licensees were to be published in the Upper 
 Canada Gazette. 
 
 A bill to regulate the practice of physic and surgery passed 
 the Assembly, but the Council amended it in such a way that 
 it did not suit the Assembly; a conference was directed to be 
 held, but nothing seems to have been done, and the bill did 
 not pass this year. It had better luck the following session, 
 35 Geo. III. ch. 1. 
 
 In the Council during this session the "following Council- 
 lors are noted as taking part: Osgoode, Baby, Hamilton, Cart- 
 wright, Munroe, Grant, Kussell and Aeneas Shaw, who pre- 
 sented his summons and was sworn in, June 10, 179-1. He 
 was a Scotsman, the lineal descendant of Macduff, first
 
 30 
 
 Thane of Fife : of great mental and bodily vigor, he served in 
 the Revolutionary war, and was created a Major-General in 
 Upper Canada. At his house, Oakhill, he entertained the 
 Duke of Kent, father of Queen Victoria, during his tour 
 in Canada in 1799. The Major-General died in 1813 during 
 the war with the United States, it is said from over-fatigue. 
 We have not the complete record of the Assembly of this 
 Session — tiio only available copy extending only to June 
 11th; in what is preserved, I find the names of twelve 
 members mentioned as taking part — Speaker Macdonell, 
 Hugh Macdonell, Alexander Campbell, Ephraim Jones, John 
 White, Joshua Booth, Hazelton Spencer, Benjamin Pawling, 
 Isaac Swayzie (this name is spelled Swayze in the report), 
 Parshall Terry, David William Smith; no trace is found of 
 Jeremiah French, Peter Van Alstine, Nathaniel Pettit or 
 William Macomb, although they all may have been in at- 
 tendance. 
 
 FOUIJTH SESSIOX. 
 
 The fourth session of the first Parliament also met at 
 Newark like its predecessors; it lasted from July 6th to 
 August 10th, 1795. We have no records of the proceedings 
 except the statutes themselves. 
 
 The first chapter regulates the practice of physic and 
 surgery. I have thus spoken of it in a paper prepared for 
 the Ontario Medical Association, and published in the " Cana- 
 dian Journal of Medicine and Surger}'," September, 1911 : — 
 
 " At the time of the separation of our Province, and for 
 some time thereafter, there was no regulation as to who should 
 practice medicine, or " physic," as it was called. Many of 
 the practitioners were old army or navy surgeons; some were 
 importations from the United States, but most of those who 
 treated disease were mere empirics. There had, indeed, been 
 an Act or Ordinance passed by the Council of the old Province 
 of Quebec in 1788, forbidding anyone to practise without a 
 licence from the CJovernor — which licence was to be granted 
 without an examination to all graduates of any British univer- 
 sity and to all surgeons of the army or navy; l)ut this was 
 largely a dead letter in the newer parts of tlie colony, as our 
 country was at that time. 
 
 In 1795 the Provincijil Parliament of Upper Canada 
 passed an Act, 35 Geo. Ill, ch. 1, forbidding the sale of medi- 
 cine, prescribing for the sick and the practice of physic, sur-
 
 31 
 
 gery or midwifery by anyone who had not been licensed. The 
 Governor was lo appoint a board to examine all who should 
 apply for a licence, and those approved of by the Board, upon 
 the examination were to be granted a licence, the fee being 
 £2 currency, i.e., $8. A penalty of £10, i.e., $40, was imposed 
 for selling medicines, prescribing for the sick or practising 
 physic, surgery or midwifery without a licence. An excep- 
 tion was made for surgeons or surgeons' mates in the army or 
 navy, and for those who had been practising at the time of 
 the passing of the Act of 1791; these, however, were not to 
 take apprentices or students. There is no record of anything 
 ever having been done under these provisions; the Act was 
 found unworkable, and it was accordingly repealed in 1806 
 by 46 Geo. II. ch. 2, and the profession was again much at 
 large, although the Act of 1788, already spoken of, was still 
 nominally in force. Much public dissatisfaction was the 
 result, and at length a new Act was passed in 1815, 55 Geo. 
 III. ch. 10, which forbade prescribing for the sick or the 
 practice of physic, surgeiT or midwifery without a licence 
 — saving the case of graduates of a university in British 
 Dominions, surgeons and surgeons' mates in the British x\rmy 
 or Xavy, and those wdio had practised before 1791. The pro- 
 hibition against these taking apprentices or students was not 
 repeated in this Act, nor was the prohibition against selling, 
 etc., medicines. And it was expressly provided that women 
 might practise midwifery without a licence. The Governor 
 was to appoint an examining and licensing Board. 
 
 Nothing seems to have been done under this Act either, 
 and it was repealed in 1818 by 59 George III. ch. 13, which, 
 however, contained much the same provisions." 
 
 I do not here trace the legislation further. 
 
 Chapter 2 prohibited any person coming from any place 
 not within his Majesty's Dominions at the time of the passing 
 of the Act, and not being a hana fide subject of His Majesty 
 for seven years before the passing of the Act, from voting for 
 a member of the House and from being a candidate. This 
 was to meet what was tlien and for some years thereafter a 
 very real danger. Americans coming into Upper Canada, 
 with a hatred of monarchical institutions, obtruded themselves 
 among the voters, preached, and, where they dared, practised 
 disloyalty. 
 
 Chapter 3 ratified an agreement entered into with Com- 
 missioners from Lower Canada as to the division of certain
 
 duties, and an agreement that the Upper Province would not 
 impose duties upon goods imported into Lower Canada and 
 passing into Upper Canada, receiving one-eighth of the duties 
 levied thereon by Lower Canada. 
 
 Chapter 4 gave jurisdiction to the Court of King's Bench 
 similar to that of the Court of Exchequer in England in the 
 case of goods seized or contraband. This jurisdiction proved 
 of very great value : the old Term Books are full of cases of 
 confiscation of goods seized as being smuggled.** 
 
 Chapter 5 is the first of our Eegistry Acts, establishing 
 a registry office for each county and riding. Memorials only 
 were to be registered, not the deed, etc., itself. 
 
 FIFTH SESSIOX. 
 
 The fifth and last Session of this Parliament met May 
 16th, and lasted till June 3rd, 1795. No records of the pro- 
 ceedings other than the Statutes are extant. 
 
 Chapter 1 regulated the weight, etc., of coins and their rat- 
 ing as legal tender. 
 
 British Guinea . . . .weighing 5 dwt. 6 gr. Troy^£l 3s. 4d. 
 Johannes of Portugal, .weigliing 18 dwt. 6 gr. 
 
 Troy==£4 Os. Od. 
 Moidore of Portugal .. weighing 6 dwt. 18 gr. 
 
 Troy=£l 10s. Od. 
 The milled Doubloon or four Pistole piece of 
 
 Spain weigliing 17 dwt. Troy=£3 14s. Od. 
 
 The French Louis d' or (before 1793) . . . .weigh- 
 ing 5 dwt. 4 gr. Troy=£l 2s. 6d. 
 Etc., Etc. 
 American Eagle, .weighing 11 dwt. 6 gr. Troy=£2 10s. Od. 
 American Dollar ^£0 5s. Od. 
 
 * For example, wo liiul in MicliiU'lnias Term. 40 (Teo. III.. Xov. 
 14th. ISOS. l).-f(uc Scdtl. <"..T.. ;in(l rowell. .7.: In "7'/ir K\nq v. John 
 Young, on the information of Wm. Frith. Esqnire, Atty.-Gen'l, 
 prochimation is made in open Court for condemnation of sroods 
 seized as forfeited. The Att.v.-Gen'l suggesting that it is his inten- 
 tion, on tlie part of the Crown, to take the goods in specie, this, on 
 proclamation, is. by the Court, considered deficient.'' Trinity Term, 
 .">0 Geo. III.. .July 11th. ISIO. proclamations were made for condem- 
 nation of goods seized as forfeited: 10(! gals, of brandy. 75\^ gals, of 
 rum. l.CtOO lbs. of tobacco. 00 lbs. of tea. ~^0 lbs. of tobacco, called 
 pecan. KS lbs. of snuff, and TtO lbs. of cotton wool ; also 22G gals, of 
 whiskey. l.fJOO lbs. of pork. 120 gals, of gin. and the boat tackle 
 and furniturt'. In Michaelmas Term the proclamations were renewed 
 and, finally, judgment was jiiven for forfeiture.
 
 33 
 
 Many other gold and silver coins are named and valued. 
 The value given to the American dollar shews that in Can- 
 adian currency 1 shilling=20 cents (what was known even in 
 my day as Halifax currency). 
 
 Counterfeiting was made felony punishable with death 
 on conviction " in His Majesty's Court of his Bench." Utter- 
 ing, for a first offence, one year's imprisonment and one hour 
 in and upon the pillory in some public and conspicuous place ; 
 a second offence was punishable with death as a felon without 
 benefit of clergy. Importation of false coin was to be pun- 
 ished by twelve months' imprisonment. Xo one was to be 
 compelled to take more than 1 shilling in copper; every pay- 
 ment exceeding £50 currency in gold coin was to be by 
 weight. 
 
 Chapter 2 provided for juries at the assizes. 
 Chapter 3 made further provision for licensing inn- 
 keepers. 
 
 Chapter 4 altered the place of meeting of the Quarter 
 Sessions and the District Court of the Western District from 
 Detroit, as has already been stated. Detroit was definitely 
 abandoned by the British the following year, under the pro- 
 visions of "Jay's Treaty," 1794. 
 
 Chapter 5 abolished the bounty for killing bears. Chap- 
 ter 6 provided for Commissioners to treat with Commissioners 
 from Lower Canada as to duties, etc., and chapter 7 further 
 secured those " wages," so often spoken of. 
 
 This is the by no means discreditable or insignificant 
 record of the first Parliament of Upper Canada, the only Par- 
 liament under Simcoe. 
 
 I shall now say something as to some of these statutes. 
 There was very great reason for the protest of Cartwright 
 and Hamilton. They had caused to be entered upon the pro- 
 ceedings of the Council 3rd June, 1794, a formal protest 
 against the proposed Act which effected the abolition of local 
 Courts, in the geographical situation of the colony, '"with a 
 thin population scattered over so immense an extent of coun- 
 try" — all writs issuing from the "fixed place" at which the 
 Court sat, and all proceedings to be there filed. It was indeed 
 provided that where the first process went to the Sheriff of the 
 Home District, fifteen days should elapse between the teste 
 and return, forty days in any other District. But the necessity 
 of "day's journeys" in procuring process, etc.. must in the then
 
 34 
 
 condition of the colony have been very annoying; and many 
 must have wished the return of the old Common Pleas Court 
 in their District. But in 1797, by 37 Geo. III. eh. 4, it was 
 provided that the Clerk of the Crown and Pleas should have 
 in every district an office and a deputy whom he should fur- 
 nish with blank writs, and in which office pleadings should be 
 filed ; moreover, a form of writ where special bail should not be 
 required was given. This was made quite clear in 1845 by 
 Statute 8 Vic. ch. 36 ; it was enacted that the Clerk of the 
 Crown should supply his deputies in every district with writs 
 of mesne and final process, except writs in ejectment, and the 
 deputies were directed to issue such writs in the same manner 
 as might be done in the principal office at Toronto. They were 
 also authorized to issue rules upon the Sheriff for return of 
 mes7ie or final process. Then in 1849, the Act 12 Vic. ch. 63 
 altered the office of Clerk of the Crown and Pleas, and made 
 the several Clerks of the County Courts ex-officio Deputy 
 Clerks of the Crown and Pleas in the Queen's Bench and 
 Common Pleas — so that at length there was in each county 
 town an office where process could be sued out. Thus, 
 most of the advantage of a local Court and all the advan- 
 tage of a strong central Court were combined. 
 
 In the Statute concerning coins, reference is made to 
 standing in the pillory. This time-honored punishment in 
 the English law might be a triumph for the prisoner, or a 
 capital punishment, according to the feeling of the populace. 
 I find instances of the punishment being actually inflicted or 
 at least ordered in Upper Canada, e.g., a case mentioned by 
 Read in his life of Chief Justice Elmsley, page 46 ; a prisoner 
 convicted at New Johnstown of perjury, Sept. 11th, 1793. 
 was sentenced to be pilloried three times.'' The pillory was 
 abolished witli us in 1841, by 4 and 5 Vic. ch. 24, sec. 31. 
 
 "A vase well known to all studi'iits of the Constitutional llis;.)ry 
 of Canada is the foll<)\ving : — 
 
 In Mioliaelmas Term. 00 Geo. III., Xov. Sth. IRIO. The Kin(j_\. 
 liartiinus Fcrf/u.ioii, tin- prisoner was sentenced to pay a fine of £r»0, 
 province rurrenoy. and to he imprisoned in the common jraol at 
 Niagara for IS months; in the first of these months he was to stand 
 in tiie rnl)lic Tillory 'between the hours of 10 a.m. and 2 ji.m. At the 
 .■\-I)iration of tlic term lie was to K^ve security for good behaviour 
 for seven years himself, in fHOO, ami two sureties in £250 each, and 
 to be imprisoned until the fin<> was paid and security ffiven. 
 
 (Present: Powell. CJ.. Camphell and Boulton. .7.T.) 
 
 The prisoner's counsel was Mr. Thomas Taylor, the reporter 
 and editor of Taylor's Reports, called in Hilary Term the same year. 
 He himself was the editor of the Niagara Spectator, and in his 
 journal, in his absence from home, had appeared a letter written and
 
 35 
 
 A second conviction for uttering, meant felony " without 
 benefit of clergy." Xo lawyer is at all likely to think witKsome 
 popular writers that this means " without the benefit of clerical 
 attention and advice." Of course it originally was the privilege 
 allowed to ^ Clerk in Holy Orders, when prosecuted in the 
 temporal Courts, of being discharged from such Court and 
 turned over to the ecclesiastical Courts — in other words to 
 get clear almost altogether. This privilege was gradually 
 extended to all who could read, and many a notorious rascal 
 escaped well-merited punishment by reading his "neck- 
 verse,'' possibly by a recently learned accomplishment. Ulti- 
 mately, in 1706, by 6 Anne, ch. 9, the privilege was extended 
 to all, whether they could read or not. 
 
 This privilege did not extend to all felonies, but only to 
 capital felonies, and even of these some were " without bene- 
 fit of clergy '"; moreover, by an early statute (1488), -i Henry 
 VII., ch. 13, laymen allowed their clergy were burned in the 
 hand, and could not claim it the second time, and the practice 
 grew up of imprisoning for life clergymen where the offence 
 was heinous and notorious. 
 
 " Benefit of Clergy " was abolished in England by sec 
 6 of the Criminal Law Act of 1827, and in Upper Canada in 
 1833 by 3 William IV., ch. 3, sec. 25. This Act provided that 
 all crimes made by the Act itself punishable with death — 
 murder and accessory before the fact to murder, rescue of one 
 committed for or found guilty of murder, rape, carnal know- 
 ledge of a girl under ten, sodomy, robbery of the mail, burg- 
 lary, arson, riot after the reading of the Eiot Act, destruc- 
 tion of His Majesty's dockyards, etc. (a sufficiently long list 
 indeed) — should be so punished, but that all other felonies 
 should be punishable by banishment or imprisonment for any 
 term not exceeding 14 years. Thus the counterfeiter escaped 
 the punishment of death, to the great grief of many very 
 good and very intelligent people who thought that a death 
 sentence for the offender was the only safeguard for society. 
 
 Simcoe returned to York at the close of the fifth Session ; 
 a short time after his arrival, he received an answer to his 
 request of the previous December for leave of absence on the 
 ground of ill-health. His request was granted in most flat- 
 tering terms. Causing Peter Russell to be sworn in as Admin- 
 signed by Gourlay, animadvertinjr on the Administration of the day. 
 Ferguson was indicted for libel, and found guilty, with the result we 
 have seen. On his making a humble submission, be was relieved of 
 some part of the penalty and imprisonment.
 
 36 
 
 istrator, he left York for Quebec, and thence sailed for London 
 in September, 1796, never to return. After effective service 
 in the West Indie?, he died at Exeter in 1806. 
 
 A man of great force of character, a devoted patriot, hold- 
 ing his Cliurch entitled to loyalty second only to his King, a 
 soldier of valor and capacity, his mistakes were for the most 
 part the mistakes of his time and his rank, and he well 
 deserves the encomium of his epitaph in Exeter Cathedral, 
 that " in his life and character the virtues of the hero, patriot 
 and Christian were eminently conspicuous.^' 
 
 Of the Executive Council I have said. little; that body took 
 no part in legislation. All its members, however, were Legis- 
 lative Councillors. 
 
 In the Houses, even at this early date, we see differences 
 of opinion, the Council inclining to the aristocratic, the 
 Assembly to the democratic view. The embryo of an opposi- 
 tion also makes its appearance, even in the select body. Ham- 
 ilton and Cartwright seem to have acted together — we have 
 seen that they joined in a protest 'against the formation of a 
 great central Court, the King's Bench ; Simcoe had no hesita- 
 tion in calling Hamilton a republican, and Cartwright he 
 thought little, if any better. The custom of dubbing a politi- 
 cal opponent a traitor began very early in Upper Canada. 
 Simcoe also intimated that Cartwright's position as Judge of 
 the Court of Common Pleas for his District had something to 
 do with his objection to the abolition of these Courts. How- 
 ever, Hamilton was created Lieutenant of Lincoln, and Cart- 
 wright of Frontenac, by the Lieutenant-Governor; so we may 
 judge that his suspicions of their loyalty were but temporary. 
 This was the only Parliament which met at Niagara — 
 Simcoe had changed the old name into Newark. The first 
 session was held, it is said, in the Freemasons' Hall,'" all the 
 others in what Simcoe calls " sheds " — additions built to the 
 Barracks of Butler's Rangers by the garrison. 
 
 Simcoe recognized that Newark was too close to the bor- 
 der to be the permanent capital; in 1793 he made a some- 
 
 '" Some say that the first session of Parliainout was hohlen in 
 "a marquee tent, one remove in the scale of ascending civilization 
 from the aboriginal council-lodge." some, that Navy Ilnll was rm 
 scene of the meeting. 
 
 Willinin Diiiinner Towell. Chief .Tustice of T'pper Cnnnrla. says, 
 in his MSS. Narrative, now in the possession of his great-grandson 
 Aemiliiis .Tarvis, Esf)iiire. of Toronto, that the House mot in canvas 
 houses, which had hoen prepared for and used by Banks and Solander, 
 in their voyage of discovery, i.e., with Captain Cook. ITti^lTTl.
 
 37 
 
 what extended trip into the interior, and decided tiiat a spot 
 at or near to what is now London should be the future capi- 
 tal. In the same year he fixed on Toronto as a suitable place 
 for fortifieation. He changed its name to York, in considera- 
 tion and compliment of the Duke of York's victories in 
 Flanders. The Duke of York was a brother of George III., 
 and had, earlier in the year, achieved some success against 
 the French; but he was recalled not long after, and placed in 
 charge at London. He was no great General, but as Adminis- 
 trator he was a success, doing much for the comfort of the 
 soldiers, whether on active service or on pension.^- 
 
 Dorchester, the Governor-General of Canada, overruled 
 Simcoe's selection of a site for the capital, and chose York, 
 which, with a change to its old name of Toronto in 1834, 
 remained such — with* intermittent intervals after the Union 
 of the Canadas in 1841-18-1:2 — till the present time. 
 
 The second Parliament met at York, not at Newark. 
 
 The state of legislation as left by the first Parliament 
 deserves consideration. 
 
 The security of the Province from foreign aggression was, 
 so far as was possible, secured by the Militia Acts providing 
 for infantry, cavalry and navy. 
 
 Simcoe rather favoured the formation of a hereditary 
 aristocracy who should have the right of being Lieutenants 
 of their counties. This fortunately did not come to 
 pass, but like the provision in the Act, 31 George III., ch. 
 31, looking to hereditary seats in the Legislative Council, 
 was allowed to pass out of notice. Upper Canada has never 
 been favourable to hereditary titles. 
 
 The loyalty of the Members of Parliament was secured by 
 excluding ahens from House and electorate. Payment to 
 members also had been provided for on a moderate but suffi- 
 cient scale. 
 
 The Courts were practically what they are now, with the 
 exception that in civil matters all Judges are now, even in 
 the case of petty claims, trained barristers. The Courts of 
 
 "Every lover of Sir Walter Scott will remember, in the am is- 
 ing introduction (1819). to the first edition of the " Legend of Mont- 
 rose," his description of Sergeant More M'Alpin. who was induced 
 to remain at Gandercleugh when on his way with his sister to Glas- 
 gow to take passage to Canada. The Sergeant, an old pensioner, 
 " seldom failed to thank Ood and the Duke of York, who had made 
 it much more difficult for an old soldier to ruin himself by his folly 
 than had been the case in his younger days."'
 
 38 
 
 Eequests, presided over by magistrates, corresponded to our 
 Division Courts; the District Court to our County Courts; 
 the King's Bench to the High Court Division of the Supreme 
 Court of Ontario. The ultimate Court of Appeal was tlien 
 composed of laymen, or it might be so constituted, and this 
 was certainly objectionable — while the Court of King's Bench 
 had the defects already referred to. The English law was 
 introduced, civil as well as criminal. 
 
 Standards of weight and measure, coin, legal tender, had 
 been set and fixed, tolls in mills regulated, provision made 
 for killing dangerous wild animals, tavern and distilling 
 licenses had been regulated, former invalid marriages ren- 
 dered valid, and provision for the future solemnization of 
 marriage made ; practitioners in the Courts were also provided 
 for, and physic and surgery not forgotten. In addition to 
 the ordinary Courts of law, a Court of Probate with Surrogate 
 Courts was provided. The criminal law was not neglected, 
 meetings of the Quarter Sessions were arranged for and Court 
 Houses and gaols directed to be built. A satisfactory adjust- 
 ment was made with Lower Canada through which prac- 
 tically all imports came, except those from the United 
 States. The curse of slavery was doomed to early extinc- 
 tion — a result in itself well worth all the first Parliament of 
 Upper Canada cost in time, labour and money. 
 
 The first foundations of our municipal system were laid — 
 afterwards to play such an important part in our national life. 
 A later Governor called mimicipal corporations " Sucking 
 liepublics"; they are not that, but assuredly they are the 
 very nursery for public spirit and capacity to say effec- 
 tively what a freeman thinks. 
 
 For a beginning, the provision for the registering of docu- 
 ments must be considered creditable. The Registry system 
 now much elaborated has been invaluable in saving trouble and 
 money. 
 
 I should not omit the provision for highways. It must be 
 said tbat highways under local and municipal control have 
 not been a brilliant success. Much of tbe failure has no doubt 
 been due to the rich soil of a great part of the Province. A 
 reverend gentleman who was stationed at Thornhill in the 
 third decade of the nineteenth century, complained that
 
 39 
 
 there Avere no stones to make a road with.^- It may have 
 been that nothing better could be devised, but there can be 
 no doubt that the roads of the Province have been no credit 
 to us. What could be done by a central authority is seen in 
 what was done. Practically the only roads wliich deserved 
 the name were those built by the Government — Yonge Street, 
 built by the soldiers, Uuudas Street from Burlington Bay 
 (Coote's Paradise) to London, and then from Burlington Bay 
 to Toronto, built in the same way; the Danforth Road built 
 on contract by Danforth, an American, in 1799-1800, from 
 York to the Bay of Quinte. 
 
 The neglect of municipalities led to the formation of com- 
 panies to build toll-roads, plank or gravel, of which many were 
 incorporated in the 30's and 40's — and their works do follow 
 them even to the present. Perhaps there is nothing which 
 pays a country better than good roads; and it is to be re- 
 gretted that for so many years road building was neglected. 
 
 But everything cannot be done by a poor country, and 
 perhaps no better solution offered itself to our first legislators. 
 And when all is said, they certainly have earned the admira- 
 tion and gratitude of all who have lived in the Province since 
 their time. 
 
 " " Observations on Professions, Literature, Manners and Emi- 
 ^M-ation in the United States and Canada ... in 1832, by the 
 Rev. Isaac Fidler, for a short time missionary of Thornhill on Yonge 
 street, near York, Upper Canada, London / . . 18.33." 
 
 In this most entertaining volume, written by a clergyman of 
 the Church of England, is found the following : — ' 
 
 " I must here explain . . . that the roads in many parts of 
 Canada are composed entirely of earth, of a rich soil, among which 
 no stones or gravel is intermingled. Many farms along Yonge street. 
 of two hundred acres in extent, have not so much stone on them as 
 would serve to lay the foundation of a house. This is a proof of 
 the fineness of the land ; hut also of the paucity of materials for 
 making solid and substantial turnpikes. . . . ' The heavy rains 
 make a road a complete puddle, which affords no sure footingto man 
 or beast." 
 
 Most Upper Canadians have seen such roads ; and they are not 
 few or far between now. eighty years after Mr. Fidler wrote.
 
 Wanted to Purchase 
 for Cash 
 
 Any Government Publi- 
 cation of Upper Canada, 
 from its earliest organization 
 1792 to 1840— whether Sta- 
 tutes, Journals, Sessional Pa- 
 pers, and also any law book 
 or other book touching on the 
 interests of Canada published 
 during this period. 
 
 Government Publications — 
 Statutes, Journals, Sessional 
 Papers, etc. — of Lower Can- 
 ada from 1763 to 1840. The 
 same for Nova Scotia from 
 1756 to 1860, the same for 
 New Brunswick and Prince 
 Edward Island. 
 
 THE CARSWELL COMPANY LIMITED 
 
 19 Duncan Street, Toronto.
 
 FOR SALE 
 
 STATUTES 
 
 SESSIONAL PAPERS 
 
 JOURNALS, Etc. 
 
 Rare Statutes* published over one 
 hundred years ago, of the EARLY 
 PROVINCES OF CANADA. Dominiorv 
 of Canada, and of all the Provinces. 
 
 Scarce Newfoundland Statutes and 
 Government Docun\ents. 
 
 Annual Statutes for the Dominion 
 and of the Provinces supplied promptly 
 ^ls published. 
 
 PRICES ON APPLICATION 
 
 The Carswell Company, Limited 
 
 19 DUNCAN STREET 
 TORONTO, CANADA
 
 ] PAMPHLET BINDER 
 
 S/rocuje. N. Y 
 
 UCSOUTHt 
 
 5P5RYF'.CILITY 
 
 AA 000 785 591 9