I'

CHAPTER II

EARLIER YEARS IN CANADA

T will be well to say a few words concerning the Canada to which the young immigrant had come.

After the conquest of Canada by Britain in 1759-60 had become legalized by the Treaty of Paris, February, 1763, a Royal Proclamation was issued October 7 of that year stating that the King had erected inter alia, a “Government of Quebec" extending westward to a line drawn from the Southern end of Lake Nipissing to the point on the River St. Lawrence where it is crossed by the 45th parallel of latitude. The same proclamation directed that the English law, civil and criminal, should prevail in that "Government."

Yielding in some degree to the discontent of the French Canadians, an Act was passed in 1774, 34 Geo. III, c.85, the well known Quebec Act, which reintroduced the former Canadian law in civil matters, allowing the English Criminal Law to remain in full force. The same act extended the limits of Quebec (now made a Province) to the South to the Ohio River (west of Pennsylvania) and West to the Mississippi.

The government of this immense territory was in the hands of a Governor and a nominated Council.1 For the purpose of the administration of justice, the Province was divided into two Districts, the District of Quebec and the District of Montreal to the east and west respectively of the Rivers Godfroy (South of the St. Lawrence) and St. Maurice (North of the St. Lawrence).

The Superior Court of Criminal Jurisdiction was the Court of King's Bench presided over by the Chief Justice of the Province2-this Court held two Sessions each year in each of the Cities of Quebec and Montreal for the two Districts respectively.

The Governor also had the power to give Commissions of Oyer and Terminer and General Gaol Delivery to try criminal cases at any time.

The other Inferior Courts of Criminal Jurisdiction were the Courts of Quarter Sessions of the Peace for each District presided over by the Magistrates of the District, who sat four times a year and tried cases not capital-the Magistrates had also jurisdiction out of Sessions in certain petty offenses.3

On the Civil side each District had a Court of Common Pleas sitting practically continuously in Quebec and Montreal respectively, each Court having three judges, two forming a quorum and one alone being sufficient in cases up to £10 sterling.

A Court of Appeal from the Courts of Common Pleas was formed of the Governor and Council, the Chief Justice of the Province (who was always a member of the Council) presiding -except in special cases. Appeals however were not allowed unless the amount in dispute exceeded £10 sterling.*

There was also a Prerogative Court in each District for the proof of Wills, &c., but these were little frequented, the French law not requiring Wills to be proved. They were also applied to for the appointment of guardians to infants, curators of estates of deceased or non-resident debtors, &c. These Courts were presided over by Judges of the Courts of Common Pleas.5

A Court of Chancery also existed in theory with the Governor as Chancellor but at this time it was not active."

That Powell had a very accurate and extensive knowledge of English law in later years is certain; and it may fairly be assumed that he was skilled in that law when he came to Canada. It is known that he studied two winters in the office of Jonathan Sewell, the last Loyalist Attorney General of Massachusetts-the law of that Province being almost identical with that of England; indeed, if we except a few Statutes, it was identical. It does not appear that he had been in the office of a Special Pleader in London; but some of the letters extant speak of his reading or at least borrowing law books; he himself says that he attended the twelve terms at Westminster and consequently he had the opportunity to acquire a considerable knowledge of law in England.

In the Court of King's Bench in England there were the great Lord Mansfield, the father of our commercial law, Willes the greatest master of the Common Law in his century (and there was no greater at any period) Aston and Ashurst, not so well known to fame but sound lawyers. In 1778, Buller succeeded Aston; and Buller was looked upon by Mansfield as superior to them all, so much so that he picked him for his

successor.

In the Court of Common Pleas, De Grey (afterwards Lord Walsingham) was Chief Justice; he had for his Puisnes, Gould, Nares and the celebrated Sir William Blackstone, all of good

repute, but all except the last named suffering in fame because of the want of reporters-we have no reports of that period in either Common Bench or Exchequer although Henry Cooper and Douglas (Lord Glenbervie) have given us valuable reports of the cases in the King's Bench. In the Exchequer were Sir Sidney Stafford Smythe and Sir John Skynner-the chief Barons their Puisnes were Eyre (afterwards C. B. and C. J., C. B.) Hotham, Perryn and Maseres as Cursitor Baron--all of good repute, Eyre being an exceedingly able lawyer and Maseres a former Attorney General for Quebec equally eminent in law and mathematics. At the bar were such giants as Dunning, Bearcroft, James Mansfield, Davenport and others. Any student who wanted to learn, could not fail to acquire a good knowledge of law under such masters.

It does not appear certain that Powell crossed to the other side of Westminster Hall and attended the Chancery Courts there. If he did he would hear the rules of Equity expounded and applied by Lords Chancellors Bathurst and Thurlow and at the Rolls by Sir Thomas Sewell.

Powell was always a diligent student; like Erskine, the fingers of his infant children were plucking at his garments, and there is no reason to doubt his competency in the English law.

The French Canadian law was theoretically in force in civil matters, but most of the judges in the Courts of Common Pleas were English speaking; and it was notorious that they were wont to decide cases on their own view of what was just and equitable.

Moreover there was not much difference between the two systems of law except in a few titles such as real estate and family relationships; and Powell himself informs us that his two years on the Continent were spent in the study of the Civil Law as well as of modern languages.

In

The greatest difficulty in the way of one accustomed to and skilled in one system of law taking up the practice of law under another system, is the adjective law, what is called "the practice of the Courts"-the methods to be pursued to obtain rights, not the determination of the rights themselves. Criminal matters, the law and the practice were the same as in England, and in civil matters a simple practice had been provided by an Ordinance which any one of ordinary intelligence could read and apply.

There was no obstacle, then, in substantive or adjective law, which stood in the way of Powell practising in the Courts