Simcoe had an able assistant in each of the Houses of Parliament the Chief Justice, William Osgoode, in the Legislative Council, and the Attorney General, John White, in the Legislative Assembly. Osgoode drew up our first Judicature Act and it was decided to bring the Bill first in the Upper House. It was introduced, June 11, 1794, and at once excited strong opposition-the first "formal and regular opposition in the Upper House." Of the five Legislative Councillors in attendance, three, the Chief Justice, Peter Russell (the Receiver General) and James Baby13 were Executive Councillors and of course supported the Bill: the other two, Richard Cartwright of Kingston, and Robert Hamilton of Queenston, were Judges of the Court of Common Pleas for their respective Districts they were strongly opposed to the change.

The first reading of the Bill was set for Monday, June 16: and a battle royal was expected. The House of Assembly adjourned to hear the debate-Cartwright moved the three months' hoist, and Hamilton seconded the motion. The arguments against the Bill were founded on the inexpediency of such a measure in the existing state of the Province while the 'population was scattered and the communication uncertain— for the Bill it was urged that the public expected it and that it brought the Province abreast of the other British possessions. The motion was defeated. After being in Committee of the Whole, the Bill was brought in for its final reading, June 23, when Cartwright moved the six months' hoist, seconded by Hamilton. Aeneas Shaw had in the meantime become a member of the Council, and John Munro, another Councillor, had come up, and taken his seat--the division was then 6 to 2. When the Bill was under consideration in the Legislative Council its opponents urged the sufficiency of the existing Courts; they provoked charges by some of those affected by the judgments of certain of the Courts presided over by laymen that they had decided against law. These charges were fully justified and produced a strong feeling against these Courts and members of the Assembly were not slow in urging that the country should have Courts "composed of persons regularly bred to the profession of the law." Cartwright and Hamilton entered a dignified dissent in the Journals of the Council;15 but they were in a hopeless minority in the Parliament and in the country. The House of Assembly was with difficulty restrained from "reading the Bill a first, second and third time on the day they received it”—they made one amendment only by restoring the traditional names of the Terms of Court. 16

This Act long known as the "King's Bench Act" created a Court of King's Bench for the Province of Upper Canada: it repealed the Ordinances under which the Courts of Common Pleas in the Province were constituted and directed that all actions begun in these Courts should be continued in the new Court of King's Bench and that all records of these Courts should be transmitted to the new Court.

18

The Court of King's Bench presided over by the Chief Justice of the Province and two puisne justices was to be holden at the place where the Governor should usually reside: it was to have four Terms as in England. The actions were to begin by writ of capias ad respondendum stating the form of action and the writ must have a declaration annexed.1 These writs must be sued out of the Court at the Capital, which necessitated a trip or a letter to that place from perhaps the ends of the Province instead of going to a nearby place in the District. All the formalities of a lawsuit in England must be observed with their technicalities and pit-falls, delays and expense. "Assize Courts" as we call them would be held from time to time as required in the various Districts: these Courts dealt with records of pleadings made up in and returned to the Central office of the Court of King's Bench.

The opponents of the Bill were wholly justified in the complaint that the proposed system while "proper in England which . . . in point of size is hardly equal to the smallest of our Districts, where the communication is easy and expeditious and where the City of London . . . furnishes the greatest number of cases yet in this province with a thin population scattered over so immense an extent of country where the mass of the population, small as it is, is situated in the Districts most remote from the place where the Court is to be held, divided by inland seas and large tracts of waste lands of from two to three hundred miles in extent, shut off from all communication or intercourse for nearly four months of the year, without professional men or the prospect of sufficient business to support them, such an arrangement from the expense, delay, and embarrassment that must necessarily attend. it appears to us to highly to operate in many instances as a denial of justice."19

The Act also created a Court of Appeal composed of the Governor, the Chief Justice and two or more members of the Executive Council.

The Chief Justice, William Osgoode, had months before the passing of this Act applied for the appointment as Chief Jus

tice of Lower Canada and he had received from England an official mandamus for such appointment: he was, however, induced by Simcoe to remain in Upper Canada and guide the Bill through the Parliament: but as soon as the Parliament rose, he at once left for Quebec, and was sworn in as Chief Justice of Lower Canada.20 This left a vacancy in the Chief Justiceship of Upper Canada: Simcoe did not recommend Powell for the position: on the contrary he asked for the appointment of an English lawyer.21

But Powell had to be provided for and he was appointed a Puisne Judge of the Court of King's Bench-the first of a long line of lawyers to fill that position.22

TH

CHAPTER XI

EARLY DAYS AT THE CAPITAL

HE Court of King's Bench was required by its Statute to sit "in a place certain,1 that is in the city, town or place where the governor or lieutenant governor shall usually reside." Simcoe resided at Navy Hall, Newark, and it was incumbent upon all the Judges of the Court to be in Newark at least during Term-Powell must then necessarily remove his residence from Detroit.

His family now consisted of his wife, four sons and three daughters; but some of the children were in England: he where the governor or lieutenant governor shall usually

In Hilary Term beginning, January 19, 1795, there was removed to the Niagara frontier and took up his home in the Township of Stamford, where in the following October was born his youngest child Thomas.2

Before his arrival, Simcoe had had an opportunity of advancing Powell-William Smith the Chief Justice of Lower Canada had died and Osgoode had applied for the vacant place. A Royal Warrant had issued early in the year, 1794, for his formal appointment to that position: but Simcoe desired him to remain in the Province until he had piloted the Judicature Bill through Parliament. Simcoe knew that Powell must be provided for but he did not want him as Chief Justice which would mean that he would be a member of the Legislative Council and what was even more important-of the Executive Council. He wrote to the Under Secretary in June, 1794, "I shall feel an irreparable loss in Mr. Chief Justice Osgoode. I hope to God he will be replaced by an English lawyer."

When the Judicature Act was passed, Osgoode went at once to the Lower Province where he received his Commission from Lord Dorchester, the Governor in Chief.

Whether Powell applied to Simcoe does not appear-the probabilities are against it: but he did apply to the Home Administration. To his repeated application, there was no reply until finally a successor was appointed to Osgoode, an "English lawyer" in the person of John Elmsley in 1796. Powell was not in the least a toadeater with Simcoe or even conciliatory. One instance which was the cause of much gossip and amused comment at the time will suffice-Powell knew (as

everybody knew, Simcoe's long standing and constantly increasing grudge against Dorchester, but nevertheless when he removed from Detroit to Newark and when the Township at Niagara Falls had its name changed from Mount Dorchester to Stamford, he adopted the name Mount Dorchester for the name of his residence and dated his letters from Mount Dorchester.

The Statutory Term was approaching-the Court should sit-the Act was assented to July 7, Powell was commissioned July 9, and Trinity Term of the Court of King's Bench began the third Monday in July, i. e. July 21. But Osgoode had gone to Quebec, Powell had not arrived and Trinity Term passed without a session of the new Court. Powell arrived at Newark before the next Term, the Michaelmas Term, and he presided alone in Court the first day of Term, Monday, October 6; but there was no business and the Court was adjourned until the following Saturday. On this day three motions were disposed of-there had been now time for the process of the new Court to be employed and it had been employed in the first case to be decided-it will be thought no evil omen that in this the first case in the Court of King's Bench, the Court disregarded an irregularity and allowed the case to proceed.5

The other two cases were different-the former was to set aside an award by Arbitrators, the other for an assessment of damages in a case in the Court of Common Pleas at Niagara— the Act allowed all actions begun in the Courts of Common Pleas to be proceeded with in the new Court.

In Hilary Term beginning January 19, 1795, there was more business: the writs had begun to circulate somewhat extensively.

6

In the absence of a Chief Justice a difficulty arose the Act provided that the Chief Justice of the Province together with two puisne Justices should preside in the Court-at the Common Law it requires at least one half the number of any body to make a quorum, consequently Powell thought that it required two Justices at least to constitute the Court. He so advised the Lieutenant Governor, but Simcoe was expecting daily to hear of the appointment of Osgoode's successor. Powell, however, insisted on having a colleague at least in form; and Peter Russell, the Receiver General, was given a Commission for the Hilary Term only: this was renewed from time to time until the arrival of John Elmsley, January, 1797, as successor to Osgoode. Powell and Russell conducted the Court for two years, generally both sitting but occasionally one or the other.