FOR

CHAPTER XII

FIRST YEARS IN YORK

OR many years the Court sat in a part of the Government Building used also for a Parliament Chamber the Records of its proceedings are extant and are now in the Ontario Archives.1

Even during Simcoe's time the work of the Court had increased so much that it was plain that a third judge must be appointed. Simcoe thought that there was no one at the Colonial Bar competent to fill the position and wished for a member of the English Bar. When he heard of Elmsley's appointment, he declined to make a recommendation, leaving it to the incoming Chief Justice to do so: Elmsley gave the names of five English barristers (none of them of his own Inn), and of these the Home Administration selected Henry Allcock.2 He was sworn in and took his seat the third day of Hilary Term, 1798, Janauary 9, since which time there continued to be at least three judges in the Court so long as it lasted and in the King's Bench Division until that too was abolished. The Court sat regularly and generally with three members.

3

When General Peter Hunter arrived, Powell, remembering him as a past acquaintance from whom he had received marks of esteem, counted upon friendly treatment from him; along with other things, also his influence to procure the succession to the Chief Justiceship: but he was disappointed. He acquired the active ill-will of the new Lieutenant Governor by what would seem the exercise of a plain duty.

Hunter had been appointed on his military record-at that time in the Province there was an apparently ill founded apprehension of an invasion by the Spanish from New Mexico-he had distinguished himself by successful operations against the Caribs in St. Vincent: and he was suddenly called from his command in Ireland to take possession of the Government with the command of the troops in both Canadas.*

Hunter soon saw the absurdity of the fear of invasion;5 and the affairs of the Province proceeded as usual until it became necessary for Hunter to go to Quebec in his military capacity. He intended to be absent from the Province for some six months, and during his absence he proposed to carry on the Government of Upper Canada from Quebec by written

orders to a Committee of the Executive Council, whose orders were to be obeyed as if dictated by himself at their head in Upper Canada. Powell, who up to this time had been treated by him with cordiality, was consulted by the Governor as to the legality of such a proceeding: he felt it his duty to represent that, by the Governor's Commission, and the Royal Instructions, Hunter would have no civil authority when out of the Province: and that, on the instant of his leaving it, the Senior Executive Councillor must administer the Government in his name, and must be sworn to that effect. This advice was displeasing, and the Governor was understood to say that he had in his pocket the Duke of Portland's permission to administer the Government in the way he proposed, which Powell "was pleased to think unlawful." Powell's reply was that having no part in the Government but having the position of a Judge, he was not in other matters obliged to know where the Governor gave his orders from, but that all criminal commissions under which he was expected to act must bear date within the Province, and that he "did not suppose His Excellency would oppose a Duke." This uncourtier-like liberty cost Powell the good will of the Governor, and it was not only unpalatable, but fruitless, for the Governor left the Province without delay."

This was not the only obstacle in Powell's way. One of the scandals of the early times of the Province was the grasping after fees which was practically the only way to make money out of office-Simcoe though less a sinner in this respect was not wholly free from blame; Russell was a notorious offender and Hunter was not far, if any, behind. The friendship of Hunter with Mr. Justice Allcock which seems not to be explicable on any public or known ground, is explained by Powell-Allcock, he says, showed Hunter how he could increase his income. Through the long delay in issuing land patents, arising from causes already alluded to, the harvest which might have been reaped by his predecessor remained for Hunter, who directed all the grants which were to be gratuitous to the grantee and for which half fees were to be paid by the Government, to be made out as rapidly as possible: he pressed on the Heir and Devisee Commission in its task of ascertaining what lands were still unclaimed or to whom the Patents should issue.

In the progress of this system, it was discovered that the small fee on the Patent was so unfairly divided that the portion of the Secretary (who bore the greater part of the burden) was so trifling as to defray not one-fourth of the charge out of

pocket; nevertheless His Excellency, who gained in proportion as the Secretary lost, compelled him to proceed in that ruinous course, and, moreover, actually compelled the clerks in the public offices to engross a certain number of Patents for the Secretary every week exclusive of the regular duties of their offices and he subjected this service, like a military duty, to a weekly report, every Monday morning. This forced issue of Patents could not but bring it about that grants were made in many instances to parties having no title to the land; in many hundred instances, indeed, the grants were made in the names of persons deceased. The objectionable practice produced two effects-it put in the purse of General Hunter, a good deal of money, variously stated at from ten to thirty thousand pounds; while the duty of supplying the place of more effectual Patents devolved on his successors to be performed gratuitously.'

During Hunter's regime, there was an active movement for the creation of a Court of Chancery: Allcock expected to be put at the head of it and drew up a scheme for the proposed new Court-Powell applied for the position but the scheme came to an end as it met with the disapproval of the Home authorities early in 1802. While he says that he was the only Judge in Upper Canada who had practised in the Civil Law, he never had a chance of the appointment, unless Allcock should refuse it.

The Chief Justiceship became vacant by the appointment of Chief Justice Elmsley to succeed Osgoode as Chief Justice at Quebec. Powell blames Hunter for Allcock's succession to Elmsley but it is almost if not quite certain that Allcock had been promised the Chief Justiceship in case of a vacancy, before he came to Canada.9

It does not appear that Hunter interfered in the appointment at all1o-however that may be, in the Summer of 1802, Allcock was appointed to succeed Elmsley as Chief Justice of Upper Canada; and he took his seat on the first day of Michaelmas Term, November, 1802.

Hunter died unexpectedly after a short illness at Quebec, August, 1804: he was succeeded by Commodore Alexander Grant as Administrator of the Government: Grant was a close friends of Powell's.

Grant had been present at the Conquest of Quebec as a subaltern officer in a Highland Regiment; but, having been bred to the sea, was transferred to the Provincial Marine, and actually commanded that force upon the Lakes with the title of Commodore. A mere locum tenens, he put himself into the