SOME EARLY LEGISLATION AND LEGISLATORS

BY THE

IN UPPER CANADA.

HONOURABLE MR. JUSTICE RIDDELL, L.H.D.,
LL.D., &c.

Third Paper.

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 District 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 his 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 juryman 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 Province 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 time until the Royal 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 instructions and his Commission, established a Court of King's Bench with civil 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 Rivers. A Court of Common Pleas was also established, 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 manifest. The Common Pleas administered Equity, and Conservators of the Peace both singly and in the Quarter Sessions had civil jurisdiction.

Then came the Quebec Act of 1774, 14 Geo. III., ch. 83. This revoked the Proclamation of 1763, all ordinances relative to the administration of justice and all commissions to Judges, etc., made or issued under the authority of the Proclamation. 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 Rivers, and afterwards, when in 1788, Dorchester divided what was afterwards Upper Canada into Districts, Courts were instituted also in these four Districts, i.e., Lunenberg, Mecklenburg, Nassau and Hesse (this last including Detroit). These were Courts of Common 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 4 of the same statute abolished summary 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 became law. This constituted a Court of King's Bench, with a Chief Justice and two Puisné 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 original 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 (according 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 consolidated 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 these 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 practice as the Court of Queen's Bench. At the same time the Court of Chancery was reconstituted with a Chancellor and two Vice-Chancellors, 12 Vict. ch. 64. These three Courts continued side by side as the Superior Courts of original jurisdiction until 1881.

By the Act of 1794, as we have seen, the LieutenantGovernor 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 became 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 1871, 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 divisions: 1, The Court of Appeal for Ontario (this had five Judges), and, 2, the High Court of Justice for Ontario: and of this High Court of Justice there were the three divisions, i.e., the Queen's Bench, Chancery and Common 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 Reform Act, 1909, need not here be considered.

I shall in a subsequent paper speak of the defects of the original Court. It may here be said, however, that William Dummer Powell, who had been commissioned as Judge of the Court of Common Pleas for the District of Hesse, and had actually sat as such at L'Assomption (Sandwich), became after the passing of this Act 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 became necessary or at least advisable to constitute Courts to take their place for the trial of causes involving small amounts. In the Legislative Council, Cartwright and Hamilton caused to be entered in the proceedings their formal protest against the one Superior Court 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 had been (by 32 Geo. III., ch. 8), directed to be built, except "in the Western District, where the said Court shall be holden in the Town of Detroit." In 1796, by 36 Geo. III. ch. 4.8.3, it was declared no longer expedient to hold the Court in Detroit, and it was directed to be held at the Parish of Assumption (Sandwich), or nearer the Isle of.Bois Blancin 1801, by 41 Geo. III., ch. 6, s. 2, the place was definitely

fixed 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. 6, sec. 1, increased to £40, in cases of contracts 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 amendments in 1845 by 8 Vic. ch. 13. At length in 1849 the Districts became so multiplied that their boundaries in many cases became identical with the boundaries of Counties, and the Statute 12 Vic. ch. 78, abolished the division of the Province 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 sixteen, 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 had 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 profession. 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 Warren Baldwin, a prominent barrister and politician, and the father of the still more celebrated Robert 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 the 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 authorized 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 the Act of the previous session as to highways, and was equally futile.