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 advantage 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 with us in 1841, by 4 and 5 Vic. ch. 24, sec. 31.

A second conviction for uttering, meant felony "without benefit of clergy." No lawyer is at all likely to think with some popular writers that this means "without the benefit of clerical attention and advice." Of course it originally was the privilege allowed to a 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 "neckverse," possibly by a recently learned accomplishment. Ultimately, in 1706, by 6 Anne, ch. 9, the privilege was extended to all, whether they could read or not.

A case well known to all students of the Constitutional History of Canada is the following:

In Michaelmas Term, 60 Geo. III., Nov. 8th, 1819. The King v. Bartimus Ferguson, the prisoner was sentenced to pay a fine of £50, province currency, and to be imprisoned in the common gaol at Niagara for 18 months; in the first of these months he was to stand in the Public Pillory between the hours of 10 a.m. and 2 p.m. At the expiration of the term he was to give security for good behaviour for seven years himself, in £500, and two sureties in £250 each, and to be imprisoned until the fine was paid and security given.

(Present: Powell, C.J., Campbell and Boulton, JJ.)

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 signed by Gourlay, animadverting 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, he was relieved of some part of the penalty and imprisonment.

This privilege did not extend to all felonies, but only to capital felonies, and even of these some were 66 without benefit of clergy"; moreover, by an early statute (1488), 4 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 knowledge of a girl under ten, sodomy, robbery of the mail, burglary, arson, riot after the reading of the Riot Act, destruction 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 flattering terms. Causing Peter Russell to be sworn in as Administrator, he left York for Quebec, and thence sailed for London in September, 1796, never to return. After effective service in the West Indies, he died at Exeter in 1806.

A man of great force of character, a devoted patriot, holding his Church entitled to loyalty less only than 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 that "in his life and character the virtues of the hero, patriot deserves the encomium of his epitaph in Exeter Cathedral, 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. Hamilton 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 hesitation in calling Hamilton a republican, and Cartwright he thought little, if any better. The custom of dubbing a political 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. However, Hamilton was created Lieutenant of Lincoln, and Cartwright 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 NiagaraSimcoe 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 border to be the permanent capital; in 1793 he made a somewhat extended trip into the interior, and decided that a spot at or near to what is now London should be the future capital. In the same year he fixed on Toronto as a suitable place for fortification. He changed its name to York, in consideration 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 Administrator he was a success, doing much for the comfort of the soldiers, whether on active service or on pension.10

Some say that the first session of Parliament was holden in a marquee tent, one removed in the scale of ascending civilization from the aborinigal council-lodge," some, that Navy Hall was the scene of the meeting.

William Dummer Powell. Chief Justice of Upper Canada, says, in his MSS. Narrative, now in the possession of his great-grandson Aemilius Jarvis, Esquire, of Toronto, that the House met in canvas houses, which had been prepared for and used by Banks and Solander, in their voyage of discovery, i.e., with Captain Cook, 1768-1771.

10 Every lover of Sir Walter Scott will remember, in the amusing introduction (1819). to the first edition of the "Legend of Montrose," his description of Sergeant More M'Alpin, who was induced to remain at Gandercleugh when on his way with his sister to Glasgow to take passage to Canada. The Sergeant, an old pensioner, seldom failed to thank God 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."

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 1841-1842-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 aliens from House and electorate. Payment to members also had been provided for on a moderate but sufficient 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 Requests, 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 then 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 rendered 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

VOL. XXXIII. C.L.T.-13

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 adjustment was made with Lower Canada through which practically all imports came, except those from the United States. The curse of slavery was doomed to early extinction-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 municipal corporations "Sucking Republics"; they are not that, but assuredly they are the very nursery for public spirit and capacity to say effectively what a freeman thinks.

For a beginning, the provision for the registering of documents 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 that highways under local and municipal control have not been a brilliant success. Much of the 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 there were no stones to make a road with.11 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 which deserved the name were those built by the Government-Yonge Street, built by the soldiers, Dundas Street from Burlington Bay

11 "Observations on Professions. Literature, Manners and Emigration 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 1833."

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; but 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 footing to 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.