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SOME EARLY LEGISLATION AND LEGISLATORS IN UPPER CANADA.
BY THE HoNour ABLE MR. JUSTICE RIDDELL, L.H.D., LL.D.
It is a matter of regret that the early statutes of Upper Canada are not available for the ordinary practitioner; they are full of interest from a historical point of view and otherwise.
Of course, it is well known that at the time of the conquest of Quebec—and consequently of Canada—in 1759 and 1760, what was afterwards Upper Canada, was not settled. Accordingly, the proclamation of 1763 which introduced or purported to introduce the English law, civil and criminal, into Canada, did not practically affect that district. The Quebec Act of 1774, 14 Geo. III., ch. 83, did, however; for, before it was repealed, Upper Canada had a considerable number of inhabitants, chiefly from the revolting colonies to the south, This Act reintroduced the French civil law, although it left the English criminal law in full force. Much discontent was manifested by the English-speaking colonists of Upper Canada at being subjected to French law; and when the Act of 1791, 31 Geo. III., ch. 31, made Upper Canada a separate province, her first Parliament abolished the old Canadian or French law, and introduced the law of England for the decision of all matters of controversy relative to property and civil rights, and also introduced the English rules of evidence. This is found in the very first chapter of the statute of the first session of the first Parliament for Upper Canada.
The second chapter established trial by jury in all actions, real, personal, and mixed, and authorized the jury, if so minded, to bring in a special verdict. In the French system the jury had no place; and the French-Canadian did not hesitate to express his wonder that the English should think their property safer in the determination of tailors and shoemakers than in that of their Judges.
The third chapter established the Winchester measure, “one just beam or balance, one certain weight and measure, and one yard, according to the standard of His Majesty's Exchequer in England.” The lineal and superficial measures were the same then as now, but the gallon, etc., somewhat smaller, being the same as those still used in the United States. Chapter 6 made a Court for small debts, the ancestor of the present Division Court. It authorized any two or more Justices of the Peace to sit and hold a Court, to be called a Court of Requests, on the first and third Saturday in every month, to try any claim not exceeding 40 shillings, Quebec currency. This was what was also known as Halifax or Provincial currency, a shilling equalled 20 cents. These Courts remained practically unchanged till 1833—their jurisdiction was extended in 1797, by 37 Geo. III., ch. 6, and in 1816 by 56 Geo. III., ch. 5—but in 1833, by 3 Wm. IV., ch. 1, it was provided that Commissioners should be appointed by the Governor or Lieutenant-Governor to sit and hold the Court of Requests. This Act after being amended in 1837 by 7 Wm. IV., was itself repealed in 1841, by 4 & 5 Vict, ch. 3, which provided for Division Courts to be presided over by the Judge of the District Court of the district in which the Division Court was situated. This introduced substantially the present system. We shall have occasion to consider the District Court again. Chapter 7 regulated the tolls to be taken in flour mills by fixing them at not more than one-twelfth. This has come down unchanged to the present time, R. S. O. (1897), ch. 140, sec. 1. Chapter 8 provided for a gaol and court-house in every district. Lord Dorchester, the Governor of Canada, had, 27th July, 1788, by proclamation, divided what afterwards became Upper Canada, into four districts, Lunenburgh, Mecklenburgh, Nassau and Hesse. The Upper Canada Act, we are now considering, changed the names to Eastern, Midland, Home and Western, and directed that the gaols and courthouses should be placed in New Johnstown (Cornwall), Kingston, Newark (now Niagara), and for the Western district, “as near to the present court-house, as conveniently may be.” In 1816, the gaol and court-house for the Home district, was directed to be erected at York (now Toronto), 56 Geo. III., ch. 18. We shall meet these districts again, and pass over them for the time being. Chapter 4, abolishing the summary proceedings in the Court of Common Pleas in actions under £10 sterling, and chapter 5, providing for the appointment of firemen, we also pass over.
The above constitutes the legislation of the first Parliament of Upper Canada during its first session at Newark beginning Monday, September 17th, and ending Monday, October 15th, 1792.
But there were other matters of great interest at this session.
On the 19th September, the Secretary of the Province presented for the consideration of the House, a signed and sealed instrument delivered to him by Philip Dorland, of Adolphustown, in the county of Lennox. This recited a “Certain writ under the great seal of this Province of Upper Canada . . . directed to the returning officer of the county of Prince Edward and district of the township of Adolphustown requiring him “to send one knight girt with a sword, the most fit and discreet to represent the said county;” also an election by the freeholders, of Philip Dorland; that he, Philip Dorland, being “one of the persons commonly called Quakers,” could not take the oath prescribed for members of the House, but he would make a declaration to the same effect. He then asked that if he could not sit without the oath, a new writ might issue. The House ordered a new writ to issue, as Dorland “ was incompetent to sit or vote in the House without having taken and subscribed the oath set forth in the Act of Parliament.”
On Saturday, September 29th, Mr. Colin McNabb, as preventative officer, was “ordered to attend at the Bar of the House to give information respecting the contrabrand traffic carried on in this district, as far as the same has come within his knowledge.”
It is time, now, that we enquire into the personnel of the Legislature. Much of my information as to these I owe to two papers by C. C. James, Esq., M.A., LL.D., C.M.G., contributed to the Royal Society of Canada, in 1902 and 1903, and being vol. 8, sec. 2, pp. 93 sqq., and vol. 9, sec. 2, pp. 145 sqq., respectively.
We may disregard Lord Dorchester, the celebrated Sir Guy Carleton, who was Governor-General of Canada—but Lieutenant-Colonel John Graves Simcoe, the LieutenantGovernor, is not negligible, for it is certain that he took a personal interest in much of the legislation.
There was a Legislative Council appointed by the Crown for life, and a Legislative Assembly to be periodically elected by the people—the electoral franchise was almost universal suffrage, as the qualification was placed very low— in counties land worth 40 shillings sterling per annum, and in towns the possession of a dwelling house and lot worth £5 per annum, or being resident for 12 months and having paid rent to the amount of £10 sterling.
There was also an Executive Council referred to in an indefinite way in sec. 38.of the Act; the members were appointed by the Crown, and not necessarily members of either House—they held office at will of the Crown. They corresponded more nearly to the cabinet of the President of the United States than to anything now extant in the British world; and were not unlike the Privy Council as it then existed in England.
Of course, the Executive Council formed no part of the Parliament, but there can be no doubt of the accuracy of the following passage to be found in an address to the King by the Legislative Council, April 19th, 1836:—
“For many years the Legislative Council of Upper Canada consisted of but four or five members, connected with the Executive Government by the most confidential relations, and forming in reality a body scarcely distinct from the Executive Council of the Colony.”
A number of legislative councillors, four in all, had been appointed by the Home Government before Simcoe arrived in Canada.
William Osgoode was the first Chief Justice of Upper Canada, and was afterwards, in 1794, appointed Chief Justice of Lower Canada; he was an English barrister of good standing. Osgoode Hall is called after him.
Peter Russell was also appointed in England. He became administrator of the Government in 1795, on Simcoe's resignation; and some scandal was attached to his name, arising from his practice of making grants of Crown lands to himself and his sister, while he was administrator.
Alexander Grant was the only councillor appointed among the first lot who was at the time in Canada. He was commonly known as Commodore Grant. He also became administrator—this was in 1805, on the death of Lieutenant-Governor Hunter.
William Robertson had also been appointed; he had been a resident of Detroit, then and until 1796 part of Canada, but had gone to England in 1790, and never afterwards came to Canada. He resigned shortly afterwards, being in June, 1793, replaced by Æneas Shaw. There were consequently only three councillors with Simcoe; and as the Act, 31 Geo. III., ch. 31, sec. 3, required at least seven councillors, these were not a majority of the council. Accordingly Simcoe had James (Jacques) Baby appointed—he was in Detroit, and was of a well-known French-Canadian family. Osgoode and Russell arrived in Canada in June, 1792, and Osgoode, Russell, Grant and Baby were sworn in as members of the Executive Council at Kingston, in July, 1792 —writs of summons calling them to the Legislative Council, were on the 16th of that month issued to these four, and also to Richard Duncan, William Robertson, Robert Hamilton, Richard Cartwright, Jr. and John Munro (of Matilda). Hamilton took part in the prosecution of Gourlay in 1819, and was said to have acquired 100,000 acres of Crown lands from the lots granted to sons and daughters of U. E. Loyalists. Cartwright was the ancestor of those of that name familiar in Canadian legal, military and political annals. He was the grandfather of Sir Richard Cartwright, and was even before his appointment to the Legislative Council, a Judge of the Court of Common Pleas (the Court of Common Pleas, we shall meet again). J. S. Cartwright, the present Master in Chambers, and J. R. Cartwright, the Deputy Attorney-General, are also grandsons. Osgoode was the Speaker of the Legislative Council, being appointed by the Lieutenant-Governor under sec. 12 of the Act; and Messrs. Baby, Hamilton, Cartwright, Munro, Grant and Russell all attended during the session. A provision in sec. 6 for hereditary rank entitling to a seat in the Legislative Council, never was in fact brought into force. On Monday, July, 16th, 1792, Simcoe issued a Royal proclamation, dividing Upper Canada into 19 counties: and directing the holding of elections for 16 representatives in the House of Assembly. We are sometimes apt to say that Ontario in divided into counties, and the counties into townships; but historically, in many cases, the townships came first, and the counties were formed by a grouping of townships.