Chapter 5 is the first of our Registry Acts, establishing a registry office for each county and riding. Memorials only were to be registered, not the deed, etc., itself. The fifth and last Session of this Parliament met May 16th, and lasted till June 3rd, 1795. No records of the proceedings other than the Statutes are extant. Chapter 1 regulated the weight, etc., of coins and their rating as legal tender. British Guinea .... weighing 5 dwt. 6 gr. Troy £1 3s. 4d. Johannes of Portugal.. weighing 18 dwt. 6 gr. Troy £4 0s. Od. Moidore of Portugal.. weighing 6 dwt. 18 gr. Troy £1 10s. Od. The milled Doubloon or four Pistole piece of 6d. Od. American Eagle.. weighing 11 dwt, 6 gr. Troy £2 10s. American Dollar £0 5s. Od. Many other gold and silver coins are named and valued. The value of the American dollar shews that in Canadian currency 1 shilling 20 cents (what was known even in my day as Halifax currency). Counterfeiting was made felony, punishable with death on conviction" in His Majesty's Court of his Bench." Uttering, for a first offence, one year's imprisonment and one hour in and upon the pillory in some public and conspicuous place; a second offence was punishable with death as a felon without benefit of clergy. Importation of false coin was to be punished by twelve months' imprisonment. No one was to be compelled to take more than 1 shilling in copper; every payment exceeding £50 currency in gold coin was to be by weight. The Quebec Ordinance of 1777 was repealed. I shall speak of this more at length later on. seized as forfeited. The Atty.-Gen'l suggesting that it is his intention, on the part of the Crown, to take the goods in specie, this, on proclamation, is, by the Court, considered deficient." Trinity Term, 50 Geo. III., July 11th, 1810, proclamations were made for condemnation of goods seized as forfeited: 106 gals. of brandy, 75%1⁄2 gals. of rum, 1,000 lbs. of tobacco, 60 lbs. of tea, 50 lbs. of tobacco, called pegan, 88 lbs. of snuff, and 50 lbs. of cotton wool; also 226 gals. of whiskey, 1,600 lbs. of pork, 120 gals. of gin, and the boat tackle and furniture. In Michaelmas Term the proclamations were renewed and, finally, judgment was given for forfeiture. Chapter 2 provided for juries at the assizes. Chapter 3 made further provision for licensing innkeepers. Chapter 4 altered the place of meeting of the Quarter Sessions and the District Court of the Western District from Detroit, as has already been stated. Detroit was definitely abandoned by the British the following year, under the provisions of "Jay's Treaty," 1794. Chapter 5 abolished the bounty for killing bears. Chapter 6 provided for Commissioners to treat with Commissioners from Lower Canada as to duties, etc., and chapter 7 further secured these "wages," so often spoken of. This is the by no means discreditable or insignificant record of the first Parliament of Upper Canada, the only Parliament under Simcoe. I shall now say something as to some of these statutes. There was very great reason for the protest of Cartwright and Hamilton. They had caused to be entered upon the proceedings of the Council 3rd June, 1794, a formal protest against the proposed Act which effected the abolition of local Courts, in the geographical situation of the colony, "with a thin population scattered over so immense an extent of country"-all writs issuing from the "fixed place" at which the Court sat, and all proceedings to be there filed. It was indeed. provided that where the first process went to the Sheriff of the Home District, fifteen days should elapse between the teste and return, forty days in any other District. But the necessity of "days' journeys" in procuring process, etc., must in then condition of the colony have been very annoying; and many must have wished the return of the old Common Pleas Court in their District. But in 1797, by 37 Geo. III. ch. 4, it was provided that the Clerk of the Crown and Pleas should have in every district an office and a deputy whom he should furnish with blank writs, and in which office pleadings should be filed; moreover, a form of writ where special bail should not be required was given. This was made quite clear in 1845 by Statute 8 Vic. ch. 36; it was enacted that the Clerk of the Crown should supply his deputies in every district with writs of mesne and final process, except writs in ejectment, and the deputies were directed to issue such writs in the same manner as might be done in the principal office at Toronto. They were also authorized to issue rules upon the Sheriff for return of mesne or final process. Then in 1849, the Act 12 Vic. ch. 63 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. 66 This privilege did not extend to all felonies, but only to capital felonies, and even of these some were 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 deathmurder 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 deserves the encomium of his epitaph in Exeter Cathedral, that"in his life and character the virtues of the hero, patriot 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 Legislative 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." |