Pioneer Life among the Loyalists in Upper Canada

by Walter Stevens Herrington

In naming the first judges to serve in the newly-established courts, Lord Dorchester selected men of well-known probity from different walks of life, regardless of their experience in courts of law.

On the division of the old Province of Quebec into Upper and Lower Canada, John Graves Simcoe was appointed the first Governor of Upper Canada; and the first Parliament met at Niagara on the 17th day of September, A.D., 1792. With a due regard for the wishes of the people, the first Act placed upon the statute book abolished the French code, and declared that "in all matters of controversy relative to property and civil rights, resort shall be had to the laws of England." This was a longed-for boon welcomed by all classes.

At the same session, there was passed an Act for establishing Courts of Request for the recovery of debts up to forty shillings, whereby it was declared to be lawful for any two or more Justices of the Peace, acting within the respective limits of their commissions, to hold a court of justice on the first and third Saturdays of every month at some place fixed within their respective divisions, for the purpose of adjudicating upon these small claims. It was essentially a justices' court. They appointed their own officers, devised their own forms, and laid down their own method of procedure. These courts afforded the magistrates an opportunity of appearing upon the bench and taking part in judicial proceedings, without calling for the exercise of any superior legal knowledge. This was a privilege which many of them greatly enjoyed and of which they took full advantage, as is shown by the fact that as many as ten have been known to preside at a sittings, although only two were necessary.[#]

[#] I find upon an examination of the records of the Court of Requests, held at Bath, covering a period of eight years from 1819, that rarely were there less than four justices present, frequently there were more than that number, and at the four sessions of March and April, 1827, there were seven, ten, six, and eight, respectively.

There were no court houses at the disposal of the justices when the Act first came into force, and only one in each district when buildings were afterwards erected; so they were forced to hold their courts in private residences, taverns, or any convenient room that could be secured. When we endeavour to picture a row of justices behind a deal table across the end of a low-ceiling kitchen, crowded with litigants, any preconceived notions of the dignity of the Court of Requests are speedily dispelled.

In 1816 the jurisdiction of the Court of Requests was extended to claims of £5, where the amount of the indebtedness was acknowledged by the signature of the defendant, or established by a witness other than the plaintiff. It did not take the merchants long to discover that it was greatly to their advantage, in more ways than one, to take from their customers promissory notes in settlement of their accounts; for by thus obtaining a written acknowledgement of the debt, an action for the recovery of the amount within the increased jurisdiction could be brought at a trifling expense in this court.

By another Act of 1792 the German names of the four districts were changed respectively to the more acceptable English ones. Eastern, Midland, Home, and Western; and provision was made for the erection of a gaol and court-house in each of them. Before these very necessary public buildings were erected, even the higher courts were held in cramped and uncomfortable quarters. It is said that the first sentence of capital punishment imposed in Upper Canada was pronounced in a tavern on the shore of the Bay of Quinte at Bath, and, as summary execution was the recognized method of carrying into effect the judgment of the court, the convict was immediately hanged to a basswood tree on the roadside, only a few rods distant. The pathetic part of this tragic incident is that it was afterwards learned that the poor victim was innocent of the charge of which he was found guilty, the theft of a watch. Such a stigma attached to this particular basswood tree that it was adopted and used for years as a public whipping-post.[#]

[#] This incident was, I believe, first published by Dr. Canniff in 1869 in his Settlement of Upper Canada. I am unable to point to any official record bearing out his statement; but up to a few years ago old residents, including descendants of the tavern-keeper, told the story and evidently believed it.

In the early courts the parties before them were occasionally represented by counsel; but the only recognized standard of admission to the bar was under an ordinance of the old Province of Quebec, and few were called. Under such conditions it can readily be conceived that it would be difficult to maintain any uniformity in the practice. In 1794 the Legislature empowered the governor, lieutenant-governor, or person administering the affairs of the province, to "authorize by license, under his hand and seal, such and so many of His Majesty's liege subjects, not exceeding sixteen in number, as he shall deem from their probity, education, and condition in life best qualified, to act as advocates and attorneys in the conduct of all legal proceedings in the province." In 1803 the demand for lawyers had become so pressing—at least so it was alleged—that an Act was passed making it lawful to add in a similar manner six more practitioners to the roll. Neither of these Acts called for any educational test or professional experience. It is not therefore a matter of surprise to learn that the gentlemen of the long robe, who were thus admitted to the bar, were sometimes alluded to as "heaven-born lawyers", though some of them were of the highest standing, one becoming a judge of the King's Bench, another treasurer of the Law Society.

The Law Society of Upper Canada, which has now its headquarters at Osgoode Hall, Toronto, may properly be classed among the pioneer institutions of the province. It came into being under the provisions of a statute of 1797, which made it lawful for all persons then practising at the bar to form themselves into a society, under the name which it still retains. The declared purpose of the society, in addition to caring for the needs of the legal profession, was "to support and maintain the constitution of the said province." It was created a body corporate by an Act of 1822, and its affairs are administered to-day upon somewhat the same lines as those upon which it was first formed.