Loyalists settled, inclusive of the western bank of the latter river,
was, of course, part of the Province of Quebec; but there was very
little in common between the newly-arrived settlers and their French
neighbours on the lower St. Lawrence. There were no judges, no lawyers,
and no regularly established courts in any of the new settlements. The
people were too busy to devote much time to litigation. The nearest
court was at Montreal, and to the English-speaking settlers the French
civil code, which was in force, was an untried experiment, and they
wisely endeavoured to avoid making use of the legal machinery at their
disposal. Minor differences were frequently referred to some of the
officers who had been appointed to take charge of the bands of emigrants
when they left their former homes. These officers did not profess to be
versed in the law, but they had exercised a certain amount of authority
during the voyage and in locating the families committed to their care,
and in distributing the supplies. It was quite natural that they should
be appealed to when the parties to a dispute were unable to come to a
satisfactory understanding between themselves. They were not hampered
by hair-splitting precedents or long-established forms of procedure; but
they made the best use of their common sense in their efforts to apply
the Golden Rule, and so far as is known, substantial justice was done.
As early as 1785, indeed, the Justices of the Peace were given
jurisdiction in civil cases up to L5 ($20); but they had little to do,
and their courts were very informal.
On the 24th of July, 1788, Lord Dorchester, Governor of Quebec, issued a
proclamation dividing the newly-settled territory into four districts as
follows: Lunenburg, composed of all that portion east of the Gananoque
River; Mecklenburg, from Gananoque to the Trent; Nassau, from the Trent
to a line running north and south through the extreme projection of Long
Point into Lake Erie; and Hesse, that portion of the province west of
the last mentioned line. There was established in each district a Court
of Common Pleas of unlimited civil jurisdiction, presided over by three
judges (except in Hesse, where one judge only was finally appointed),
attended by a sheriff and the other necessary officers.
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 L5, 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.
Before the arrival of Governor Simcoe, many of the communities had
organized their town meetings and appointed their local officers, such
as clerks, constables, and overseers of highways. The provisions of the
first statute authorizing such meetings were based upon the
organizations already in existence, so that the idea of local
self-government did not originate with the Legislature. Parliament
merely legalized and made general throughout the entire province the
holding of just such town meetings as had already been organized in many
of the older townships.[#]
[#] For instance, the town meetings of the township of Sidney date from
1791, and those of Adolphustown from 1792, although the statute
authorizing them was not passed until July, 1793.
It is no particular mark of superiority to-day to be enrolled as a
Justice of the Peace. Not so in the early days of Upper Canada. The
humblest citizen may now in correspondence be addressed as "Esquire";
but, a hundred years ago, all hats were doffed when the "Squire" passed
through the streets of a village. He was a man of some importance. He
tried petty offences in his own neighbourhood; as a member of the Court
of Requests, minor civil actions were heard by him; but, as a member of
the Court of General Sessions, he rose to his greatest dignity. This
body of justices, assembled in General Sessions, not only disposed of
criminal cases, except those of the gravest kind, but were clothed with
executive power as well. They enacted local legislation for the
districts which they represented, they levied and disbursed the taxes,
granted licenses, superintended the erection of court houses and gaols,
the building of bridges, and generally performed the functions of our
municipal councils of to-day. They met periodically in the leading
village of the district and sometimes remained in session for a week,
and, considering the amount of business they transacted, they were very
expeditious, as compared with the modern county council. Few would
gainsay the statement, if I were to add that the municipal legislators
of to-day frequently do not, in many other respects, attain the standard
of a hundred years ago.
[Illustration: PIONEER STAGE COACH. The Weller Line from Toronto East]
The town meetings continued to meet once a year on the first Monday in
March, to appoint officers, and, although they had no jurisdiction to do
so, to pass, repeal, and amend enactments for purely local purposes.
These "Prudential Laws", as they called them, regulated such matters as
the height of fences, the running at large of certain animals, and the
extermination of noxious weeds. The people favoured the town meeting,
as it was of their own making. It was the first step in democratic
government by and for the people. The chronic grumbler found there an
opportunity to air his grievances. The loquacious inflicted his oratory
upon his assembled neighbours. Each man to his liking played his part
at the annual gathering, and realized that he was of some consequence in
controlling the affairs of the township. Thus did the inhabitants
continue to encroach upon the authority of the Justices in Session, who
from time to time issued their decrees, dealing with some of the matters
over which the town meetings had assumed jurisdiction, until 1850, when
our present municipal system was introduced and the justices were
practically shorn of all but their judicial power.
Parliamentary elections to-day are very tame affairs compared with those
of a century ago. The open vote afforded opportunities for exciting
scenes that the rising generations know not of. The closing of the bars
on election day has robbed the occasion of a good deal of romance. The
actual voting contest is now limited to eight hours, from nine to five;
and to-day one may rest peacefully in a room adjoining a polling booth
and not be aware that an election is in progress.
It was all very different in the days of our grandfathers. Whiskey and
the open vote were two very potent factors in keeping up the excitement.
Instead of having several booths scattered throughout each township,
there was only one in the electoral district. The principal village in
the district was generally selected, but sometimes the only booth was
set up in a country tavern, especially if it was in a central location
and the proprietor could pull enough political strings. A platform was
constructed out of rough boards and protected from the weather by a
sloping roof. On Monday morning of election week the candidates and
their henchmen assembled in the vicinity of the platform, which was
known as the hustings. The electors came pouring in from all parts of
the district. Each party had its headquarters at a tavern, or tent, or
both, where the workers would lay their plans. The forenoon was spent in
listening to the orators of the day, and at one o'clock the polling
began. It is easy to imagine what would happen to the doubtful voter
when he arrived at the village. As the poll was kept open all day and
every day until Saturday night, it is not quite so easy to picture the
scenes during the last day or two of a hot contest. Couriers with
foaming horses were going and coming. Heated discussions frequently
terminated in a rough-and-tumble fight, in which a score or more
participated. Drunken men reeled about the streets until carefully
stowed away by their friends in a tent or in a stall in the tavern
stable. If the inebriate had not yet polled his vote, his whilom
friends were most solicitous in the attention bestowed upon him.
It not infrequently happened that the indifferent voter purposely played
into the hands of both parties. It was a golden opportunity for free
lunches and free whiskey; and the longer he deferred the fateful hour
when he had to announce to the returning officer the candidate of his
choice, the more difficult it was for him to choose. In his dilemma he
would seek his solace in a little more whiskey, and, in the end, perhaps
vote for the wrong man. If unhappily he did make such a mistake, his
political guardians never failed to call his attention to the error in a
manner not likely soon to be forgotten--such incidents were thereafter
associated in the mind of the offender with unpleasant recollections of
the village pump or the nearest creek.
*CHAPTER V*
*SCHOOL TEACHERS AND PREACHERS*
The Loyalists were so busy in clearing the land and getting the new home
into shape that little time was left for looking after such matters as
educating the young. There were no laws regulating the school system,
no buildings nor funds for school purposes, no officials to take the
lead, and what was done was the spontaneous outcome of a desire to equip
the rising generation for the duties of citizenship.[#]
[#] The first enactment of any kind respecting schools in Upper Canada
was passed in 1807. This made very inadequate provision for the
establishment of one public school in each district. The first
legislative attempt to encourage, assist, or regulate common schools was
by an Act passed in 1816. Both of these statutes were very crude and
left much to be desired.
The first efforts were those of the mother and other elder members of
the household. Later on a few families clubbed together and employed a
man to instruct their children in the rudimentary elements of a common
school education. There was no building for the purpose, so a room was
set apart in one of the dwellings, probably the only room on the ground
floor, and while the good housewife busied herself about her duties on
one side of the room the teacher was training the young ideas how to
shoot on the other side. For one or two weeks he would remain with this
family, getting his board and washing and two or three dollars a week,
and then he would move on to the next neighbour with his little flock,
and so on until the circuit of his subscribers of five or six families
was completed, when he commenced again at the first.
As late as 1818 in a contract entered into between a teacher and a few
of the farmers in one of the first townships, we find the covenant to
teach in the following words: "That the party of the first part engages
to keep a good school according to his ability, and to teach reading,
writing, and arithmetic." His hours were from eight o'clock in the
morning until four in the afternoon, with one and one-half hours for
noon. He was to teach every alternate Saturday. In addition to his
board, lodging, and washing, he was to be paid the princely salary of
twelve and one-half dollars a month, "whereof one-half in cash at the
end of the quarter and the other in orders or other value monthly."
Soon the little log school-house appeared, not larger than fifteen by
twenty feet, with a door in one end and a window on each side. On the
inside holes were bored in the logs about two feet six inches from the
floor, pegs inserted, and upon these pegs rested a plank. This was the
desk, and the pupils, while working at it, necessarily sat with their
faces towards the wall. A rude bench without a back was the only seat.
Books were very scarce. About the only real school book that ever found
its way into the hands of the pupil was Mayor's spelling book. The New
Testament was the universal reader, and if any other books were in use
in the school the teacher was the only one who had access to them. The
three R's: "Reading, Riting, and Rithmetic" were the extent of the
general curriculum. There were no authorized text-books, and such as
were in use were far from perfect.[#]
[#] The Act of 1816 required the trustees of each school to report to
the district Board of Education the books used in the school, and it was
lawful for the Board to order and direct such books not to be used; but
no one was clothed with authority to order what books should be used.
For many years the only Geography used in the schools contained the
following information relating to the continent of America:
"What is America?"
"The fourth part of the world, called also the New World."
"How is North America divided?"
"Into Old Mexico, New Mexico, Canada or New France, New England, and
Florida."
The next answer must have been particularly enlightening to the
ambitious youth thirsting for knowledge.
"What is New France?"
"A large tract of ground about the River St. Lawrence, divided into East
and West, called also Mississippi or Louisiana."
Having given this very lucid explanation the author then proceeds to
make his readers feel at home by acquainting them with their neighbours.
"What does the East contain?"
"Besides Canada, properly so-called, it contains divers nations, the
chief of which are the Esquimalts, Hurons, Christinals, Algonquins,
Etechemins, and Iroquois. The considerable towns are Quebec, Tadousac,
and Montreal."
"What is New Britain?"
"It lies north of New France, and is not cultivated, but the English who
possess it derive a great trade in beaver and originac skins." (In
passing it may be pointed out that "originac," or more correctly
"orignac," was the name applied to the moose.)
The painful part of the story of this most extraordinary geography is
that what I have already quoted was all there was between its two covers
in any way touching upon North America.[#]
[#] _Documentary History of Education in Upper Canada_, Vol. I., page
106.
The great drawback to the legislative efforts to improve the system was
the lack of uniformity. Each section, and later, each district,
followed its own inclination, and no satisfactory results were attained
until Egerton Ryerson introduced his reforms, and brought every school
in Upper Canada under the same general supervision.
The old teacher of the pioneer days is gone from us forever, and, while
he served his day and generation as well as he could, we cannot
entertain any feelings of regret that he will never return. Brute force
played an important part in his system of instruction. The equipment of
no school was complete without the tawse or leather strap, and the
offending pupil was frequently despatched to the neighbouring woods to
cut from a beech tree the instrument of torture to be applied to his
particular case.
The minor parts of speech were recognized as such, not from the
functions performed by them in the sentence in which they appeared, but
from the fact that they were in the list which the pupil was forced to
memorize. "With" was a preposition because it was in the list of
prepositions, and "forth" was an adverb because the teacher said it was,
and if by chance, from nervousness or any other cause, the boy with a
treacherous memory failed to place it under its proper heading, a
flogging was considered a proper chastisement for the offence. It
sometimes happened that a boy did not see eye to eye with his teacher
upon this question of corporal punishment, and a scrimmage would ensue.
If the teacher came out second best, his usefulness in that
neighbourhood was gone.
To be learned, as the teacher was supposed to be, was a distinction
which gave him a certain amount of prominence, and opened up for him
several other fields of usefulness. He was frequently called upon as
arbitrator to adjust complicated accounts, or to settle disputes in the
measurement of wood or lumber, or to lay out a plot of ground with a
given acreage. He was the court of last resort in matters of
orthography and spelling. If he happened to be of a religious turn of
mind, he might be called upon to fill the pulpit in the absence of the
regular clergyman.
The Squire and the school teacher each played his part in the
administration of the affairs of the neighbourhood. Each carried some
weight and commanded a certain amount of respect; but both yielded first
place to the clergyman. While there were several other denominations,
the Anglicans, Presbyterians, and Methodists formed the great mass of
the population. The Anglicans were the pampered class; they received
most of the public favours and were correspondingly haughty and
independent. For the first fourteen years of the settlement the
clergymen of this church enjoyed a monopoly in the matter of marrying.
It was a common occurrence, before there was a Protestant parson or
minister duly ordained residing in the province, for a Justice of the
Peace to tie the knot, and in rarer cases still for a military officer
to perform the ceremony.[#]
[#] All such marriages were confirmed and made valid by "The Marriage
Act" passed in 1793; and it was declared lawful for a Justice of the
Peace to solemnize marriages under certain circumstances, when the
parties lived eighteen miles from a parson of the Church of England.
In 1798 the privilege of performing the marriage ceremony was extended
to the ministers of the Presbyterian Church, and as they did not insist
upon the wedding party going to the church, the "meenester" secured many
fees which otherwise would have gone to his Anglican brother of the
cloth. The great democratic body of Methodists were severely
handicapped, and did not come to their own until 1831, when the gate was
thrown wide open, and the clergy of nearly every recognized religious
denomination were placed upon the same footing in respect to marrying as
the Anglicans and Presbyterians.
Some of the extreme Loyalists could not reconcile Methodism and loyalty
to the Crown, and the records inform us of more than one persecution for
preaching the doctrines of the Methodist Church; in fact, one duly
elected member of the Legislative Assembly was refused his seat in the
House, because he had upon occasions filled the pulpit in a Methodist
meeting-house. It is only fair to those who supported such extreme
measures to explain that these extraordinary occurrences took place at a
time when the feeling in this country against the United States was very
strong, and the Methodist body in Upper Canada was under the
jurisdiction of a General Conference across the line.