Part 3

During the summer months the mosquitoes and black flies added to the misery of the travellers. Even so, in this, as in all things, the pioneers looked not so much on the dark side of life as on the bright. The distance had to be covered; every jolt and bump brought them one step nearer their destination. The tales of the fellow travellers were entertaining and helped to shorten the way. Perhaps one was a legislator just returning from a meeting of the House, perhaps a merchant on his way to Montreal to make his year's purchase of goods, or a young adventurer from the old country spying out an opportunity to better himself in the New World. The forest had its charms, although the insects at times were abominable. As the coach passed through a clearing the yeoman, with a swing of his hat, would wish the travellers God-speed. The monotony was broken, time and again, by a glimpse of a bay or lake; and the road, in places followed the beach, where the waves broke under the horses' feet. Awaiting them at the journey's end were that rest and peace which the home alone can afford, that bright welcome of the fireside built with their own hands, and the smiles of the loved ones who had shared all their trials and victories.

*CHAPTER IV*

*EARLY COURTS AND ELECTIONS*

All that territory from the Ottawa River to the Detroit, in which the 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.

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.