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John Graves Simcoe
Chapter VI - The Legislature

IT was at Kingston that the government of Upper Canada was organized. Simcoe, proceeding to Niagara, here met the members of the legislative council. Four had been appointed in England, William Osgoode, William Robertson, Peter Russell and Alexander Grant. Robertson did not come to Canada; shortly after his appointment he resigned, and his place was filled on June 21st, 1793, by the appointment of iEncas Shaw. The remaining members were John Munro, of Matilda; Richard Duncan, of Rapid Plat; James Baby, of Detroit; Richard Cartwright, jr., of Kingston ; and Robert Hamilton, of Niagara. In the little church opposite the market-place the commissions were read and the oaths administered. It was on July 8th that Simcoe, surrounded by his councillors and in the presence of the handful of Loyalists who had left their clearings to welcome him, solemnly undertook to administer British principles under a constitution that he believed to be "the most excellent that was ever bestowed upon a colony."

Upon the following day Osgoode, Russell and Baby were sworn as executive councillors; Little-hales was appointed clerk of the council, Jarvis secretary, and both took the oaths. On the eleventh Grant was sworn as executive councillor and took his seat. PYom the tenth to the fifteenth the council was engaged upon the division of the province into counties and ridings for electoral purposes. A session was held upon Sunday the fifteenth, so eager was the new council for the dispatch of business. The division based upon the militia returns was finished, and a proclamation was drawn up and issued on the sixteenth. This proclamation was afterwards printed for circulation by Fleury Mesplet in Montreal. The division into counties and the number of members in the assembly to which each riding was entitled together with the names1 of the men who represented the ridings in the first parliament were as follows:

First Parliament of Upper Canada, 1792-6.

Glengarry (2), John Macdonell (speaker), Hugh Macdonell; Stormont (1), Jeremiah French ; Dun-das (1), Alexander Campbell; Grenville (1), Epliraim Jones; Leeds and Frontenac (1), John White; Addington and Ontario (1), Joshua Booth; Prince Edward and Adolphustown (1), Philip Dorland (not seated), Peter Van Alstine (seated 1793); Lennox, Hastings, and Northumberland (1), Hazleton Spencer; Durham, York and 1st Lincoln (1), Nathaniel Pettit; 2nd Lincoln (1), Benjamin Pawling; 3rd Lincoln (1), Parshall Terry; 4th Lincoln and Norfolk (1), Isaac Swayze; Suffolk and Essex (1), Francis Baby; Kent (2), D. W. Smith and William Macomb. Total: 16.

Philip Dorland, of Prince Edward and Adolphus-town, was a Quaker, and as he refused to take the oath and could not be allowed to affirm, a new election was ordered and Peter Van Alstine was returned.

Each member was no doubt a man of prominence in his district, and stood for what was best in the community. As yet political parties had not been formed, and the choice was made upon personal considerations alone. Simcoe had endeavoured to secure the return of half-pay officers, men of education, and he congratulated himself that his temporary residence at Kingston created sufficient influence to elect Mr. White, who became attorney-general. But the result of the first election was that the majority of the seats were filled by men who kept but one table, who dined in common with their servants, and who did not belong to the aristocracy of the province. It is a fact worthy of note that Mr. Baby sat in this first parliament as the representative from the Detroit district, that fort and settlement having not then passed from under British control.

On September 17th, 1792, the scene enacted at Niagara was a notable one. The frame in which the moving picture was set was worthy of the subject: the little niche cut in the forest at the edge of the river where the great lake swept away to the horizon, upon every side the untouched forest, tracked with paths leading through wildernesses to waterways which lay like oceans impcarled in a setting of emerald ; everywhere the woods peopled with wild life; to the south the land, alienated and estranged, where almost every actor in the scene had shed blood, and upon the edge of which still waved the flag of England from the bastion of Fort Niagara. The actors had come from the ends of the earth: the war-worn regiments of King George; settlers clad in homespun in which they moved with as great dignity as when, in days gone by, they were clad in the height of the mode; retired officers who had seen half the civilized world and who were content with this savage corner, Indians in their aboriginal pomp of paint and feathers, be-girdled with their enemies' scalps, the chiefs of the great confederacy and those of friendly tribes from the far West. The ceremony which they gazed upon was the fulfilment of all they had fought for, the symbol of their principles and faith. It showed their children that here was the arm of England again stretched forth to do right, and mete out justice, to maintain her authority and protect her people. With as great circumstance as could be summoned, Simcoe had arranged the drama. It was a miniature Westminster on the breast of the wilderness : the brilliancy of the infantry uniforms, leagues from the Horse Guards, yet burnished as if they were to meet the eye of the commander-in-chief, every strap and every button in place; the dark green of the Queen's Rangers, who had taken a name and uniform already tried and famous; from the fort the roar of guns answered by the sloops in the harbour.

The first session was held in Freemasons' Hall, and the general orders for the day directed that a subaltern guard of the 5th Regiment should be there mounted. At mid-day the governor proceeded to the hall, accompanied by a guard of honour, and delivered his speech from the Throne. It should be quoted as the first utterance of a British governor to the representatives of a colony assembled under a free constitution.

"Honourable gentlemen of the Legislative Council and gentlemen of the House of Assembly:I have summoned you together under the authority of an Act of Parliament of Great Britain, passed in the last year, which has established the British Constitution and all the forms which secure and maintain it in this distant country.

"The wisdom and beneficence of our most gracious sovereign and the British parliament have been eminently proved, not only in imparting to us the same form of government, but in securing the benefit by the many provisions which guard this memorable Act, so that the blessings of our invulnerable constitution, thus protected and amplified, we hope will be extended to the remotest posterity.

"The great and momentous trusts and duties which have been committed to the representatives of this province, in a degree infinitely beyond whatever, till this period, have distinguished any other colony, have originated from the British nation upon a just consideration of the energy and hazard with which the inhabitants have so conspicuously supported and defended the British Constitution.

" It is from the same patriotism now called upon to exercise, with due deliberation and foresight, the various offices of the civil administration, that your fellow-subjects of the British Empire expect the foundation of union, of industry and wealth, of commerce and power, which may last through all succeeding ages. The natural advantages of the Province of Upper Canada are inferior to none on this side of the Atlantic. There can be no separate interest through its whole extent. The British form of government has prepared the way for its speedy colonization, and I trust that your fostering care will improve the favourable situation, and that a numerous and agricultural people will speedily take possession of a soil and climate which, under the British laws and the munificence with which His Majesty has granted the lands of the Crown, offer such manifest and peculiar encouragements."

Of the first House of Assembly Mr. John Macdonell, of Glengarry, was elected speaker. Mr. Osgoode, chief-justice, was speaker of the legislative council. Captain John Law, a retired officer of the Queen's Rangers, was sergeant-at-arms. The Rev. Dr. Addison opened the sessions with the prescribed prayers. The first session lasted for barely a month, and the House was prorogued on October 15th. But during these weeks eight Acts were passed. Trial by jury was established; the toll for millers was fixed at one-twelfth for milling and bolting; the ancient laws of Canada were abrogated, and those of Britain substituted ; the British rules of evidence were to apply; a jail or court-house was to be provided for each of the four districts. The financial problem early made its appearance, and for some years difficulty was met in raising a revenue for the necessary expenditure within the province. A measure to tax wine and spirits was passed by the assembly, but was thrown out by the council. Upon the other hand the assembly viewed with disfavour a tax upon land. Thus early we see the divergence of two classes in the community: the assembly willing to tax the wine of the council, the council ready to tax the land of the assembly. But there was small friction in these primary gatherings.

The most serious question of the day to the settlers was that of the marriage relation. At the first parliament a measure to make valid all existing marriages was brought before the assembly, but it was withdrawn, and after the close of the session, on November 6th, Simcoe submitted a draft bill to Dundas, accompanied by a report from Richard Cartwright, jr., dated Newark, October 12th, 1792. The latter set forth that:

"The country now Upper Canada was not settled or cultivated in any part, except the settlement of Detroit, till the year one thousand seven hundred and eighty-four, when the several provincial corps doing duty in the province of Quebec were reduced, and, together with many Loyalists from New York, established in different parts of this province, chiefly along the river St. Lawrence and the Bay of Quinti. In the meanwhile, from the year 1777, many families of the Loyalists belonging to Butler's Rangers, the Royal Yorkers, Indian Department, and other corps doing duty at the upper posts, had from time to time come into the country, and many young women of these families were contracted in marriage which could not be regularly solemnized, there being no clergymen at the posts, nor in the whole country between them and Montreal. The practice in such eases usually was to go before the officer commanding the post who publicly read to the parties the matrimonial service in the Book of Common Prayer, using the ring and observing the other forms there prescribed, or if he declined it, as was sometimes the case, it was done by the adjutants of the regiment. After the settlements were formed in 1784, the justices of the peace used to perform the marriage ceremony till the establishment of clergymen in the country, when this practice, adopted only from necessity, hath been discontinued in the districts where clergymen reside. This is not yet the case with them all, for though the two lower districts have had each of them a Protestant clergyman since the year 1786, it is but a few months since this (Nassau or Home) district hath been provided with one ; and the western district, in which the settlement of Detroit is included, is to this day destitute of that useful and respectable order of men, yet the town of Detroit is, and has been since the conquest of Canada, inhabited for the most part by traders of the Protestant religion who reside there with their families, and among whom many intermarriages hare taken place, which formerly were solemnized by the commanding officer or some other layman occasionally appointed by the inhabitants for reading prayers to them on Sundays, but of late more commonly by magistrates, since magistrates have been appointed for that district.

"From these circumstances it has happened that the marriages of the generality of the inhabitants of Upper Canada are not valid in law, and that their children must stricture be considered as illegitimate and consequently not entitled to inherit their property. Indeed, this would have been the case, in my opinion, had the marriage ceremony been performed even by a regular clergyman, and with due observance of all the forms prescribed by the laws of England. For the clause in the Act of the fourteenth year of his present Majesty for regulating the government of Quebec which declares 4 That in all cases of controversy relative to property and civil rights, resort shall be had to the laws of Canada as the rule for the decision of the same,' appears to me to invalidate all marriages not solemnized according to the rites of the Church of Rome, so far as these marriages are considered as giving any title to property."

During recess the form of the Act to make valid past and to provide for future marriages was settled, and the Act was passed at the second session, which met on May 81st, 1703, and prorogued on July 9th. Simcoe felt the urgency of this measure, and it at once received his assent and was not referred to the home government for approval. The Act provided that marriages contracted regularly in the past were made legally binding. It was merely necessary for the parties to the contract to make oath that their relations were those of husband and wife. For the future the ceremony could be performed by a justice of the peace, if the contracting parties were distant eighteen miles from a clergyman; the prescribed Church of England form was to be in every case followed. When five clergymen of that church were resident in the district the Act was to be non-effective.

At this session the foundation of municipal government was laid by the passage of an Act "to provide for the nomination and appointment of parish and town officers throughout this province." The Act gave but small powers to the township councils, but the meetings which it provided for formed the training-school for politicians. Here the questions of the day were discussed, and it has been aptly remarked by Mr. J. M. McEvoy in his pamphlet on The Ontario Township, that " it was the conception of law that was fostered in the men of Ontario by their town meeting, which led in a large measure to the establishment of responsible government in this province."

The most important remaining Acts of the second session were: an Act to encourage the destruction of wolves and bears; an Act for the maintenance of roads; an Act to prevent the introduction of negro slaves. The latter Act met with singular opposition. There are no statistics available to show the number of slaves in servitude in the province, but many had been obtained during the war by purchase from the Indians who had captured them in forays in American territory. Obtained from such a source, the price paid was small, and owing to the arduous conditions of labour and the scarcity of labourers in the new colony the value of the negroes was very great. The feeling even among those who admitted the necessity for the legislation was that action should be postponed for two years to allow those who had no slaves to procure them. Simcoe gave his strongest support to the bill, and his influence led to its passage.

One may be sure that he had been deeply and actively interested in the agitation begun in 1787 by Wilberforce, Sharpe, and their associates for the abolition of the trade. It took twenty years of constant work before the end was accomplished m Great Britain. Denmark led the nations and struck down the wretched traffic by royal order of May 16th, 1792; then followed the Upper Canadian legislature, first of all British colonies. Simcoe had broken the rmg that bound the dependencies of the mother country. His feeling upon the subject was strong, and one of his earliest resolves was to purge the colony of this evil. He had stated that: "The moment that I assume the government of Upper Canada under no modification will I assent to a law that discriminates, by dishonest policy, between the natives of Africa, America, or Europe." The Act of George III, ch. 27, which permitted the admission of slaves into a colony, was repealed; in future, no slave could be brought into the province; the term of contract under which a slave could be bound was nine years; children of slaves then in the province were to be declared free when they reached the age of twenty-five, until which time they were to remain with their mothers. In due time, owing to the gradual operation of these provisions, slavery disappeared, and it was no longer possible to read 90 in the Gazette such notices as the following that appeared in the issue of August 19th, 1795 :

"Sale for three years of a negro wench named Chloe, 23 years old, who understands washing, cooking, etc. Apply to Robert Franklin, at the Receiver-General's."

The third session of the legislature opened on June 2nd, 1794, and closed on July 7th. It may be termed the war-session of Simcoe's administration. He believed that hostilities had been declared by Great Britain against the United States, and he had, but a few weeks before the opening, returned from the rapids of the Miami, where he had established a strong post as part of a system for the defence of Detroit. The Militia Act was, therefore, the most important of the twelve Acts passed during this session. It gave the governor power to employ the militia upon the water in vessels or bateaux, and thus made it possible to dispute the control of the lakes and to oppose any naval force that a hostile power might collect to destroy the exposed settlements upon the shores. It also gave the governor power to form troops of cavalry, and completed the organization of all branches of the militia.

By the Act to regulate the practice of the law the governor was given power to license proper persons to appear before the courts; at the time the Act was passed there were only two duly qualified lawyers in the province. The bill to establish a superior court was the measure that caused the greatest discussion. The need of some tribunal of appeal was keenly felt, and so great was the interest that the legislative assembly adjourned to hear the debate in the council. Here the opposition centred with Cartwright and Hamilton, and to these gentlemen Simcoe does not ascribe disinterested motives. He thought they wished to keep in their own hands the trial of such cases as could under the Act be referred to the new court. But their opposition, though it now appears disinterested, was fruitless. So eager was the Lower House to further the bill that it could hardly be restrained from the undignified course of passing all its readings at one session.

An Act imposing a duty upon stills was also placed upon the statute-book. Annual licenses were to be granted; the fee was to be 15d. for every gallon that the body of the still was capable of containing.

Of the opening of the fourth session, which took place on July (5th, 1795, an account has been preserved by the Duke de la Rochefoucauld-Liancourt. He says: "The governor had deferred it till that time on account of the expected arrival of a chief-justice, who was to come from England ; and from a hope that he should be able to acquaint the members with the particulars of the treaty with the I'nited States, but the harvest was now begun, which, in a higher degree than elsewhere, engages 92 in Canada the public attention, far beyond what state affairs can do. Two members of the legislative council were present instead of seven ; no chief-justice appeared, who was to act as speaker; instead of sixteen members of the assembly five only attended, and this was the whole number which could be collected at this time. The law requires a greater number of members for each House to discuss and determine upon any business, but, within two days, a year will have expired since the last session. The governor has, therefore, thought it right to open the session, reserving, however, to either House the right of proroguing the sittings from one day to another in expectation that the ships from Detroit and Kingston will either bring the members who are yet wanting, or certain intelligence of their not being able to attend.

"The whole retinue of the governor consisted of a guard of fifty men of the garrison of the fort. Dressed in silk, he entered the hall with his hat on his head, attended by his adjutant and two secretaries. The two members of the legislative council gave, by their speaker, notice of it to the assembly. Five members of the latter having appeared at the bar, the governor delivered a speech modelled after that of the king."

Only five Acts were passed at the fourth session, and none of these were of great importance. The agreement with Lower Canada as to the pro->ortion of the revenue derived from duties on wines and liquors payable to the upper province was confirmed. The amount which the former was found to owe the latter for the years 3793 and 1794 was 333 4s. 2d. It was also agreed that one-eighth of all the revenue collected in the lower was to be set apart for the use and benefit of the upper province, and the agreement was to terminate in 1796. The Act to provide for the public register of deeds, conveyances, and wills was rendered necessary by the failure of many of the settlers to exchange their land certificates for grants. The motive of the bill was " to authenticate and confirm the title and property of individuals." The remaining Acts were: to regulate the practice of physic and surgery, it abrogated a law of Quebec which did not apply to Upper Canada; as to the eligibility of persons to be returned to the House of Assembly; to amend the Act of the third session with regard to superior courts. The House prorogued on August 19th.

The fifth and last session of the first parliament met on May 16th and was prorogued on June 20th, 1796. The Acts numbered seven. The most important were an Act which amended the Superior Court Rill of the session of 1794, and an Act to ascertain and limit the value of certain current coins. The names of a few of these pieces with their value as regulated by this Act will show how mixed were the coins then in circulation. The Johannes of Portugal, weighing 18 dwt. Troy, was 94 valued at 4; the Moidora of Portugal, weighing 16 dwt. and 18 grams Troy, was valued at 1 10s.; the milled dubloon or four-pistole piece of Spain, 17 dwt. Troy, was valued at 3 16s. The penalty for counterfeiting was death; and for uttering or tendering false coins was one year's imprisonment and one hour in the pillory for the first offence, and for the second the culprit was adjudged guilty of felony without benefit of clergy.

As the settlement of the country had progressed, it was found necessary to repeal the Act for the destruction of wolves and bears.

The governor, who was upon the eve of departure for England, closed the legislature with a few pompous and overwrought periods. His official utterances were all set in a key remote from that in which he composed his dispatches or his intimate epistles. He evidently thought it becoming to speak with as heavy an accent as possible when he addressed the Houses from the throne. " It is not possible for me without emotion to contemplate that we have been called upon to execute the most important trust that can be delegated by the king and British parliament during a period of awful and stupendous events which still agitate the greater part of mankind, and which have threatened to involve all that is valuable in court society in one promiscuous ruin. However remote we have been happily placed from the scene of these events, we have not been without their influence; but, by the blessing of God, it has only been sufficient to prove that this province, founded upon the rock of loyalty, demonstrates one common spirit in the defence of its king and country. . . .

"It is our immediate duty to recommend our public acts to our fellow-subjects by the efficacy of our private example; and to contribute, in this tract of the British empire, to form a nation obedient to the laws, frugal, temperate, industrious, impressed with a steadfast love of justice, of honour, of public good, with unshaken probity and fortitude amongst men, with Christian piety and gratitude to God. Conscious of the intentions of well-doing, I shall ever cherish with reverence and humble acknowledgment the remembrance that it is my singular happiness to have borne to this province the powers, the privileges and the practice of the British Constitution; that perpetual acknowledgment of the good-will of the empire, the reward of tried affection and loyalty, can but fulfil the just end of all government, as the experience of ages hath proved, by communicating universally protection and prosperity to those who make a rightful use of its advantages."

As has been stated, the first session of the legislature was held in Freemasons' Hall. The business of the next four sessions was transacted in additions to the barracks of Butler's Rangers. These additions were made by Simcoe's orders m the spring of 1703. They were of a temporary character, in fact, Simcoe refers to them as "sheds," and they were likely built of rough lumber and furnished with benches and tables made by the carpenters of the regiments. They were sufficiently commodious to cover the little parliament and the officers of the government. As the work was performed by the garrison, and as Simcoe intended the additions to house the soldiers from Fort Niagara when the posts should be evacuated, he requested that the expenditure might be charged to the military chest; but the war office would not consent, and the charge was made against the public account. In those days no detail of management was too petty for notice, and the war office considered it of enough importance to order, over the Duke of Richmond's signature, that a new lock should be placed on a storehouse door and the key should be kept by the commandant of the post.

Simcoe had, for the greater part, nothing but praise for his legislators. They were loyal and true, and supported government worthily, a matter, probably, of surprise to his mind, seeing that some of them were dissenters and others would sit down with and pass food to their servants in the republican fashion. And republican principles he could not abide. His life had been a continuous struggle against them. He abhorred them when he recognized them in his legislative council. He brands Hamilton as an avowed republican, and Cartwright as his friend and in league with him. He finds them opposing his schemes, and requests the appointment of Captain Shaw to the legislative council, so that the plotters may have to face another staunch friend of the constitution. A little later he causes them to be told that he was the arbiter in all contracts. Now the contract for provisioning the troops with flour was in Cartwright's hands, and Simcoe alleges that after this announcement he grew more civil and amenable.

These hasty charges show the temper of the governor, and Cartwright and his companion have the best of the argument when their motives are examined. The former, writing to his friend Isaac Todd says manfully that "though I do not think it necessary to bow with reverence to the wayward fancies of every sub-delegate of the executive government, I will not hesitate to assert that His Majesty has not two more loyal subjects, and in this province certainly none more useful than Mr. Hamilton and myself, nor shall even the little pitiful jealousy that exists with respect to us make us otherwise, and though I hope we shall always have fortitude enough to do our duty, we are by no means disposed to form cabals, and certainly have not, nor do intend wantonly to oppose or thwart the governor."

It required only the closer contact with Mr, Cartwright, that Governor Simcoe s residence at Kingston dining the winter of 1704-5 gave, to show him what a valuable man to the province and particularly to his own section the legislative councillor was, and this the governor ungrudingly acknowledged in his dispatches. It is probable that he was met with reserve by some of the chief men of the province, for Sir John Johnson, who from Lord Dorchester's influence had confidently expected the appointment as governor, had promised office and distinction to several who were passed over by Simcoe. During his first days in the country Simcoe had sought an explanation with Sir John which "restored his good humour," and there can be no doubt that the governor's singleness of purpose and his native sense of justice would soon conquer any small hostility that may have been occasioned by his appointment. When he bade farewell to the first parliament of Upper Canada he may have expected to meet a newly-elected House the next summer; but his leave of absence was changed to commission for other important service, and he never again saw Toronto harbour, its sparkling waters and low shores darkly covered with a cloud of trees, or the little town of Niagara, clustered by the dark, turbulent river, or Navy Hall under the ensign of England that blew freely in the lake breeze.

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