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Lee diagrammes suivents illustrent le mAthode. 1 2 3 1 2 3 4 5 6 73 f ^ f— - — t 't-^ ^^^//'^^ \: 'nt^m^V: CO AT A PROPOSAL FOR DIVIDING THE JURISDICTION OP THE COURT OF QUEEN'S BENCH IN UPPER CANADA, AND ESTABLISHING A COURT OF APPEAL: IN A LETTER TO THE HONORABLE WILLIAM HENRY DRAPER, ATTOBNKT-OBNSRAL OF UPPPER CANADA, ETC., ETC., ETC. BY A MEMBER OF THE KINQSTON BAR, KINGSTON : PRINTED AT THE OFflCE OF THE NEWS. 1846. ^ ( 1 ,AaAi.^ a^qisu ^1 : [M^- -7 ,f > iU ,»■ ^iiyi!j|u'r>:r. TO THE HONORABLE WILLIAM HENRY DRAPER, ATTORNEY GENERAL OF UPPER CANADA; Sir: Entertaining a high respect for your distinguished abilities, and hoping that your candour and good judgment will induce yon to lend your Parliamentary influence to the scheme which i» proposed in the following pages, and which in its essen- tial principles may be claimed as the proposition o( the Kingston Bar, I take the liberty of addressing the following remarks to you. The fact that those who propose a counter scheme are already in the field will I hope excuse any apparent want of courtesy on my part in not first addressing you privately on this subject. In addressing you, while I have felt the full importance which the sanction of your name would give to any professional scheme, I must avow that I have not obtained that sanction. But to you, more than to any other member of the Bar, now practising, ought of right to be awarded the highest honour? which the profession can throw open to you. If Canada may feel proud, as phe does, in the possession of John Beverly Robinson, as her Chief Justice, permit me to add that when we shall see you also at the head of one of her Courts, we will have secured an amount of commanding talent in the distribution of Justice which will do the utmost credit to so young a Country. I have the honor to be, Sir, your obedient servant, A Member of the Kinobton Bar. Two advo( Pleas of Qi Queie onth( in Lo theK Petiti A] King' ment that of Ml in isu| tion I enti On canno «N whom the pr tion more hardlj numei at lea: have suspic Two Petitions are now before Parliament, the one advocating the establishment of a Court of Common Pleas at Toronto, the other the establishment of a Court of Queen's Bench at Kingston, giving each Court of Queien's Bench jurisdiction over one half of the Districts, on the same principle that the jurisdiction is now divided in Lower Canada. In Appendix, Table H, will be found the Kingston Petition and the prayer of the Toronto Petition. A Pamphlet from the pen of the Law Professor of King's College has appeared advocating the establish- ment of the Court of Common Pleas at Toronto. With that object which is first touched upon in the pamphlet of Mr Blake, and with many of the arguments advanced in su]^port of the advantage to be gained by the forma- tion of a Court of Appeal out of the other two Courts, I entirely concur. One of the arguments, however, of Mr Blake, I cannot concur with. "Not only the counsel and attorneys, the agents by whom business is conducted in our courts, but in truth the principal inhabitants of the country, a great propor- tion of those whose affairs are under adjudication, are more or less, personally known to the judges. It is hardly possible, under such circumstances, but that numerous occasions must occur, in which a suspicion at least may arise, that political bias, or personal feelings, have intruded themselves into the judgment seat. Nfeither must we flatter ourselves into a belief, that such suspicions are so wholly groundless, as to entitle us to 6 treat them with entire disreujanl. If nw eloquent and learned lord, in speaking of that aus^ust Court which decides in the last resort, in Knj^land, could remark with truth, 'That even the noble Judges of that high tribunal are clothed beneath their ermine with the common infirmities of human nature,' ive should certainly conde- scend to the frailties of those who yield to some plight suspicion concerning men who are sometimes selected (or at least supposed to be selected) for the important trust of administering the law, not from any peculiar fitness for the discharge of that duty which has been discovered in them, but because their polhical opinions happen to coincide with those of the governor of the day." These are the words of Mr Blake. The words convey a suspicion of the possible want of integrity jf the Judges of the present Court, when politicc', or personal feelings intervene. To remedy, therefore, the wrong which any such political or personal bias might effect to the interests of litigants, Mr Blake raises from these premises the idea of a Court of Appeal, to be formed by the establishment of a Court of Common Pleas, and the union of the superior Courts. But first, with reference to the political or personal feelings of the court of Queen's Bench, how is the constitution of the Court of Common Pleas to be formed so as to be an antidote to the poison? Because a once Tory Attorney General is Chief Justice of the Court of Queen's Bench, is therefore the Chief Justice of the Court of Common Pleas to be a Radical, in order to effect an antagonism which may act as a check to political bias ? We hope so monstrous a doctrine is not advocated by our Law Professor. We do not believe in the first place the premises on which he builds his argument. We do not believe that one single case can be adduced in the previous juridical history of Upper Canada, to shew I IS jeitt and It which lark with tribunal common y conde- me plight selected mportant peculiar las been opinions )r of the e words tegrity jf lilica', or sfore, the as might ises from al, to be Common personal w is the e formed ;e a once Court of e of the order to ) political dvocated the first lent. We Iduced in I, to shew that the ends of justice have ever been strained to suit the party purposes or personal fcielings of the Judges. We know that Mr Hlakk disclaims the intention of making any such direct charge, but the insinuation alone is as bad. But even if it were true-y the supposition that the infusion of opposing politics into different Courts, would remedy the evil, is absurd. Let the two Courts be framed with a view to this, and what would be the result ? We can imagine the Hon. Robert Baldwin presiding on one side of Osgoode Hall ; and Chief Justice Robinson on the other. These Courts have concurrent jurisdiction. If the premises, which are the foundation of Mr Blake's argument, are correct ; if the shadow of a suspicion of political bias is justly enter- tained, Radicals will flock to one Court, Tories to the other ; and in the Court of Appeal formed from these antagonistic partialities, justice is to be obtained ! A judicial system founded on such a distorted view of the motives of the human heart, would be a disgrace to the society which tolerated it. Such is not the system in England. It is true that amid the changes which constantly take place in the English Bench, men of different political views are often the reviewers of judg- ments of their brethren in the other Courts, on cases where political feeling has been excited on the question at issue. Such was the appeal to the House of Lords in the O'Connell case, where two Whig law Peers, Lords CoTTENHAM and Ca>ipbell, together with Lord Den- man overthrew a judgment established by the almost unanimous opinion of the Judges of all the courts. But this is perhaps an isolated instance of such an unhappy event. The occurrence of it has raised indig- nant murmurings among professional men in England. But the gist of Mr Blake's attempt — the reason for the insinuation of the suspicion of political bias, above II quoted — is to urge the introduction of a system in which such events will be a necessary consequence of it. Is it not more in accordance, not alone with charitable judgment, but with true human wisdom, to believe that when a man has bound himself by a most solemn obli- gation to act in his judicial capacity, with impartiality, to administer justice to the best of his ability, there is a fearful responsibility for the performance of the trust, that would prevent any but the most vitiated from violating the sacred duty? In cur day, and country, thank God, such is ihe liberty of the Press, and so in* tangible the independence of the Bar, that an act of political partizanship in his judicial capacity, could not be perpetrated by a Judge of the Canadian Bench, without instant exposure, and immediate ruin. No! the true reason for the uecess^ty of a well- constituted court of appeal, consists in this : — ^Human judgment is liable to err ; and the greater variety of talent you can bring to bear upon a disputed point, the more nearly you will arrive at the solution of it. Mr Blake's assertion that both Barristers and suitors become known to ♦he judges, and that as it were insen- sibly, their decisions are moulded by the feelings consequent on such an intimacy, may be in some degree true. We cannot believe it is to the sweeping extent which he asserts, iiut, for the sake of argument, suppose it is true — how is the establishment of a court of Common Pleas with concurrent jurisdiction to remedy the evil 1 Is it because then suitors can choose the Court where tn^y have the advantage of such an intimacy? But what would become then of tl. poor defendant, who nolens volens, must accept the adjudication of the tribunal selected by his opponent ? He must appeal to both courts conjointly, and then would come justice out of these contending principles I I in which )f it. Dhari table lieve that emn obli- partiality, there is a the trust, ted from country, nd so in- an act of ty, could [n Bench, f a well- — Human variety of point, the t. lid suitors ire insen- feelings le degree ng extent argument, )f a court :o remedy loose the intimacy? iefendant, on of the appeal to iistice out 9 Now, if on the other hand the jurisdiction of the Court of Queen's Bench should be divided, as suggested in the petition of the Kingston Bar, when an appeal would take place from a decision C( either Court, this intimacy of suitors with the Judges would be completely neutral- ized by the fact, that the Judges of one section would •have no intimacy in the course of their circuits with the suitors whose cases would come before them in appeal from the other jurisdiction. Thus supposing corruption to creep into the administration of justice in the inferior tribunals, it would find its ready antidote in the appellate jurisdiction. There is nothing in the remaining remarks of Mr Blake which can militate against the object of the Kingston Bar ; but on the other hand, while we acknow- ledge their justice, undoubted in reference to the ne- cessity of a Court of Appeal, and its constitution, and also the formation of a fee-fund, which will cover the additional charge on the Revenue, we find his arguments strengthened by changing his plan from a Court of Common Pleas at Toronto, to a divided jurisdiction, and two Courts of Queen's Bench ; because, while we secure all the advantages which the Toronto plan could by possibility effect, we at the same time do not incur one-seventh of the expense, as will be seen by referring to the latter part of this letter, and the appendix. But I will now proceed, as far as in my power lies, to point out the strong and urgent reasons which recommend the petition of the Kingston Bar to the favorable consideration of the Legislature. It is true that there is not alone (as Mr Blake argues) an absolute necessity for a well constituted Court of Appeal, but the population of the country is increasing in such a rapid progression, and the number of new districts has so augmented the labor of the Judges, that when we add to this the notorious fact, that I 10 lately some one or other of the present Judges has been occasionally withdrawn from the performance of the duties of his office, by the common infirmities of human nature, we may safely assert, that there exists an absolute necessity for the establishment of an additional Court of Common Law jurisdiction. With reference, for instance, to the number of new Districts, a Bill has been introduced into the popular branch of the Legislature by the Hon. Mr Solicitor Creneral Sherwood to decrease the labors of the judges, consequent upon the creation of such new districts, by giving to some of the smaller Districts only one commission of Assize, JVisi Prius, Oyer and Ter- miner, &c., in the year, instead of two, as there are at present. The reason which will probably be advanced m favor of this, is, that in those minor districts, the average amount of business is so small that it does not justify the withdrawal of the Judges for the trial of a few cases in such districts from the mass of business which pours in upon them from the more populous districts. But in answer to this we would remark, the delay of justice to any claimant of its relief is a thing abhorrent to the principles of a free people. The words of Magna Charta are "nulli differemus aut negabimus rectam aut justitiam." The legislation of civilized countries has latterly tended to effectuate a speedy as well as correct distribution of justice. Upon this prin- ciple, a few years ago, the Canadian circuits were doubled, giving us two in the year in each district instead of one. And why 1 Because the length of time which elapsed before a recovery could, under that old system, be had, even in matters of debt, had been found to be productive of the greatest injustice and loss to suitors. But now, in the minor districts, the oU system is sought to be revived. Why ? Principally for the relief of the Judges ; to, enabfe them to attend to ik^ has been :e of the of human 3xists an ulditional r of new i popular Solicitor ; of the ich new ricts oiily md Ter- as there bably be districts, t it does e trial of busii^ess populous lark, the 3 a thing le words igabimus civilized peedy as tiis prin- its were district of time that old m found loss to i systesBi for the li more important duties arising out of the larger districts. But see the injustice this works. Because the writer of these remarks might happen to live in the Brock District, with a comparatively small population, is he therefore to be delayed as long again in the recovery of his debt as his neighbor is who, in the adjoining district, is only divided from him by an imaginary and arbitrary line? Such would be the effect, of the proposed measure of Mr Sherwood. It need hardly be said that this would be a glaring injustice, a serious defect in the Juridical system. Is there no method more consonant with common justice, of effecting both the relief of the Judges, and insuring a due degree of attention to the business of the larger districts ? There is ! The remedy for the existing evils, and the method which would obviate the perhaps plausible reason for creating the new evil above alluded to, and apparently about to be introduced, will be found in carrying out the petition of the Kingston Bar. There are now twenty Districts, and five Judges. Carry out the suggestion of the Kingston Bar: let the jurisdiction of the present Court of Queen's Bench extend no farther Eastward than the eastern limit of the Newcasde District : establish a Court of Queen's Bench for the eastern part of Upper Canada with three Judges, one withdrawn from Toronto. What result have you ? You get twenty Districts with seven Judges. You have then Judges enough to get through all the business of the country without throwing any unjust burden on them : at the same time you keep up in every part of the country that speedy and equable distribution of justice which we boldly assert is a matter of common right, the privilege of the meanest subject. At the same time, be it remembered, we secure all the advantages of an indigenous Court of Appeal, by joming the two Common Law Courts and the one Equity Ut III 12 Court together, under the name, if that is worth anything, of the^Exchequer Chamber, for the necessity of which Mr Blake has advanced many able arguments. Is there no other advantage which would arise from carrymg out the suggestions of the Kingston Bar ? Yes ! Delay is not the only thing to be guarded against in the admmistration of justice. Useless expense ought also to be avoided ; and this not alone to litigants, but to the members of the professioji. Now, what is the case under the existing administration of justice? Why, from the Ottawa to Sandwich, a distance of about 700 miles, lawyers and their suitors must at Term time repair to Toronto, through a country as yet wretchedly provided with the means of communication, and where the ex- pense consequent on these at least semiannual migrations IS enormous. Or if (which is often the case) the lawyers and their clients cannot afford this outlay, they must entrust their cases, at the acme of their importance, at the critical hour, to the hands of agents (for instance on motions for new trial) ; and then those agents, in nine cases out of ten unfamiliar with the niceties of the cases, without the advantage of direct communication with the clients whose interests are involved, are the unsafe medium through which a solemn adjudication is obtained. Far be it from us to attack the reputation for ability of the Toronto Bar: we all must acknowledge their superiority, but that superiority is immensely ex- aggerated by the superior advantages which they possess. Again, viewing the difficulties and outlays which thus surround the country practitioner, let us ask what is the practical result ? An irreparable loss to his clients. How ? In this country professional men are both Barristers and Attorneys. Barristers are remuner- ated by fees. Well, the Attorney, being also a Barrister, practising in the country, knows that a certain amount of his business will be conducted, either with the 13 i anything-, y of which ts. arise from Ur? Yes! linst in the ought also its, but to is the case J? Why, about 700 ime repair r provided re the ex- migrations le lawyers they must irtance, at r instance ts, in nine es of the lunication i, are the iication is itation for nowledge nsely ex- lich they i outlays et us ask oss to his 1 men are remuner- Barrister, [1 amount with the reduction of the personal expenses necessary when he orings it to a conclusion himself at Toronto, or to a re- duction consequent upon his agent's charges. He reasons thus (and let the outlay of the best country practice in Canada be looked at, and the truth of hi,s reasoning will be apparent) : the emoluments of the proifession (the Attorney part of it) have been reduced to the minimum at which one would be warranted in going to the ex- pense of a liberal collegiate education and a library necessary to qualify him for the practice of his profes- sion. Even those emoluments are reduced one-fifth by agency charges, or travelling expenses. What is he to do 7 Why he is also a Barrister. He can if he chooses, demand a retaining fee. This his clients pay to him as a Barrister : but it is an honorary thing, courteously supposed to be the spontaneous gift of the client, but not recoverable as an item of taxed costs from the unsuccessful party. It will doubtless be said, in the true spirit of the age, given to angry declamation against, and clever satire of the profession, that fees will be taken by lawyers under any circumstances. But mankind will perhaps in the end learn the lesson, that the more lawyers are treated as a body of gentlemen, with fairness, and relieved from the pressure of an unjust decimation of their business, the more will they as a body endeavor to carry on their practice with that strict integrity which, while it en- nobles the profession, secures the interests of the clients ; and will make them the most esteemed, as they are already the most influential, class in the community. We are aware that there is no method by which country practitioners can be enabled alone to profit by the business which they gain. The system of centralizationr of the Courts is in some respects necessary, a result in the English system attained by a gradual process, the wisdom of which nr * nan can deny. Had every district 14 in the Province its own separate independent jurisdic- tion, each district would be "a law unto itself)" and a continuous clashing of judicial determinations would be the consequence, the evil of which has already been partially felt, in the constitution of the District and Quarter Session Courts, up to this time. But nothing of this kind is demanded. We profess only to offer sudh a suggestion as will remedy, as far as can be, the pre-existing evils above mentioned. If the Petition of the Kingston Bar should be favorably considered by the Legislature, one half at* least of the lawyers, who now never attend Term, but entrust their cases to agents, would be enabled to do so, at one half the expense. And, be it always remembered, one Court of Appeal, the supreme arbiter of the law, the regulator of both inferior Courts and of the Court of Chancery too, would be open to the suitors of all the Courts, a cheap and final jurisdiction, a medium for assimilating the laws of both sections. The answer of the Toronto Bar to this we can forsee. For, being immensely interested in the result of these counter-petitions, it is not to be supposed but that they will with their usual energy put their shoulders to the wheel. They will say, there will be greater danger of contending decisions if one Court sits at Kingston than there would if both should remain at Toronto ; for, in the latter place, the Judges would have the benefit of mtercoflimunication before each made their decision in thew own Courts. This seems at first plausible enough ; but it in in truth most absurd ; for, is it to be supposed that one Chief Justice would run to the other to find out his opinion, or that the Judges of either Court would tfeus, out of the scope oi their authority, not sitting in appeai, assume the labors of both Courts. Does Mr Baron Parke, after hearing counsel in the Exchequer, run to Sir Nicholas Tindall in the Common Pleas, when \6 It jurisdic- slf," and a s would be eady been ►istrict and tut nothing \y to offer an be, the Petition of sred by the , who now to agents, I expense. )f Appeal, or of both too, would cheap and he laws of san forsee. t of these t that they iers to the danger of gston than ; for, in benefit of lecision in le enough; supposed ler to find )urt would sitting in Does Mr Ixchequer, leas, when he has to deal with the decision of a knotty queistion 1 Would it not be foreign to his office, derogatory to his character, that he should do so ? If such were the practice, would not one Judge be as good as three 1 Would it not render unnecessary any Court of Appeal, and tend to establish the law upon hasty opinions, instead of upon solemn adjudication? Therefore, there being a medium for the publication of the decisions of all the Courts-^the Jurist — there is no difference where the Courts sit with reference to the object of preserving uniformity in their decisions. But there is this immense advantage to be gained by fixing one Court at Kingston, the other at Toronto ; that you throw op^en the door to a much larger number of the profession th^ at preheat •—in fact nearly to all — to sharpen, and whet, and display for the public advantage whatever forensic abilities they possess. Thus opening the door to a greater variety of talents, you throw a greater amount of labor upon, and consequently give better chance of ultimate correctness in arriving at the decision of, mooted questions. Besides, people, as we said before, are in the habit of calling law and lawyers neces^ry evils : if so, let them make as much good out of tihe evil as possible. But there is one great evil in the present system which gives to the central Court at Toronto jurisdiction over such a vast extent of country, and which will be doubled by fixing a Court of Common Pleas at Toronto. The country part of the profession are literally almost altogether excluded from the immense advantage of constant attendance at Term, of hearing the ai^uments of counsel, the decisions of the Judges given m open Court, and of being thems;elves engaged in those dis- cussions. They have been, moreover, until lately, kept wholly in ignorance of the decisions of the Courts, and although they now receive them throi^h the pages of 10 I the JurisL is only by slow degrees, and even i\\ without the elucidation which is always given to t„^ report of a case by the arguments of counsel. These are not given even in the Jurist, Now, such is the mania for new laws which pervades our Canadian so- ciety ; so incessant are the changes in our Statute law, that immense numbers of adjudicated cases are con- stantly arising. With reference to these, the country profession practise in the dark. Unassisted by the advantages of forensic discussion, they very frequently repeat in their practice, by taking a certain view of the construction of an Act, an error which one decision of the court in Banc has served to guard the Toronto Barristers from falling into. Thus a vast amount of litigation is entailed upon the outer districts which would be nipped in the bud by throwing greater facili- ties for information in the way of the country practitioner. Both Mr Cameron's Digests and his Jurists have proved very inadequate to remedy these evils. For the memory of the ear—of a thing argued and decided in your hearing in open Court— is much more strong than that of the eye. The writer is glad to be able to adduce the opinion of Judge Macaulay to support this argument. The writer, being a student at the time, was argumg his first case before him in Chambers. « Well,, Mr ," said the Judge, "How do you like the law V'^ Of course he liked it immensely. "Well," said the Judge, " for my part I found it very opaque : let me recommend you not to pay so much attention to ele- mentary reading as to the careful preparation and thorough understanding of the cases which come under your hands; then watch them to the last stage when you hear them argued and decided in Court, and the principle or point decided will fix itself irrevocably on your mind ; whereas you may pore very long over elementary treatises, and rise from them after all with a md even ihen given to the unsel. These ', such is the Canadian so- ir Statute law, jses are con- ;, the country isisted by the ery frequently n view of the le decision of I the Toronto 1st amount of istricts which greater facili- y practitioner. Jurists have (vils. For the j ad decided in! •e strong than > be able to 3 support this the time, was ers. « Well,,i ike the law *?" ;11," said the que: let me 3ntion to ele- paration and I come under stage when| )urt, and thej revocably oi\\ J long over; ^er all with a' 17 very indifferent understanding of what you have read." Again, new points of pra(^ice, an acquaintance with which is of vast importance to the professional man, are continually arising, and are decided before the Judges in Chambers. Of these (the Jurist being barely sufficiently large to publish the current reports) the country practitioner is left in total ignorance until his agent informs him that his writ has been set aside or his judgment upset for some new fangled irregularity. Mr BouLTON's "Imprisonment for Debt Bill" was prolific oi these events. Now, all this entails expense upon clients. The evil IS one which we will not say can he wholly remedied; for, as we said before, some tiegree of centralization in the final proceedings of litigation is essential. But that the evil can be remedied in a great degree, we know. The sitting of two Courts, one at Toronto, the other at Kingston, would throw open to nearly the whole Bar the easy means of attending the Courts in Banc them- selves mstead of employing agents. At present, the lawyers West of Toronto attend Term much oftener and in much greater numbers than those to the East- ward of the Newcastle District. Let it not be forgotten that while we gain the advantages above enumerated by fixmg one Court at Kingston, we secure the Court of Appeal ; and secure, moreover, the same laws for both sections of the country. Again, let us view the Toronto plan, with reference to the fact that the two Courts they desire to have would have a concurrent jurisdiction. We need hardly mention even 10 unprofessional readers that in England the Court of Common Pleas was the Court, out of all those now existmg, originally having jurisdiction over all Common Fleas, or suits between subjects of a civil nature. The Court of Queen's Bench had criminal jurisdiction ; the C <^ ',i* I i« .{-■ interference/ JJlX" inSn-^^'rht'eft history of the aw th^, ;f ^"u ' '° rmmuni- it were, ncrease idiction. -ontend lave we igland ; its ge- ion, its ugh in e must institu- pt it to e live, ciples, s of a laws i I 1 19 remain unchanged. But let us not again, with the same reckless haste, which has entailed upon us the cumbrous machinery of the Court of Chancery, run our heads into a noose. Of what advantage then can the cowcwrrcw/ jurisdiction of two Courts, both sitting at Toronto, be to the country ? We have already shewn that with reference to the relief of the Judges or the fear of political bias, or the necessity of review, there is a better plan. The concurrent jurisdiction would not be understood, or work well here : one Court might, and probably would be ovei-loaded with business, while the other would be unoccupied. Thus -the new Court would be cumbrous, useless, expensive. Whereas by carrying out the petition of the Kingston Bar, there would be but the same jurisdiction as now CTcisting, except that the labors oi It would be divided among a greater number, and that thereby its business would be better and more easily disposed of. JVow let us view the Toronto plan with reference to patronage and expense. There would have to be,— 1st, a Clerk of the Crown, as at present,— 2nd, a clerk ot the common Pleas ; both at Toronto. Now, Mr Blake proposes to meet this by a fixed salary for each, and a fee-fund. He says the fees of the present clerk are very high, and that fixing the salaries at £500 each, and leaving the fees to go into a fund, the salaries would not only be paid, but there would be a surplus sufficient to cover the extra salaries for the new Judges. Now m the first place, the funding of the fees, and fixing salaries, can just as well be done under the system proposed by the Kingston Bar as under the other : the benefit, if any may be expected from it, is not peculiar to the Toronto plan alone. Secondly, did Mr Blake take into consideration the fact that in the present im I 20 Crown Office there are five or six salaried clerks con- stantly employed, all of whom have to be paid out of the pocket of the Clerk of the Crown? Did he re- member also, that instead of one Deputy Clerk in each district, there must be two ; for the clerk of each Court at Toronto being responsible for any misconduct of his deputies or servants, would of course have the ap- pointment of whom he pleased to trust ? Did he make any enquiries into the emoluments of the deputies, through whose hands in each district now passes the whole mass of business proposed to be divided between two Courts? If he did, he would find that even £100 m the most populous districts would be more than the •average annual salary of the deputy? Suppose, then, both the Courts under the Toronto plan do an equal amount of business in all the districts ; you must give salaries averaging £60 to each clerk, for continual labor, in an office for which he must pay rent, and then tell him to live ! Or, the only other two alternatives, you must either double the fees in both Courts, and of course in doing so double the disbursements of every man who goes to law! Or you must fix the salaries of the dep- uties at some decent remuneration, and for fearof bring- mg the country about your ears, leave the fees which suitors have to pay, to stand as they are; and so, eat up with twenty deficiencies from the twenty districts the one surplus at Toronto which was intended to cover the expenise of the Judges' salaries ! Now, be it remem- bered, by carrying out the petition of the Kingston Bar this diflSculty in the financial part of tbe matter could not occu.', for the deputies would be m imn^, and ;)o other than they now are, and the .^ Cierk of the Crown would be paid by that half of the fees which would be withdrawn from the Clerk of the Crown at Toronto, in consequence of the removal of one half the bsiP'fl^ss ; or both these superior clerks might be paid 21 salaries, as suggested by Mr Blake, and the lees fould go to pay them, and the surplus, if any, to wipe ff the new salaries of new Judges; for under this plan Jiere would be no deficiencies in the other districts to lake up ; the deputy clerks being remunerated just as fell as they are now. Let the reader turn to the Appendix, Tables F and G, le respective plans of the Toronto and Kingston Bar -they will see that where the Kingston plan equalizes ie funded fees, and the charges against the fund, the 1*01 onto plan leaves a deficiency of XI 600 in the fee- iiid. Where the KingvSton gives the fund a surplus of 1200, the Toronto leaves a deficiency of X400, and on ; the highest surplus in the Table of the King- Son plan being i;2000; the highest in the Toronto Fable X1200 ! This is accounted for by the fact, evi- jent on the face of the Tables referred to, that the [umber of deputy offices is doubled by the Toronto [lan, and of course the chances of a surplus diminished V more than one half more than they are by the Kingston plan. And of course so these figures would rork ad infinitum. The Kingston plan would always jcrease a surplus or diminish a deficiency by one half ^hen compared to the Toronto plan. Now, under the ^oronto plan, with reference to the question whether le appointment of 19 new deputies could be avoided ? .Lnswer; it could not, for independent of the fact that Plurality of oflfices is an unjust thing, it would be pro- Juctive of great confusion and evil to have the same tDfficers for both the Courts. Add to this the fact that vhile (vide Appendix, Table G, 4th view) you are l)bliged to place, under the Toronto plan, the deputy klerk's fees at the minimum rate, and the possible total M fees at the highest rate, in order to get a surplus of JE1200, under the Kingston plan (vide Table F. Part jjll.) if you place the whole fees at the highest rate, and m i 'i! M f I 22 ! Ml lli m Wed a ttings of I We mu Clerks ow, th( ducting liich or tuation We ha nefit tc the K milarly the deputies' emoluments also at the highest rate (ati average of .£80 to each), you get the same surplus oi| £1200! And even placing the possible toial of fees at the minimum £2800 (vide Table F, Part H.) and the deputies* emoluments at the highest, you make the fund pay its own charges, whereas by doing that en the Toroiiio plan, you get a deficiency of £1600 ! Now, we contend that an average of £80 is not too high to fix the deputies' emoluments, for even then you could not have more than three appointments as high as £150, and there are more than three districts where the duties are bona fide worth this. The result then is, that with any degree of justice to & questio the deputies, you cannot follow up the Toronto plan districts without having a deficiency in the fund, even placing jbng sine the whole fees at £4000, the highest mark — (vide the ^hy we calculation carried out in Table G, 2d view.) 1 Toron After you have arrived at this conclusion,you must turn Istitutio to Tables D and E and you will find that the Toronto plan as to Judges, makes a nett deficiency of £3300 ; add to this the deficiency caused by deputies from Table G, 2d view, and you have £3700 as the additional l^ould b charge on the revenue by the Toronto plan ! Whereas, ^e cour (vide again Tables C and E), the Kingston plan, as to ^ye tvs Judges, leaves an additional charge on the revenue of t^ould b only £1700 — ^nd giving us the same advantage we have i^ect ( given them, of the supposition that the whole fees of jigency the office of the Clerk of the Crown are £4000 (vide sequent Table F, Part III), you must deduct £1200 surplus Queen'i from this £1700— leaving the nett additional charge on i»ittanct the revenue by the Kingston plan only £500, while at the same time you remunerate the deputies at the highest rate mentioned in any of the Tables ! Our Tables we think sufficiently elucidate the finan- cial position of the question. In Table 11. we have #t poi sly in d she Doubl I 23 -1 est rate (allded a short synopsis of the arrangement for the e surplus oifttings of the Courts according to our plan. to;al of fees! ^e must not forfet that by the Toronto pi in a new set II.) and thei. Viierks of Assile, or marshals, would be necessaiy. .ke the fund !„,*; the present emoluments of these gentletnen. that on thelj ',:„„ travellini; expense, sare small; and it that ><" E ole enjoysr two are hereafter to enjoy, the 10 is not tooltuation will hardly be a fair remuneration, en then you 1 «- have based our arguments wholly upon the public ■ ■ ' "efit to be obtained by carrying out the suggestions If the Kingston Bar. In Lower Canada, a country Carly shuated with our own with reference o such •"uestfon, the .system of divided J""f •^g".^"; *t istricts of Quebec, Montreal, and Three Rrvers, has ;ven placing f,ng since been established, and we are unable to see k— (vide the •by we should not follow a good example. V.) I Toronto has had enough of monopolies out of public stitutions. She can afford to come forward gener- isly in a plan calculated to promote public welfare, id she ought to do so. „ . t» Doubtless the plan proposed by the Jr"»° J?^ lould be advantageous to them bu would It be so o ts as high as tricts where ^ of justice to 'oronto plan ?ven placing ou must turn the Toronto ^ of jCSSOO ; jputies from he additional fould be advantageous to them, dui wouiu .. -^ ^^^^ ! Whereas, Iq country'? Instead of one agency, ^^^y would then .n plan, as to |ve two ; their charges on the country profess o„ e revenue of fould be doubled ; and when we add to this that by the tage we have effect of Mr Sherwood's new District Court urn, /hole fees of fcncy business will be increased by the charges^con- £4000 (vide ^quent upon getting issues >c. ^_irected out of ^ne 1200 surplus Queen's Bench to the District Court, a miserable lal charge on pittance will be left to the country practitioner. Un 100, while at Ee contrary, our plan will in every point of view tend ►uties at the § keep to the country practitioner the emoluments ol ss ! m own business. If men must give money to lawyers. He the finan- they will see it expended again at their own doors and 11. we have fbt poured into Toronto. 24 !U ! With an earnest desire to see our proposition treatec with that fairness, candor, and attention, which its importance demands, we leave it to its late. APPENDIX. Staten gra\ to I hie 20 D am uti( 10( Dc 6C1< Bala T A B L E A. Part I. Statement of probable nett emoluments of the ^^f\f}j^' ^ Crovm, at present, supposing the grand total of tees ^ of the principal and subordinate offices to be 2,8UU/. , There are 20 Districts in the Province, ^ one Deputy in each; taking one with the other, the Deputies' salaries actually aver- age about 40/. each ; say in round numbers 20 Deputies— this, at the above mentioned, average to . • • * m * * ' There are in the Crown Office at Toronto, 6 subordinate salaried clerks, at an average salary, say 50/.— average is probably much higher, Mr Coxwell we feel sure gets at least 200/., . . * * / Balance of fees, being nett emoluments, Syst er 1 Vi 1 C 4P £800 i^ ^9 Pla 1 ( 1 A 3O0 17O0 Total, je2,8O0 ition treated'^ , which itsf e Clerk of tk. total of fml he 2,800/. * ice, the ^^er- 3ers led, • into, rage luch s at £80(1 f 25 Part 11. Statement ofnett emoluments of sam office, supposing .ZTfntal of fees of principal and subordinate offices hie to mppose they toould reach, 20 Districts, each one Deputy--probabl^ ^ amount of nett emoluments of all the Uep- S ak^r paying half fees to CHerk Crovvn 1000/.— to an average of 60/. to eacn ^^^^ Deputy,. •.',•* * * 600 6 Clerks, say 100/. each, . • • • 3400 B alance of fees, being nett emoluments, . ^^^^ mi . . ^4,000 Total, TABLE B. ^ .^^ . System of Judicature as at present in farce, with refer- ence to salaries. jEl 500 1 Vice Chancellor, . • • ' ' j*qqq 1 Chief Justice, . • • • * / o'goo 4 Puisne Judges, at 900/. each, . • • -^^^"^ Grand total, .^.^^. • ' ^^^''' TABLE C. Plan of Judicial system proposed hy the Kingston Bar. mth reference to salaries of Judges, Jt Toronto. 1 Chancellor, . . • . • 1 Vice Chancellor, . . • • jG 1,000 800 30C I 17O0 1 Total, Court of Chancery, . 1 Chief Justice Queen's Bench, . ,3 Puisne Judges at 800/. each, . £1,800 1,000 2,400 £2^0 m Total Court of Queen's Bench, at Toronto, . ^3,400 26 1 nu- r T . *^^ Kingston, 1 Chief Justice Court Queen's Bench, . 2 Puisne Judges at 800/. each, . Total Court of Queen's Bench, Kingston, Grand total, Judges* Salaries, TABLE D. 1,000 1,600 X2,600 je7,800 Plan of Judicial system proposed by the Toronto Bar tmth reference to salaries of Judges. ' , ^, ■ , *^i Toronto. 1 Chancellor, 2 other Equity Judges at 800/. each. Total, Chancery. . 1 Chief Justice Queen's Bench, . 4 Puisne Judges at 8001. each. Total, Queen's Bench, . 1 Chief Justice Common Pleas, . 2 Puisne Judges at 800/. each. Total, Court of Common Pleas, Total amount. 1,000 1,600 ^2,600 1,000 3,200 .£4,200 1,000 1,600 2,600 £9,400 OA . r TABLE E, Additional charge on the Revenue, 3,300/. 'Sm: 27 Cost of Kingston plan, . ■'., Present system, Additional Charge, . . . Charge on Revenue o /er and above *Jjvhat Kingston plan would cause, oy adopting the Toronto plan, . 7,800/. 6,100 1,700/. . 1,600/. TABLE F. Flan of Judicial system, proposed by the Kinsstm Bar with reference to the office of Ckrkof the cfJm. ' " ' PART* 1 A new Clerk of the Crown to be stationed at King- ston with the emoluments which would fall to him by the fees arising on the present tariffs, within the Divi- sion over which his Court would ha;e jurisdiction say 1.400/., or 2,000/., as the case may bi subtc?to he reduction of his deputies, which would ikve ever^ thing as It now is ; creating no new office. buronTv d viding an old one. the emoluments of which have hitherto been too large. ' • J; . PART 11. If'total fees 2,800^, fund them, , /gOO ^^^''' Charge against the fund 450/. for. ' Clerk of the Crown in each Division, To each Chief Clerk for subordinates, loO/., . . , ^ ^ . 'r^ each Deputy a salary averaging u V^ V' ^^ ^^ apportioned among them by the Executive Government according to the ratio of population, 20 Deputies, . . . 900 300 1,600 '-i iiJL £^Bpp £2S0a 28 ' PART III. If total fees 4,000/., fund them . Charge for 2 chief clerks as before, For subordinates as before, To deputies as before. 4,000 900 300 1,600 Deduct, ^4,000 ^62,800 2,800 Surphis fund. ^1,200 PART IV. 1st— if total fees 2,800/. fund, . 2d. Principal Clerks as before, 3d. Assistants as before, 4th. 20 Deputies at 40/. each, average . 2,800 900 300 800 Total, . Surplus fund, . ^2,800 £2,000 £800 PART V. 1st. If total Fees 4000/., fund, . £4,000 2d. Principal and assistants as before, charge . ... 3d. 20 Deputies, average 40L each, . 1,200 800 Total, Surplus fund; . £4,000 2,000 . £2,000 TABLE G. Shewing effect of system proposed by the Toronto Bar, with reference to afflte of Clerk of the Croton* 1st VIEW. Fund. Charges, 1st. If total fees 2,800/. fund them 2,800 2d. TviTo principal Clerks' nett sala- • ries, say 450/. each as before, charge 900 29 3d. To "each for assistants as before, m his own office, 150/., charge 4th. 40 Deputies in round numbers, at average salary of 80/. each, to be appointed as mentioned in Table F, part 2, whole charge, . 300 3,200 Total, Deficiency in fund. . £2,800 4:4,400 .£1,600 2d VIEW. 1st. If total fees 4,000/. fund them, £4,000 2d. 2 Principal Clerks as before, 3d. To each for assistants as before, 4th. 40 Deputies as before. 900 300 3,200 Total, . Deficiency in fund. . £4,000 £4,400 400 N. B. Refer to Table F ; these deficiences occur by makmg the same charges which in 1 able F, Part 11. balance the account, and in Table F, Part IIL leave a surplus fund of £1,200 ! 3d VIEW. Fund. Charges, 1st. If total fees 2,800/. fund, . . 2,800 2d. 2 principal Clerks' nett salary, . ' 900 3d. Assistants as before, . . . 300 4th, 40 Deputies, average salary say 40/. each, to be appointed as before, 1 ,600 Total, . £2,800 £2,800 fi u 30 \ 4th VIEW. 1st. If total fees 4,000/. fund, . . 4,000 2d. Principal Clerks* nett salary as before, . .- . . 3d. For assistants, . . . ., 4th. 40 Deputies at 40/., average, 900 300 1,600 Total, Surplus fund. . ^4,000 .£2,800 . £1,200 N. B. Although the principle on which these figures would work ad infinitum in favor of the Kingston plan, is perfectly plain, and alluded to in the bodv of the letter, we have adduced the tables to shew the aclvantage of that plan in every point of view to the meanest comprehension. i {' TABLE H. Kingston Plan with reference to sittings of Courts, 8fc, I Court of Q. B. Toronto, 4 Judges. 1 . " Chancery, Toronto, 2 Judges. I " Q. B. Kingston, 3 Judges. I " of Appeal, Torow/o — Judges — tlie nine Judges of the other Courts. The question of Term sittings, and sittings in Ap- peal, are questions of detail so easily settled they need not be mentioned here. "■***«»»• 31 PETITION. To^ the Honourable the Legislative Assembly of the Province of Canada, the Petition of the undersigned Members of the Bar in the Midland District, Humbly Sheweth : thTi% ^°'"' P^^i^'OiJ*" understanding that the present state of befoi th?n"? °^ 'r ' ^'""T'' ^'^ Upper Canada has bee" broight biffore the notice of your honorable House with the view of crea- StuuS'lT tL'^"" • i-^'Tr' !'' '''''' a„,;ndm:;ts'in7h; «t?tP In i I, ^ !f 'i',"^ tribunals, beg leave respectfully to Thpv ? n"' *^°""'-'»^'« P«"«e t»'eir views on this subject. ^ b«^ nf ?i ^r"?"' '"."^^^'^ *:P'"'°"« expressed by other mem- ufhnli • ^A ''^" ■ profession that the present Cour[of Appeal is wholly inadequate to afford speedy and cheap justice to the suhor fn wS:?"'!!'^-'^^' the nec'essit; of the foSon oTa r b" ^1 in which the decision of the several Superior Courts of the Pro- vmce shall be promptly reviewed. ^"urw oi ine rro- They are also aware that great and perhaps iust outcrv has been made m all parts of the Province, and aLL aluSs of the community, against the excessive delays andLormou? ex- S^nltTtut^ed?"'^"' "^°" ^'^ ^°"^' '' ChaLery as ar^prLe" th^Tp7.iF"'^'r ?** *^* P'"" suggested for the remedying of these evisis the formation of an additional Court of Common Chrnce;;'."'''^'' "^"^ ^'^^ ^^^^'"^ ^^ the judges of the CourTof hp^!?J'"' '^''''"'/\'?^ the merits of this proposal, your Petitioners r!^Mn • ••''fP«'^tf""yv»« «t<^t«to yourhonorableiiouse, thatX residing iR the eastern portion of the Province o^ Upper CanaZ' have felt great inconvenience, and their clients and '^hrpuWic at* i^r^i: dUtr:l"'r'' inJury.ndloss.i„ co"„c'e"orth K« S .5 ?*^5''/'''^f"^ *" ^h^ seat of the present J;ren7ete:r'"'''^'^^^"^ ''"-"-« «'-'n^ current' JuhS," ^'""''t'i^' ^°'''"'^'°" «^ «* C°"'t having con- current Jurisdiction with the present Court ot Queen's Bench w 32 would create a rivalry subversive of the ends of Justice — while the principal objects sought to be obtained would be ensured by the creation of one having lonal Jurisdiction in the eastern section of the Province : The union of these Courts would form a Court of Appeal from every inTerior Court, which would ensure uni- formity in their decisions and establish a permanent system of Jurisprudence. In addition to the fact that the object of the Toronto Petitioners, — a Court of Appeal formed upon a sound and practicable basis— > will then be obtained, your Petitioners would urge upon your Honorable House the obvious justice of their proposal with re- ference, not alone to the members of the Bar, but to their clients in the Eastern Section of the Province ; they would also call the attention of your Honorable House to the fact that by the estab- lishment of a Court of Common Pleas at Toronto with three new Judges, an additional expense of three thousand pounds would be entailed on the Province; while by withdrawing one of the Puisne Judges from the Toronto Court, and appointing a new Chief Justice, and qne more Puisne Judge, far the Court of Queea's Bench of the Eastern Division of Upper Canada, with Salaries as follows. Chief Justice, £1000. New Puisne Judge, 800. Removed do. 800. an additional expense of only £1700 per annum will be incur- red ; and at the same time the vast delays which have hitherto taken place, will be avoided. Humbly praying that your Honorable House may take this eubject into serious consideration at your earliest convenience, Your Petitioners, as in duty bound, will ever pray. EXTRACT FROM TORONTO PETITION. ■' "Your Petitioners would propose two Superior Courts of Common Law Jurisdiction should be erected, in lieu of the one which now exists, in each of which three Judges should preside ; and that the Court of Chancery should also be presided over by three Judges. This simple alteration would be attended with but little expense to the public. It would, indeed, in our estimation, result in a saving to the public, regard being had to the extent of litigation which would thereby be avoided. Possibly your ho- nourable House will be enabled to combine these advantages with such other alteration as may render the plan, on the whole, effectuate a retrenchment." i i >t i' . ;(•»