Dear Sir:

FROM J. G. SIMCOE TO ALEXANDER MCKEE.

NAVY HALL, June 15th, 1794.

I have been duly favored with your communications. I hope the Indians will collect in sufficient numbers to meet their opponents. Brant and O'Beal are probably by this time met at Caterogeras,' and seem both determined to oppose the United States establishing any Post at Presque Isle.

I totally disapprove of any person not usually trading to the Indian Country passing the Post at the Miamis. You will be so good as to state this opinion to Captain Stiell, and desire that he will in all cases assist you to prevent such improper conduct, and I beg that he will inform Lieutenant Colonel England that such is my direction. His passport of course will always carry with you its due consideration.

I beg of you to communicate to me in the most speedy manner that you shall think fit all information you may deem of importance, transmitting a duplicate as far as may be necessary to the Commandant at Detroit.

I beg my compliments to Captain Elliott and Mr. Selby and your son. I congratulate you on your late appointment, which I hope will soon be universal.

I am, &c.

J. G. SIMCOE. Lieut. Governor of Upper Canada.

Colonel McKee.

SPEECH ON THE JUDICATURE BILL, IN THE LEGISLATIVE COUNCIL, MONDAY, 16TH JUNE, 1794. BY THE HONOURABLE RICHARD

CARTWRIGHT.

There is no measure more incontestable in politics than that a government should be formed for a country, and not a country strained and distorted for the accommodation of a preconceived or speculative scheme of government; that in all the several departments of it, it should be calculated for performing the business of the department in a manner the least tedious and embarrassing to the public, rather than for conferring splendour and emolument upon individuals. This is a principle that every man who is called to the important business of legislation should bear constantly in mind, but more especially so when he comes to deliberate respecting the mode of administering justice, in which every individual is, more or less, immediately interested. And as the British Legislature has left us unrestrained in everything that does not militate with the constitution they have given us, apprehend we are at perfect liberty, in the present instance, to pursue this principle to its full extent. Since the settlements which were formed in this country after the American War began to acquire any degree of stability, that part of the administration of justice which relates to property and civil rights has been managed by Courts of original and exclusive jurisdiction (subject to the revision of a Court of Appeals) erected in each of the districts into which it has been divided.

1 Cattaraugus, N.Y. where the Senecas had a large village.

In these Courts every cause might be, and has been, decided with very little expense of time and money to the suitors; how greatly to their satisfaction, let the solitary instance of a single appeal determine. This arrangement was formed under the auspices of a noble Lord who has ever bestowed the most friendly and paternal attention to the welfare of this Province; and though I feel, from the experience of my own personal incapacity, that the Judges who preside in these domestic tribunals as I may without impropriety call them, may in one instance at least be changed with advantage; yet I do not hesitate to affirm that, regard being had to the circumstances of the Province, the constitution of the Courts themselves, can be altered only for the worse. Yet this establishment, so well adapted to the nature of the country, the present Bill is intended totally to overturn, and to erect in its stead a system which, by the expense, delays and embarrassments that must necessarily attend it, will infallibly operate as a denial of justice in nine out of ten, I had almost said ninety-nine out of a hundred cases that our small and uncomplicated affairs are likely to produce. In England, where the system now proposed to us has long obtained, the "law's delay" has been frequently and pathetically declaimed on as one of the great evils of life; yet, in point of size, England is hardly equal to the smallest of our districts; the territory is compact and crowded with an immense population; the intercourse from the centre to the extremities, and from one part to the other, is easy and expeditious; professional men swarm in every quarter; and the City of London, the great emporium of the commercial world, where the Court is fixed, furnishes of itself at least nineteen-twentieths of all the suits in the Kingdom. But let us look around and see if there be in our situation the smallest analogy to this. With a thin population scattered over an immense extent of country, interrupted by inland seas and large tracts of uninhabited lands of from two to three hundred miles in extent, without communication or intercourse for at least five months in the year, with but a single lawyer within the compass of more than seven hundred miles, and where every part is equally barren of intricate or important subjects of litigation;-is there any similarity in the circumstances of the two countries? Can the same judicial arrangements be at all applicable to both? To persist in the attempt to make them so will literally be bringing the mountain to Mahomet; or saying like the famous tyrant of antiquity, "Here is our standard; if we are too long we will lop you, if you are too short we will stretch you to our dimensions." But let us hear Mr. Justice Blackstone, with all the prejudices of a professional man about him, on the subversion of the County Courts in England; for even in England itself, for its infinitely smaller subdivision of counties, the system that now actually obtains in this Province was the original one, and was overturned, not by the calm, deliberate voice of legislation, but by the violence of invasion and conquest. After speaking of other changes that had been attended with the most injurious consequences, he says: "A third alteration in the English law was by narrowing the remedial influence of the County Courts, the great seats of Saxon justice, and extending the original jurisdiction of the King's Justiciars to all kinds of causes arising in all parts of the kingdom. The constitution of this Court, and the Judges themselves who presided there, were brought from the Duchy of Normandy; and instead of the plain and easy method of determining suits in the County Courts, the chicanes and subtleties of Norman jurisprudence were introduced into the King's Courts, to which every cause of consequence was drawn." Here behold the change in contemplation completely anticipated. And if this Bill should pass, our posterity will find some future historian of the colony deploring, in similar language, the pernicious innovation, and reprobating the folly of our ill-judged acquiescence. For most unquestionably it will have the same

effects upon our mode of administering justice that the Norman invasion had upon the English, except that from the great difference of local circumstances already stated, its operation must be proportionably much more injurious. For see it comes with all the glorious uncertainties of the law in its train, holding out wealth and distinction to the man of law, but poverty and distress to the unfortunate client. It comes with its multifarious actions of debt, covenant, account, assumpsit, case, trespass, trover and detinue-distinctions without essential difference, running into endless mazes where even the sages of the profession have themselves been frequently bewildered. It comes with all its hydra of demurrers, rejoinders, surrejoinders, rebutters, and surrebutters, and all the monstrous offspring of metaphysical subtlety begotten upon chicane, to swallow up our simple forms and modes of process which are easy to be understood and followed by any man of plain sense and common education. Here let us pause a moment and ask ourselves if this be indeed a desirable change. But admitting-what, however, is not intendedthat these technical perplexities might be done away, let us examine simply the consequences that must inevitably result from the constitution of the Court itself. It is to be fixed, if we are to judge what has hitherto been, and what has been talked of as the seat of government, rather in the geographical centre of the colony, than with any attention to its population. The eastern district at least, if not the western, far outnumbers in inhabitants the other districts, and, consequently, are likely to furnish the greatest number of lawsuits; yet the man who has cause of action in the eastern or in the western district must travel from the River Raisin perhaps, or the River Tranche, across Lake Erie, or a hundred miles up the River St. Lawrence and across Lake Ontario, to sue out his process at Newark or York; he must travel back with it, to put it into the hands of the Sheriff of the district whence he came; the process must go back again to the place whence it issued; the defendant must resort thither to put in his pleas, and the plaintiff trudge back again to make his reply. Six months afterwards, it may be nine or twelve months, a Court of Assize may be held in the district where the cause originated, and the issue be tried by a jury if both parties are disposed to come to trial. But the matter ends not here; the plaintiff or defendant, as either may have been so far successful, must the next term go back again and move for judgment, which he will probably obtain, unless he should be opposed by a motion for a new trial, or in arrest of judgment, which, if his money and patience holds out for another journey or two, may possibly be settled in a couple of terms more; so that, on a moderate computation, if the parties do neither of them wish to protract the business, and are tolerably diligent, they may probably bring it to a conclusion in about two years. And with respect to the two most distant districts which I have named, it is hardly possible for the routine to be completed in a shorter time. But should any studied delay be interposed, it is impossible to foretell how long it may last. But gentlemen will perhaps say that this arrangement will soon bring lawyers among us, and then the business may be managed more expeditiously. Yes, we all know how anxious gentlemen of the law are to bring suits to a speedy termination. Yet, were this not the most palpable irony, as the same circle must be trodden round, I cannot see that, with their utmost diligence, the time I have calculated for the duration of a cause could be at all shortened. But admitting that it might in some degree, the business of the country is by no means equal to support respectable characters of the profession, and the House need not be told that the understrappers of it are the greatest pest that a society can be cursed with. I have thus endeavoured to point out some, for it is impossible to foresee and enumerate all the evils with which, under our circumstances, this Bill is pregnant. I trust, however, I have

said enough to convince the House of its inexpediency, and to induce them to set their faces against it, as a measure, I will not say calculated, but certainly tending to swell the importance and fill the pockets of the professors of the law, rather than promote the speedy and effectual administration of justice; and that they will support me in the motion I now make that this Bill be committed for this day three months.

(From the Life and Letters of the Hon. Richard Cartwright, pp. 67-72.)1

Monday, June 16, 1794. "The House met pursuant to adjournment. The Order of the Day being read,

'A Bill to establish a Superior court of civil and criminal jurisdiction and to regulate the court of Appeal,' was read the second time; and the question being put, that this Bill be now committed,

"Mr. Cartwright moved that the consideration of the said Bill be taken in Committee of the Whole House three months hence.

"Mr. Hamilton seconded the motion, upon which the House divided, and it was carried by the non-contents.

Monday, 23rd June, 1794. "The House met pursuant to adjournment

"The Order of the Day being read, read as engrossed,

"A Bill "To establish a Superior court of civil and criminal jurisdiction and to regulate the court of Appeal.'

"And the question being put: That this Bill do now pass,

"Mr. Cartwright objected to the question by moving that the passing of the said Bill be put off for six months.

"Mr. Hamilton seconded the motion, which was negatived, and after some debate, the House divided upon the motion, which was negatived, thereupon ordered: That the said Bill do pass, and be sent to the House of Assembly for their concurrence.

"Upon which protest was entered as follows, to wit:

"DISSENTIENT

"Monday, 23rd June, 1794.

"Because we consider the mode of administering justice under the present Bill, so far as it respects property and civil rights, to be wholly inapplicable both to the geographical and political situation of the colony, by which we ought to be guided in every measure that does not militate with the Constitution which our parent State hath given us, for though a Supreme Court from whence all process is to issue and in which every cause is finally to be adjudged, may be proper in England, which in every point of size is hardly equal to the smallest of our Districts, where the communication is easy and expeditious, and where the city of London, in which the Court is fixed, furnishes the greatest number of all the causes in the Kingdom, yet in this Province, with a thin population scattered over so immense an extent of country, where the mass of that population, small as it is, is situated in the District most remote from the place where the court is to be held, divided from this by inland seas and large tracts of waste lands of from two to three hundred miles in extent, shut out from all communication or intercourse for nearly five months in the year, without professional men or the prospect of sufficient business to support them, such an arrangement from the expence, delay and embarrassment that must necessarily attend it, appears to us highly to operate in many instances as a denial of justice, and it is evidently less founded in local expediency than the system which had hitherto obtained, of a court of original and exclusive jurisdiction (subject to the provision of a court of Appeal) established in each District, every objection to which would be at once removed by the appointment of a respectable professional character to preside in each.

And further, because under the plan of the present Bill, we are deprived of the voice of the Chief Justice in the court of Appeals, or even his opinion within the bias of a previous adjudication."

(Signed) RICHARD Cartwright, Junr.

R. HAMILTON.

We are thankful that you have attended the call of the Six Nations and that you have been preserved by the Great Spirit, (here he addressed the following Speech to the President of the United States.)

Brothers: I have for a long time aimed at the good of both parties, I have paid you different compliments as that of Brothers, Fathers and now I call you Friends. We were pleased when we heard that you was appointed to the Chief command of the United States.

The Great Spirit has so ordered that every Nation shall have some One to be their Head, you are to look over your people and settle all difficulties, and we the Six Nations expect that you will not be unmindfull of us but see that we have justice done us, as well as to your own people.

Brothers: We the Six Nations now call upon you we pay no attention to what has been done, heretofore by Congress, their proceedings we Consider as unjust, we wish for nothing but Justice and hope that will take place.

Brothers: You wish to be a free people in this Country, from the other side of the Water, and live here, and why should we not, we whose Forefathers have lived and died here and always had possession of this Country.

Brothers: We the Six Nations have determined on the Boundary we want established, and it is the warriors who now speak.

Brothers: You have the map on which the boundary is marked, which we want established.

Brothers: We want room for our children it will be hard for them to have no Country to live in after we are gone.

Brothers: It is not because we are afraid of Dying, that we have been so long trying to bring about a peace, we now call upon you for an answer as Congress and their Commissioners have often deceived us, and if these difficulties are not removed the consequences will be bad.

Eight Strings Wampum Black & White,

Brothers: We have opened this fire place for two kinds of business, we wish you to listen to them with attention.

Brothers: We are in distress; a number of our warriors are missing and we know not what has become of them, but suppose they have been killed by the Americans.

Brothers: Last Fall an Indian Chief of the name of Big Tree went to the American Army in a friendly manner and we have since been informed that he was killed by them.

1 Horatio Jones, 1763-1836, born at Downington, Pa.; a prisoner with the Six Nations, 17814; adopted by a Seneca woman, a sister of Cornplanter; interpreter for the United States, 17891803; died at Genesee, N.Y.