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THE

LIVES OP THE JUDGES

UPPER CANADA

ONTARIO,

FROM 1791 TO THE PRESENT TIME.

BY DAVID B. READ, Q.C.,
HISTORIAN OF THE COUNTY OF YORK LAW ASSOCIATION.

TORONTO :
RowsELL & Hutchison.

i««».

Entered according to Act of Parliament of Canada, in the year ot our
Lord one thousand eight hundred and eighty-eight, by David
Breakenridse Read, in the Office of the Minister of Agriculture.

PRINTED AND BOUND BY ROWSELL AND HUTCHISON, TORONTO.

CONTENTS.

PAGE.
Preface. . .  . . i
Introduction, . . . . . . . . . . 5
I. Chief Justice Osgoode,  17
2. Judge Powell,  28
3. Chief Justice Elmsley,  43
4. " " Alcock,  S3
5. " " Scott  62,
6. Judge Cochrane, . . . . . . . . 73
7. " Thorpe,  77
8. Chief Justice Campbell, . . . . 86
9. Judge Bo.ulton, . . ^  96
10. " Sherwood, . . . . . . . . loi
1 1. " Willis, . . . . . . . . . . 107
12. Chief Justice Robinson, .. .. 122
13. " " ' Macaulay,  148
14. " " McLean,  158
15. Judge Jones, .. .. .. .. .. 176
16. Vice-Chancellor Jameson, . . . . 188
17. Judge Hagerman, . . . . . . . . 201
18. Chief Justice Draper,  222
19. Judge Sullivan,  237
20. Chancellor Blake, . . . . . . 263

IV. contents.
21. Vice-Chancellor Esten,  284
22. Judge Burns,  294
23. Chief Justice Spragge,  299
24. Chancellor VanKoughnet, .. .. 314
25. Judge Connor, , . . . . . ¦ ¦ 328
26. " Wilson, . . ¦ • _ • • • • 337
27. " Morrison,  347
28. Chief Justice Harrison, . . . . 365
29. " " Moss,  387
30. " " Cameron, . . . . . . 404
31. Judge O'Connor,  42S
32. The Law Society,  435
33. The Advocates Society,  45°
34. Conclusion — Reminiscences, . . . . 462
Appendix, .. .. -  47 1

PREFACE.

|RITING the Lives of the Judges has been
to me a work of love as well as of duty.
I had long felt that a complete history of
those who were distinguished in the
Judicial History of the Province would fill a vacuum
that had existed for too long a time, and if not soon filled
up the material might be unattainable with which.
to supply the want. I would have been glad if some
other pen had taken up the work ; but as time wore on,
and the prospect of fulfilment darkened, I determined to
take the matter in hand. I had no sooner done so, and
gone a league or two on my way, when I really became
interested in the work. Being allowed access to the vault
of Osgoode Hall, I dived and delved till I found hidden
treasure that I determined to bring to the surface. I was
surprised to find how little I had known of the early
Judicial History of the Province : that being the case, I
felt that there must be others in the same condition. I
published the lives of the first half dozen of the early
Judges in " The Magazine of Western History," published
at Cleveland, in the State of Ohio, induced thereto by an
agent of that periodical requesting me to contribute
something to its pages — the magazine articles reached
this Province and attracted the attention of many of my
professional and non-professional friends — got access to
the shelves of the Parliamentary Library, the Library of
Osgoode Hall, the Free Library, the Library of the Law

2 lives of the judges.
Association of York, and other educational institutions,
which encouraged me to proceed with the work. I have
had also the unexpected honour of being appointed
Historian of the County of York Law Association, an
honour which I value, as the Directors of that body are
gentlemen of my own profession, who take great interest
in the legal and educational progress of this Province.
The writing the Life of a Judge would be an uninviting
task unless coupled with political and historical incidents.
I have in every case where a Judge has been distinguished
for political acumen, or military or martial pursuit, on or
¦off the Bench, not failed to mark the circumstance. I
have known no party in the progress of the work,
believing that every Judge has acted throughout life
conscientiously according to his light. During the course
of my writing, I have come across incidents in the lives
of several of the Judges which have given me a clearer
insight into the early history of the Province and the
War of 1812 than I possessed before. The battles of
Lundy's Lane,Queenston Heights,Fort Erie, and Chrysler's
Farm are rnemorable events in the history of the Province.
They have not escaped my notice ; nor has the capture
of York by the Americans been forgotten. The Law
Society, of which I was a Bencher for twenty-seven years,
has been given a place in the pages of this work as worthy
companion of the Lives of the Judges. I have ventured
to give a few of my own reminiscences, no doubt the least
interesting part of the volume : but added as a final winding
up of what I hope may prove to be a useful work, con
taining matter that will, at least, keep in remembrance
those of the Judicial Bench whose lights have gone out.
I have not obtruded upon the reader the lives of the
living Judges, for the reason that, being myself still at the
Bar I perchance might be called upon to plead before
chem, and deem it prudent to forbear. Their conscientious
discharge of duties while on the Bench will, I have no
doubt, be an incentive to some other writer at some future
time to do justice to the positions they have so well filled

preface. 3
I have, before concluding, to express my obligation to
friends who have encouraged me in my work. I am
especially indebted to Mr. Geo. M. Jarvis, of the Finance
Department, Ottawa, for procuring me information from
rthe archives of the Dominion, without which I could not
have attained the accuracy of statement of official appoint
ments ; also, for his obtaining for me information from
Australia which I have found useful and interesting in
¦writing the Life of Mr. Justice Willis. I have to thank,
the Librarian of the Ontario Assembly for ready access
to the books on the shelves of the Parliamentary Library.
With this short preface to the " Lives of the Judges," I
-commit the work to an indulgent public, asking forgive
ness for omissions or defects, and hoping that some profit
may be derived from a p6rusal of its pages, descriptive of
.the life and times of the Judges of Ontario.
D. B. READ.
Toronto.

INTRODUCTION.

The First Bench and the Act of 1791.
|N introducing to the reader the History of the
Bench of Ontario, I have felt that the
subject would not be complete without first
explaining the Constituti9nal Act of 1791,
as it was under that Act that Upper Canada got separate
existence, and following upon that, York, now Toronto,
became the capital of the Province.
Previous to the passing of the Constitutional Act, the
•condition of affairs — civil, political, and judicial — was so
widely different at different epochs that it will be
profitable, if not necessary, to pass in review the state of
affairs legal in the Province of Quebec during this ante
1791 period.
The old Province of Quebec was, by an Act of the
Imperial Parliament passed in 1791 — generally referred
to by the Judges as " The Act of the Thirty-first of the
King," with special emphasis on the word king — divided
into Provinces of Upper and Lower Canada.
The period extending from 1759, the date of the
¦conquest, may well be termed the revolutionary period of
the law of Canada.
It can easily be conceived that in a part of this
intervening period— namely, the period between 1759 and
1763, in which latter year the treaty of peace was come to
by Great Britain and France, by which the Province of

6 LIVES OF THE JUDGES.
Quebec was ceded to Great Britain by France — the state-
of the law and its administration in the Province were in.
a very unsatisfactory state. The population was a mixed
population, comprising French of France, French Cana
dians born in the Province, Indians, Metis or half breeds,-
English officers, English soldiers, and English traders, a,
large majority, however, being native born French
Canadians. The lot of these people was not happy ; the
civil government was military rule.
The country in 1760, soon after the articles of surrender-
were signed in Montreal, was divided by General
Amherst, the then Governor-General, into three districts,.
and English officers were appointed to the duty of
District Governor over each district, with a Lieutenant-
Governor over the whole. These district officers had a
council of other English officers to assist, and adjudged
cases brought before them, subject to the approval of the
Lieutenant-Governor. Up to the treaty of peace in 1763 the law which
governed was rather the law of might than of right. The
French Canadians had become a conquered race, and
were in the power of the conquerers. There was nothing
to show that the law was improperly or harshly
administered during this period. Nevertheless, with a
French population not understanding English, and an,
English tribunal not understanding French, it could not.
be otherwise than that differences and altercations of a
serious character should occur. On the one hand, the
French dearly loved their own laws, and did not at all
relish the change in government. The English were or
opinion that British subjects, as the French had become
by conquest, should be governed by and be willing to
submit to the English law pure and simple.
The case stood thus : By the twenty-first article of the-
Articles of Capitulation entered into at Montreal,
September 8, 1760, between General Amherst, Com
mander-in-chief of His Britannic Majesty's troops in
North America, and the Marquis of Vaudreuil for the-

introduction. 7
French, it was provided that the English General should
furnish ships for carrying to France the Supreme Court of
Justice, Police, and Admiralty.
The Marquis of Vaudreuil, by article forty-two of the
Articles of Capitulation, proposed " that the French and
Canadians shall continue to be governed b)' the custom
of Paris, and the laws and usages established for their
country." General Amherst answered this forty-second
article thus : " They become subjects of His Majesty."
The answer of the General, it will thus be seen, was short
but significant. Not only the correspondence that took
place between the two commanders, but the articles of the
capitulation, all go to show that on the one side the
Marquis was endeavouring to have preserved to the French
and Canadians their ancient laws and customs, while on
the other side (the English) the commander would consent
to nothing else than that the inhabitants " should become
subjects of the King," amenable to the laws and consti
tution of England.
The French, remaining in the Province after the
capitulation till the final treaty of peace was signed in
1763, were not at all satisfied.
There can be no doubt that military law is not in the
general pleasing to civilians ; and it may be that some of
those charged with the administration of the kind of law
imposed upon the Canadians were not the best qualified
for the duties they had to discharge ; but there is no
authority for saying, as is said by at least one French
writer of history, that " this martial system was adopted
in violation of the capitulation, which guaranteed to the
' Canadians the rights of British subjects." The history of
the time rather goes to show that the French Canadians,
though conquered, were not subdued. They still clung to
their own laws, and did not willingly submit to become
British subjects, to be governed by British law. It is not
surprising that this should have been the case. The
French Canadian, walking in the old paths all his life, and
his forefathers before him, for more than a century, could

o lives of THE JUDGES.
not easily be weaned from his old customs. Still,
" L'homme propose et Dieu dispose" — the fortunes of war
were against them. Without objecting to remonstrance
on the part of the French, the British officials demanded
peaceful recognition of the change and respect for the
newly constituted authority.
Military rule was finally brought to an end ; the treaty
of 1763 was signed ; the English colonists had reason
to believe that all would be well with them ; that the
French and French Canadians would be content ; that
there would be no protestation on the part of the French,
but that all would act together for the general good.
There is nothing in the treaty which gave the French
Canadians or French of France the old laws and customs
of Canada, the laws and customs which prevailed before
the conquest. There was a clause — clause 4 — by which
His Britannic Majesty agreed to grant the liberty of the
Catholic religion to the inhabitants of Canada — " he will
consequently give the most precise and effectual orders
that his new Roman Catholic subjects may profess the
worship of their religion according to the rites of the
Roman Church as far as the laws of Great Britain will
permit." There is not a line in the treaty about laws and
customs, though special regard was paid to the matter of
religion. Reading the capitulation articles and the treaty
together, it is apparent that the French, both by
negotiation and treaty, had the greatest solicitude for their
Church and their religion ; that the English appreciated
this, giving them very exclusive religious privileged and
rights, but always reserving the right of British law.
In October, 1763, a proclamation, under the great seal,
was published erecting four new civil governments in
America, namely, Quebec, East Florida, West Florida,
and Grenada. This proclamation stated " that, as soon
as the circumstances of the colonies would permit, general
assenablies of the people would be convened in the same
manner as in the American provinces, in the meantime
the laws of England to be in force." The issuing of this

introduction. 9
proclamation by the King plainly shows what his view of
the capitulation and the treaty was,. namely, that the laws
of England were to prevail in Quebec until altered by
¦competent authority.
Not two years had elapsed after the signing of the
treaty when the Governor-General, acting under instruc
tions, formed a new executive council composed of the
two Lieutenant-Governors of the two districts of Montreal
and Three Rivers, into which the Province had. been
divided, the Chief Justice, the Inspector-General of
'Customs, and eight other persons chosen from among the
inhabitants of the colony, who, with himself, should possess
-all executive, legislative, and judicial functions, This act
was a remodelling of the whole previous system.
A Court called the King's Bench and another Court
called the Common Pleas were established, following
English precedent. Both these Courts were bound to
render decisions based on the law and practice of England,
subject to appeal to the Executive Council.
In an ordinance of September, 1764, it was assumed
that the Chief Justice, sitting in the new Supreme Court
then existing, had full power to determine all cases, both
criminal and civil, conformably to English law and the
ordinances of the Province. Authors (historiographers),
both French and EnglLsli, or rather Upper Canadian, have
condemned the act of the King in issuing this proclama
tion of 1763 as a "rash and unwise measure, that it was
a great injustice to a conquered people to compel them
suddenly to submit to this law of the conqueror."
f he French soon showed their disposition not to be
content with government under British law. Neither the
forms of procedure nor the administration of the law met
with their approbation. Nothing seemed to suit them
but the " old regime." They argued, they discussed, they
remonstrated, they charged a breach of faith on the part
of the English Government — that they were promised
their own laws, including the old way of administration of
.those laws, instead of which they had English Courts with
2— L. J.

lO LIVES OF THE JUDGES.
English Judges and English procedure, and, to crown all,
the English language. This must not be endured. Peti
tions must be sent to the Imperial Government setting
forth their alleged grievances. The British in the colony
determined to uphold British law. The conflict goes on
apace. Neither party in the Province will give way.
They are pulling different ways. They are at cross
purposes — it is French or English, and God defend the
right. There is much ado about something, and some
thing must be done to put an end to turmoil and confusion.
Both parties in the state appealed to England to settle
their differences. It was great good fortune for the French
party that just at this time the British colonists in New
England were demanding from Old England relief for
their alleged grievances. The doctrine of no taxation
without representation was being pushed with great vigor.
A revolution of the North American colonies outside of
Quebec was looming up in the near distance. In the case
of actual war it would be wise on the part of the British to
keep in favor her French Canadian subjects in Quebec.
Now is the time of advantage for the French. " Nous
avons I' avantage'' A Bill is introduced into the House of
Lords to provide for the government of Quebec. It passes
the Lords, is sent to the Commons, meets with great
opposition there ; a committee is appointed, witnesses.
Sir Guy Carleton and Mr. Hay, the Chief Justice, are
examined before the committee ; the Commons finally
passes the Bill in amended shape ; the Lords concur ; the
King assents to the Act. The British in Quebec, who
believed themselves the conquering and dominant race,
are to change place with the conquered and submit to
French law, the authorized law for their guidance in the
conquered Province, the key of the whole of Canada.
This Act was passed by the Imperial Parliament in 1774,
entitled " An Act for making more effectual provision for
the government of North America." The eighth clause
of this Act enacted as follows :

introduction. I r
"His Majesty's Canadian subjects within the Province
of Quebec, the religious orders and communities only
excepted, may hold and enjoy their property and posses
sion, together with all customs and usages relative thereto,
and all other their civil rights, in as large, ample, and
beneficial a manner as if the proclamation, commissions,
ordinances, and other acts and instruments had not been
made, and as may consist with their allegiance to His
Majesty and subject to the Crown and Parliament of
Great Britain, and in all matters 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 ; and all.
causes that shall hereafter be instituted in any of the
Courts of Justice to be appointed for and within the said
Province by His Majesty, his heirs and successors, shall,,
with respect to such property and rights, be determined
agreeably to the said laws and customs of Canada until
they shall be varied or altered by any ordinances that
shall, from time to time, be passed in the said Province
by the Governor, Lieutenant-Governor, or Commander-in-
chief for the time being, by and with the advice and
consent of the Legislative Council of the same, to be
appointed in manner hereinafter mentioned."
By enacting that " in all matters of controversy and
civil rights resort shall be had to the laws of Canada as
the rule for the decision of the same " the old Canada or
French law was restored, and all His Majesty's subjects,
French and English, in the colony were, in civil matters,
placed under laws totally foreign to British immigrants
and those of the old British settlers who had been
accustomed to British law.
The speech of His Majesty the King to both Houses
of Pariiament, discloses the reason for passing that Act.
In that speech His Majesty says :
" The very peculiar circumstances of embarrassment irt
which the Province of Quebec is involved had rendered'
the proper adjustment and regulation of the government
thereof a matter of no small difficulty. The Bill which

T2 LIVES OF THE JUDGES.
you prepared for that purpose and to which I have
given my assent, is founded on the clearest principles of
justice and humanity, and will, I doubt not, have the best
effect in quelling the minds and promoting the happiness
of my Canadian subjects. I have seen with concern a
dangerous spirit of resistance to my government and the
execution of the laws in the Province of Massachusetts
Bay in New England."
The Act of 1774 enlarged the boundaries of the Pro
vince of Quebec south to the banks of the Ohio and
westward to the banks of the Mississippi, thus taking into
the Province of Quebec a territory and people of one of
the British North America colonies to the south of the
great lakes, and which afterwards, by the treaty of
Versailles in 1783, became part of one of the free and
independent United States of America. The Act had no
sooner passed and been communicated to the provincials
than the English party now irt their turn set about
protesting against the injustice done them in imposing
the French law on His Majesty's loyal subjects, British
subjects of the Province : the laws of the conquered race.
Petitions were sent to the Imperial Parliament asking for
a repeal of the Act. The discontented colonists of the
New England States, bent on revolution, were not slow in
urging the people of Canada to join them in their
intended resistance to imperial authority. The Congress
of the New England States, which met at Philadelphia on
the 5th of September, 1774, addressed the colonists in
Canada as " Friends and fellow citizens," and then
endeavoured to impress them with the advantage of their
confederation. During the American Revolutionary War,
beginning with the affair at Lexington and ending with
the treaty of peace in 1783, the law was administered in
Quebec under the Act of 1774 — the French law — and was
most distasteful to the British residents. At the time of
the passing of the Quebec Act of 1774, by which the
boundaries were extended, as already stated, so as to
include the inhabitants of the Ohio Valley, there were as

INTRODUCTION. 1 3.
many as twenty thousand people in that region who had
emigrated thitherward from other States. These people-
had enjoyed the benefit of British laws as administered in
colonial courts. They were not then disposed to accept
in their place the " Goutume de Paris" or any other
system of French law in place of the law to which they
had been accustomed. Thus a very large auxiliary force
was added to the small number of Anglo-Canadian
subjects settled in the districts of Montreal and Quebec, to
aid in protesting against the French law.
In 1784, following the treaty of peace between the
United States and Britain, a large number of subjects of
the King in the now enfranchised colonies .south of the
St. Lawrence and the great lakes who preferred Monarchial
to Republican government, and came to Canada, settled
on the banks of the St. Lawrence. These emigrants to
Canada, called the United Empire Loyalists, on their
arrival in Canada soon found that their situation was not
much improved if they were to be relegated to the old,.
and, in their view, antiquated laws of France. They left
the United States especially to place themselves under
British law, and this they determined to have. In this
particular they only held to the same opinion as had
influenced the people of the Ohio Valley when they,.
between 1774 and 1783, made their protest against being
governed by French law.
In 1788 Lord Dorchester, acting for the King, styling
His Majesty King of Great Britain, France, and Ireland^
issued a proclamation reciting the ordinances of the Pro
vince, dividing the Province into two districts, and
proclaimed that thereafter the Province should be divided
into five Provinces, namely : Lunenburg, bounded on the
eastern limit by a tract of land called by the name of
" The Lancaster Tract," the western limit of which should
be the mouth of the Gananoque River, or as then called,
the Thames River ; Mecklenburg, to adjoin Lunenburg
on the west, and to extend to the mouth of the river
Trent ; Nassau, to adjoin Mecklenburg, and extend

.14 LIVES OF THE JUDGES.
westward to the extreme projection of Long Point into
Lake Erie ; Hesse, comprehending all the residue of the
Province to the west ; Gaspd, all that part of the Province
on the south side of the St. Lawrence to the eastward of a
north and south line intersecting the north-easterly side of
¦Cape Cat.
By Provincial Act of Upper Canada, passed in 1792, the
four districts within that Province, namely, Lunenburg,
Mecklenburg, Nassau, and Hesse, were re-named in the
order of these names. Eastern District, Midland District,
Home District, and Western District. The period between
1774 and 1 791 has generally been termed "The Legis
lative Council " period. This arises from the fact that by
the Quebec Act a Legislative Council, who were
appointees of the Crown, governed in the Province. In 1777
-an ordinance was passed by this legislative body dividing
the Province into two districts, and established two Courts,
a Court of King's Bench and a Court of Common Pleas,
for each district. The Act which placed the power of
_government in a body irresponsible to the people was the
means of causing much contention and ill-will. The
Judges for the Courts were in many instances not such as
to lend either dignity or learning to the administration of
the law ; they did not understand the French language ;
the forms of law were wholly unfamiliar to the French ;
disquietude, discontentent, and dissatisfaction prevailed
in the colony. The English saw the French law, which
the Judges did not understand, administered by English
Judges. The French witnessed their law not interpreted
correctly, and mal-administered by the Bench. Petitions
were sent to England to alter this state of things. The
situation of affairs was very perplexing to English
statesmen. Committees were formed to examine the
Tvhole subject. Instructions were sent to the Government
of Quebec to obtain a reliable report as to the cause of the
discontent. English traders in Quebec . and French
citizens were called upon to give their evidence ; reports
were sent to the English Government. After receipt of

INTRODUCTION. 1 5
these reports, and a review of the whole question, the
Imperial Government, acting on the advice of Mr. Pitt,
determined to divide the Province into two Provinces, as
it were to herd the French in one part of the old Province
of Quebec and the English in the other part, so that each
could have the laws most agreeable to the majority of the
people of the respective Provinces. On this the King
advised, and the Parliament passed the Act of the thirty-
first of the King, 31 Geo. III. ch. 31. which replaced the
legislative clauses of the Act of 1774, and divided the
Province into two Provinces, one of Upper Canada (now
Ontario), and the other the Province of Lower Canada, by
subsequent legislation called the Province of Quebec,
renlitting it to the name of the two Provinces combined
before the division. The Legislature of Upper Canada at
their first session, held at Niagara on the 17th September,
1792, enacted that the laws of Engknd, instead of the
laws of Canada, were to govern in matters of property and
civil rights in Upper Canada.
Thus we have introduced into the newly constituted
Province of Upper Canada laws most congenial to the
taste of the United Empire Loyalists, and to the English,
Irish, and Scotch, by whom the Province was principally
-settled. The United Empire Loyalists had much to do in
bringing about this state of things, and the English law in
the Province in which they had come to settle on being
expatriated from the United States. These settlers in the
Province were imbued with . very strong ideas on the
subject of monarchical government and British laws. To
their minds the establishment of a Republican Govern
ment in America would not prove a success. Time has
shown that they were mistaken in this, but letting this be
granted, by adhering to British laws they have retained
laws which have formed the model of American jurispru
dence as opposed to the " Goutume de Paris " and the
laws of old France.

l6 LIVES OF THE JUDGES.
The French in the Province of Quebec retain the laws-
guaranteed to them by the Act of 1774, and there can be
no doubt the Act- of 1774 was passed after diligent enquiry
as to the propriety of the Act at the time. The Attorney
and Solicitor-General of Quebec had both advised that
the French should be remitted to their own law. So great
an authority as Lord Thurlow had declared that every
Canadian had a claim in justice to as much of his ancient
laws regarding private rights as was not inconsistent with
the principles of his new government. The French had
loudly protested against the King's proclamation and the
establishment of Courts in the Province. To administer
English law, without an Act of the Imperial Parliament,
was an act of despotism and wholly unwarranted. The
Act of 1791, dividing the Province, enabled the French to
mould the laws to their liking. The English of Ontario
and of Quebec of to-day are not more content than the
English of the ante- American Revolution period with this-
condition of affairs. The mother country has shaped the
policy of Canada as a whole, and it is only Imperial
legislation or a revolution that can undo what has already
been accomplished.
The French in the Province of Quebec are as four to
one of the English population, and strongly insist that
with such a majority their French law, accorded to them
by the Act of 1774, should continue to prevail, while the
English minority insist that in a British Province they are
entitled to have British laws, like as are in force in other
Provinces of the Dominion.
I do not propose to enter into this controversy — ^it is a
large political question, and foreign to my purpose in
writing of the law.
Having thus reviewed the events of old times leading
up to the Act of 1792, placing the British law on a solid
foundation, it will be proper to proceed with the main
subject, giving some account of those called upon to advo
cate and administer the law thus established, beginning
with the First Chief Justice, Osgoode.

The Honorable William Osgoode, Chief Justice
OF Upper Canada.

" LANDSCAPE without a back ground would

be wanting in one of the essentials of a
complete picture. A portrait and sketch of
-i<f»\ the first Chief Justice of Upper Canada
would be imperfect without accompanying surroundings.
It is not of so much consequence to be informed
of the antecedents of the Judge as of his judicial
life after his arrival in a new and sparsely settled
country. He was born in England in 1754, the twenty-
seventh year of the reign of his Majesty King George
II. He was called to the bar of Lincoln's Inn on the
ilth of November, 1779. He had been engaged at the
bar but twelve years when, at the early age of thirty-
seven, he was chosen to represent his Majesty, King
George III., as his chief judicial officer in that part of
the old Province of Quebec, lately given a separate
existence and called Upper Canada. Before being sent
out to this Province as its chief judicial officer, he had, in
1779, published a work entitled, '' Remarks on the Laws
of Descent, and the reasons assigned by Mr. Justice
Blackstone for rejecting in his table of Descents a point of
doctrine laid down by Plowden, Lord Bacon, and Hale."
It has been said that this work, which was much thought
of at the time by men of note, probably procured for him
3— L- h

t8 lives of the judges.
his high position and appointment to the bench. There
can be no doubt Mr. Osgoode, an equity draftsman, of
Lincoln's Inn, when he wrote the work referred to, was in
much favour with the King and his colonial minister. At
the time of his appointment all colonial judicial appoint
ments proceeded directly from the Crown. In inaugurat
ing the new Province with a new order of things, new laws
and new institutions, the King took especial care to name
as his Chief Justice one esteemed well versed in English
law, which had superseded the French law — the sequel
will show the choice to have been a good one.
In the selection of Colonel John Graves Simcoe for the
first Lieutenant-Governor, the King was carrying out the
principles of the age and time in which he lived. It was
then the custom of the British Government to appoint
military men to hold the chief appointments in the civil
departments of the government. Colonel John Graves
Simcoe had performed important service to the Crown in
the revolted States of America. What more proper then
than that a man of his military experience should be at
the head of the Province as its first Governor. John
Graves Simcoe as Lieutenant-Governor, and William
Osgoode, set out on their respective official journeys in
this Province, the one as head of the civil government, and
the other the judicial head of the Province, at or about
the same time.
The first Parliament of the Province met at Niagara on
the 15th of October, 1792. The address of his Excel
lency, Lieutenant-Governor Simcoe, to the members of
this Parliament on his opening the first session, well
exemplified the principle under which the King's deputy,
acting no doubt under royal instructions, desired the
government to be carried on. The Lieutenant-Governor
in his address, said :
I have summoned you together under the authority of an Act of Parlia
ment of Great Britain, passed last year (Act of 1791), -which has estab
lished the British Constitution and all the forms -which secure and
maintain it in this distant country. This Province is singularly blessed

CHIEF justice OSGOODE. 19
aiot -with a mutilated constitution, but -with a constitution -which has
stood the test of experience and is the very image and transcript of that
¦of Great Britain.
His Excellency, in calling the Province a distant
country, realized his own relative position and the position
of the representatives of the people whom he addressed.
But who were the people .' At that early period of her
history the population of the Province, all told, did not
exceed ten thousand souls, and they scattered in settle
ments here and there along the St. Lawrence and the
river on which rested Niagara, the then capital of the
Province. At that time what is now Toronto was a wild
wilderness, frequented by Indians of the tent and birds of
the air.
Mr. Joseph Bouchette, who made the first survey of
York (Toronto) harbor, in 1793, thus describes the sur
roundings :
I still distinctly recollect the untamed aspect which the country
¦exhibited when first I entered the beautiful basin, which thus became the
scene of my early hydrographical operations. Dense and trackless forests
lined the margin of the lake and reflected their images in its glassy surface.
Tlie wandering savage had constructed his ephemeral habitation beneath
their luxuriant foliage, the group then consisting of two families of
Mississagas, and the bay and neighbouring marshes were the hitherto
nninvaded haunts of immense coveys of wild fowl.
If the Chief Justice's duties had been limited to Toronto
they would not have been very arduous. The sequel will
show that they were not so limited but that his circuit
•extended eastward from Newark (Niagara) to Cornwall,
in the eastern part of the Province — that part of the
Province which, as has already been said, had settlements
of people, loyal subjects of the King.
The first mention we have of the Chief Justice of the
Province, in his judicial capacity, is that on the 23rd
-of August, 1792, he presided in the Court of Oyer
and Terminer and general gaol delivery, held in the town of
Kingston, in and for the district of Mecklenburg. He had
as associates on that occasion Richard Cartwright and

20 LIVES OF THE JUDGES.
Hector McLeod, esquires, Justices of the Common Pleas-
of the district. There were at this Court twenty-four
grand jurors sworn in ; the records show that of the number
were Henneyral Harkamer, William Fairfield, and Donald
McDonnell. The fact that there were twenty-four grand
jurors sworn in shows that this part of the Province was
not without inhabitants. There were grand jurors, petit
jurors, tip staffs, and all the incidenta and impedimenta of
the English Courts of the day. I have had the advantage
of perusing a vellum covered book, which bears the impress
of age, and is reported to have been brought to the
Province by the Chief Justice, no doubt as a guide and
faithful friend in his judicial work. This book is endorsed
in large old English text, " Rough Agenda Book." It is-
the record of the proceedings of the English Assize Courts
ill various counties, commencing with Hertfordshire
Summer Assizes, 28 George HI., A. D. 1788, before Alex
ander Lord Loughborough, and ending with the Kent
Assizes at Maidstone, A. D. 1791. The book possesses
an interest conveying to the mind the precedents used in
the establishment of the Upper Canada Courts.
But to return to my narrative : There was criminal
business transacted at the first Court held by the Chief
Justice. The most important of the cases tried seems to
have been that of a prisoner indicted " for the felonious,
wilful, and malicious murder of a certain Indian of the
name of Snake." The prisoner was acquitted ; neverthe
less, the trial on indictment found shows with what regard
the Indian was treated in that day. The life of an Indian
was held as sacred against the assassin as that of the
civilized white man. There is no record of the Chief
Justice holding another Court until August, 1793, when
he again presided at the Court of Oyer and Terminer,
held at Kingston. The most important event of this
Court was that a prisoner was tried for "' feloniously and
burglariously breaking and entering the dwelling house of
Frederick Henford, s: opkeeper, and for feloniously steal
ing and carrying away eight muskrat skins, of the value

CHIEF JUSTICE OSGOODE. 21
¦of forty shillings currency, and six raccoon skins, of the
value of five shillings currency.
The Chief Justice also presided at the Court of Oyer
and Terminer for the Eastern District, held at the Court
house in the town of New Johnstown, on the 14th of
August, 1793, at which "twenty-two grand jurors were
sworn. Amongst the grand jurors were Peter Drummond,
Edward Jessup, John Dulmage, David Breckenridge, Paul
Hick, Asel Landon, James Brackenridge, and John Jones."
These names are all familiar to the inhabitants of the
eastern part of the Province, in their day and generation
pioneers of the country. David Breckenridge and James
Brackenridge, who were on this grand jury, were of kin to
John Breckenridge, the author of the Kentucky Resolu
tions of 1798. Like many other families of the Revolu
tionary period, the Breckenridge, or, as it is in Canada
spelled, the Breakenridge, family were divided on the
subject of King and country. The above named came to
Canada, while the other members of the family took up
their residence in Virginia and Kentucky. The family was
a large one, and the descendants are subjects of more than
one country. Judge Chambers of Detroit is by his
mother's side a descendant of James Breakenridge. David
Breckenridge was the maternal grandfather of the writer.
In December, 1793, we find the Chief Justice presiding
at the Court of Oyer and Terminer, held at Newark
(Niagara). The Hon. Robert Hamilton and Peter Russell,
Justices of the Peace of the Court of Common Pleas for
the Home District, being associates. A grand jury of
seventeen were sworn in at this Court Among the jurors
were John McNabb, Peter Ball, William Jarvis, Angus
McDonell, Francis Crooks, Ralph Clench, William Dick
son, and Thomas Butler, all prominent men of Newark, or
Niagara, of that period. So far as I have been able to
ascertain, the last criminal Court the Chief Justice presided
at, in the Province of Upper Canada, was the Court held
at the town of Cornwall, in July, 1794. The notes of the
cases in the Chief Justice's book mentions the case of a

22 LIVES OF THE JUDGES.
prisoner tried for murder ; he was acquitted of the murder
but found guilty of manslaughter. The sentence of
the Court was " that the prisoner be burned in the hand,
and it is added, " which was accordingly done in Court.
The burning in the hand part of this sentence and its
execution, is my excuse for going back a little, and calling
attention to the circumstances that in these criminal cases
tried before Chief Justice Osgoode, he had as associates
with him on the bench gentlemen " Justices of the Peace,
of the Court of Common Pleas " — vide Court held at
Niagara, December, 1793. As recorded, the associates
were "the Honorable Robert Hamilton and Peter Russell,
Justices of the Peace of the Court of Common Pleas for
the Home District."
From this it is evident that there were local Justices of
the Peace of the Common Pleas Court of that day, and
that the Justices were prominent men of the locality.
The Act of 1 791 continued, in Upper Canada, the old
laws of Quebec until altered by new laws, to be passed by
the Canadian Legislature. Mr. Buel, in his article on
" The Bench and Bar of Detroit," in a current periodical,
says :
In 1798 regular Civil Courts were organized, and Detroit became a
portion of the district of Hesse. The first term held at that place was in
December of the same year, with James May as Chief Judge. In 1789 a
local Court of Common Pleas was organized, ha-ving both civil and
criminal jurisdiction. Appeal lay to the Governor, and the Council and
the Judges were selected from among the wealthier citizens, who whipped
branded, banished, and imprisoned, as their caprice or the state of their
digestive organs dictated.
It thus seems that the branding was in fashion in
Detroit in 1789, when Detroit was still in possession of the
British and part of the District of Hesse. Why, then,
might it not be resorted to as a mode of punishment ia
1794 in Cornwall of the old Lunenburg and more modern
Eastern District.
While in Upper Canada the Chief Justice had other
than judicial duties to perform. He was a Legislative

CHIEF JUSTICE OSGOODE. 23
Councillor of the Province, appointed to the Council in
July, 1792, and in September, 1792, was appointed
Speaker of that body.
His active judicial duties in Upper Canada commenced
in August, 1792, and terminated December, 1793, or for a
period of a little over a year and three months. It is not
to be supposed that during that short time he could attain
any great celebrity. There was, however, one act of his
which will ever be cherished by Canadians, the highest
and best in his judicial history; that act was his sugges
tion in his charge to a grand jury that slavery ought not
to exist in the colony of Canada. In consequence of this
charge the Upper Canadian Legislature, at their second
session, held at Niagara, on the 9th of July, 1793, passed
an Act entitled, " An Act to prevent the further intro
duction of slaves, and to limit the terms of contracts for
service within this Province." It is a pride that Upper
Canadians have, and justly have, that, at a time when
neither their mother country nor the new republic to the
south of them had abolished the devilish traffic in human
flesh, their embryo Province stepped forward and led the
van in loosing the bondsman's fetters. This was freedom
not in name only, but in very deed.
A friend has favoured me with a perusal of the Septem
ber, 1886, number of a London periodical, "The Pump
Court, the Temple Newspaper and Review of Law,
Literature and Society, Art and the Drama." It is
singular that at this late date it should have appeared,
but in that number is published a letter from his club
members congratulating Chief Justice Osgoode on his
appointment, which, from its date, must have had
reference to his appointment, to the Chief Justiceship
of Lower Canada, which took place on the 24th of
February, 1794. The letter of congratulation was as
follows : The Immortal Jupiter.
Temple Coffee Ho 15 May, 1794.
The Immortal Jupiter congratulates the Lord Chief Justice Osgoode on
his appointment : Snowden Barue (President), Nat Bond, J. Floud, B-

24 LIVES OF THE JUDGES.
Bathe, Wm. Pott, W. Syer, V. P., Edward Cotton, T. Partington,
Richard Legard, Jno. Fondret, H. Tripp, H. C. Litchfield.
To the Honorable William Osgoode, Chief Justice of Quebec.
This letter sufficiently proves the estimation in which
the Chief Justice was held by a club of a very lofty name,
and no doubt lofty principles.
Having traced the judicial history of his Lordship in
Upper Canada, and mentioned his promotion to the Chief
Justiceship of Lower Canada, it is right to say that to
secure the further mark of his sovereign's favour he must
have given satisfaction to the Imperial Government while
representing the Crown as their Chief Justice in Upper
Canada. In entering upon his duties in Lower Canada,
he would find the criminal law of England in force there.
The same Government had, in yielding to the Lower
Canadians the French law in civil matters, retained their
own criminal law, and to the administration of this law the
Chief Justice was no stranger. It happened that during
the Hon. William Osgoode's administration of criminal
law in Quebec, there was tried an important, if not the
most important, case of the time. This was the trial of
David McLane for high treason, before special commission
of Oyer and Terminer, under the great seal of the
Province. The Judges on the commission were the Chief
Justice (Osgoode), the Hon. James Monk, Chief Justice of
the King's Bench of the District of Montreal, the Hon.
Thomas Dunn, Jenkin Williams, Peerie Debourne, Jus
tices of the King's Bench of the District of Quebec.
David McLane was an American, who was accused of
conspiring with other Americans in Vermont and New
York, and certain malcontents of the Province of Lower
Canada, to overthrow the Government. It was charged
that he was holding communication with Genet, the
French Minister to the United States, to the same
purpose. The evidence on the part of the Crown was
conclusive of guilt. The prisoner offered no evidence, but
relied on the cross-examination of the Crown's witnesses
his oWn statement and defense made in open Court, and

CHIEF JUSTICE OSGOODE. 25
the effort of his counsel for his acquittal. All were of no
avail, however, for he was convicted, condemned to death,
and executed ; and as if hanging was not enough of
punishment in these barbarous days, after death his head
was severed from his body, it is supposed as a terror to
evil doers with traitorous designs. The report of the case
describes the crime thus :
Prisoner sentenced to death. On Friday, July 21, prisoner was
hanged, his head cut olf after body hanging twenty-five minutes.
Executioner held up the head to the public view, and proclaimed :
' ' Behold the head of a traitor. "
On the trial of this case, the Chief Justice, it is almost
unnecessary to say, acted in a fair and impartial manner-
The jury were told to give the prisoner the benefit of any
doubt, and that the matter of fact as to the prisoner's
guilt was entirely with them to determine on the evidence ;
that any observations of the Court on the facts should be
regarded as observation only, and not have weight with
the jury. The Chief Justice's explanation of the law of
high treason was most full and comprehensive. He said
in his charge to the jury :
The point of law which ought to govern this case may be comprehended
in one sentence, which is this : Every attempt to subject this Province, or
any part thereof, to the King's enemies is high treason, and every step
taken to further such is an overt act of treason.
The Attorney-General, in his address to the jury, after
defining high treason, and that " the intention to commit
the crime constitutes the offence," proceeded to say : " The
jury must form their opinions on the proof of the overt
acts charged."
The prisoner, in his address to the jury before his con
viction, said : " I feel gratitude that I have been indulged
in every thing reasonable. I thank the Court for its
indulgence to me."
I have referred to this trial at length, as Mr. Garneau,
in his history, has impeached the fairness of the trial. In
his criticism there is no aspersion on the Chief Justice or
4— L. J.

26 LIVES OF THE JUDGES.
his judicial conduct, but there is a reflection on the Court
proceedings. Mr. Garneau says : " The choice of jurors,
the testimony brought forward, the judgment passed, were
all of an extraordinary character." Issue must be taken
with the historian on every one of these statements, and
indeed his criticism is not only extraordinary but unjust.
The grand jury was a mixed one — French and English —
the Court was constituted of the highest Judges in the
land, the petit jury were respectable citizens of Quebec —
not French, it is true, nor was McLane, the accused,
French. The sentence of the Court was the only judgment
that could be given for the offence of which the prisoner
was found guilty — and yet with all this the severe com
ments of Mr. Garneau find place in his history. The
reporter's account of the trial of the case, and all that took
place at it, is to be found on the shelves of the free library
of Toronto. It is open to any citizen, French or English,
to read the report for himself After so doing, he must
of necessity conclude that the historian must have been
actuated more by prejudice than a fair consideration of
facts, when he undertakes to throw discredit on a trial
conducted with the utmost fairness, before eminent Judges
and an impartial jury.
The Chief Justice remained in Quebec in performance
of his judicial duties till 1801, when he resigned his office
and returned to England, where he died in the Albany
Chambers, on the 17th of February, 1824, aged seventy.
I do not feel that I ought to conclude this imperfect
sketch without alluding to the outward form and features
of the Chief Justice. The benchers of the Law Society,
the governing bodj'- of the law in the Province, and indeed
the country are indebted to the Rev. Dr. Scadding, the
writer of " Toronto of Old," a book which contains a fund
of information, personal, topographical, and historicah
appropriately dedicated to that ripe scholar and distin
guished statesman, the Right Honorable, the Earl of
Dufferin, K. C. B., for procuring a copy of a portrait in
oil of Chief Justice Osgoode. The original of this portrait

CHIEF JUSTICE OSGOODE. 27
is in possession of J. K. Simcoe of Wolford, county of
Devon, England, a grandson of Lieutenant-Governor
Simcoe. The society have been enabled to adorn the
walls of their noble hall with the likeness of the Chief
Justice. The likeness was taken by Berthon, whose life
like portraits of other Chief Justices are conspicuous on
the walls of the library and other suitable places in the
hall. Dr. Scadding rightly thought that the hall which
bears the name of the Chief Justice should have the first
Chief Justice in portraiture. A study of the picture pre
sents to the eye an English gentleman of the George III..
period, a gentleman with intellectual countenance, a
faultless figure, and handsome face. The portrait must
have been taken when he was a young man, perhaps on
his setting out from England to undertake the duties of
Chief Justice of the distant colony of Canada.
I do not feel I ought to leave the subject of the first
Chief Justice of the largest Province of the Dominion
without saying something of the Chief Justice as a man-
I must, in this particular, be allowed to quote Dr. Scadding^
who, quoting, says of him : " No person admitted to his
intimacy ever failed to conceive for him that esteem which
his conduct and conversation always tended to augment."
A friend in Quebec, who knew him in that Province, and
to whom I applied for information in this regard, writes-
to me to say : " The Chief Justice was grave and some
what difficult of access ; during his residence at Quebec,
he made himself esteemed and respected as much by his
high intelligence, as by his integrity and frankness of
character.^'

II.
The Honorable William Dummer Powell, Chief
Justice of Upper Canada.
.^^ImHE Honorable William Dummer Powell was
f^HIM °^ ^ ^^^ °^^ Welsh family— the family estate
S^^ in Wales was " Caer Howel." The Chief
*^ Justice's grandfather, John Powell, came
from England to America as secretary to Lieutenant-
Governor Dummer ; his grandmother was sister of Lieu
tenant-Governor Dummer ; his father was John Powell
of Boston, Massachusetts. The Chief Justice was born in
Boston in 1755. At the age of nine years he was sent to
England to be educated. From England he was sent to
Holland to acquire a knowledge of the French and Dutch
languages, and in 1772 he returned to Boston. He was
called to the Bar in 1779, by the Middle Temple.
Previously to 1791 he had resided for a short time in
Lower Canada, and had rendered valuable aid to the
United Empire Loyalists in obtaining the Act of 179 1.
On the nth of May, 1789, he left Montreal with his
family for Detroit, which was still in possession of the
British, and continued in their possession till the Jay treaty
of 1796. The journey of himself and family to Detroit
has been most graphically described by his sister in a
journal she kept of the voyage, which was made principally
in boats. Some idea of the difficulty of ascending the St.
Lawrence and the rapids at that day, in small boats, is
made plain from the tact that it took the Chief Justice

chief justice POWELL. 29.
and his family ten days to reach Kingston. The journal
describes Kingston at that time as " a small town, standing
on a beautiful bay, at the foot of Lake Ontario." It took
four days to traverse the lake from Kingston to Niagara •
there the party met the celebrated Indian chief Joseph
Brant. Afterwards they visited Fort Schlosser, thence to
Fort Erie by batteau. While at Fort Erie they had an
opportunity of visiting an Indian council held on the
opposite side of the river. There were upward of two
hundred chiefs at this council, delegates of the Six Nations;,
I extract Miss Powell's description of this council, which
shows how the councils were managed in those days. The
writer says :
Each tribe formed a circle under the shade of a tree, their faces toward
each other ; they never changed places, but sat or lay on the grass, as
they liked. The speaker of each tribe stood with his back against a tree.
The old women walked one by one, with great solemnity, and seated
themselves behind the men ; they were wholly covered with their blankets
and sought not, by the effect of ornaments, to attract or fright the other
sex, for I cannot tell whether the men mean to make themselves charming
or horrible by the pains they take with their persons.
Referring to the squaws and their taciturnity in council,
Miss Powell says :
Their ladies (squaws) preserve a modest silence in the debates (I fear
they are not like women of other countries), but nothing is determined
-without their advice and approbation.
Speaking of the Indian chiefs, she says :
They are remarkably tall and finely made, and walk with a degree of
grace and dignity you can have no idea of. I declare our beaux looked
quite insignificant by them. One man called to my mind some of Homer's
finest heroes.
One of the chiefs she met at this council was Red
Jacket, whose appearance and dress she fully describes
not omitting his " scarlet coat, richly embroidered, that
must have been made half a century, with a waist-coat of
the same." The party were at Fort Erie on the 4th of
June, the King's birthday, and there did honour to the day.>
On the 9th of June the party reached Detroit. She-
says :

30 lives of THE JUDGES.
In drawing the line between the British and American possessions, this
fort was left within their lines. A new town is now to be built on the
other side of the river, where the Courts are held, and where my brother,
jnust, of course, reside.
Detroit was at this time, 1789, included in the district
of Hesse, and was the first seat of justice in that region of
¦country. The Honorable William Dummer Powell was
"the first Judge who presided over this Court. He was
appointed a Commissioner of the Peace of the Province of
Quebec in January, 1789. On examining the archives at
Ottawa, we find that in January, 1791, he was appointed
Commissioner of Oyer and Terminer and gaol delivery for
Quebec, and in 1792, to the same office in and for Upper
Canada. On the 3rd of September, 1792, Judge Powell
presided at his Majesty's Court of Oyer and Terminer in
and for the district of Hesse in the Province of Upper
Canada, and in October, 1793, we find him presiding
Judge of the Court of Oyer and Terminer for the Western
District held at the Court House of the " township of
Assumption." The records say of the township of
Assumption ; as a matter of fact, however, there is not,
nor was there, a township of Assumption in the Western
District. What is evidently meant is, the parish of
L' Assumption in which the town of Sandwich, on the
Detroit river, is situate. At this second Court held by
Judge Powell in Upper Canada, he had as associates on
the bench, James Baby and Alexander Grant — a grand
jury of seventeen, of whom John McGregor was one.
Twelve of the grand jurors had French names. The
French were still largely in the majority in that part of
the Province. At this Court a prisoner was tried and
convicted of manslaughter^ — -the sentence of the Court as
expressed in the record, is " To be burned in the hand, and
accordingly put in execution before the Court."
Judge Powell presided in the Courts of Oyer and
Terminer and Gaol Delivery yearly, and at times twice a
year in the several districts into which the Province had
been divided, the Eastern, Midland, Home, and Western

CHIEF JUSTICE POWELL. 3 1
from 1793 down to his retirement from the bench in 1825.
The records show that during this period, in a country of
magnificent distances, primitive mode of navigation, stage
coach, and corduroy roads, he performed all his judicial
duties with regularity and constant watchfulness of the
good of the people. The practice of burning convicted
prisoners in the hand and sentencing them to stand in the
pillory was not uncommon in these times of our judicial
history. Although Judge Powell first presided at a
criminal Court at L'Assumption in 1793, he had before
this held the Court of Common Pleas at L'Assumption, in
the western district, for I find in the archives of Osgoode
Hall a book in which is contained this entry :
"province of QUEBEC.
" Court of Common Pleas holden at L'Assumption in the Western Dis
trict, on the 11th day of August, 1791, pursuant to adjournment.
"Present, The Honorable William Dummer Powell, first Judge of the
said Court. "
At this Court an action on a penal statute, in the name
of the King, on the information of William Gartham
against William Scott, was tried. P.xception was taken
to the jurisdiction of the Court, and the Court said :
Although the jurisdiction given to this Court is summaiy and without
.appeal, by the ordinance of 1791 the magistrates in towns are empowered,
.at the request of the inhabitants, to make regulations for the police, which,
being published, shall have full force of law for six months, the lower
penalties to be received by plaint before one Judge of Court of Common
Pleas, as in causes under £10 sterling without appeal.
At an adjournment of this Court the examination of
witnesses was in French, the counsel asked the witnesses
questions in French and the witnesses answered them in
French. Judge Powell held this Court again in March, 1792.
He held the Civil Court of Nisi Prius in the Home,
Midland, and Eastern Districts in 1795, and thence
forward. In his administration of both civil and criminal
law he gave great satisfaction ; his manly, independent
qualities endeared him to the people, and gained for him
a high reputation as a Judge.

32 LIVES OF THE JUDGES.
Chief Justice Powell was a prominent figure, and bore
an important, if not a conspicuous, part on the British side
in the War of 1812. He was during that eventful period
in York, and was the principal confidential agent of the-
Governor at that town. We learn from a letter, written
by Sir Isaac Brock to Sir George Prevost, that not only
the Chief Justice, but also Mr. Grant Powell, his third son^
father of Mr. Grant Powell, Under Secretary of State
at Ottawa, and of Mrs. John Ridout, wife of John Ridout,
Registrar of County of York, had the confidence of both
the civil and military commanders of that day.
By a letter addressed to Colonel Baynes, under date of
July 23, 1812, Sir Isaac Brock thus expressed himself
The letter is dated at York, and says :
I wish very much something might be done for Mr. Grant Powell. He
was regularly brought up in England as a surgeon. I intended to have
proposed him to Sir George to appoint him permanent surgeon to the
Marine department, but I now seriously think the situation would not'
answer. His abilities, I should think, might be more fully employed now
that so many troops have been called out.
Subsequently, Dr. Grant Powell was appointed surgeon,
having charge of all hospital arrangements on the Niagara
frontier. After the investment of York by the Americans,
in April, 18 13, the Chief Justice held very important
communications with the British military commander,
relative to the condition of affairs and the measures proper
to be taken for the public safety. I find from a memo
randum of Mr. T. G. Ridout, of the sth of May, 18 13, that
on the 30th of April, 1813, this communication was held,
and that his father and Dr, afterward Bishop, Strachan
were engaged in the same enterprise. The memorandum
of Mr. Ridout was as follows :
I (T. G. Ridout) left York on Sunday, the 2nd instant, at noon, at
which time the American fleet, consisting of the Madison, Oneida, and ten
schooners, with the Oloucenter, were lying at anchor about two miles from
the garrison, wind-bound by a south-east wind. All their troops were
embarked the evening before, excepting a small party, who burnt the
large block-house, Government house, and officers' quarters. At nine in
the morning a naval officer came down to town and collected ten men out
of the taverns, where they had been all night.

CHIEF JUSTICE POWELL. 33.
The commissariat magazines were shipped the preceding days, and great
quantities of the provisions given to our country people, who brought their
wagons down to assist the Americans to transport the public stores found
at Mrs. Elmsley's house and at Boulton's barn. The lower blockhouse
and Government buildings were burnt on Saturday. Major Givin's and
Dr. Powell's houses were entirely plundered by the enemy, and some
persons from the Humber. Jackson and his two sons and Ludden, the
butcher, had been riding through the country ordering the militia to come
in and be put on their parole, which caused great numbers to obey
voluntarily and through fear.
Duncan Cameron, Esq. , delivered all the money in the Receiver-General's
hands (to the amount, as I understand, of £2,500) over to Captain Elliot,
of the American navy, the enemy having threatened to burn the town if
it was not given up.
On Friday, the 30th, the Chief Justice, Judge Powell, my father, Dr.
Strachan, and D. Cameron called upon General Dearborn, requesting he
would allow the magistrates to retain their authority over our own people.
Accordingly, he issued a general order, saying it was not his intention to
deprive the magistracy of its civil functions, that they should be supported,
and if any of the United States troops committed any depredation, a
strict scrutiny into it should follow. The gaol was given up to the sheriff,
but no prisoners. Tlie public provincial papers were found out, but
ordered to be protected, so that nothing was destroyed excepting the
books, papers, records, and furniture of the Upper and Lower Houses of
Assembly. It was said they had destroyed our batteries and taken away
the cannon. The barracks were not burnt. The American officers said
their force, on the 27th, was three thousand land force and one thousand
seamen and marines, and that their loss was five hundred killed and
wounded. [Signed] T. G. Ridout.
Kingston, May 5, 1813.
As regards this attack on York in April, 18 13, it has
come down to us as a matter of history that in the conduct
of the negotiations with the American commander for the
capitulation of the place, Dr. Strachan and the gentlemen
associated with him acted with great intrepidity and
courage, directed to the preservation of the towns-people
from carnage and their property from destruction. Dr.
Strachan was much incensed at the conduct of the Amer
icans, and did not hesitate, after the event, to say that the
deputation had not received proper consideration, and had
been treated with harshness ; he also complained that
while the negotiation was pending the ship being built in
the harbor and naval store had been set on fire. But then
5-L. J.

34 LIVES OF THE JUDGES.
it is to be remembered that at that time the towns-people
were in very bad humor, and did not only complain of the
Americans and their invasion, but bitterly complained that
the town had been neglected by the British general, and
not furnished with regular troops to meet the expected
attack. As a matter of fact, when the American flotilla was first
discovered making for the harbor, on the 25th of April,
there were no regular troops in the place ; and when the
Americans landed the only Opposition they met was Major
Givins at the head of forty Indians and a few civilians of the
town. Afterward, however, this force was supplemented
by about four hundred of the Eighth Newfoundland and
Glengarry regiments and five hundred undisciplined
militia men — a very inferior force to the Americans. The
British were obliged to retreat after the blowing up of the
magazine, by which the Americans lost their general —
General Pyke. The towns-people severely criticised their
own general. General Sheafe, for his conduct of the defence
of the town, and of his hasty retreat, leaving the
inhabitants at the mercy of the American military force.
Dr. Strachan, in writing to a friend in Scotland after the
departure of the Americans, gave a very vivid account of
this whole affair, detailing at length the incidents of the
capture. In this communication he complains bitterly of
the treatment the inhabitants had received, but more
especially the indignity to which he had been subjected
himself by General Dearborn — that he had treated him
with great harshness, and spoke disrespectfully of him.
But then, on the other hand. General Dearborn was met
with many peremptory demands. Dr Strachan was not a
man to mince matters in anything he undertook. The
account given by himself shows that his requests were
couched in the language of command. The capitulators
were much disposed to regulate the whole matter of
capitulation. The American commander and Commodore
Chauncey were not disposed to submit to this.

CHIEF JUSTICE POWELL. 35
In reading the history of this invasion, April, 181 3, I
gather that the dogs of war being let loose, there was
considerable barking on both sides. Happily those times
have passed away, and men of the same blood, separated
only by a great river, can approach each other in terms of
peace and friendship as children of one mother.
In writing the judicial life of Chief Justice Powell and
of the period of the war, full justice cannot be done to the
subject without referring to Mr Grant Powell, previously
referred to, not only because of the relation he bore to the
Chief Justice, but to the Governor General, especially as
such reference will elucidate the history of the period.
The Americans in their attack on York in April, had, as
-has been shown, plundered the public stores and burnt and
destroyed much public property, and destroyed the public
library, then much prized in the town. In July of 1813,
the Americans made another attack on York ; the
condition of matters in York after the second attack is
well described in a communication made by Mr Grant
Powell and Dr Strachan to His Excellency the Governor
General, on the 2nd of August, 18 13, and was as follows :
York, 2nd August, 1813.
Sir, — We beg leave to state, for the information of his Excellency the
'Governor-General, that about eleven o'clock on Saturday morning the
¦enemy's fleet of twelve sail were seen standing for the harbor. Almost
^11 the gentlemen of the town having retired, we proceeded to the garrison
about two o'clock and watched till half past three, when the Pyter, the
Madison, and Oneida came to anchor in the offing and the schooners con
tinued to pass up the harbor with their sweeps, as the wind had become
light, three coming to abreast of the town, the remainder near the
garrison. About four p.m., several boats full of troops landed at the
^garrison, and we, bearing a white flag, desired the first officer we met to
conduct us to Commodore Chauncey.
We mentioned to the Commodore that the inhabitants of York, con
sisting chiefly of women and children, were alarmed at the approach of
the fleet, and that we had come to know his intention respecting the town ;
that if it were to be pillaged or destroyed we might take such measures
as were still in our power for their removal and protection. We added
that the town was totally defenceless, the militia being still on parole,
and that the gentlemen had left it, having heard that the principal
inhabitants of Niagara had been carried away captive — a severity unusual

36 LIVES OF THE JUDGES.
in war. Commodore Chauncey replied that it was far from his intention
to molest the inhabitants of York in person or in property ; he was soriy
that any of the gentlemen had thought it necessary to retire, and that he-
did not know of any person taken from Niagara of the description men
tioned. Colonel Scott, the commandant of the troops, said that a few
persons had certainly been taken away. The Commodore told us that his.
coming to York at present was a sort of retaliation for the visits- our
fleet had made on the other side of the lake, and to possess himself of the
public stores and destroy the fortifications, but that he would burn no-
houses ; he mentioned something of Sodus, and the necessity of retaliation
should such measure be taken in future. He likewise expressed much
regret at the destruction of our public library on the 27th of April,
informing us that he had made a strict search through his fleet for the
books ; many of them had been found, which he would send back by the-
first flag of truce. He then asked what public stores were here — a ques
tion which we could not answer. In parting, both the Commodore and
Colonel Scott pledged their honour that our persons and property should
be respected, and that even the town should not be entered by the troops,
much less by any gentleman there. As we were quieting the minds of
the inhabitants, the troops took possession of the to-wn, opened the jail,
liberated the prisoners, taking three soldiers confined for felony with
them ; they visited thfe hospitals and paraded the few men that could not
be removed. They then entered the stores of Major Allan and Mr. St.
Gtorge and secured the contents, consisting chiefly of flour. Observing-
this, we went to Colonel Scott, and informed him that he was taking
property. He replied that a great deal of officers' luggage had been
found in Mr. Allan's store, and that all the private property was to be
respected. Provisions of all kinds were lawful prize, because they were
the subsistence of armies. That if we prevailed in the contest, the British
Government would make up the loss, and if they were successful their
Government would most willingly reimburse the sufferers. He concluded
by declaring that he would seize all provisions he could find.
The three schooners, which had anchored abreast of the town, towed*
out between eleven and twelve o'clock on Saturday night, and we suppose-
that the fleet would have sailed immediately, but having been informed
by some traitor that valuable stores had been sent up the Don, the
schooners came up the harbor yesterday morning. The troops were again
landed, and three armed boats went up the Don in search of the stores.
W^e have since learned that through the meritorious exertions of a few-
young men, two of the name of Playter, everything was conveyed away
before the enemy reached the place— two or three boats, containing trifling
articles, which had been hid in the marsh, were discovered and taken,
but in the main object the enemy was disappointed. As soon as the
armed boats returned, the troops went on board, and by sunset both
soldiers and sailors had evacuated the town. The barracks, the wood-
yard, and the storehouses on Gibraltar point were then set on fire, and
this morning at daylight the enemy's fleet sailed.

CHIEF JUSTICE POWELL. ^
The troops which were landed act as marines, and appear to be all they
had on board — not more certainly than two hundred and forty men. The
fleet consists of fourteen armed vessels. One is left at Sackett's Harbour.
It is but just to Commodore Chauncey and Colonel Scott to state that
their men, while on shore, behaved well, and no private house was
entered or destroyed. We have the honour to be, etc., etc.. etc.
[Signed] John Strachan.
Gbant Powell.
Colonel Baknes, Adjutant-General.
If there is a prevalent tradition that the Americans
acted with undue severity on this occasion of the capture
of York, this communication should dispel any such idea
if it exists in the public mind. The Americans, in fact,
performed their military duty in a becoming manner and
with a just regard to the rights of men. Continental wars
have shown that the further east you go the less regard is
paid to private rights.
That the Chief Justice was especially honoured by his
Excellency, the Governor General, with his confidence,
appears from several communications. As head of the
law, he was in the confidence of the magistracy of the day
— acting in concert with them for the welfare of the town
and surrounding country.
Being at Kingston on the 4th of June, 1813, in the
intervening period between the first and second attack by
the Americans on York, he addressed the following letter
to the Governor's Secretary — which contained a report of
the magistrates resident in York, but at a meeting at
which the Chief Justice was present, and took a conspicu
ous part in its proceedings. The letter is as follows :
Kingston, June -i, 181.3.
SiK :— (Jonformably to the pleasure of his Excellency, the Governor-in-
Chief , I have the honour to enclose to you a copy of the proceedings of the
magistrates, etc., at York during the possession of that place by the
enemy. I beg leave to submit for his Excellency's information, that under the
existing circumstances it was thought inexpedient especially to advert to
the plunder or receipt of public property, which in such case would have

38 LIVES OF THE JUDGES.
been concealed from Search or defended by force, which the police had no-
means to control.
But in aid of that object the sheriff was directed by the meeting to
consider himself as the King's bailiff, as usual, and whenever public
property was found by himself, or pointed out to him by others to take it
into his hands, leaving the claimant to establish his pretentions to the
possession by the ordinary Courts of law until a change of circumstancea
enabled the ministers of the law to act with decided power to overawe
opposition. This measure was deemed merely prudence.
I have the honour to be, etc. , etc. ,
[Signed] Wm. Dummer Powell.
Edward Benton, Esq.
At a meeting of the magistrates resident in the town of
York, attended by the Judges, the Sheriff, and the Rev.
Dr. Strachan, the actual situation of the town and district
was taken into consideration :
The enemy's fleet and army lying in the harbor, all our military defences
at the port destroyed, the inhabitants disarmed and on parole, it is
obvious that measures of as much energy as our circumstances admit
should be immediately adopted to preserve order and prevent anarchy, to
support and encourage the loyal, to supress the disloyal, and to confirm
the wavering.
It is, therefore, unanimously declared that, by the eruption of the enemy
and temporary possession of this port, no change has taken place in the
relation of the subject to his Majesty's government and laws, except to
such as were parties to the capitulation as prisoners of war and are under
parole of honour not to bear arms until exchanged.
That it is equally now, as before the invasion, high treason to aid, '
assist, counsel, or comfort the enemy. That all felons and evil doers are
equally amenable to the laws as before. That the powers of the magis
trates and ministers of the law are unimpaired, and continued to be so
even during the actual possession of the enemy, as the commander of the
forces declared by a general military order to the troops.
That private property, having remained unchanged not only in con
struction of the law but by the express terms of the capitulation, the
enemy himself disclaims the right assumed by some indi-viduals to transfer
it from the owner.
That it is the duty of all good subjects to declare to the magistrate all
instances of such unjust possession as may come to their knowledge and
of the magistrate to enforce the restitution.
That persons desirous to signify their abhorrence of anarchy, which
must prevail if principles adverse to the above declaration gain ground,
are called upon to associate in s-apport of the laws and to afford their aid
to the civil magistrates and their ministers.
That the high sheriff do publish and'enforce this declaration.

CHIEF JUSTICE POWELL. 39
I find the Chief Justice again on the 28th of June, 18 13,
and on the ist of August, 18 13, in confidential communi
cation with Sir George Prevost relative to the American
invasion of York. As the communication of the 28th of
June was of a private and confidential character, I will do
no more than simply refer to it without giving its full
contents. The substance 'of the communication of the
28th of June was in regard to the state of the town,
labouring under the inconveniences from the attack of the
Americans, its commissariat and the accommodation that
could be afforded for troops. He writes among other
matters :
The accommodation for troops is very little diminished, the two block
houses being the only soldiers quarters destroyed. There is timber on
the ground prepared for building ways and wharf for the ship sufficient
to throw up a, coarse but warm cover for a great many men at little
expense. The town could not hold one thousand men without great
inconvenience. The communication of the i st of August was as follows :
William Dummer Powell to Sir George Prevost :
Near York, August 1, I8I3.
SiE : — Yesterday morning the American squadron, consisting of two
ships, a brig, and twelve sail of other vessels entered the harbor of York
and landed troops computed at two thousand men. As they seized upon
the flour in Messrs. Allan and St. George's store and served it out to the
inhabitants, it is to be presumed that they do not mean to remain long
enough to consume it themselves. The male inhabitants very generally
dispersed, although most on parole, alarmed at the transfer of paroled
militia and non-combatants from Newark to the interior of the United
States. Major Allan was considered so obnoxious that he quitted the
town early. It is said this morning that a warrant is issued toapprehend
him. The commissary proceeded to General de Rottenburgh. The cattle
which had been provided for beef were driven off towards the head of the
lake. The ammunition was removed to the safest place which could be
devised. The baggage of the Nineteenth Dragoons was also secured as
well as the circumstances admitted. Colonel O'Neil with three officers
entered the town as the shipping was coming to, and proposed requiring
to gallop through. A message has been sent to the carrier of your
Excellency's despatches not to take them through York, and another to
Major Herriot to use his discretion in advancing with the Voltigeurs.
The squadron has landed a few men on the beach, supposed with intent
to attack the depot at Beasley's, but Major Maul had had the precaution

40 LIVES OF THE JUDGES.
to embarrass the outlet so that their craft could not pass, upon which
they re-embarked and proceeded to York. The same brigade would join
Major Maul last night, but, being obliged to embark their guns in boats,
it is possible they might not venture to proceed, as there was no person
left to forward intelligence to your Excellency, unless Dr. Strachan
should do it. The liberty of giving you this intelligence is taken by a
person lately honoured with your commands to report confidentially on
certain topics.
William Dummer Powell to Sir George Prevost :
August I, 9 o'clock p.m.
Sir : — Since I took the liberty to write to your Excellency the particu
lars which had come to my hearing of the events of yesterday, at York,
further intelligence has reached us that after embarking their troops i
yesterday, the enemy received information of all the ammunition and
baggage of the Nineteenth Dragoons, which had fallen into their hands.
It is also reported that several boats have been taken in the River Credit,
¦which we think probable, as Lieutenant-Colonel Battersby wrote from
the head of the lake, to Mr. Allan, that he has been constrained to leave
his boats with baggage in the creek, and desired militia might be sent to
secure them. This letter to Mr. Allan has not found him, as upon
learning that a reward was offered to apprehend him, he retreated to the
-woods. The despatch from your Excellency to the officer commanding at York,
has been sent on to Burlington, there being no officer left in York. The
troop of Nineteenth Dragoons on the march, halted this day at Port
Credit, fifteen miles from York, and notice has been given them of the
situation of that port. The enemy had furnished no guard beyond the
Don bridge at six o'clock this evening, but the town was reported to be
full of troops, and the inhabitants alarmed at a threatened conflagration
of particular houses.
No sooner had the war of 1812 ended than Canada, that
fruitful soil of rebellion, was again in a state of insurrection
in the Red River country. Earl Selkirk had left his
native heath to plant his clansmen along the borders of
the Red River of the north. In 18 16 the pibroch and the
claymore were busy in their separate vocations in the
neighbourhood of Fort Garry. Murder, robbery, and
arson had got a foothold on the hitherto peaceful prairie
Earl Selkirk had felt that he was commissioned to cause
the downfall of the Northwest company of traders. The
members and employees of the company resisted the Scot
tish earl. Riots occurred of a magnitude which in the year
of grace 1886 would be called a rebellion. The rioters

CHIEF JUSTICE POWELL. 4I
were arrested and taken to Montreal for trial. The
accused languished two years in prison, all because his
Lordship was not ready to proceed with his indictments.
At last the Government intervened, the place of trial was
changed to York, and the accusers and accused met face
to face. The excitement waxed strong. It was a for
tunate circumstance that so able and firm a Judge as
Chief Justice Powell presided at the trial. The reported
proceedings show that great energy and ability was
displayed by so able counsel for the prisoners as Samuel
Sherwood and Levius P. Sherwood in defence of their
clients. The jurisdiction of the Court was attacked, and
every possible device resorted to on the prisoners' behalf,
The Chief Justice was obliged to rule suddenly on points
of the greatest importance, and was always equal to the
occasion. A review of the report of the case shows that
he exhibited professional ability, and showed a firmness,
coupled with impartiality, that will ever redound to his
credit and to the honour and dignity of the Bench. The
prisoners were all acquitted, and thus ended the troubles
¦of the prairie country, and not till the expiring of fifty
years was the peace disturbed in the country of the Indians
and the Metis.
Up to the war of 18 12 Chief Justice Powell had been a
puisne Judge — he was not promoted to the Chief Justice
ship till 1815. It will thus be seen that the major part
•of his judicial duties in the Province was in the capacity
of puisne Judge. Whether as Judge or Chief Justice
he was always conscientious in the performance of his
duties. Referring to " Taylor's Reports," I find that the
last time Chief Justice Powell presided in Court was in
Trinity Term, 6 Geo. IV., A.D. 1825. In the pro
ceedings of Michaelmas Term, 1825, the Reporter makes
this note : MICHAELMAS TEEM, 1825.
The Honourable Mr. Justice Campbell this term took his seat upon the
bench as Chief Justice in place of the Honourable Chief Justice Powell,
who retired. 6 — L. J.

42 LIVES OF THE JUDGES.
The Chief Justice survived his retirement from the
Bench nine years. Three years of this time were spent in
England, where he visited, accompanied by his wife and
daughter. The rest of his life was spent in quiet retire
ment in Toronto, where he died in his seventy-ninth year.
His widow survived him, and died in 1849, in her ninety-
first year. The Powells will always be remembered in
Toronto as one of the good old families of the old town of
York, grown to be the flourishing city of Toronto. There
is no portrait in Osgoode Hall of Powell, C. J.
His granddaughter. Miss Jarvis, has favoured me with a
view of the Chief Justice's portrait in oil, in her possession.
The likeness affords an excellent clue to the firmness and
disposition of so excellent a Judge.
This likeness is by Gilbert ; represents the Chief Justice
in his more advanced years, partially bald head, grey hair,
and a full, florid English face.

III.
The Honorable John Elmsley, Chief Justice
OF Upper Canada.
^^HE Honourable John Elmsley, destined to be-
'*J'li»^ ^ future Chief Justice of Upper Canada, was
tsl^^g the son and heir of Alexander Elmsley, of
'-^W^ the parish of Marylebone, Middlesex, Eng
land. He was born in 1762, was nephew of the celebrated
London publishers, Elmsley & Brother, of the like
celebrated comical critic and editor, Peter Elmsley, of
Oxford. Mr John Elmsley, as I suppose I must call him before
elevated to the dignity of a Chief Justice, was called to the
bar of England, at the Middle Temple, on the 7th of May,
1790. He had been at the bar only six years and six
months, or about that time, when he received His
Majesty's letters patent appointing him his Chief Justice
of Upper Canada, to succeed the Honourable William
Osgoode, who had been promoted from the Chief Justice
ship of Upper Cannada to the chief judiciary of Lower
Canada. The King's patent appointing Mr. Elmsley was
dated the 21st day of November, 1796. The London
publisher, of whom I have spoken, was a friend of the
Duke of Portland, and it is said that Mr Elmsley owed his
appointment to the Bench to the patronage of the Duke.
The Chief Justice first took his seat as Chief Justice at the
Court House, Newark, on the i6th of January, 1797. It
may be interesting, as well as instructive, to give the

44 LIVES of the judges.
ceremony of the inauguration of the Chief Justice into his
new office. The tendency of the present day is to do
away with form and ceremony, but then it must be
remembered that we live in a democratic age. It was not
so at the period of the Chief Justice's appointment ;
indeed, if there was one thing more than another aimed at
in that day, it was the preservation of kingly dignity, and
following on that the dignity of the Judges who adminis
tered the laws of the state. In the " King's Bench Term
Book of Hilary Term, 37 George III.," Monday, i6th of
January, 1797, I find this entry :
This day John Elmsley, Esq., came into Court, produced His Majesty's
letters patent, dated the 21st day of November, 1796, constituting him
Chief Justice of this Province, took the oaths of office, and subscribed the
-declaration against transubstantiation.
The Reporter adds an N.B. as follows :
The ceremony on this occasion was as follows : The Chief Justice,
preceded by his marshal, and attended by the officers, civil and military,
• of the Province, entered the Court and ascended the step of the bench at
the left end. He then produced his patent, and delivered it (in the
absence of Mr, Justice Powell) to the Clerk of the Crown, informing him
of the nature of it, and desiring him to read it. Silence having been
proclaimed by the crier, the patent was read, all persons standing and
uncovered. The Clerk of the Crown having read the patent, returned it
to the Chief Justice, who then took the usual oaths and subscribed the
declaration against transubstantiation, the Chief Justice reading the oaths
from a roll and the Clerk holding the book to him, after which the Chief
Justice advanced to the middle of the Bench, and, bowing to the Bar,
"the officers of the Court, and the persons who had accompanied him to
the Court, covered himself, and took his seat. The Attorney-General
then rose and moved that the Clerk of the Crown might make the entry
on the records of the Court that his Honour had taken the several oaths
and subscribed the declaration of law required, to which the Chief Justice
assented. The Chief J ustice then informed the Clerk of the Crown that
he had appointed Mr. Alexander McNabb to be Marshal to the Chief
Justice and to that Court, and directed him to administer his oath of
office, which was done accordingly, and the new Marshal took his seat in
front of the Court, between the Attorney-General and Solicitor-General.
The reader, after perusal of this notice of ceremonial, f
not exhausted in the reading, must of force admit that
-Canada truly had a royal judicial beginning. The only

chief JUSTICE ELMSLEY. 45.
ceremonial of the present day at all equal to this is the
nobility of gait and mein exhibited by "Black Rod " on
occasion of the meeting of Parliament at Ottawa.
Let us not, however, make light of the precedent. Was
it not always the case in the olden times that forms of law
were a principle feature in the administration of justice ?
The more modern doctrine is that forms must give way
to substance. Hence in the administration of justice, as-
in other matters, we have more the reality of things than
of obsolete forms and worn-out precedents. Equality and
justice have taken the place of the strict and technical
reading of the bond. Shylock may take his pound of
flesh, but if he do that, justice, which tempers the law, will
overtake him. The dodger may lose his ducats, the
" Equitas sequitur legem " doctrine is pretty well exploded.
But to return to the Chief Justice. We find that he
presided in full term in T. T. 37 George III., 17th July,
1797, and that Mr. Gray (afterwards Solicitor General).
moved several rules that term. He also presided in M.T..
37 George III., 8th March, 1797, in H. T. 38 George III.,
1st January, 1798. E. T. 38 George III., 2nd April, 1798,.
and T. T. 38 George III., 2nd July, 1798.
So far as I can make out from the records, he first
presided at the criminal Court of Oyer and Terminer in
the Province at the Court holden for the Midland District
at Kingston, on the nth September, 1797, at which Court
Richard Cartwright was one of the associate Justices. He
continued in the performance of his official duty as Chief
Justice to hold Criminal Courts of Oyer and Terminer in
the various judicial districts of the Province, at Newark^
York, Kingston, Cornwall, and Johnstown, once a year
down to the Court for the Home District, held at York on
the 14th of February, 1801. During this period he had as-
grand jurors well known men, men prominent in their day,
and without naming all I might mention some whose
descendants still live in the province : At the Court of
New Johnstown, on the 19th of September, 1797, Ephraim
Jones and Edward Jessup ; at Newark, the Court for the.

-46 LIVES OF THE JUDGES.
Home District, on the 22nd January, 1798, Andrew Heron,
Mr. Crooks, George Law, Peter Ball, and Joseph Clement.
The grand jurors of these days were prominent inhabi
tants of the country and were summoned by the sheriff,
who generally took care to summon men of intelligence
having real estate in the country.
In Chief Justice Eltnsley's time the practice of branding
and pillorying had hot yet gone out. I find that at the
Court held by him at New Johnstown, on the nth of
September, 1798, a prisoner convicted of perjury was
sentenced to be pilloried three times and imprisoned six
months ; and at the Court held by him at York, on the
14th of November, 1798, one prisoner convicted was
sentenced to be " publicly whipped," and another to be
" burned in the hand." Transportation was also a some
time sentence in those days. The record of this Court
holden at York on the 26th of November, 1798, states in
the case of three prisoners brought up for sentence, " The
Attorney General moved that they may be permitted to
transport themselves " — not to be transported, but to
transport themselves. This reminds one of Gratiano's
advice to the Jew : " Beg, that thou mayest have leave to
hang thyself"
The Chief Justice, while residing in York, took much
interest in the material progress of the place. He acquired
a large property above the McAulay property on Yonge
street. His inclination as well as his interest induced him
to be one of the principal promoters of the opening of
Yonge street. Dr. Scadding, in his " Toronto of Old,"
acquaints us with the fact that in 1800 the Chief Justice
presided at a public meeting to consider the best means
of opening the road to Yonge street, and that he was a
subscriber to the fund raised for that purpose. Govern
ment House, at the corner of King and Simcoe streets,
in Toronto, was formerly the property of Chief Justice
Elmsley. It is a matter of history that when the
Americans attacked York in 18 13 the magazine at the fort
exploded. The Government House at that day was near

CHIEF JUSTICE ELMSLEY. 47
the magazine. On the restoration of peace the Chief
Justice's private house, at the corner of King and Simcoe
streets, was purchased and converted into Government
House. It has ever since, for the most part of the time,
been occupied for the same purpose — the Governors
and Lieutenant-Governors there dispensing the hospitality
suitable to their station. The Governor's residence has
more than once been added to and improved. There
seems to be a disposition on the part of those who have
the control of the vice-regal mansion to preserve in its
surroundings some of its antiquity.
Captain the Hon. John Elmsley, of Toronto, was son of
the Chief Justice ; in his younger days he was a lieutenant
in the royal navy, and never lost his love for the water.
At a time when skilful seamen were required for the lake
steamers plying between Toronto and Kingston, and the
St. Lawrence, the captainship of the steamer Sovereign
was committed to the salt water sailor. Captain Elmsley ;
indeed his title of captain was acquired from his having
charge of lake craft ; he was a skilful and popular captain.
I remember on one occasion being a passenger of his on a
voyage of his vessel going from Toronto to Kingston.
Before daylight of the morning we should have arrived at
Kingston, the vessel (the Sovereign), in a dense fog, owing
to no fault of the mate in charge, ran upon Nine Mile
point, nine miles above Kingston. I had, on that occasion,
an opportunity of observing the care and skill of Captain
Elmsley in the command of the steamer, extricating her
from her dangerous position after a delay of several hours.
Before this, in 1839 or 1840, I had an opportunity of
knowing him in another capacity. At that time I was
pursuing my studies with his brother-in-law, the Hon.
George Sherwood, of Brockville, when one day there
appeared a stranger in the place. The good people of
Brockville wondered who he might be. He was a man of
manly bearing and it is said much resembled his father,
the Chief Justice. It was not given to the people of
Brockville to know as much of him, on that occasion, as

4^ LIVES OF THE JUDGES.
was afforded to the writer He had come there to-
augment his then dawning wealth by the accession to it
of soldiers' claims. There were in the vicinity of Brock
ville a number of militiamen who had, as a reward for their
services in the War of 1812, been granted scrip entitling
them to claim land from the Government. Captain
Elmsley foresaw that the ownership of these claims might
be turned to good account, and so he was bent on acquir
ing them. Soldiers, even though militiamen, and sailors
are never very provident, and claims could be had at a large
discount of their real value. " Now's the day and now's
the hour," see approach the Elmsley power. He came,
he saw, he conquered. He procured assignment of many
claims. I accompanied him on his expedition to witness
the transfer. These claims were the foundation of his
wealth as a large landed proprietor. I have been told by
those who knew the Chief Justice that Captain John
Elmsley, in a large degree, resembled his father, the
Chief If this be so, from my acquaintance of Captain
Elmsley, acquired on the occasions I refer to, I can
say that the Chief Justice must have been a man of
goodly presence, great acquirements, and nobility of
character. Captain John Elmsley did not follow in the
footsteps of his father in the matter of faith and religion.
The Chief Justice was a staunch Protestant and member
of the Church of England. He was one of the principal
founders of the building of St. James's Church, sometimes
called the Cathedral. Indeed, in old times, during the
bishopric of the Right Reverend John Toronto, more
commonly known as Bishop Strachan, of Toronto, it was
always so called. In the year 1843, Captain John Elmsley
became a pervert or convert to the Roman Catholic Church,
though up to that period he had, like his father and mother,
been a staunch Protestant. The ostensible cause of his
change of faith was the reading of the Roman Catholic
Bishop of Strasburg's observations on the sixth chapter of
St. John's gospel. Mr Elmsley satisfied his own mind
and published a pamphlet, which he circulated through.

CHIEF JUSTICE ELMSLEY. 49
the Province, giving the reason for his change of faith.
The Bishop, then Archdeacon Strachan, felt it his duty
to remonstrate with his old parishioner, and adopted the
like means of refuting the doctrine of transubstantiation,
which had become a matter of faith with Captain Elmsley.
The Archdeacon published at the Courier office (owned
by G. P. Bull in Toronto), in 1834, a pamphlet addressed
to the congregation of St. James's Church, in which, in a
very able manner, he answered and endeavoured to remove
the doubts or confirmed opinion of Captain Elmsley in
regard to the question which had agitated him I, by
accident, picked up this pamphlet one day in a book stall
of the city. I prize it as a relic of the past and remem
brancer of the controversy.
In order to show the spirit in which this controversy
was conducted, and the spirit that animated the good
Archdeacon, I will quote but one passage in his deliver
ance. The Archdeacon wrote in 1833, thus :
The members of the Roman and English Catholic Churches, both clergy
and laity, have always lived on the most friendly terms in Upper Canada,
and I trust will continue to do so. A regard for the tranquility of their
flocks and the variety and extent of their duties appeared to dictate this
line of conduct to the clergy ; and their situation has hitherto afforded
them little leisure or convenience for polemical discussion. But new
converts, anxious to spread the strange light that has burst upon them,
are not easily restrained within the limits of a prudent discretion, and
therefore Mr. Elmsley thought it necessary, as it would appear, even
before his final conversion, to labour for the conversion of others, by
publishing an English translation of the Bishop of Strasburg's commentary
on the sixth chapter of St. John.
I quote the passage merely to show that, with a differ
ence of opinion and independent thought, there may be
coupled that tolerance and charity which '¦ vaunteth not
itself, is not puffed up." I would not have referred to this
matter at all were it not that the secession of Captain
Elmsley from the English Church at the time caused
much pain to the Archdeacon and no little scandal to the
Church ; and, going back to the Chief Justice, his inau
guration and declaration against transubstantiation, the
matter is one, in some degree, akin to the subject in hand.
7— L- J- .

50 LIVES OF THE JUDGES.
Captain Elmsley, notwithstanding his secession from his
mother Church, continued in well-doing, in acts of charity
and benevolence. Many a poor citizen, some now living,
had reason to acknowledge assistance from his bounty,
and the Roman Catholic Church profited largely by his
benefactions. I must pass on, as it were, changing the venue from the
Province of Upper Canada to that of Lower Canada.
The Chief Justice had performed his duties so much to
the satisfaction of his royal master, that, on the resignation
of Chief Justice Osgoode, he was appointed to succeed him
in the Chief Justiceship of Lower Canada, on the 13th of
October, 1802. I have before me a copy of the letter of
the Colonial Minister, Lord Hobart, to Lieutenant-General
Hunter, informing him of the appointment, or proposed
appointment, of Mr. Elmsley to the Chief Justiceship of
Lower Canada. The letter is dated Downing street, 31st
of May, 1802, and reads as follows :
Sir ; The office of Chief Justice of Lower Canada having become vacant
by the resignation of Mr. Osgoode, in fixing on a person properly qualified
to succeed him, the character and merits of Mr. Elmsley, who has dis
charged with so much credit to himself the duties of a similar appoint
ment within your government, could not fail to point him out to his
Majesty as in every respect worthy of his choice.
In his new office of Chief Justice of Lower Canada^
Chief Justice Elmsley was conspicuous for his fidelity and
zeal in the public service. In 1 804 he was appointed to
the speakership of the Legislative Council of that Province.
The system then prevailing in the Province of Lower
Canada, under which the Chief Justice was appointed
member of the Legislative Council by the Crown, and
was sometimes, if not always a member of the Executive
Council, also appointed thereto by the Crown, was a
vicious one ; but then it is to be said that this was long
before the visit of Lord Durham to Canada, when
the true principles of responsible government, as exist
ing in England, did not prevail in Canada. A Chief
Justice who, to his judicial duties, has superadded political

CHIEF JUSTICE ELMSLEY. 51
duties, such as those of Legislative or Executive Coun
cilor, is apt to have motives imputed to him which mar
his usefulness as an independent Judge. This was
especially the case in Lower Canada, where a vast
majority of the people were French, and the officials of
Government English. Even so impartial and excellent a
Judge as the first Chief Justice Osgoode was not able to
-escape the friction occasioned by such a state of affairs.
Sir Robert Shore Milnes was Lieutenant Governor of the
Province during the Chief Justiceship of Osgoode, as well
as of Elmsley. Sir Robert Shore Milnes was a military
man, very much given to governing by military rule. In
1801 serious differences took place between him and
Chief Justice Osgoode. The Chief Justice had prepared
charges against another Judge — Judge DeBonne — which
the Chief Justice thought called for his dismissal. The
Governor took it upon himself to shield Judge DeBonne.
There can be no doubt that the complaint of Chief Justice
Osgoode, as to the performance of Judge DeBonne's
judicial duties, was well founded. In a despatch from
.Sir R. S. Milnes to the Duke of Portland, on the 20th of
March, 1801, he sought to bring the Chief Justice into
disfavour with the home Government, and attempted to
excuse DeBonne. In this despatch he wrote :
Since the representation I made to Mr. DeBonne, respecting his non-
attendance in the Courts, he has been constant in his duty, and at the
•opening of this Parliament he called upon me to offer his services, and to
-say that he had no wish but to be considered by me in a favourable light,
and to give his support as he uniformly had done to the representative Of
his Majesty in the Province.
This despatch itself shows that the Governor knew
that Judge DeBonne had been remiss in the performance
of his duties, that he had made a representation to him on
the subject and had received and accepted his apology.
The Chief Justice Osgoode in this matter, as in all other
matters, was solicitous for the honour and dignity of the
Crown and its officers, especially its judicial officers. The
Chief Justice came out of this affair with honour, and on

52 LIVES OF THE JUDGES.
his resignation, was granted a pension of eight hundred
pounds sterling per year. I do not find that the path of
Chief Justice Elmsley was crossed by the Governor though
the same Governor reigned during his occupancy of office.
There is nothing to show that Chief Justice Elmsley was
held otherwise than in esteem in Lower Canada.
He had only filled the office there for a period of three
years or thereabout, when death cut short his earthly
career in the month of July, 1805, at Montreal. He was
a gentleman of great professional talents and application,
as well as the most amiable demeanor. Mr. Morgan
informs us that the Quebec Mercury said of him, in an
obituary notice of his death : " That he was eminently
distinguished not less for his private virtues than his,
public talents."

IV.
The Honorable Henry Alcock, Chief Justice
OF Upper Canada.
HAVE somewhere read that Charles Francis
Adams, who really had reason to be proud of
his ancestry, grew tired of being introduced
as a grandson of John Adams and the son of
John Quincy Adams. At one political meeting he said :
" The fact of my ancestry has been referred to several
times during the evening. I am proud of my father and
grandfather, but I wish it distinctly understood that I
appear before you as myself, and not as the son and
grandson of any man." Chief Justice Alcock has to be
spoken of in almost the same strain, for I have not been
able to gather much of his history before his appearance
in the official records of Canada. His father was an
Englishman, residing at Edgliston, in the county of War
wick, and the future Chief Justice was called to the Bar of
Lincoln's Inn in Hilary Term, 1791.
Chief Justice Alcock was one of those men so
fortunate as to diversify his duties. His first appointment
was on the General Commission of the Peace for the
Province in 1796. On the 30th of November, 1798, he
was appointed Judge of the King's Bench for Upper
Canada, and on the 19th of January, 1799, Judge of the
District Court of the Province. In the autumn following
his appointment he entered upon his judicial duties. He
presided at the Court of Oyer and Terminer, held at

54 lives of the JUDGES.
Newark (Niagara) on the 15th and i6th of October, 1799..
He continued holding the principal criminal Court of the
Province down to the autumn of 1804. He had, in the
intervening period, on the 7th of October,, 1 802, been
promoted to the Chief Justiceship of the Province, and
thenceforward he continued in the duties of his high office
till July, 1805, when he was promoted to the Chief
Justiceship of Lower Canada. The opinion entertained of
Judge Alcock at the Colonial Office appears from a letter
from Lord Hobart to Lieutenant-General Hunter, Governor
of the Province at the time, dated the 31st of May, 1802.
In that letter Lord Hobart thus expresses himself :
The professional abilities of Mr. Alcock, and the high opinion you
appear to entertain of him, have induced His Majesty to promote that
gentleman to the situation of Chief Justice of Upper Canada, and to call
him to a seat in the Executive and Legislative Council, which will become
vacant by Mr. Elmsley's removal to those of the Lower Province.
During the time of his occupancy of the Bench in
Upper Canada, which was but a few years, he gave every
satisfaction in the performance of his duties, which con
sisted principally in holding the Criminal Court in the
various districts of the Province. In January, 1800, he
presided at the Court of Oyer and Terminer for the Home
District, held at York, where he had waiting on him
twenty-four grand jurors, among whom were Thonias
Ridout, William Jarvis, and  Wilcock. I have only
to mention those names to show of what sterling stuff
were the jurors of those days. The Ridouts and
Jarvises were leading families in the early days of York.
The Jarvises were New England Loyalists. The Jarvis
who was Secretary of the Province, as well as Stephen
Jarvis, who was in early times Registrar of this Province,
were officers in incorporated colonial regiments before the
independence of the United States.
In August, 1803, the Chief Justice held the Criminal
Court for the London District. In Chief Justice Alcock's
time the Court for the London District was held at Char-
lotteville. The record is '' at the Town of Charlotteville.

chief justice alcock. 55
22 August, 1803." In September, 1803, he presided at the
Court holden for the Western District. At this Court
two prisoners were convicted of murder, and the sentence
of the Court was " both to be hung till dead, afterward to
be hung in chains." I do not know why the Court was so
very particular as specially to order that after the vital
spark had fled the doomed men were to be hung in chains,
but such was the sentence. In 1803, or January, 1804,
the Chief Justice (Alcock) presided at the Court for the
Home District, held at York, when a man and his wife
were found guilty of a nuisance — the sentence on the wife
was " six months common jail, and to stand twice in the
pillory opposite the market house two hours each time
during the imprisonment." The market-place was about
in the same locality as the present St. Lawrence Market.
In a proclamation issued by Governor Hunter, on the 26th
of October, 1803, there was established in York a regular
market, to be held once a week, and the boundaries of the
market-place were defined. The town seems also to have
enjoyed the luxury of a public pump and other great
advantages. It was at or near this public pump in the
market-place that the public whipping, as well as the
pillorying, was enacted. Dr Scadding, in " Toronto of
Old," in his topographical sketch of the town and the
public pump, says :
And here we once witnessed the horrid exhibition of public -whipping,
in the case of two culprits whose offence is forgotten. A discharged
regimental drummer, a native African, administered the lash. The
sheriff stood by, keeping count of the stripes. The senior of the two
unfortunates bore his punishment with stoicism, encouraging the negro to
strike with more force. The other, a young man, endeavoured for a little
while to imitate his companion in this respect, but soon was obliged to
evince by fearful cries the torture endured.
What stories might not that pump at the market-place
be able to tell if it had tongue to speak. At a very early
period in the days of King Charles and Archbishop Laud
there is said to have been a pump in Salem, Massachusetts,
which for purity of water, if not for purity of language,
was unsurpassed. It has been celebrated in the " Rill of

S6 LIVES OF THE JUDGES.
the Pump." The writer of the Rill has indulged in much
pleasantry on his theme. It is not to be doubted that at
a later age in Toronto the town pump and its surroundings
were not far behind the pump of Salem in contributing to
the delectation of incipien t York.
The reader must not suppose that whipping was a
punishment peculiar to Canada, or that it had not age and
some Puritanism to commend it to public favour. Has
not that most delightful painter of New England customs,
Nathaniel Hawthorne, in his tale, " Endicott and the Red
Cross," written it down for our learning, that in old Salem
there was in close vicinity to the meeting-house "that
important engine of Puritanic authority, the whipping
post, with the soil well trodden around it by the feet of
evil doers who there had been disciplined : at one corner
of the meeting-house was the pillory, and at the other the
stocks, and that a criminal who had boisterously quaffed
a health to the King, was confined by the . legs in the
stocks ?"
These evil doers, referred to by him, were sentenced to
undergo their various modes of punishment for the space
of one hour at noonday. The New England malefactors
of these days had often to submit to bear a more scandal
ous and life-long punishment.
Hawthorne tells us that among the crowd he was
describing " were several whose ears had been cropped,
like those of puppy dogs ; others whose cheeks had been
branded with the initials of misdemeanors ; one with the
nostrils slit and seared, and another with a halter about
his neck, which he was forbidden ever to take off, or to
conceal beneath his garments."
The last sentence passed by the Chief Justice in Upper
Canada, so far as I can ascertain from the records, was on
the 5th of October, 1804, at Cornwall Court, holden for
the Eastern District. Banishing was not out of vogue at
that time. A prisoner named La France was convicted
of stealing and sentenced to be " banished from the
Province for the term of his natural life, and that he take

CHIEF JUSTICE ALCOCK. 57
his departure from the Province in two days from this
time." Inasmuch as most prisoners who were banished
from the Province were at that period almost of necessity
-compelled to take refuge in the United States, it seems
hardly fair to have imposed upon the new Republic
citizens of this class, dumping them, as it were, over the
border. Chief Justice Alcock, like other Chief Justices of the
latter period of the last century and the beginning of
this, was a member of the Legislative Countil of Upper
Canada to which he was summoned in 1803, and, indeed,
at the same time was made Speaker of that aristocratic
body. After his removal to Lower Canada he was made
a Legislative Councillor there also, and in 1807 was
appointed Speaker of the Council. He was also a member
-of the Executive Council. I do not find anything in the
history of the times to justify me in saying that he was a
success in his political capacity, although much esteemed
in his judicial. I hazard the opinion that a good deal of
jealousy was at the bottom of his unpopularity as a
councillor. In his day the wheels of government did not
run smoothly in the Lower Province. The Legislature of
the Province -was filled with place-men, and the executive
was often arbitrary and offensive. Mr. H. W. Ryland, in
1807, had for fourteen years been clerk of the Executive
Council. The Governor of the Province, so far as England
was concerned, was generally confided to a military officer.
There were frequent changes of officers and as frequent
¦changes of executive government. Mr. Ryland was there
all the time — in fact and in truth he was sub rosa, more
ruler than was the Governor He had the ear of all the
Governors during the whole time of his incumbency of
-office. He was afflicted largely with Franco-phobia —
indeed, if he had his way he would have had nothing but
military government in Lower Canada. He, however,
was but one of a class, and there can be no doubt voiced
the views of the majority of the English in the Province,
and that view was the extirpation of the French.
8— L. J.

S8 LIVES OF THE JUDGES.
In 1807 a change of officers was likely to take place,
and Mr Ryland was likely to be suspended in his office.
He conceived the idea, rightly or wrongly I cannot say,
that Chief Justice Alcock was desirous of getting his
intended father-in-law appointed to the place. Mr.
Ryland, not always very choice in his language, in writing
to the Lord Bishop of Quebec, designated the Chief
Justice as a contemptible animal, in another place he called
him (2 curious beast These, however, were but figures of
speech, and the Secretary was much commended by his
friends for his frankness and John Bullism.
Even at the expense of prolixity, I must give the com
munication of Mr Ryland to the Lord Bishop, necessary
as it seems to me, in order to understand the raison cT
etre of the undoubted historical fact, that a worthy and
popular Judge, in his judicial status, was yet disliked in
his political status. Mr Ryland's letter to the Lord
Bishop of Quebec is dated, Quebec, 17th October, 1807.
It professes to give an account of Sir. James Craig's
arrival in Canada, and is as follows :
My Dear Lord— I had the happiness to receive your Lordship's letter,
by the Honourable and Reverend Mr. Stewart, who appears to me to
merit every eulogium your Lordship can bestow on him. I admire his
zeal, I venerate his principles, and from my soul I wish him all possible
success in the highly laudable mission he has undertaken. The president
is on every account most heartily disposed to promote the object in view,
and your Lordship may be assured that no endeavour of mine will be
wanting to the same end ; but you well know, long before this time, the
great change that is about to take place here, and which probably will
remove me from the only situation that can enable me to contribute to
the accomplisment of your Lordship's wishes in any matters of a public
nature. The ministry has at length taken a most decisive step with respect to
this country, and at the same time the wisest that could be adopted for
its preservation and happiness, and I hope and trust that henceforth the
civU government of this Province will never be separated from the
military command. I can only say that during the last twelve months I
have had a more difficult and arduous duty to perform than has at any
time been imposed upon me during the fourteen years preceding, and I
should be very glad if your lordship could obtain an opportunity of
ascertaining this matter by an inspection of the correspondene from home
since the month of January last. I flatter myself the Secretary of State

CHIEF JUSTICE ALCOCK. 59,
will have received a series of dispatches which, if read with attention,
will not only give him a general and useful knowledge of the state of
things here, but also a particular insight of certain leading characters,
whose utmost endeavours have been to defame and injure the president
(Mr. Dunn) with a view to their own private interests. I particularly
allude to that contemptible animal the C. J. (Chief Justice Alcock), to his
worthy friend and coadjutor * * (of whose treacherous, plausible,
and selfish character I have never had but one opinion), and to that
smooth-faced swindler whom the Lieutenant-Governor has taken so
affectionately by the hand as the man who of all others comes the nearest,
in point of knowledge, to the great Tom of Boston. To these worthies I
must beg leave to add a pudding-headed commanding officer, who, if the
president had given in to all his chamelian projects, would have intro
duced utter confusion into the whole system, civil and military. The
reinforcements so prudently sent from Halifax are arrived. We look
only with anxiety for the Governor-General and Commander-in-Chief,
whose established fame assures us that a better choice could not have
been made.
This communication was not transmitted to the Lord
Bishop till after the 24th of October, when Sir James
Craig was sworn in as Governor, and on the 22nd of
October Mr. Ryland added to his previous communication
the following :
The day after I wrote what goes before, I was awakened very early in
the morning by a messenger from Mr. Dunn, informing me that he had
received an express from Sir James Craig, and that the General was just
at hand. I dressed myself immediately and got on board the frigate with
Mr. D. 's answer to the General's despatch before the ship cast anchor, and
before any other of the public functionaries knew she was at hand. I
found the General, as he had stated, extremely ill, in bed ; but he
received me with great politeness, and, after enquiring concerning my
appointment as Secretary, he begged I would do him the favour to remain
in the same situation with him. I never in my life was so pleased with
any person at first sight ; and, although I saw him under every dis
advantage, he struck me as a most amiable, intelligent, decided character.
He landed about oae o'clock, after which I saw him only for a minute,
for he was so unwell he earnestly desired to be left alone. Yet that
curious beast, the C. J. (C. J. Alcock), after intruding himself with
unparalleled assurance upon the General before he landed, forced himself
upon him again at the chateau, when everybody but the President had
withdrawn, and most impudently sat the latter out. There is little doubt
that he ventured on this proceeding for the purpose of recommending as
secretaries his intended father-in-law and a young man named Brazenson,.
or some such name, whom he had brought out with him from England,.
but his scheme entirely failed and his folly will fall on his own pate.

¦6o LIVES OF THE JUDGES.
I am tempted here to say : " Hinc illce lachrymos!' It
plainly appears that office, or retention of office, was the
cause of the whole difficulty. In still another addition to
the communication of the 17th and 22nd of October, Mr.
Ryland (after referring to the circumstance of the swearing
in of the Governor the day before, and the sickness,
which was so serious that his life was almost despaired of)
breaks out into this rhapsody :
Oh ! if I could but fiatter myself he would regain his health, I should
become a new man, different, entirely different, from what I have been
during the last eight years ; I should look forward with infinite delight
to the moment of my reunion with my "wife and children. I should
almost forget that I am surrounded by scoundrels, and for the love of this
one just and honourable man I would bury in oblivion the mean jealousies
of ii contemptible self-sufficiency and the false professions of smiling
deceit. But should it please Almighty God to remove from us this
incomparable man, and should there be a chance that the civil govern
ment of this Province is again to be disunited from the military command,
I do hope your lordship -will favour me with your utmost interest toward
enabling me to make the exchange which Mrs. R. will tell yoa I have in
contemplation. I think the reader, after reading Mr. Ryland's communi
cations, will say that he understood English as she is spoke,
It will further occur to him that the writer of the com
munication was no small power in the Province, both in
church and state. Much more might be gathered from
the historical part to show that Mr. Ryland, however
excellent a man he may have been, was hardly the one to
form a dispassionate judgment of the Chief Justice, who
was much esteemed not only for his learning but excel
lent qualities.
Sir James Craig and Mr Ryland were very much of
one mind as to the mode proper to be pursued in dealing
with the French in Lower Canada, and that was to treat
them as a conquered people in every respect. It will be
observed that Mr. Ryland, in his last communication to
the Bishop of Quebec, referred to the Governor as " that
incomparable man." The French have stigmatized his
administration as the " reign of terror" Yet, with all this,
on the return of the Governor to England, in 18 1 1, without

CHIEF JUSTICE ALCOCK. 6l
leave, in consequence of ill health, broken down in con
stitution and spirits, he was informed by Lord Liverpool
" that the Prince Regent warmly approved of his conduct
as Governor of Canada."
There can be no doubt that he carried on the govern
ment with much firmness, rather too much so to be pleasing
to the French. In a conversation he had with Mr Plessis,
he said :
It is a certain fact that up to the present time the country has been
governed in a spirit foreign to that of the British constitution. We may
let things pass here which would not be permitted in any other part of
the British dominions. The Home Government will be justified in calling
me to account yet for several concessions which were made contrary to
its instructions. So long as the Province was not a dependency of much
consequence, small regard was paid to such irregularities ; but since it
has become an important colony, in respect of its population, its material
products, and its trade, now augmented to an extent undreamed of in
former times, so great an extension in all respects having been given to
the colony, it is time that its government were organized on the same
plan as the other portions of the Britannic empire. Its greatest glory is
that royal prerogative rules everywhere in it.
I would not have the reader suppose that the Governor's
allusion to royal prerogative was directed to anything else
than the matter in hand^ — that was the matter of appoint
ment of the clergy in Quebec, the Roman Catholic clergy
by the Bishop instead of the Crown. Sir James Craig,
like Mr Ryland, was strongly of the opinion that the act
of appointment by the Bishop instead of by the Crown
was a direct infringement of the royal prerogative— there
is not probably a single Englishman in the Province of
Quebec who does not think the same !
During the period of the occupancy of the Bench by
Chief Justice Alcock in Lower Canada, events of great
importance were transpiring in that Province. In 1805
the British Government had made known to the Roman
Catholic Bishop an intention to reclaim, at the Papal
court, the privilege accorded to the Kings of France, by
the concordats, ot nominating to the parochial charges in
the colony. The Bishop resisted this proposal per
emptorily, as it would have subordinated the Canadian

*62 LIVES OF THE JUDGES.
Church to an Anglican establishment. A change of
rgovernment taking place in England, the British Govern
ment did not pursue the matter, and so, to this day, the
Church reigns in the Province of Quebec. The Chief
Justice, notwithstanding the many difficulties he had in his
political capacity, bore up against them, and succumbed
to the hand of death on the 22nd of February, 1 808.
That he was much esteemed as a Judge will appear from
the obituary notice of him, published at his death by the
Quebec Mercury. The ]\dercury said :
In the exercise of his public duties he evinced the advantages which
attend the forming of a legal scholar at the English Bar, and in all the
various offices which he fiUed he acquitted himself an able Judge, dis
tinguished by the most eminent rectitude and unwearied assiduity. His
memory was retentive, his j udgment clear and penetrating, and so pro
found was his knowledge of English law that the energies of his mind
cast a luminous ray over the dark and abstruse code of Provincial
jurisdiction. His language was classical and perspicious, nor can those
who have heard his judgments remember them without a mixture at once
of pleasure and regret. In the habitudes of his life his manners were
those which are commonly said to be peculiar to a "plain Englishman,"
-affable, conciliating, unaffected. In a word, his public and private virtues
will long live in the hearts of both the old and new subjects of this Pro-
wince, and his death will be felt with a general and unfeigned sorrow.

V.
The Honorable Thomas Scott, Chief Justice of
Upper Canada.
Hon. Thomas Scott was of Scotch pa
rentage. His father, Thomas Scott, was a
minister of the Church of Scotland. The
Hon. Thomas was born in the year 1746.
It was the intention of his father that he should also be a
minister of the gospel ; he was, in fact, on probation as a
minister ; but became tutor in the family of Sir Walter
Riddell, whose name is famous in the law Courts in
Edinburgh. It was through the advice and influence of
Sir Walter Riddell that he was induced to leave Scotland
for London, where he studied for the law at Lincoln's Inn,
and was called to the Bar in Hilary Term, 1793.
In the year 1788, when yet in his pupilage, he received
employment under the Crown in the Province of Quebec.
At this time the Crown, represented in the Province by
Lord Dorchester, had determined to convey to Jeffrey
Lord Amherst a parcel or parcels of the confiscated Jesuit
estates in the Province. Accordingly Lord Dorchester,
on the 2nd day of January of that year, with a view of
being informed as to the nature and quality of the estates,
issued a commission to Reuben Chandler, Thomas Scott
(the future Chief Justice), John Coffin, Gabriel Elzeard
Taschereau, Jean Antoine Panet, George Lawes, James
McGill, and Messrs. De St. Ours and Rouville, command
ing them, or any three of them, to make investigation into

64 LIVES of the judges.
what lands and estates were held, possessed, and claimed
by the order of Jesuits within the Province, and the
manner and ways by which they were, and what portions-
or parts thereof had been by them aliened and exchanged,.
and what portions or parts thereof were then vested in the
Crown, and which might be legally given and granted..
The commissioners were further instructed that the Crown,
being desirous to be apprised of the nature and quality
of the said lands, and the title by which they were
possessed, their value, the nature of the terms by which
they were holden, and what claims were made by their
heirs of the donors of such parts of the lands as were
given to the religious Order of Jesuits by private persons,
these several matters were not only to be inquired into,
but reported on by the commissioners.
The bare fact of Chief Justice Scott, then a private
citizen, plain Mr. Scott, being named on this important
commission, showed that he possessed the confidence of
the Government of the Province. The first appointment
Mr. Scott received in Upper Canada was that of Attor
ney-General, in 1 80 1. He was promoted to the Chief
Justiceship of the Province in 1804. The records show
that he first presided at the Court of Oyer and Terminer
for the Home District, held at York, corhmencing the
1st of April, 1807.
Following upon this, in the summer and autumn of that
year, he presided at the Court of Oyer and Terminer and
General Gaol Delivery in the Newcastle, Midland, Johns
town, Eastern, Western, London, and Niagara Districts.
On the 2 1st October, 1807, he again presided at the
Criminal Court for the Home District, at which Court a
prisoner, convicted of stealing five shilling.'', was sentenced
to banishment for seven years. At this day such a
sentence for such a trifling offence would be considered
disproportionate to the crime. It may have been, how
ever, at the period of this sentence, that in the mind of
the Court it would be of benefit to the Province to
deprive the prisoner of British air for several years, after
which he might return purified and reformed.

chief justice SCOTT. 65
In 1808 the Chief Justice presided at the Criminal
Courts held at York, Sandwich, and Niagara. During the
following years, down to the 30th March, 18 12, he held the
Spring and Autumn Courts at York for the Home District.
I must cry a halt here. The Temple of Janus is now
about to open wide its doors and Bellona reigns supreme.
The Autumn Court, it is true, was held, but amid the din
of war Before the Autumn Assize was held in the month
of June, 1 812, the young Republic of the United States
had declared war against Great Britain. To most minds
this would seem a rash undertaking. Not so, however,
thought Mr. Madison, the American President, or the
Congress of the United States. Had not England been
at war with France, and with all her main and might,
striving to curb the despotic sway of the great general of
the age, Napoleon Bonaparte, there might not have been
a war with America. At the present day it seems almost
beyond belief that two nations of the same blood and the
same lineage could, except for the gravest reasons, go to
war. It will be but right to place before the readers the
causes which influenced the United States to take so
important a step. The alleged cause was the Orders in
Council, passed by the British Government, which
prohibited all neutral nations (which would include the
Republic) from commercial intercourse with France. It is
true America suggested another reason for her hostile
attitude to Great Britain, and that was the impressment
of seamen on American vessels by the British cruisers.
When it is admitted that up to March, 18 11, Great
Britain had impressed from the crews of American vesseis,
peaceably navigating the high seas, not less than six
thousand mariners who claimed to be citizens of the
United States, and who were denied, as asserted, oppor
tunity to verify their claims ; when it is considered further
that in the exercise of the powers given by the Orders in
Council, a thousand American vessels with their cargoes
had been seized and confiscated, there would seem some
9— L. J.

66 LIVES OF THE JUDGES.
measure of excuse, if not justification, for the Americans
in the extreme act in declaring war. Nevertheless there
ought not to have been any war. The Orders in Council
were but an answer to France for her Berlin decrees,
which were no more or less than a commercial ostracism
of England. Under these decrees France excluded from
her shores the merchandise of England, her colonies and
dependencies. Every article of British produce was
searched for, seized, and committed to the flames, while the
most cruel punishments were inflicted on the subjects of
France who dared to violate these arbitrary laws.
The palpable effect of these decrees was to exclude
English commerce, while American commerce could
flourish with renewed strength. If America could furnish
France with supplies in American ships, and ships being
free from capture, it is manifest that France could have
prolonged her war with England, and for that matter with
the world, for an interminable period and to an intolerable
extent. How, then, could England, by her decrees, suffer
France thus to rule the commercial world ? It was certainly
in the power of the United States to profit by the decrees
and build up their commerce at the expense of England,
but the question is or ought to be, was it right for a young
Republic thus to fortify the cause of the greatest despot
of the time, the tyrant and despoiler of the peace of
Europe ? As to the impressment of seamen, the matter
being looked into, would have disclosed that the seamen
impressed were in the majority of cases British seamen
who had deserted their ships and taken refuge under the
American flag. If England were to allow this, the
supremacy of the seas, which she had acquired, would
have been lost, her navy annihilated, and ships, colonies,
and commerce a thing of the past ; a dream that had
vanished forever But why enlarge on this ? The
American Congress declared war on the i8th of June,
1812, and they, the Orders in Council, were rescinded on
the 23rd of June, 1812. So that before war was well set
going the principal cause of this war was removed. In

CHIEF JUSTICE SCOTT. 67
American documents, acknowledging repeal of the order,
it is stated :
If the Orders in Council had taken place sufficiently early to have been
<!ommunicated to the United States Government, before they had actually
declared war, the repeal of these decrees against neutral commerce would
have arrested the resort to arms ; and that one cause of the war being
removed, the other essential causes — the practice of impressment — would
(have .been the subject of renewed negotiation. But the declaration of
war having given the practice of impressment as one of the principle
•causes, peace could only be the result of an express abandonment of that
practice. I think we may say that if the electric telegraph had
been in existence on the 23rd of June, 18 12, it is at least
doubtful if there would have been a war between Great
Britain and the United States. My reference to the war,
its origin and cause, has been suggested by the fact that
the grim visage of the demon was appearing on the
stage, the judicial duties of the Chief Justice were inter-
irupted — the peaceful quiet of the Province was disturbed
by the cries of wounded men and the cannon's roar. In
connection with the war and its outcomings, the Chief
Justice was an impartial observer of current events. He
was a witness of the acts of the Americans in the capture
of York in 18 13. With a sense of justice which it is well
to remember, in a letter of the 30th of April, 18 13, he
writes : " The humane attention which General Dearborn
had paid to the present situation of its inhabitants by
pursuing a line of conduct so conducive to the protection
of a number of individuals and so honourable to himself"
Chief Justice Scott's residence was in York ; the house
¦was at the corner of Yonge and Front streets, in which
Judge Sherwood lived while a resident in York. The
house had attached to it, on the east side, garden, orchard,
and pleasure ground, which extended all the way to Scott
street, running from Wellington to Front street, and which
is named after the Chief Justice.
He took great interest in the Loyal and -Patriotic
Society of Upper Canada, organized at York in 181 2, and
was its first chairman and president. The objects of the

68 LIVES OF THE JUDGES.
society were "to afford relief and aid to disabled militiamen
and their families ; to reward merit, excite emulation, and
commemorate glorious exploits by bestowing medals and
other honourary marks of public approbation and distinc-,
tion for extraordinary instances of personal courage and
fidelity in deferice of the Province.'' The society had only
been formed a few days before the subscription of York to-
the fund had amounted to the respectable sum of eight
hundred and seventy-five pounds (thirty-five hundred
dollars), to be paid annually during the war with the
United States. Medals were also struck in London, by
order of the Loyal and Patriotic Society. These medals,.
however, never reached the intended recipients from the
fact that there were so many candidates for the coveted
honour that the difficulty of deciding who was to I'eceive-
them was found to be too great. The medals were finally
broken up and the bullion, augmented with what
remained of the funds of the society, devoted to benevo
lent objects. A considerable donation from the funds was
made to the York General Hospital, an institution well
deserving of the favour shown to it, and the foundation of
the present Toronto Hospital, which enjoys more than a
provincial reputation. As a reminder of the old time of
the war, and the loyality which inspired the Canadians of
that day, it will not be out of place to give a short descrip
tion of this medal. It was two and one-half inches in
diameter On the obverse, within a wreath of laurel were
the words " For Merit " — on this side was also the legend,
" Presented by a grateful Country " — on the reverse was
the following device : A strait between two lakes, on the
north side a beaver (emblem of peaceful industry), the:
ancient cognizance of Canada ; in the background the
British lion slumbering ; on the south side of the strait the-.
American eagle planing in the air, as if checked from
seizing the beaver by the presence of the lion ; legend on
this side " Upper Canada preserved."
Notwithstanding the loyalty of the mass of the people
of the Province of Upper Canada during the war of 1812,.

CHIEF JUSTICE SCOTT. 69
there were some whose American sympathies carried them
so far as to subject them to the suspicion if not to the
actual commission of high treason. Consequently the
-Legislature, on the 14th of March, 1814, passed an " Act
for the more impartial and effectual trial and punishment
of high treason and treasonable practices in the Province."
On the I ith of April of the same year, Gordon Drummond,
Esquire, then president of the Province, by and in the
name of the King, issued a commission to Chief Justice
Scott (and others), the Honourable William Dummer
Powell, the Honourable William Campbell, Justice of the
Court of King's Bench, John Small, Esquire, Richard
Hatt, Thomes Dickson, and Samuel Hatt, Esquires,
Justices of the Peace, to enquire, by the oath of good and
lawful men, at the Court of Oyer and Terminer of the
several districts of the Province, into the matter of high
treason or treasonable practices committed in either of
the Districts of London, Home, or Niagara. The com-
mis.sioners were not only to enquire but to hear and
determine the matters brought before them. It is not
always the man who shouts most loyalty that is the most
loyal. It is not to be questioned, however, that in the
war of 18 12 the great body of the Canadians were of
refined gold. The United Empire Loyalists had in the
American Revolution been subjected to the refining
influence of a white -heated crucible, and came out as the
purest of metal, battling for their country in her hour of
severe trial.
Between the time of the treaty of peace, however, and
the war of 1 8 1 2, a great many Americans, tempted by the
richness of the soil of Canada, were willing, for a time at
least, to forsake the Stars and Stripes for the land pro
tected by the Union Jack. These strangers were not, in
taking up citizenship in Canada, actuated by love of the
institutions of Canada, but a desire of gain. Dr Caniff,
in his history of the times, describing the men of this
class, says of them : " They would talk loyalty with the
Loyalists, shrug their shoulders with the doubtful, and

70 LIVES OF THE JUDGES.
with the well-known Yankee would curse the King."
There were others who came to Canada to speculate, and
at the same time preach Republican principle — men, in
fact, who had no hesitation in endeavouring to seduce
Canadians from their allegiance. In some parts of the
Province they were but too successful, especially in the
west. At Waterford, in the county of Norfolk, enrollment
for service was impeded by these tactics of the men from
over the border.
That true Christian soldier. Lieutenant, afterward the
Rev. George Ryerson, has related that the women of
that region, with loud cries and arms around their hus
bands' and lovers' necks, implored them not to go
to the war. The result was, that many were prevailed
upon, and refu.sed to take up arms. Some of these men
were arrested and taken in a schooner to Niagara. The
Ryersons were United Empire Loyalists, always to the
front on Britain's side.
As I am now writing of the disaffected element, and to
show that there was good reason for the commissions
issued to Chief Justice Scott and others to try traitors, I
will again quote Dr. Caniff. He says :
We must not omit to mention the name of William Ryerson (brother of
Egerton Ryerson, the Superintendent of Education), who, although young
at the time of the war, and not enrolled, was a participator in the strife.
It was known that a party of Canadian traitors were collected at the
house of one Dunham, at Port Dover. One of the Bostwicks, without
any authority, determined, with a number of volunteers, to ferret them
out. William Ryerson was one of the volunteers. They succeeded, after
a sharp encounter, in which some were killed, in taking a number of them
prisoners. There were some forty of them, and they were planning the
destruction of the houses of certain leading men in the neighbourhood.
Nine of them were subsequently hanged at Burlington (Hamilton).
I think I may now take leave of this su'oject and the
loyal Methodist, the Rev. George Ryerson, who not only
fought but bled tor his country in the War of 1 8 1 2, wounded
at Fort Erie, the mark of which he carried about him all
of his most useful life.

CHIEF JUSTICE SCOTT. 71
In writing the Hfe of Chief Justice Powell, I made refer
ence to the conspicuous part taken by Bishop Strachan,
at York, in the negotiations with the American commander
for the capitulation of the town in 181 3. Chief Justice
Scott was one of Dr Strachan's prominent parishioners,
and a pew-holder in St. James's Church. The Bishop, ever
mindful of the good to be done for his people in life, and
never forgetful of them after death, in the case of the
Chief Justice, after his death, visited William Scott, a
brother of his, in Scotland, in 1825. In a letter, bearing
date the 9th of October, 1826, the Bishop, writing to a
friend in Scotland, says :
I left St. Andrews on Tuesday, the lOth. On Wednesday, at Dundee,
I went with Mr. Kerr, a writer, to Meigle to see William Scott, brother
of our late Chief Justice, whose mind is enfeebled. I carried with me his
father's and brother's watches, some rings, and other little matters.
In another passage of the letter he says :
Mr. Kerr, of Dundee, who is our man of business, and of good repute,
has the general charge and attends to the payment of expenses. We have
left plenty of money in his hands, and all the instruction I gave him as to
its application was simply this, to treat William Scott as he would treat
his own brother in the same situation.
I would like to be able to say that there was a portrait
of Chief Justice Scott in Osgoode Hall. Such, however,
is not the case. The only portraiture I can present of him
is such as I gather from the recollections of those who
knew or have seen him. He is represented as having
been in appearance not unlike the eminent American jurist.
Chancellor Kent. He was a man of cultured mind, of
retiring disposition and thoughtful expression of counten
ance. He died at Toronto, on the 28th of July, 1824,, at
the age of seventy-eight years, and his remains were
committed to the tomb in that town, where they now rest,
in St. James's cemetery. Loving friends have placed a
tombstone at the head of his grave, with an inscription
which not only marks his age, but, I believe, truly repre-

72 LIVES OF THE JUDGES.
sents the man and Chief Justice as he was. The inscription
reads as follows : Sacred to the Memory
of
Thomas Scott,
Late Chief Justice of this Province, who departed this life July 28, 182'i,
at the advanced age of seventy-eight years. This amiable man wiU be
long remembered for the sweetaess of his disposition and suavity of
manners as a companion, his uprightness as a Judge, his amiable and
endearing qualities as a friend, and his charity and truth as a Christian.

VI.
The Honorable Thomas Cochrane, Judge of
King's Bench, Upper Canada.
HE Honorable Thomas Cochrane was a
^ member of the English Bar, receiving his
call at Lincoln's Inn. His father was the
Hon. Thomas Cochrane, Speaker of the
Nova Scotia Assembly in 1784, and, 1788, a member of
the Council of that Province. The Cochranes were a
distingui.shed family. William, a brother of the Judge,
was a general in the army, and another brother. Sir James
Cochrane, Chief Justice of Gibraltar One of his sisters
married Commodore, afterward Sir Rupert George, and
another. Dr. John Inglis, the second Bishop of Nova
Scotia. Before Judge Cochrane's appointment to the
Bench of Upper Canada he was Chief Justice of the
Supreme Court of Prince Edward Island, to which office
he was appointed on the 24th of October, 1801. The
patent of his appointment as Judge of the King's Bench
of Upper Canada is dated the 25th of June, 1803, and
Judge of Oyer and Terminer and General Gaol Delivery
on the 20th of July, 1803. He was not more than thirty
years of age when appointed to the Bench of Upper
Canada. Lord Hobart, in writing to Lieutenant-General
Hunter, making him acquainted with Judge Cochrane's
appointment, expressed himself as satisfied with his
ability for the post. Lord Hobart's letter is dated the
31st of May, 1802, and in it he says : "Mr Cochrane, at
10— L. J.

74 lives of the judges.
present Chief Justice of the Island of Prince Edward, will
proceed to your Government z.'s, puisne Judge in the room
of Mr Alcock. These arrangements will, I trust, ensure
a continuance of that regularity and ability with which the
business of the Courts in the two Provinces have so long
been conducted."
Judge Cochrane is styled Judge of the King's Bench,
Upper Canada, and not Judge of Upper Canada, as a few
years before his appointment the Provincial Legislature had
passed an Act constituting a Court of Record, to be styled
" His Majesty's Court of King's Bench for Upper
Canada." This Act was passed in the thirty-fourth year
of the reign of George III., on the 9th of July, 1794. The
first Parliament of the Province declared that this Court
should possess all such powers and authority as by the
laws of England were incident to a Superior Court of
civil and criminal jurisdiction, and should have and
exercise all the rights, incidents, and privileges as fully to
all intents and purposes as the same were at the time the
Act took effect, used, exercised and enjoyed by any of
His Majesty's Superior Courts of law at Westminster, in
England. Judge Cochrane was only Judge in the Province for
little over a year when his career was cut short by an
accident, which I will describe further on. I cannot find
from the records that he presided at more than one Court
in the Province previous to his sudden taking off, and that
was at the Court of Assize and nisi prius for the New
castle District, held the 26th of September, 1803. There
is, indeed, no official record of his having presided at any
Court, but Mr. Alexander McDonell, senior clerk in the
Crown office, has in his possession, and which he has-
shown me, the docket of causes kept by his uncle
Angus McDonell, in which is an entry of his that he was
engaged in a cause at the Newcastle Court, of which I
have spoken, and that Judge Cochrane presided at that
Court. The fact that there is no official account of hig-
judicial acts may be accounted for by the probability that

judge COCHRANE. 75
his own note book perished with the Judge when he was-
drowned in the waters of Lake Ontario. It is not often
that a whole Court, Judge, counsellor, crown officer, high-
sheriff, and prisoner to be tried are all drowned at one and
the same time. This, however, was an event that
occurred in Upper Canada in 1804. It happened that in
the month of October of that year the administration of"
criminal justice required that investigation be made into
the circumstances connected with the death and alleged
murder of one Thorp, a white man, said to have been
murdered at Ball Point, on Lake Scugog. The crime, if
such it was, had been committed in the year previous.
An Indian who passed by the name of Whistling Duck, a
brother of Ogetonicut, had been murdered by a white man ;
and as in those days before missionaries had softened and
enlightened the heart of the Indian, revenge was a promi
nent article of the red man's creed, an Indian, Ogetonicut,.
of the Muskrat branch of the tribe of Chippewas,
determined to have his revenge, and so to carry out his
purpose he murdered another white man, one John Sharp.
Governor Hunter had promised that the murderer of
Whistling Duck should be punished. The law's delay
had, however, intervened, the prospect of punishment
being meted out to the guilty was not encouraging.
Chief Wabasheco, of the Muskrat branch of the tribe
referred to, conceived it to be his duty to interview the
Governor. He and his tribe, Ogetonicut among the
number, voyaged in canoes from the mouth of Annis
Creek, near Port Oshawa, to Gibraltar Point, opposite
York, where they encamped. The arrival of the dusky
sons of the forest became known to the authorities, the
machinery of the law for the arrest of Ogetonicut was set
in motion. Constables were ordered to their duty, with
the aid of a guard of soldiers Ogetonicut was lodged in
jail at York. It afterwards appeared by actual survey
that the offence was not committed in the Home District,
but in the Newcastle District. The trial, therefore, must
take place in the latter district. In those days the voyage

.76 LIVES of the judges.
-down the lake was mostly made by canoe or schooner.
The schooner Speedy was chartered to . convey the Court
from York to the camping place, where the investigation
-was to be held. It was the 7th of October, 1804, the
weather was stormy, and the Speedy not being oversea-
worthy was not able to withstand the gale. In the dead
-of night the vessel suddenly went down, buried in the
waters of Lake Ontario, not far from Presque Isle harbour.
The captain of the schooner. Judge Cochrane, Solicitor-
General Gray, Angus McDonell (whom I have previously
named), the Indian prisoner, two interpreters, several
witnesses, Mr. Herchmer, a merchant of York, in all
thirty-nine persons, were swallowed up in the deep. No
trace of them or the vessel was ever after discovered. It
was a short summons and mournful fate which overtook
the passengers and crew on the Speedy.
There are those who go down in the dead, wild sea
When storms have wrecked proud ships.
With none to heed what the words may be
That break from their gurgling lips.
No anthem peal flows sweet and loud.
No tablets mark their graves,
But they soundly sleep in a coral shroud
To the dirge of the rolling waves.
'Tis well to find our last repose
'Neath the churchyard's sacred sod,
But those who sleep in the desert or deep
Ai'e watched by the self -same God.

VII.

The Honorable Robert Thorpe, Judge of the-.
Court of King's Bench, Upper Canada.

^MJUDGE THORPE, Mr Stewart in his history
'JiMiii of the Laws of Prince Edward Island states

was an Irish lawyer. He, like Judge Coch
rane, had been a Judge of the Supreme Court
of Prince Edward Island, before his appointment to a
Judgeship in Upper Canada. His appointment as a
Judge of the Supreme Court of Prince Edward Island took
place on the loth of November, 1802, and to the Judge
ship of the Court of the King's Bench of Upper Canada
on the 24th of January, 1805. He also received a com
mission to secure titles to lands on the nth of April, 1805.
The first entry I find of his having presided in Court is
that he held the Criminal Court at York, on the 25th of
March, 1806, and had as his associate W. Willcocks. At
this Court, William Warren Baldwin, the father of Robert
Baldwin, was sworn in as acting Clerk of the Crown and
Common Pleas. En passant, I may remark that the
William Warren Baldwin here named was the well known
and much esteemed Dr. Baldwin, the third Treasurer of the
Law Society. Judge Thorpe presided again at the York
(Home District) Assizes on the 28th of October, 1805,
when, as the record states, " a negro, ' Jupiter,' on the
complaint of John Denison that he had threatened to-
poison him, was bound over to keep the peace towards
him and his family." Jupiter, though high sounding, is.

78 LIVES of the judges.
not an everyday name. I strongly suspect this Jupiter,
charged as aforesaid, was the very Jupiter, or of kin to a
black Jupiter, the son of a slave woman named Peggy,
owned by ex-President Peter Russell. In 1806 in several
numbers of the York Gazette appeared the advertisement
" To be sold, a black woman, named Peggy, aged about
.40, and a black boy, her son, named ' Jupiter,' aged about
15 years, both of them the property of the subscriber
The boy is tall and strong of his age. The price of the
woman is $150; for the boy $200 — one-fourth less for
ready money. Signed, Peter Russell." The introduction
¦of slaves into the Province had been interdicted by the
Act of 1793. That Act, however, confirmed the right of
property in slaves then in servitude, hence we find Mr.
Russell endeavouring to turn his property to account.
Judge Thorpe again presided at the Assizes for the
Western District, held at Sandwich on the ist of Septem
ber, 1806, and for the last time so far as I can discerUj
at the Assizes for the London District, held at Charlotte-
ville, on the 13th of September, 1806.
It was during the occupancy of the Bench by Judge
Thorpe that Lieutenant-Governor Francis Gore was
appointed to the chief executive office of the Province.
Mr. Francis Gore had been Lieutenant-Governor of
Bermuda before being appointed to the Governorship of
Upper Canada. He was a man endowed with many
good qualities, but much given to prerogative right and
arbitrary rule. It was no fault of his that his predecessor,
Governor Hunter, had, by his administration, stirred up a
spirit of hostility to the reigning powers that seriously
interfered with equable administration of Governor Gore.
The immediate successor in the Governorship to him was
Commodore Grant, whom I think we may call sailor,
.soldier, and statesman, as he at one time and another
filled all these positions — first a sailor in the merchant
service, then a midshipman, then a soldier in a highland
regiment, and then in the war of 18 12 put in command of
-a sloop of 16 guns to operate on the lakes. In 1806 he

judge THORPE. 79
was an Executive Councilor, and by an understood rota
tion became temporary Governor. He was more a man
of science than politician, though somewhat engaged in
politics. During his temporary administration of the
government he had not been able to allay the excited and
clamorous (for reform) feeling of the people. In July,
1806, Lieutenant-Governor Gore assumed the reins of
government in succession to President Grant. Great
expectations were aroused by the arrival of the new
Governor It was thought that he would speedily set
things to right. Captain Green, who had been military
secretary to Governor Hunter, in August, 1806, writes to
Mr. McGill of York : " Of course, I may congratulate you
on the safe arrival of your Lieutenant-Governor, whose
amiable manners will, I think, conciliate the various points
that have been in opposition to that cordiality which
must ever reign in societies well regulated." Again, in
September, in reply to a communication from York, Captain
Green writes : " It gives mc very sincere satisfaction to find
that the Lieutenant-Governor is so well liked. I think he
will put the axe at once to the root of the tree of discord
and anarchy which lately has raised its head amongst
you ; that done, you will succeed and prosper"
Now the reader may well inquire what was the discord,
anarchy, and confusion alluded to all about? It was just
this : At this time the minds of numbers of the people,
and even the minds of certain officials of the Government
were impressed with the idea that there was too much
oligarchical rule in the Province; that the executive
authority set at defiance the will of the people, as expressed
through their representatives. It was not in those days as
it is now. Then, not now, the Judges were eligible for
election as members of Pariiament. Judge Thorpe had
not allied himself so much with the governing powers of
that day as with the Willcocks and the Wyatts, men of
independent thought, and firm in their resolves whenever
an issue occurred between the Governor and the people.
Yielding to these impulses. Judge Thorpe accepted the

80 LIVES OF THE JUDGES.
candidature to Parliament offered him by the people of
the Home District. This fired the breast of the Governor
and oligarchy of the period. Mr. Surveyor-General
Wyatt and Sheriff Willcocks were of one mind with the
Judge, and therefore opposed to the Governor. The
Governor, carrying out the doctrine of the time, the divine
right of kings and their satraps, that might makes right,.
determined to rid himself both of the Judge and the
Surveyor-General. He consequently suspended both of
them from their high offices, subject to the confirmation'
of the English Government. In 1807 the Judge was
relieved, and in the same year the Surveyor-General,,
Wyatt, was suspended. Nothing daunted, the Judge
appealed not only to the home Government but to the law
for satisfaction, and so also did Mr. Wyatt. Mr Wyatt
sued the Governor in an action at law in England, which
came down to trial before Chief Justice Gibbs in 18 16. A
study of that case shows how the matter stood between
the Judge and the Governor.
The third count of the declaration sets out the principal
complaint of Mr. Wyatt, the Surveyor-General. That
count alleged : " That the defendant (Governor Gore) to-
cause the plaintiff to be deprived of his office, and to-
induce the King to confirm the suspension, wrote to the
Secretary of State certain false letters representing that
the plaintiff had been generally hostile to His Majesty's
representative, and was engaged with disaffected persons ;
and that plaintiff, moreover, had erased the name of a
person from the plans in the office of the Surveyor-General,.
who had settled and made improvements in a favourable
location of land, and had declared the lot to be vacant,.
and had obtained a grant of it to himself That by means
of said letters the King confirmed the suspension, and
revoked his appointment, and the plaintiff was prevented
from enjoying another office, viz. : the office of Receiver-
General of the said Province." The defendant, in his
pleadings, justified the charge. At this trial the Attorney-
General of the Province was a witness to prove publication

JUDGE THORPE. 8 1
of the pamphlet. The name of the Attorney-General is
not given in the reported case, but I suppose it was the
Hon. D'Arcy Boulton, who was appointed Attorney-
General in- 1 8 14, and was the immediate predecessor of
the Hon. John Beverley Robinson, appointed in 1818.
The counts in the declaration which charged that the
defendant, the Governor, had acted wilfully, maliciously,
and without probable cause in suspending the plaintiff
from his office was not, in the opinion of Chief Justice
Gibbs, sustained, but he thought the matter contained in
the pamphlet which contained the libel in question was
libellous. The jury awarded the plaintiff ;£'300 ($1,500)
damages for the wrong done him by the Governor.
It is the boast of English law that the same measure of
justice is meted out to the rich and the poor, to the high
and the low, to the King and his subjects. In the case of
the legal war which waged between the King's Surveyor-
General of the Province and his Governor of the Province,
it was a case of Greek meeting Greek, but the Canadian
came out triumphantly in his action with the King's
executive head of the Province.
I have said that Judge Thorpe and Mr Willcocks were
very much of one mind in regard to popular rights and
executive power exercised in those days by an officer, the
holder of the colonial office in Downing street. The da)s
of responsible government had not yet come upon the
infant Province. The Governor was King, and the officials
of the Government his satraps. Mr Justice Thorpe, in
his charge to the grand jury of the London district, in
1806, said to them :
The art of governing is a difficult science. Knowledge is not instinc
tive, and the days of inspiration have passed away. Therefore, when
there was neither talent, education, information, and even manners in the
administration, little could be expected, and nothing was produced. But
there is a point of depression, as well as of exaltation, from -which all
human affairs naturally advance or recede. Therefore, proportionate to
your depression, we may expect your progress in prosperity will advance
-with accelerated velocity.
So far as this charge had reference to ruler^^, information,.
1 1— L. J:

82 LIVES OF THE JUDGES.
manners, and all that, it was not so much intended for
Governor Gore as for Lieutenant-Governor Hunter and
his rule. The new Governor, Gore, had not yet crossed
the path of the new Judge, Thorpe, for in. the same
address, in reply to the grand jury, who expressed their
approbation of the fact that Mr Gore, a civilian, had been
appointed Governor, the Judge said :
I shall lay before the Governor everything you desire, and I have not
the slightest doubt but that I shall find in him such power of mind, such
political acquirements and official habits, and such good dispositions as
are fitted to make an infant Province a permanent state, wealthy and
powerful, abounding in blessing to the inhabitants, and so valuable to
that great empire from which we receive everything estimable, and to
¦which we are anxious to make the most grateful return.
It does seem unfortunate that the prevailing idea at
this period of the history of the Province that there was
no impropriety in the Judges — appointees of the Crown —
also becoming candidates for Parliament, and being elected
representatives of the people. Judge Thorpe, who had
only entered the Province in 1805, had so much earned
the confidence of the people that he was elected a member
to the Parliament which met at York on the 2nd of
February, 1807. Judge Thorpe, not only in the Parlia
ment, had been very free in his criticisms of the acts of
the executive ; his charge to the grand jury of London, to
which I have referred, shows pretty well how caustic and
incisive the Judge could be. The Anglo-Saxon stolidity
and solidity of his race crops out in every passage of his
address. Governor Gore, though of a genial disposition, was not
one to be thwarted in his purpose, or unduly criticised in
his conduct, without resenting it. He did not at all like
the Judge's espousing the popular side. In these days,
one who espoused the popular side in opposition to the
powers regnant were apt to be called, and even treated, as
rebels, if not something worse.
After the close of the session of Parliament, which took
place in March, 1807, the Governor proceeded to Montreal

JUDGE THORPE. 83 -
On his way down the St. Lawrence he slopped at King
ston, and there dined with Chief Justice Scott, who was
holding the Court at that town.
We are indebted to Dr Scadding for giving us the
means of judging of the estimate in which both MrWilcocks
and Judge Thorpe were held by the Governor, this estimate
being made more on political than personal grounds. Dr.
Scadding tells us that the Governor wrote his friend, Mr.
McGill, a very expressive letter, in which he said :
I received most sincere satisfaction in finding that our good and worthy
friend, the Chief Justice (Scott), had got on very well ; that at Newcastle
the jury was respectable, and approved of their Judge, not one word
being uttered respecting that other execrable monster who would deluge
the Province with blood.
The execrable monster here referred to was, no doubt,
Mr. Willcocks, who, after having been deprived of the
shrievalty of the Home District, had set up an opposition
newspaper. The Upper Canada Guardian, a freeman's
journal, the large circulation of which gave the Governor
much uneasiness. In another part of the letter to
Mr McGill to which I have alluded, the Governor says :
'• At Kingston everything went off, as might have been expected, well;
the Chief entertaining a 'party of about forty at dinner. A number of
the rebel papers (meaning Mr. Wilcook's newspxp^r) were distributed to
poison the minds of the people, but, I hope, without effect. The object
of T. 's emissions (Mr. T. is Judge Thorpe, and his emissions would be
his charges to jurors and his speeches in the House and elsewhere), appear
to be to persuade the people to turn every gentleman out of the House of
Assembly. However, keep your temper with the rascals, I beseech you.
I shall represent everything at St. James,"— i. e., headquarters in London.
The language of the Governor certainly was not very
dignified, however his sense of prerogative right gave him
the right to use it. The Governor did represent
everything at St. James, and the result was, that in the
following October the following paragraph appeared in
the York Gazette: "His Majesty's pleasure has been
received by the Lieutenant-Governor to suspend Mr
Thorpe from the office of Judge in Upper Canada, and
measures are to be taken for appointing a successor The

84 LIVES OF THE JUDGES.
Secretary of State has also signified to the Lieutenant-
Governor His Majesty's approbation of his having
suspended Mr Wyatt from the office of Surveyor-
General of lands in the Province."
We have seen the approbation of the Sovereign, of the-
act of Governor Gore in suspending Mr Wyatt, the-
Surveyor-General, which act afterwards in a trial at law
cost the Governor ^^300 sterling money of Great Britain.
Now let us see how the matter ended as between the
Governor and the Judge. This resulted also in an action
of libel brought by Judge Thorpe against the Governor,..
in which the Governor was again mulcted in damages at
the suit of the Chief Justice.
These proceedings only show that a case as between a.
Governor and a Judge or other official when seen through
the spectacles of a British jury, instead of the eyes of a-
colonial minister, may present a very different aspect.
The sequel was, that the Chief Justice regained the
confidence of the British Government ; and although not-
restored to the office of which he had been deprived, he
was afterward appointed to the Chief Justiceship of Sierra
Leone, where he remained twenty years, when ill health
caused his return to England. Chief Justice Thorpe was
a very upright and conscientious man — most independent
in character and conduct, he asked no favour, and feared
not the power of the colonial oligarchy or the Governor of
the colony. He was very unfortunate ; for the rulers of
the day and he could not hold the same opinion of public
affairs. The Governor leaned to the side of his Executive
Council, which was incensed at the Chief Justice because
he could not conscientiously subscribe to the acts of the
Government. As one writer expresses it : " His only
object was to effect the strict and upright discharge of his
duty uninfluenced and unbiased by party or by prejudice."
Governor Gore did not fare as well as the Chief Justice.
Although he was caressed by the Government and the
time-serving powers of the Day, he was in turn recalled
from the government of the Province by the Govern-,

JUDGE THORPE. 85
^nent of England. I forbear to enter into the differences
between the Governor and the Chief Justice. Impartial
history compels us to say that they were both men of
much independence of character — perhaps too much alike
to agree. The Governor, from his position, had the
advantage of the Chief Justice, but the Chief Justice on
.appeal to his compatriots, was vindicated in his official
conduct in Upper Canada.

VIII.
The Honorable Sir William Campbell, Chief
Justice of Upper Canada.
Honorable Sir William Campbell was
the son of Alexander Campbell, who was the
son of Captain Alexander Campbell, of the
Royal Navy. The faniily of Campbells, of
which the Honorable Sir William Campbell, Chief
Justice, was a branch, was for the first half of the last
century heritable commoners and sheriff's clerks of
Caithness, Scotland, also supposed to be sub-cadets of the
Buey-Campbells, and believed to be descended from the
family of Quoy Crook, their immediate ancestor, Donald
Campbell, Jr, a son of William Buey-Mclver, or of John,
his brother The progenitors of the Campbell family were
descended from Kenneth Buey-Mclver, who emigrated
from Argyle to Caithness between 1775 and 1778, and
obtained a charter of Quoy Ciook in Halkirk. The
Honorable Sir William Campbell, Chief Justice of
Upper Canada, was one of those men who could adapt
himself to circumstances, equally at home, in the battle
field, the Senate, or on the judicial Bench. Not born to
greatness, had not greatness thrust upon him, but with
true Scotch perseverance may be said literally to have
risen from the ranks to fill one of the highest of colonial
positions, that of the Chief Justice of the King's Bench in
the dependency of Upper Canada, once called by Queea
Victoria the brightest jewel in her queenly crown.

CHIEF JUSTICE CAMPBELL. ^^
William Campbell, afterwards Sir William Campbell,
was born in Scotland in 1758. Wolfe had not yet taken
Quebec ; within a year afterwards the second strongest
fortress in the world had fallen before the irresistible force
of British arms. Of the regiments which took part in the
capture of Quebec, none was more conspicuous than the
Scotch Highlanders — the Seventy-eighth Regiment. The
boy William Campbell was but a baby in arms at this
time. As time wore on, and the sounds of war continued
to echo in the woods and ways of America, the boy
Campbell was growing from infancy to youthful manhood.
When a Highland regiment was ordered to America to
quell the strife existing in the colonies, the future Chief
Justice, fired with military ardor, enlisted as a private in
a Highland regiment. He came to America with his
regiment to take part in the Revolutionary War. Engaged
in the conflict: was in the battle of Yorktown in 1781 :
here his military career ended ; the fortune of war was
against the British — Lord Cornwallis was obliged to
surrender, when the young soldier Campbell became a
prisoner with the rest of that General's command. When
this event occurred William Campbell was but twenty-
three years of age. When peace was proclaimed in 1783
Campbell got his discharge, and determined to make
British America his future home.
It occurred to him that Nova Scotia, England's oldest
colony, might afford him a field for future action, if not in
a civil capacity. Impelled by this idea, he made his way
to the land of the Acadians ; here he devoted himself to
the study of the law ; was called to the Bar in that
Province, and after nineteen years' practice was appointed
Attorney-General of Cape Breton, and was also elected a
member of the Assembly of that Prcvince. On the iSth
of November, 1811, he was promoted to a puisne Judge
ship in Upper Canada. He was the first of the Upper
Canada Judges appointed to the Bench of that Province
ficm the Bar of a Maritime Province. He did not attain
to the Chief Justiceship till 1825, on the retirement of
Chief Justice Powell.

88 LIVES OF THE JUDGES.
There is a folio volume of reports in the Osgoode Hall
Library called " Campbell's Manuscript Reports," which
contains the cases decided by the Judges of the King's
Bench, beginning Trinity Term 4th George IV. (1823),
and ending Trinity Term Sth George IV. (1827). There
are no Upper Canada Reports extant of the period 1811
to 1823. The "Campbell Manuscript Reports," contain
ing the first record of decided cases in the Province, have
for the most part been printed, and now form the first of
the series of the Upper Canada Court Reports, under the
name of " Taylor's Reports." Thomas Taylor was a
Barrister of the Inner Temple, called to the Bar of Upper
Canada in 18 19. He was the first authorized Court
Reporter of the King's Bench, hailing been appointed to
that office under the Provincial Statute 4 George IV., cap.
3, entitled " An Act for providing for the Publication of
Reports of Decisions of His Majesty's Court of King's
Bench in this Province." It is a singular fact that in
England there has been no public Reporter since the reign
of James I., who at the instance of Lord Bacon appointed
two with a handsome stipend. The Canadian Legislature
seems to have followed not only the advice but the
example of Lord Bacon in providing for official reports.
Lord Bacon was himself much imbued with the idea of
the necessity of such an officer, for in his " De Argumentis
Scientiarum " he wrote :
Above all, let the judgments of the Supreme and principal Courts be
tliligentl}"' and faithfully recorded, especially in weighty causes, and
particularly such as are doubtful, or attended with difficulty or novelty,
for judgments are the anchor of the laws, as laws are the anchor of the
state. The most important cases with which Judge Campbell
had to deal were those tried at York in 18 18, growing out
of the riots on the Red River, sometimes called the Red
River Rebellion. In the life of Chief Justice Powell, I
have referred to, and given some account of the trial of
the rioters in these cases. As then related, the presiding
Justice at the trial was Chief Justice Powell, but he had

CHIEF JUSTICE CAMPBELL. 8g
with him on the Bench Judge Campbell, then a puisne
Judge, not many years after to succeed the Chief The
record of these trials shows that he, equally with Chief
Justice Powell, was firm in his rulings tending to the
elucidation of all the facts connected with the riotous
proceedings on the Red River caused by Lord Selkirk's
introduction into the country of Scotch emigrants to till
the soil in place of hunting deer and buffalo.
The Earl of Selkirk (Thomas Douglas) was a descendant
of that Archibald Douglas, ten generations back, who
obtained the sobriquet of " Bell the Cat."
The Earl was the seventh son of Dunbar, fourth Earl of
Selkirk. While a young man he shewed the ability and
industry of his race. His name is found upon the class-
books of various Professors of the Edinburgh University
from the year 1780 to 1790, and while pursuing his
academic career there he was known as one of a band of
illustrious young men earnestly engaged in literary and
learned pursuits. He was a friend of the poor, and it was
in order to better the condition of poor starving tenants
in Scotland that induced him to enter upon the work of
colonizing. His advent to Canada was caused by a desire
to colonize a distant land. He was not long, however, in
the country before he engaged in a conflict bordering on
war with the traders of the Northwest Company. Reading
an account of the occurrences of these days where in what
is now Manitoba and the Northwest Territory, the rival
Companies, the Hudson Bay and the Northwest, con
tending for the mastery, is like reading a novel. When
we come to read the trial of Paul Brown and Francis
Boucher for murder, tried at York in October, 18 18,
before Chief Justice Powell and Justices Campbell and
Boulton, William Allan, Esq., Associate, we can see the
bitter enmity that existed between these rival trading
companies, culminating in rebellion. Paul Brown and
Francis Boucher were half-breeds, tried for the murder of
Robert Semple, Governor of the Territory. It was argued
,at the trial that the appointment of Governor Semple was
12 — L. J.

90 LIVES OF THE JUDGES.
invalid. This was the contention of the Northwest
Company and their partizans.
The bloody conflict that took place between the
partizans of the rival companies was something like the
clashing of the clans in Scotland.
If the colonists sent out by Earl Selkirk could have had
full scope and been allowed to till the soil in peace, it
would have been of great advantage to the country. The
trappers and the traders would have given way to the plow
and the reaper.
On the trial to which we have referred, some idea of the
kind of settlements there were on the Red River, may be
gathered from the evidence.
The Attorney-General for the prosecution was arguing
that the prisoners were interfering with the settlers in their
peaceable possession of their lands at Fort Douglas (for
the rival parties had forts, such as they were ; the Hudson
Bay Company Fort Douglas, and the Northwest Company
Fort Gibraltar). Mr. Sherwood, the counsel for the
prisoners, challenged the Attorney-General's statement that
there was a settlement , that in fact the so-called settle
ment was but a camp of traders, living and trading in
tents. The Chief Justice, addressing the Attorney-
General, then said : " It appears rather, Mr. Attorney, to
have been habitations than a settlement."
The Hudson Bay Company had provided themselves
with arms for the protection of what they claimed as their
territory. One Heden, in giving his evidence, said : " I was in the
battle of the loth of June. The Bois Brulesdid not come
to our fort. They kept about a quarter of a mile distant
from it, and passed it. We had cannon in the fort.''
The Northwest Company and their retainers were
ready in charging that the proceedings of Lord Selkirk:
in the western country were of a lawless character. As a
matter of fact, there was lawlessness on both sides. Lord
Selkirk thought proper to invoke the law against those
accused of crime in connection with the disturbances.

CHIEF JUSTICE CAMPBELL. 91
insurrection, or rebellion, or whatever term may be
applied to the occurrences, which took place in the
neighbourhood of Fort Garry.
Lord Selkirk after laying charge of murder, burglary,
and arson, all at that time capital offences, against part
ners of the Northwest Company and their retainers on the
Red River and at Fort William, delayed the prosecution
for nearly two years, the accused being all the time in
prison. The prisoners were never in fact brought to trial
by him ; he left the country without proceeding with the
prosecution, and the Government had, for very shame's
sake, to place the accused on their defence, when, after a
prolonged trial, they were triumphantly acquitted at the
Court of Oyer and Terminer at York in October, 18 18.
At the following Assizes for York two civil cases of
importance were tried arising out of the proceedings of
Lord Selkiik. One of these was an action brought by
William Smith against the Earl for false imprisonment.
The circumstances, were that Smith was under-sheriff
of the western district, and was the bearer of a writ of
restitution founded on a verdict of a special jury at Sand
wich in October, 18 16, granted by the sitting magistrates
ordering the restoration of Fort William to the Northwest
Company ; also a warrant for the arrest of several persons
at Fort William. When Smith arrived at the Fort and
produced his writ Lord Selkirk refused to comply, and
when he and the others were arrested under the warrant,
which was for a felony, they put Smith out of the Foit,
and placed him under military guard, and he was not
liberated till the evacuation of the Fort by Lord Selkirk
in May, 1817. For this Smith brought his action against
the Earl, and obtained a verdict of i^Soo ($2,oco). Daniel
McKenzie also brought an action against the Earl for
throwing him into a dungeon at Fort William without
legal proceedings, for which he obtained a verdict of
;^i,500 ($6,000).
Notwithstanding the apparent lawlessness to which I
have referred we must recollect that all these proceedings

92 LIVES OF THE JUDGES.
took place in a new and uncivilized country — a country
of half-breeds, traders, and Indians. Several interests of
a conflicting nature were at war with each other The
•traders' interest was clearly opposed to a bona fide settle
ment of the country by either English or Scotch farmers.
Lord Selkirk was in very deed a colonizer, and a brave
arid good one at that. No one can read the history of
Prince Edward Lsland without acknowledging the good
done b};- Lord Selkirk there, by importation into' that
island of his hardy highlanders. There is reason to
believe that if he had been let alone in the Northwest the
valley of the Red River would have been a flourishing and
rich State a century before it became a Province of the
Dominion. Judge Campbell was promoted to the Chief Justiceship
of the King's Bench in 1825, on the reti.-ement of Chief
Justice Powell. It is said by those who profess to speak
with knowledge of the time, that had it not been that
John Beverley Robinson, then Attorney-General, was
considered too young for the Judgeship, he would have
been elevated to the Bench, indeed made Chief Justice
at the time cf Judge Campbell's promotion. Judge
Campbell was sixty-six years of age when he was
appointed Chief Justice, It was a saying of the wags of
the day that he at that age was so appointed to keep the
place warm for the Attorney-General, whom it was well
(Understood would succeed him in the office when he
should have arrived at a judicial age. Judge Camp
bell had not been long promoted to the Chief Justice
ship before it became within his province to preside
at important civil trials at York, which were of much
interest to the whole community and the cause of much
acerbity of feeling. In 1826 the old system of might
governing right was still in the ascendant in the Province.
The officials of those days held an undisputed sway in the
Province. There was no responsible government : the
people might be in accord in one way of thought and
action, but if the Executive were of a different way of

CHIEF JUSTICE CAMPBELL. 95
thinking it was the Executive that governed ; not the
people, representatives of the people, or a government
possessing the confidence of the people.
William Lyon Mackenzie was a politician and publisher
rapidly gaining the voice of the people. He had removed
his Advocate newspaper, a Liberal organ, from Queens-
ton to York. While Mr. Mackenzie was absent from
York on business, young men of the town, principally
sons of officials, fired with zeal for the cause of oligarchical
rule, thought it a noble thing to invade the office of the
Advocate, throw the type into " pi," break up the press, and
throw these, with some other impedimenta to what they
considered true government, into the beautiful bay that
faces the town. This act of lawlessness would at this day
be visited with something more than a civil action. Mr.
Mackenzie did not, however, nor did the Queen on his
behalf appeal to the Criminal Courts for redress, but
brought a civil action. J. B. Macaulay, afterwards Chief
Justice Macaulay, after making many attempts to get a
settlement, offering money as compensation, was at last
called upon to defend the rioters before Chief Justice
Campbell and a special jury, which resulted in a verdict
against the defendants of $2,500. This verdict did not
however, trouble the rioters much, for their sympathizers
in the cause of responsible government raised the amount
by subscription, and thus not only saved them from loss,.
but glorified them in the bargain.
Looking back to the time and the circumstances of this
case, one can easily see that the soldier of the Highland
regiment and Chief Justice, who has come down to us
described as a man of " great force of character, steriing
integrity, and personal worth," so conducted the minds of
the jury that Mr Mackenzie obtained a measure of justice,
though opposed by the might and power of officialism.
Among the defendants, the rioters, were two sons of the
Inspector-General, a son of a Judge, a son of a Justice of
the Peace, and the confidential secretary of the Lieutenant
Governor,' Sir Peregrine Maitland, as well as others

94 LIVES OF THE JUDGES.
intimately connected with the reigning powers. The
parties who committed these acts of violence quite over
shot the mark. Great indignation was excited in the
minds of the people, sympathy was created for Mr. Mac
kenzie, the people of the county of York took up his
cause, and in the year 1828 returned him to Parliament
over his opponent, himself a Liberal, but who happened^
to be one of the Counsel for the gentlemen of York in
their trial of strength with the ma'i who afterwards became
first mayor of Toronto, but who is better known as the
leader of the Rebellion of 1837.
Mr. Mackenzie was a remarkable man. Up to the
Rebellion his pen was his sword, the sharpness of
which no doubt so incensed the young gentlemen of
York that they took the law into their own hands. The
rebellion and all that took place in connection with it
is more for the general historian than for judicial history.
I shall therefore leave it to the historians of the time to
speak of that eventful period of our history.
The Chief Justice visited his native land in 1828. On
this visit not unmindful of his father who died on 23rd
September, 1782, at the age of fifty-eight, he had erected in
St. Peter's church yard, Thurso, Caithness, a tomb stone
to mark the place of his father's burial. He had the
following engraved on the tomb stone: "This tribute of filial
affection is dedicated by his son William Campbell, Chief
Justice and resident of York, Upper Canada." The tomb
stone is still standing as a monument to his father's memory.
When Judge Campbell in 1829, owing to ill health.
retired he had the honour of knighthood conferred upon
him, and thenceforward was Sir William Campbell. He
was the first of our Judges who was knighted, and the fact
on that account deserves mention. It cannot be said the
title was undeserved by the soldier who had fought under
Cornwallis, had abandoned the profession of arms for that
of the law, and in time had become the Chief Justice of a
Province, the early home and cradle of the United Empire
Loyalists.

CHIEF JUSTICE CAMPBELL. 95
Sir William Campbell's residence was in Duke street,
Toronto, and is still standing. The Chief Justice died in
Toronto in 1834. Dr Scadding, in his " Toronto of Old,"
in referring to this melancholy event, says : " The funeral
of Sir William Campbell in 1834 was one of unusual
impressiveness. The Legislature was in session at the
time and attended in a body, with the Bar and the
Judges."

IX.
The Honorable D'Arcy Boulton, Judge of the:
King's Bench, Upper Canada.

HE Honorable D'Arcy Boulton was of a
^*^ Lincolnshire family of long pedigree, the son

of Henry Boulton, an English barrister. He
was married on the i8th of December, 1782,.
at St. George's Church, Bloomsbury, London, to a daughter
of James Forster, sergeant at law. He came to America
in 1797. We find him in 1803 settled in the township of
Augusta, in the district of Johnstown, and moved to York
in 1807. The reason for Mr. Boulton's leaving Augusta
for York in 1803 seems to have been that in that year,
during the administration of Peter Hunter, Esquire, as
Lieutenant-Governor, it was found that there was a scarcity
of Barristers in the Province, and so the Legislature
thought fit to create certain gentlemen Barristers by Act
of Parliament. Mr Boulton was one of those called to
the degree of Barrister on his English training alone^
The Act to which I have referred was passed in the third
session of the third Parliament of Upper Canada, forty-
third George III., Cap. III., and was entitled " An Act to
authorize the Governor, or person administering the
government of this Province, to license Practitioners in
the Law," The Act recited :
Whereas, great inconvenience has arisen and is now experienced by^
His Majesty's subjects in several parts of this Province to practise the
profession of the law, and unless the number can be speedily increased.
justice will, in many cases, be with great difficulty administered.

JUDGE boulton. 97
It then proceeded to enact that from and after the
passing of the Act it should and might be lawful for the
Governor to authorize by license under his hand and seal
such and so many of His Majesty's liege subjects, not
exceeding six in the whole, as he from their probity,
education, and condition in life should deem fit and proper
persons, to practise the profession of the law in the
Province ; that before applying for license to the Governor,
the Judges of his Majesty's Court of King's Bench should
certify under the hand of the Chief Justice that such
Court was satisfied of the ability and fitness of the party
so applying to be admitted to practise as a Barrister or
Attorney of the Province. On this certificate being
obtained, the Law Society was to admit such person on
subscribing the rules.
A good deal of pleasantry used to be indulged in by
the wags of the day at the expense of these lawyers
created by Act of Parliament, calling them the heaven-
made lawyers. When we see, however, that men of ability
and probity were to be selected from the body of the
people and that His Majesty's Court of King's Bench had
to certify to their fitness, we may conclude that none but
gentlemen of intelligence and learning were in this manner
called to the Bar ; an improvement even upon the old
English system of regulating the talent of the men by the
number of the dinners eaten in Hall. Mr Boulton was
very well qualified to be called to the Bar, and had very
rapid promotion. In 1805 he was appointed Solicitor-
General. In 1807 he had a commission of Oyer and
Terminer and General Gaol Delivery given to him. In
1810 Mr Solicitor-General Boulton sailed for England,,
but when off Dungeness, the vessel was sighted by a French
privateer, the Grand-Diic-de-Bcrg, and chase given.
Though the captain had arms on board he refused to fight,
preferring a French prison to the dangers of an engage
ment. Mr Boulton, and, for that matter, too, the passen
gers did not agree with the captain— they were for fight
ing, and fighting they were determined to have. Mr
13— L.J.

98 LIVES OF THE JUDGES.
Boulton was possessed of true courage. The passengers,
headed by the Canadian Solicitor-General, resisted the
privateer, engaged with the enemy, but were, after a short
contest, overpowered by a party of boarders, who obtained
a footing upon the vessel. Mr. Boulton, wounded and a
prisoner, was conveyed to Verdun, where he remained
until the temporary peace of 1814, gave him his release.
On Mr Boulton's return to Upper Canada in this year, he
was made Attorney-General. I take pleasure in express
ing my obligation to Colonel D'Arcy Boulton, of Coburg,
a grandson of the Judge, for information of family history
of the Judge, which it would have been difficult to obtain
but through a relative. Colonel D'Arcy Boulton himself
is not without military experiences, having for some years
commanded a cavalry corps, called " the Prince of Wales
Canadian D.agoons," which he was principally instrumental
in raising. His son, Major Boulton, in 1870, while doing
•duty in the Northwest, was made prisoner by Louis
Riel in the first Riel rebellion, and confined in Fort Garry,
sentenced to death by Riel, and only escaped death by
the heart of Riel being softened by the appeals made in his
behalf by friends of the Major, and the respect which his
bravery excited in the minds of his greatest enemies.
The Major has so well told his sufferings in his book,
¦" Reminiscences of the Northwest Rebellion," that I need
not repeat them here. Judge Boulton was elevated to the
bench in 18 18, and appointed Judge of Assize and Nisi
Prius. He was in 1818 associated with Chief Justice
Campbell as one of the Judges in the trial of Paul Brown
and F. F. Bourcher for the murder of Robert Semple,
Esquire, in the Red River country on the 18th of June,
1816, and of Cooper and Hanneman for taking, on the 3rd
of April, 181 5, with force and arms, eight pieces of cannon
and one howitzer, the property of the Right Honorable
Thomas, Earl of Selkirk, from his dwelling house, and
putting in bodily fear of their lives certain persons f )und
therein. I have already referred to these trials shortly in
the life of Chief Justice Powell, and more fully in the life

JUDGE BOULTON. 99
of Chief Justice Campbell, making any further reference
thereto unnecessary. The judgments of Mr Justice
Boulton are to be found in "Taylor's Reports." During
his time the litigation of the day was principally confined
to John Doe and Richard Roe, cases of arrest, bail, and
matters of practice. There were not many cases of much
importance — at least so considered at this time. The
-most important was the case arising out of the Red River
riots, which he assisted in adjudicating. The Judge used
to drive on the circuit in his day under great difficulties,
always carrying an axe and a rope for emergency, often
having to cut through trees fallen across the road, and
having to swim his horses across the Trent on going
Eastern Circuit. Mr Justice Boulton during his residence
in York was ever on the qui vive for the material advance
ment of the place. Having land in the vicinity of the
marsh at the east end of the town he, at great expense,
cut an open channel through a portion of this marsh, on
the eastern side of the Don River, in front of this property.
This channel has continued open ever since, and is known
as " Boulton's Ditch." Fishermen and skiffmen along the
Don appreciate the ditch, however, as it forms a communi
cation between the' Don and Ashbridge's Bay. The
Judge was a strong supporter of St. James's Church, built
in 1818, and contributed liberally to the funds raised for
the erection of the church. Mr Justice Boulton, as I
learn from those who knew him and enjoyed the pleasure
of his society, was a good specimen of the English gentle
man of his day. Dr Scadding, in his " Toronto of Old,"
writes of him : " Like many of his descendants, he was a
lover of horses and a spirited rider ; a man of wit, too,
and humor, fond of listening to and narrating anecdotes
of the ben trovaio class." The Judge was fond of enter
taining the military and other prominent people of York,
and was always a welcome guest at the garrison mess He
was not without experience of the military, not only of
his own country but of other countries. In the engage
ment with the French privateers, to which I have referred.

lOO LIVES OF THE JUDGES.
he received a severe sabre cut on the arm, from which he
suffered much. In 1829 the great surgeon. Sir Benjamin
Brodie, performed an operation on this wound in the arm,,
which was thought necessary for the preservation of the
patient's life, the wound being in dangerous proximity to
the artery. It may have been that this French experience
of his induced him on his release from imprisonment to
give the name of Bonaparte to one of his famous horses ;.
he certainly had two carriage horses ; one he named
Bonaparte and the other Jefferson. These two horses of
the Judge acquired quite a notoriety in their day. The
Grange at the head of John street, now the residence of
Professor Goldwin Smith, was formerly the property of
Mr. Justice Boulton, and extended south as far as Lot,
now Queen street. Bonaparte and Jefferson, not to be
outdone in military prowess by their namesakes, the
General and the President, were, on a certain occasion,.
attacked in these grounds by a bear coming out of the
wood to the north. The bear was a very large one, and
the horses were put on their mettle in self-defence,
Bonaparte and Jefferson knew how to use their fore feet;
made violent plunges therewith on the attacking enemy,.
and utterly routed Mr Bruin, chased him down what is
now called Bay street (and from this chase was originally
called "Bear street") into the waters of the bay. Mr.
Justice Boulton at first resided in a frame house, white
painted, standing on the lot where Holland House, (now
the Reform Club,) stands. Several children survived the
Judge. The Honorable Henry John Boulton, sometime
Chief Justice of Newfoundland and successively Solicitor-
General and Attorney-General of Upper Canada, was one
of his sons.
I am not able to fix the exact date of Judge Boulton's
death. I have it from descendants, members of the
family, that he died in York before the first cholera year
of 1832 — in 1830 or 1831, He was buried in St. James's
churchyard and afterwards removed to St. James's cemetery
on the banks of the Don, his final resting place.

X.
The Honorable LeviUs Peters Sherwood, Judge
OF King's Bench, Upper Canada.
|HE Honorable Levius Peters Sherwood was of
- -.^.^ United Empire Loyalist stock. His father,
f^lSSS Justus Sherwood, was a captain in the old
^¦^ colonial militia, and was in active service dur
ing the Revolutionary War.
Mr. Justus Sherwood, father of the Judge, came into
the Province of Quebec on the 6th December, in the year
1777. He remained for some time at St. Johns in that
Province, and afterwards, like a good many others of the
United Empire Loyalists, settled in the township of
Augusta. He was one of the first members of the Upper
Canada House of Assembly, which was convened at
Newark, now Niagara. He had two sons, Samuel and
Levius Peters, afterwards made Judge. Both sons were
¦educated for the Bar of the Province of Upper Canada.
Levius Peters, the second son, was called to the Bar in
Hilary Term 43 George III., A, D, 1803, and is number
nineteen on Barristers' Roll, Osgoode Hall. Both Samuel
and Levius Peters were prominent members of the Bar^
and both were of counsel for the defence of the Red River
rioters in 1818, at their trial in York before Chief Justice
Campbell, to which I have made full reference in the life
¦of the last named Judge. Levius Peters Sherwood was
elected a member of the Upper Canada House of Assembly
by the electors of the County of Leeds, and in the year

I02 LIVES OF THE JUDGES.
1822 was elected Speaker of that House. In 1841, during
the administration of Lord Sydenham, Mr. Sherwood was
elected Speaker of the Legislative Council of Canada.
Levius Peters Sherwood was appointed Judge of the King's
Bench on the 17th of October, 1825, and took his seat on
the Bench in Michaelmas Term, 1825. The entry in
" Taylor's Reports ' is : " Michaelmas Term, 1825, Levius
P. Sherwood took his seat as Judge in the place of the
Honorable Mr. Justice Campbell." The reader going back,
and referring to the life of Mr Justice Campbell, will see
that he had been a Judge since 1811. In 1825 he made
way for Mr. Sherwood, himself on the 17th of October,
1825, being appointed to the Chief Justiceship of the same
Court. Before Mr Sherwood's elevation to the Bench, and
while he was Speaker of the Legislative Assembly, a most
" important Act was passed, making permanent a previous
Act passed for levying and collecting rates and assessments
in Upper Canada, and further to provide for the more
equal and general assessment of lands and other ratable
property." This Act was passed in the sixth, George IV.,
1825, and for a long time formed the foundation ot the
tax system of the Province. In Hilary Term, 1829, a case
came up before the King's Bench which at the time was
not only considered important in itself, but gained import
ance from the fact that Judge Sherwood dissented from
the Chief Justice Robinson and Judge Macaulay. The
case to which I refer was Evans vs. Shaw, in which the
question was, whether a bond to the limits given under 2
George IV,, cap, 6 and 7, George IV,, cap, 7, by a debtor
prisoner enjoying the benefit of the limits, leaving the
.same without knowledge of his bondsmen or bail to the
limits, but afterwards returned again to the limits of hi.s
own accord and there was surrendered by his bail, given
up to the sheriff and lodged in jail, was forfeited, or
whether or not the surrender saved the bail from liability.
The majority of the Court held the bond forfeited without
redemption, but Mr Justice Sherwood in a long and

JUDGE SHERWOOD. I03
elaborate judgment maintained that so long as the Sheriff
had the prisoner in close custody the bail should be pro
tected, and not held liable for the act of the debtor in
leaving the limits without their knowledge. The letter of
the bond, however, was given effect to, and the bail held
liable. The case is reported in " Draper's Reports," and
is interesting as showing the strictness of law which was
given effect to. There was, at the time, no Court of flquity
in the Province. Mr. Justice Sherwood was eminently a
fair man ; rather given to take an equitable view of matters
when it was possible to do so, and still justify the same
under the principles of law that then prevailed. If in any
case he thought he had erred he would reverse his own
decision. A case of this kind occurred, and was tried
before him, also reported in " Draper's Reports." In
writing the life of Chief Justice Campbell I made reference
to William Lyon Mackenzie, and also to the candidature
of Mr. James Small for the Home District, County of
York representation in Parliament. In connection with
this candidature Mr. Small had reason to complain of Mr.
Mackenzie, and to settle the matter brought an action at
law against him — Small vs. Mackenzie, The action was
for libel of Mr Small as an Attorney and Candidate for
Parliament, The publication given in evidence was a
report of a trial of Small vs. Hogg. At the trial of Small
vs. Mackenzie the defendant, Mackenzie, gave in evidence
in justification under the general issue that the report of
the trial was correct, and obtained a verdict. Judge Sher
wood tried the case, and admitted this evidence. On a
new trial being moved for in Term he granted a new trial
on the ground that he had improperiy admitted the evi
dence. He held in effect that in making the comments
he did in his report of the case of Small vs. Hogg, Mr.
Mackenzie had gone beyond his privilege and had made
comments reflecting on the plaintiff's honesty and his being
an honorable man. That, however he might be entitled
to report the proceedings of the tria', he had no right to
make comments of his o<vn opinions of the plaintiff, such as

104 LIVES OF THE JUDGES.
the libel in question. I refer to this case because of the
prominence of the parties, and also as showing that Mr.
Justice Sherwood was one of those administrators of the
law who was not so self-sufficient as to believe he was
always right, but was willing, on being convinced, to modify
or alter his opinion. It was Mr Justice Sherwood who
was the first to decide in Upper Canada that lands which
had descended to the heir could, on a judgment recovered
against the executor or administrator of a deceased debtor,
be sold and absolutely disposed of on execution on the
judgment against the executor or administrator. He so
decided in Forsyth vs. Richardson in " Draper's Reports."
There was an important principle involved in that case
which the professional reader fully understands. It was
there first contended that for a simple contract debt the
lands of the heir could be seized to satisfy the debt for
which he had in no way become personally bound, and
that, too, on a judgment, not against him, but the executor
or administrator of the deceased debtor That was held
to be the effect of the Imperial Act, 5 Georg; II., cap. 7,
and was subsequently followed by the Canadian Courts as
establishing the law in Upper Canada. The subsequent
case of Gardner vs. Gardner, which has often been supposed
to be the first case on this point, was not the first case, but
followed the decision of Judge Sherwood in Forsyth vs.
Richardson, but gave it strength by the judgment of a
full Court,
The correctness of the decision in these cases was rudely
shaken in 1863, on an appeal to the Privy Council from
New South Wales, the question arising on a similar statute.
The case from New South Wales was BuUen vs. A'Beckett,
reported in 9 Jurist N. S. 973. So important was the
principle involved and so serious was it thought to be, that
the Legislature of Canada in 1863, at once thought it
necessary to act, and passed an Act (27 Vic. Cap. 15) to
confirm the titles acquired by purchasers at sales so made
under execution against executor or administrator. Strong
V. C, now Judge of the Supreme Court, in Willis vs. Willis,

JUDGE SHERWOOD, I05
19 Chy, (Grant) 573, after referring to Gardner vs. Gardner,
proceeds to say :
Some doubt which was cast on the case of Gardner vs. Gardner, by the
¦decision of the Privy Council in the case of BuUeii vs. A'Beckett on appeal
^rom New South Wales, led to the passing of the Act 27 Vic. Cap, 15.
Judge Sherwood, from one cause and another, had to
sit alone, being, in fact, the whole Court. When I come
to write the life of Judge Willis, it will be seen that excep
tion was taken to this in some quarters. I find him holding
the Court alone when the case of Prentiss vs. Hamilton
{" Draper's Reports," 398,) was before him when he was
called on co decide as between two clerks in the Receiver-
General's office. One clerk had said to the Receiver-General
that another clerk, the plaintiff, had stolen $300 from the
Receiver-General. An action of slander was brought, and
one of the questions which came up was whether the com
munication made to the Receiver-General was privileged
or not. Judge Sherwood held that it was not privileged.
He said :
Such communications possess a sort of public character, and, in that
respect, essentially differ from those which are ordinarily made by servants
to their master in private life.
Mr Justice Sherwood was a painstaking Judge, and gave
general satisfaction. He was very conservative in his
opinions, not given to change. In 1828 he was obliged to
defend the constitution of his Court, the Court of King's ¦
Bench, against an assault made upon it by his brother
Judge, Willis. Judge Willis had been sent out from Eng
land, appointed to a puisne Judgeship in the King's Bench,
Associate to Judge Sherwood. The Chief of the Court
was Chief Justice Campbell. The Chief obtained leave of
absence and went to England. Judge Willis came to the
conclusion that the Court could not be held in the absence
of the Chief This was a novel and startling doctrine to
Mr Justice Sherwood. His answer was, that it had fre
quently happened before that the Court had been held
¦ without the Chief, and that even Judge Willis himself had
14— L- J-

I06 LIVES OF THE JUDGES.
so held the Court, and that he, Judge Sherwood, would
continue so to hold regardless of the opinion of Judge
Willis. This he did very much to the advantage of liti
gants whose cases were then before the Court. A different
holding would have blocked the legal business of the Pro
vince. When I was quite a lad I remember to have seen
Judge Sherwood on the Bench, holding the Assizes at
Brockville. I well remember with what awe I looked upon
his dignified form and gray locks of flowing hair. Near
to him was Adiel Sherwood, the Sheriff of the county, with
a sword at his side, knee-breeches, and buckled shoes. The
scene comes back to me now, an impressive one. It was
the first time I ever entered a Court of Justice. I little
thought then I should live to write the life of the Judge.
Mr. Justice Sherwood had four sons and three daughters.
Henry Sherwood, his eldest son, at one time represented
Brockville and afterwards Toronto in the Upper Canada
Parliament. In 1842, Henry Sherwood became the Honor
able Henry Sherwood, was appointed Solicitor-General of
the Province, and in 1847, he was appointed Attorney-
General. The Honorable George Sherwood, second son
of the Judge, represented Brockville in Parliament for
nearly twenty years, and was Receiver-General and Com
missioner of Crown Lands in the administration of Sir
George Cartier and Sir John Macdonald. He retired from
Parliament in 1863, and in 1865 was appointed Judge of
the County Court of the county of Hastings.
The Honorable George Sherwood was a man of great
probity, universally respected. In his Bar days he ever
set his face against all sharpness in practice, having a great
regard for the dignity of his profession. I was a student
of his for two years, and avail myself of this opportunity
in writing the life of his father, the Judge, and referring to
him, to say that I always found George Sherwood not only
a tutor in the law but a friend. He died a few years ago
in Toronto, where he was buried. His father, the Judge,
died in Toronto in 1850, and was buried in St. James's
Cemetery.

XL
The Honorable John Walpole Willis, Judge of
THE King's Bench, Upper Canada,
|OHN WALPOLE WILLIS, Judge of the
King's Bench, was an English Barrister of
Gray's Inn and of the Equity Bar, He was
born in 1792, and was of a good country family,
but not of a family of rank. He was the son of Dr, Willis,
who as the body physician of good old King George III.
achieved a considerable success in the treatment of the
insane. In early life he began the study of Equity. Feel
ing that his future success in life depended on his own
exertions, he applied himself assiduously to the study of
his profession. By the time he reached his majority he
was well skilled in Equity, and no sooner had he been
called to the Bar than he showed the good effect of his
early training and studious life in publishing a work on the
" Law of Evidence," In 1820 he published his valuable
work on equity pleading — "Willis's Equity Pleading" — a
work which was for a long time a standard work on this
branch of the science of Equity, In 1827 he published
that other valuable work, his treatise "On the Duties and
Responsibilities of Trustees," No doubt these writings of
his, added to the circumstance that he married the daughter
of an earl, procured for him early promotion from the Bar
to the Bench. In 1823 he married Lady Mary Isabella
Bowes Lyon Willis, one of the daughters of the Earl of
Strathmore. By this marriage into a family of rank he

I08 LIVES OF THE JUDGES.
secured an influence which he turned to account, when he
thought it well to seek a Judgeship. When he married he
had a good practice in London, but his flight of marriage
was too high for his means ; the result of the marriage was
•expensive and extravagant habits, finally ending in an
impoverishment which caused him to be but too ready to
accept a position on the Bench.
In the year 1827 it was a matter of speculation in the
Colonial Office, leading to a belief in its reality in the
minds of influential persons, that Upper Canada was
sighing for the establishment of a Court of Equity in that
Province. As yet the benighted people of that distant
colony had traveled along on the old beaten paths of com
mon law, with such of the statute law of England as they
had introduced plus their Canadian statute law, which, in
the minds of those in England who wanted office in the
colony, was not satisfactory. Unfortunately Mr. Willis
either persuaded himself, or was persuaded by others, that
a Court of Chancery was necessary, and must at once be
created to settle the differences of litigants in the
Province. Mr. Willis having conceived this idea, and that
he would be a good man to assist in the establishment of
such a Court and himself be the head of it, came out to
Upper Canada, leaving his wife in England, his mother
and sister living with her, as the}^ had with him
before he set out for Canada. On the i8th of September,
1827, he presented to Sir Peregrine Maitland, the Lieu
tenant-Governor of the Province, the royal warrant
appointing him to a Judgeship of the King's Bench in the
expectation that in the near future a Court of Chancery
would be established and Mr Willis appointed its Chief
At this time John Beverley Robinson was Attorney-
General, and it was not at all his opinion that the country
was yet ripe for the creation of a new Court. The opinion
of the Attorney-General was shared by many others,
especially by the Executive Council. The first official
reception Judge Willis had, was by the Lieutenant-
Governor at Stamford Cottage, and being introduced by a

JUDGE WILLIS. 109
royal warrant he was, of course, well received. After good
entertainment the question of the establishment of a Court
of Chancery was mentioned over the wine and walnuts.
Sir Peregrine said to the new made Judge : " Sir, you have
not got your Court of Equity yet ! " Sir Peregrine well
knew that Parliament was not yet prepared to create such
a Court : hence his remark to Judge Willis.
Judge Willis found a bitter opponent to the scheme in
Attorney-General Robinson. He tried every legitimate
means to influence Parliament to adopt his views, but
signally failed ; he always met a doughty opponent in the
Attorney-General. The antagonism did not create the
best of feeling between the Judge and the Attorney-
General. Matters rapidly came to a head. On the loth
of April, 1828, a well-known citizen of York, Francis
Collins, editor of The Freeman newspaper, was brought
before the Court of Oyer and Terminer for a libel preferred
against him by the Attorney-General. Judge Sherwood
was the only Judge presiding. The next day Judge Willis
presided, and this was the first time he ever presided at a
Court of Assize, He in fact had no experience in
criminal law or the matters of practice in common law.
At this sitting Collins applied to be heard personally..
The Judge gave him leave, when he launched forth into a
¦violent tirade of abuse of the Attorney-General, charging
him with breach of duty in not entering prosecutions
against certain parties for supposed offences. The
Attorney-General, who had been in consultation with a
member of the Bar in an adjoining room, hearing of this
came into Court and claimed its protection. Mr Collins
was, however, allowed by the Judge to proceed. The
Judge was but too willing to listen to Collins's abuse of
the Attorney-General, and said : " If the Attorney-Gen
eral has acted as you say, he has very much neglected his
duty." This was too much for the Attorney-General, and
he at once vindicated his course in these words : " It is not.
my place," said he, " to play the part of a detective, or to
hunt about the country for evidence of voluntary-

no LIVES OF THE JUDGES.
prosecutions. , I have now discharged the duties of Crown
officer for nearly thirteen years, and this is the first time
that a failure in my duty has been imputed to me. I have
already conceived it my duty to take official cognizance of
offences against the state. As to other cases I have been
accustomed to proceed only upon informations and
complaints placed in the hands of Justices of the Peace,
and upon presentments of grand juries. In cases of
injuries to individuals and their property, such as assaults,
riots, when a double remedy is afforded by action and
indictment, I have not been accustomed to set the law in
operation on my own motion."
Judge Willis interrupted the Attorney-General, saying
" that the Attorney-General's statement of his practice
merely proved that this practice had been uniformly
wrong," and said he, " I take leave to remark that you
have neglected your duty." The Judge continued in this
strain with further offensive remarks. The Attorney-
General could endure it no longer and in tones of hot
anger and manly independence he burst forth, saying :
My Lord, I know my duty as well as any Judge on the Bench. I have
a,lways acted in the way I have indicated, in which respect I have followed
the practice of all my predecessors in this Province, and I shall continue
to act in the same manner as long as I am prosecuting officer for the
Crown. A few days afterward in another criminal case at the
same assizes the Judge again undertook to lecture the
Attorney-General as to his practice, saying :
The practice in this country, as stated by the Attorney-General, does
not agree with my notions as to the duty of that officer, and I have laid a
statement of the question before flis Majesty's Government here for the
purpose of having it transmitted to England, where it will be decided how
far the Attorney-General is right in expressing his sentiments as he has
done. Whereupon the Attorney-General remarked that he
was Attorney-General to his Majesty, and not to Judge
Willis, and that he would act as he believed to be right,
even though he should differ in opinion from his lord-

JUDGE WILLIS. Ill
ship. Judge Willis then addressing the Attorney-General,
said :
Mr. Attorney-General, I am one of His Majesty's Justices in this Pro
vince., As fuch it is my place to state to the Crown officers what their
duties are, and it is for them to perform those duties according to direc
tion. If the interests of the Crown had not been concerned, I would not
have permitted any discussion on the question. But I am sure His
Majesty's Government -will protect me from insult in the exercise of my
judicial functions, and in stating to any public officer what I conceive to
be his duties.
The Attorney-General answered the Judge by saying
that his Majesty's Government would " also protect his
Majesty's officers in the execution of their duty,"
This episode in the Court and judicial history of the
Provirce had its origin in the Attorney-General's refusing
to be a party to the fishing out of criminal cases, and was
especially directed to a ca.se of a duel that had been
fought some thirteen years before. The duel unhappily
ended in the death of one of the principals. Mr. Francis
Collins seems to have thought that the Attorney-General
should, of his own motion, take the matter in hand and
have the seconds brought to trial. No friend of any of
the parties to the duel sought to open the wounds long
since closed. No information before a magistrate had
been laid. Ncr had a grand jury made a presentment.
Duelling at that time was considered the gentlemen's
¦court of honor, and many agreed with the cavaliers of old
that when that Assize had disposed of the case there was
to be no further controversy. The Attorney-General
would not be a party to an appeal from the court of
honor without the positive and active prosecution of the
friends of the duelist. Mr Collins further urged that the
persons who demolished Mackenzie's printing press, and
threw the type in the bay, a full account of which I have
given in the life of Chief Justice Campbell, should have
been prosecuted criminally at the voluntary motion of the
Attorney-General, though Mackenzie himself took no steps
towards a criminal prosecution. Here again the Judge

112 LIVES OF THE JUDGES.
supported Mr Collins in his contention, and the Attorney-
General disputed it. The Attorney-General had said to
the Judge when taken to task :
In cases of injuries to individuals and their property, such as assaults
and riots, where a double remedy is afforded by action and indictment, I
have not been accustomed to set the law in operation on my own motion.
I will not dwell on these incidents of very unpleasant
Court proceedings. It must have been a sorry spectacle
for the spectators. The Bar generally supported the
Attorney-General. Some of the Bar supported the Judge.
As for the people, it was something new to them to hear
the Attorney-General berated by a Judge. The indepen
dence of the Bar is thought to be one of tae safeguards
of English liberties. I will leave it to the reader to judge
if such independence could be maintained if the doctrines
laid down by the Judge were to have weight. He said
as I have related : " Mr Attorney-General, I am one of
his Majesty's Judge's in this Province. As such it is my
place to state to the Crown officers what their duties are,
and it is for them to perform those duties according to
direction" These were plain words of the Judge. They
were not words of wisdom, however, and were neither
acceded to, nor did they operate as a deterrent to the
Attorney-General. The Canadian Attorney-General was
not prepared to be dictated to by an English Judge fresh
from the Equity Bar, with no experience of criminal law.
The friction caused by the disputings between the
Attorney-General and the Judge was soon to bear fruits
If Judge Willis had acted with prudence he might have
done good service in the colony. He was not without
talent, though just at that time the talent he possessed
was not available. There was no Court of Equity, or his
career might not have ended as it did. Getting into
disfavor with the Attorney-General brought down on him
all the antagonism of the government party. Sir Peregrine
Maitland, the Lieutenant-Governor, leaned to the side
of the Attorney-General. Judge Willis also assumed

JUDGE WILLIS. 113
a superiority over Chief Justice Campbell and Judge
Sherwood, his brother Judge on the bench. It was not
long before an opportunity presented itself, eagerly taken
advantage of, to make the Judge feel that he had missed
his mark in falling foul of the Attorney-General. The
Judge was for reform — all well enough if , he had not
descended from his dignity, availing himself of the news
papers to bolster up his cause. He announced through
this channel that he was preparing for publication a work
on Upper Canadian jurisprudence, which the authorities
questioned as aiming at a revolution of Canadian law, as
it existed. This conduct of the Judge did not comport
with the sense of propriety entertained by Sir Peregrine
Maitland, who represented the nlatter to the English
Government. The Judge, by his own conduct, was
directing events likely to lead to his removal from office,
which afterwards actually took place.
, The summary dismissal of a Judge is a proceeding so
unusual that it becomes absolutely necessary to make
careful inquiry into the cause and circumstances connected
with such dismissal, before coming to a conclusion on its
justice or propriety. There are not wanting writers who
have in the most unmeasured terms condemned his dismis
sal, imputing it to political motives, and stigmatizing the
dismissal as the base and unprincipled treatment of the
family compact. I shall proceed, therefore, to give the facts
connected with his displacement from office, leaving each
reader to draw his conclusion as to him seems best. The
ostensible cause of the Judge's removal was his persisting
in his refusal to perform judicial acts which belonged to
the Court of King's Bench, of which he was a Judge,
unless the Court was fully constituted, the Chief Justice
presiding. In Michaelmas, 1827, and Hilary Terms of the
year 1828, Mr Justice Willis took his seat and officiated
with the Honourable Chief Justice Campbell and the
Honourable Mr Justice Sherwood, in the course of which
Terms differences of opinion on legal points of much public
importance in several causes arose. In Easter Term
15— L. J.

TI4 LIVES OF THE JUDGES.
following, Chief Justice Campbell was absent, having
a few days before this Term of Easter set off for Eng
land. In this Term of Easter, Mr Justice Sherwood and Mr
Justice Willis presided, and in the course of this Term the
varying opinions of these two honorable judges were
publicly discussed and publicly felt. Mr Justice Willis,
under these circumstances, examining into the constitution
of the Court of King's Bench in the Province, and advert
ing to that clause of the Provincial Statute which required
" that his Majp.sty's Chief Justice, together with two puisne
Judges, shall preside in the said Court," resolved not to sit
in the Court while it continued, as he contended, thus
illegally constituted in the absence of the Chief Justice,
though expressing himself willing and desirous of fulfilling
.all other duties which the law might permit him to do as a
single Judge. This opinion of Mr Justice Willis came to
the knowledge of the Provincial Government previous to
Trinity Term, in which that opinion was expressed. The
Provincial Government, although thus aware of the
difficulty and objection raised by Judge Willis as to the
constitution of the Court, took no steps to supply this
alleged defect in the Court — no Chief Justice being
appointed in the place of Chief Justice Campbell, absent
from the Province,
In this state of things, Mr, Justice Sherwood, in Trinity
Term, June 1828, took his seat on the bench, and Mr.
Justice Willis, impressed with the opinion which he enter
tained of the illegality pursued, declared in an emphatic
and grave argument, his reasons why he could not consci
entiously proceed to hear causes or give judgment under
such circumstances. For the better elucidation of this
extraordinary case, I can not do 'better than refer the
reader to the Journals of the Legislative Assembly of the
Province of Upper Canada, First Session, T^nth Parlia
ment, page 21 Appendix, where will be found Judge Willis's
reasons, as expressed by him in Court, for thiiiking he
was bound to take the course he did, and that conformably

JUDGE WILLIS, 115
to law he could not act otherwise. The arguments
advanced by the Judge were, in the opinion of some of
the best lawyers of the day, sound. This much in any
event may be said, that they were honest opinions,
honestly and independently expressed as becomes a Judge
•of the bench of any country. A different practice had
hitherto prevailed, and inasmuch as the ruling of the
Judge would create a complete block in the Court, the
Lieutenant-Governor, Sir Peregrine Maitland, was appealed
to. He advised, with his Attorney-General, who wholly
differed from Judge Willis in his exposition of the statute.
The Lieutenant-Governor, acting on this opinion, sum
marily dismissed the Judge. Judge Willis, in defending
the course he took in refusing to sit in a Court, as he
contended, illegally constituted, took the further ground
that the act of the Governor in giving leave of absence to
Chief Justice Campbell was his individual act and not the
act of the Governor in Council as the law required, and so
illegal. The Executive Council of the Province made a
full report of the case to the Home Government, to which
the Judge made reply from Bath, in England, on the 23rd
of September, 1828, which will also be found -in the
Journals of the House of Assembly, to which I have
referred. From this reply to the report may be gathered
the grounds assumed by the Council for the removal of the
Judge. The Judge in his reply reiterates the arguments
he advanced from the bench for the course he pursued,
challenged the right of the Governor of the Province or
his Council to deprive him of his position of Judge with
out good and sufficient cause, and above all defended his
right to give a judicial opinion which he judged to be
right without interference of any person, and in that
respect proclaimed his independence of the King, let alone
his Governor of a Province I do not propose to go into
the reply at length. Suffice to say, it repudiates the
charge that he was in any way actuated by a desire for
popular applause or that he had acted in any way but the
-one dictated by his conscientious conviction that he was

Il6 LIVES OF THE JUDGES.
doing just what was right and according to law. The-
concluding part of his reply is as follows :
As to the imputation so treacherously insinuated that I have been
aiming at popular applause, I observe, in the language of that great and
learned Chief Justice of England, Lord Mansfield, "It has been urged
against me as a crime, that I have courted popularity. I never did court
it, but I have always studied to deserve it. Popularity will always pay
the pursuer. This must follow. I do not mean to say I despise it ; on
the contrary, I sincerely wish for it, if not purchased at too dear a price,
at the expense of my conscience and my duty.''
So much for Lord Mansfield.
Mr Justice Willis goes on on his own behalf to say :
Protesting, therefore, once more against the illegality of my removal,
as well as against the liability of a Judge to be called in question for the
effects or consequences, nay, even for the correctness of his judicial
opinions, I have, nevertheless, submitted to the foregoing ample refutation
of such charges as have been brought against me, both as respects the
soundness of my interpretation of the law, and also the time, place, and
manner of pronouncing it. I have discharged myself of an imperious
duty, which, under my conviction of justice, I was bound as an honest.
man and a Christian to perform.
It was charged against the Judge that his comm.ents on
the Bench upon the conduct of the Crown officers, as to-
prosecutions, were expressed in an unusual and unbecom
ing manner Mr. John Carey was examined before a
Committee of the House of Assembly as to this by direct
interrogatory. His answer was as follows :
I was present when the conduct of the Crown officers relating to pro
secutions was brought under the notice of Mr. Justice Willis, and saw
nothing unusual or unbecoming in the conduct of the Judge, if I except
the marked lenity with which he treated the Attorney-General when he,
in a most uncourteous and unbecoming manner, told the Judge that he
would persist in conducting criminal prosecutions contrary to the rule
pursued by His Majesty's Attorney-General in England — and that he
knew his duty as well as Judge Willis or any Judge on the Bench.
Anyone who knew Sir John Beverley Robinson knows
that it was not in his nature to be uncourteous to anyone.
That he was firm in his opinions, and had unbounded
confidence in the specialties of Canadian law, and the-

JUDGE WILLIS. 117
'manner in which prosecutions should be conducted
"tending to the due administration of justice, there can be
no donbt. I have it from those who were well
acquainted with the circumstances that Judge Willis's
-conduct, not so much in matter as in overbearing manner,
provoked the retort of the Attorney-General. Everything
goes to show that although Judge Willis may have been a
learned man, he was regarded as not adapted to a colonial
Court, or agreeable to colonial authorities. The Judge's
commission as Judge was revoked on the 26th of June,
1828, when he was removed from his office, the patent of
¦amoval being signed by Sir Peregrine Maitland as
Lieutenant-Governor — J. B. Robinson, Attorney-General.
Immediately after his amoval the Judge proceeded to
England, laid his case before the Home Government — the
whole matter of his administration of justice in Canada.
Charges made by the Government and counter-charges
;made by the Judge were investigated by the Government
¦of England and by the Privy Council. The result of the
enquiry was, that the Judge had erred in his construction
of the Statute regarding the Court of King's Bench, and
that he should have continued to hold the Court with Mr.
Justice Sherwood, notwithstanding the absence of the
Chief Justice. The Privy Council were, however, of
opinion that his amoval from office was too summary ;
that he should have had charges regularly laid against him,
and been given an opportunity of discussing them before
'removal, though true it was that his tenure of office was
during pleasure only. The confirmation of the view of the
Provincial authorities as to the constitution of the Court
of King's Bench was very satisfactory to the colonial
•Government, the Court thus gaining additional strength.
The British Government gave the Judge another appoint
ment, sending him as Judge to Demerara. He was not
there long before he ceased to be a Judge in that colony —
for what reason I am unable to say. Judge Willis seems
to have had many judicial appointments and many
•amovals. After his removal from Demerara he was

II 8 LIVES OF THE JUDGES.
appointed Judge of the Supreme Court of New South
Wales. By patent under seal of the colony of New South
Wales he was, on the 8th of February, 1841, appointed'
Resident Judge for the district of Port Philip, repaired to
Melbourne in that district, and officiated as Resident
Judge therein till the 24th of June, 1843, when he, while
sitting in Court at Melbourne, received a dispatch written
by the Colonial Secretary, by direction of the Governor,
Sir George Gipps, announcing to him that it had been
deemed expedient to submit to the Executive Council of
the colony representations which had been addressed to
the Governor respecting Mr. Willis (Judge), and that after
mature deliberation the Council had advised that in
conformity with the provisions of the Act of Parliament
(22 Geo. III., Cap. 75) the Judge should be forthwith
removed from the office, not only of Resident Judge of
Port Philip, but as Judge of the Supreme Court of New
South Wales. The packet containing the dispatch-
enclosed in addition a copy of a writ issued b)^ the
Governor-in-Council of the colony, tested the 17th of
June, 1843, whereby, after setting forth that it had been
sufficiently made to appear to the Governor-in-Council
that Mr, Willis had misbehaved himself in his office, the
Governor and Council did revoke his appointment, and
inhibited him from the exercise of all power and authority
as a Judge of the Supreme Court, Against this decision
of the colonial authorities Judge Wiilis appealed to the
Privy Council, The appeal was heard on the 24th and
25th of June and 8th of July, 1846, The report of their
Lordships of the Privy Council, made on the Sth of Jul}-,
1846, and which was confirmed by Her Majesty, was :
That in the opinion of their Lordships, the Governor in Council had
power in law to amove Mr, Willis from his office of Judge under the
authority of the statute 23 Geo, III,, cap, 75, and upon the facts appear
ing before the Governor in Council and established before their Lordships
in this case, there was sufficient ground for the amotion of Mr, Willis • but
their Lordships are of opinion that the Governor in Council ought to have
given him some opportunity of being previously heard against the amotion,
and that the order of the I7th of June, 1843, ought therefore to be reversed'

JUDGE WILLIS. 119
I have been in communication with friends in New
South Wales, one of whom has furnished me with inform
ation in regard to Judge Willis while in that Colony,
which I will not withhold from the reader It will be
found to be not essentially different from the estimate I
had formed of him while exercising judicial functions
in Canada. It will also be found interesting as giving
more details connected with his administration in New
South Wales and Port Philip. My correspondent says of
him :
Before coming to New South Wales, he had held a judicial office in
British Guiana, where he soon embroiled himself in a public quarrel
which brought about a memorial, and ended in his recall.
Referring to his being sent out as Judge to New South
Wales he writes :
He made himself so disagreeable to his brother Judges that they were
glad to get rid of him, and when the Port Philip opportunity offered, he
-was appointed t3 the billet. He was, it is admitted, a man of much legal
acumen, great application, and considerable powers of composition ; but
he was, says the authority from which I quote, who knew him well,
impotent to control a bad temper, lacking in dignity, and capable of being
easily prejudiced — in politics he was a partizan, an intermeddler in other
people's affairs, and always eager to over-step the bounds of judicial
propriety and dabble in matters not regularly before him.
In another part of the correspondence he .states, on the
authority of a gentleman who had been Clerk of the Legis
lative Council, and who had written a series of papers first
begun in a Melbourne paper called " The World" on the
28th November, 1881, under the title of "The Chronicles
of Eariy Melbourne," under the " Nom de plume" of
Garryowen. That after the appointment of Charles Joseph LaNobe as Superinten
dent of Port Phillip his Honour had made himself so thoroughly
obnoxious to Bar, press, and public that his Court was the scene of most
unbecoming exhibitions. He was never in a state of peace, and the
hatchet was not only never buried but daily brandished over the head of
some one. It must certainly have been a trying time for him, for
according to all accounts, the lawyers were worse than the cUents, and the
colony was in a state of insolvency. At length the crisis came. In

I20 LIVES OF THE JUDGES.
November, 1842, a public meeting was held to express confidence in the
Judge's administration of justice, but a breach of the peace was anticipated,
and his Honor had the good sense to insist on its abandonment. An
address, however, was quietly arranged, and when three hundred
names were obtained a deputation waited upon him at his chambers
on 1 Ith March, 1843, to present it. John Pinney Bear, a cattle salesman,
was the Chairman, and presented it. His Honor was much gratified by
the compliment, and in reply intimated that he had applied to the
Secretary of State for the Colonies, soliciting an enquiry into his conduct.
On the other hand, four memorials were transmitted to Governor Bourke
in Sydney, praying for the recall of Willis. One of these bore the names
of five hundred and twenty three persons, including eighteen magistrates.
It was forwarded through, and recommended by W. LaNobe, the
Superintendent of Port Phillip. This was in May, 1843, by which time
the Judge had quarrelled with the Governor, the Executive Council,
and the Judges of New South Wales, the Superintendent of Port
Phillip, the magistracy, the legal profession, the press, and was
distasteful to more than one half the community. He was presiding
in his Court on 24th June, 1843, and was engaged in " slating "
the Crown Prosecutor (Croke) when the Sydney mail was de
livered. It brought news of his suspension pending the Queen's
pleasure. In vain were the subsequent indignation meetings of his friends. In
vain the presentation to him of an address signed by fourteen hundred
persons. He sailed for home in the Olenbervie on the 18th July, 1843, and
commenced his appeals to the Colonial Office. Interminable motions and
arguments before the Judicial Committee of the Privy Council followed,
and it took nearly three whole anxious, doubtful years to decide it. At
length, on 1st August, 1846, judgment was given, reversing the order of
the amotion of Judge Willis from office on the I7th June, 1843, on the
ground that some opportunity of being previously heard against the
amotion ought to have been given to him by the Governor and Executive
Council of New South Wales, but reporting to Her Majesty in their
opinion that the Governor in Council had power by law to amove Mr.
Willis under the authority of 22 George III. , and that upon the facts
appearing before the Governor in Council and established before their
Lordships in this case, there were sufficient grounds for the amotion of
Mr. Willis. The Queen approved, and an order was transmitted from
the Secretary of State revoking the appointment of Willis as a puisne
Judge of New South Wales and resident Judge of Port Phillip. Mr.
Willis applied to the Secretary of State for permission to resign his office,
for a retiring allowance or pension, and also reimbursement of the
expenses incurred in prosecuting the suit. To these demands a courteous
but decided refusal was given, and all he obtained was his back pay on
account of salary computed from the date of last payment to the date
of the warrant of revokement, and such he was given only because of the
reversal of the amoval order. It was a dear quarrel for the colony of
New South Wales, who had to pay :

JUDGE WILLIS, 121
Arrears of ex-Judge's salary  £4852 10 0
Costs in defending Governor Gipps  865 4 2
Ditljo through postponement on behalf of defen
dant  22 12 8

£5750 6 10
The Judge made several efi'orts to obtain official employment ; but
"the Do-wning street authorities, taught by the past, would have nothing
-to do with him. He died in 1877.

l6-L. J

XII.
Sir John Beverley Robinson, Baronet, Chief
Justice of Upper Canada.
^IR JOHN BEVERLEY ROBINSON was
the son of Christopher Robinson, Esq., who
was fourth in descent from Christopher
Robinson, Esq., of Cleasby, in the West Riding
of Yorkshire, England — a brother of the Right Reverend
John Robinson, D.D., Lord Bishop of Bristol, and after
wards of London, in the reign of Queen Anne — and who was
first Plenipotentiary at the Congress of Ut.echt. Christo
pher Robinson of Cleasby, above named, came out to
America in the reign of Charles II., as private Secretary
to Sir William Berkeley, Governor of Virginia, and subse
quently became Governor of that Colony, his residence
being near the Rappahannock, Middlesex County, rendered
familiar to every reader of the Virginia Campaign of the
Federal Army during the War between the Northern and
Southern States of the United States. The second son of
Christopher Robinson was John Robinson, President
of the Council of Virginia, who was born in that Colony,
and married Catharine, daughter of Robert Beverley, Esq.,
formerly of Beverley in Yorkshire, but then a resident of
Virginia. This John Robinson had several sons, one of
whom was Colonel Beverley Robinson of the British
Army, who raised and commanded a regiment during the
Revolutionary War. He was father of General Sir William

chief justice ROBINSON. 123
Robinson, and of General Sir Frederick P. Robinson, G.
C. B. From another of these sons was descended Christo
pher Robinson, the father of Chief Justice Sir John
Beverley Robinson. The father of the Chief Justice was
born in Middlesex County, Virginia, and received his
education at William and Mary College, of which venerable
institution, his ancestor Christopher Robinson had been
one of the first trustees.
During the American Revolution Sir John's father, at
the age of seventeen, left college and obtained a commis
sion as ensign in Colonel Simcoe's regiment of Queen's
Ranger's, which formed a part of Sir Henry Clinton's
army. He served in this corps until- the peace of 1783,
when, on the regiment being reduced, he emigrated with
many other Loyalists to New Brunswick. While there he
married Esther, daughter of the Reverend John Sayre,
The Reverend John Sayre, when the war of the Revolution
commenced, was Rector of Trinity Church, Fairfield,
Connecticut, J. W. Lawrence, of St. John, New Brunswick,
in his "Footprints, 1783- 1882," states that the reverend
gentleman removed to Maugerville, on the River St, John,
and died August 5th 1784, in his forty-eighth year; and
his daughter hlsther married Christopher Robinson, and
shortly after left with him for Upper Canada ; that he was
appointed Deputy Suiveyor- General, and was father of
Sir John Beverley Robinson, It would seem, however,
that Mr Robinson first settled in Lower Canada, at
L'Assomption, in 1788, and having remained for a time at
L'Assomption, removed shortly afterwards to Berthier,
where his second son, John Beverley, the future Chief
Justice, was born on 26th July, 1791, In 1792 Major
General Simcoe came out from England as the first
Governor of Upper Canada, He had, as we have seen,
been Mr Robinson's commanding officer during the
Revolution, The Major-General induced his quondam
ensign Christopher, to remove from Lower Canada and
take up his residence in Kingston, which he did, and lived
there six years. He was admitted a Student of Law in

124 LIVES OF THE JUDGES.
Trinity Term, 1797, 37 George III., and was called to the
Bar of Upper Canada in Trinity Term, I797- He stood
No. 6 on the Barristers' Roll at Osgoode Hall, and also
No. 6 on the Benchers' Roll. He continued in the
practice of his profession till 1798, during which period he
was elected a Member to the first Parliament of Upper
Canada, held at Newark, to represent the counties of
Lennox and Addington. In 1798 he removed with his
family to York, now Toronto, intending to settle on a
place which he had bought below the Don on the Kingston
Road, and on which he had built a small house. He died
on the 2nd of November of the same year after a short
illness, having suffered from the gout for many years.
Sir John Robinson received his education principally at
the hands of Dr Strachan, and was entered as a Student-
ofthe-Law in Hilary Term 48 Geo. III. A.D. 1808. He
studied under the auspices of Attorney-General Macdonell,
who was Provincial Aide-de-Camp to Sir Isaac Brock, and
who was killed a few minutes after his gallant Chief had
fallen at the battle of Queenston on the 13th October, 1812.
Sir John was called to the Bar in Hilary Term, 18 15, 55
Geo. III. He stands No. 40 on the Barristers' Roll, and
23 on the Benchers' Roll. He was three times elected
Treasurer of the Law Society, i.e., in the years 1818-1821,
and 1828-1829. While yet a Student Sir John in 1812
entered the service of the Militia in defence of the Province
in the War of 18 12. He served as Lieutenant in the York
Militia, and was present at the surrender of General Hull
to Sir Isaac Brock, at Detroit, in August of that year, and
•drew up the terms of surrender He was also at the battle
of Queenston Heights, where Brock so nobly fell, and was
-one of the officers of the detachment which after that
battle escorted a number of American prisoners to Quebec,
among whom was Colonel, afterwards General Scott of
the United States Army. He was mentioned in despatches
for his gallant conduct in that battle. On his return from
this service he was, before he was actually called to the
Bar in due form of law, appointed acting Attorney-General

CHIEF JUSTICE ROBINSON. 1 25
for Upper Canada, the Solicitor-General Boulton being
then a prisoner of war in France. On the 14th March,.
1815, the Legislature of the Province passed an Act
reciting :
Whereas the glorious and honorable defence of this Province in the
war with the United States of America hath necessarily called from their
usual occupations, and professions, most of the inhabitants of the Province,
and amongst them very many Barristers, Students-at-Law, Attorneys,
and Articled Clerks of Attorneys, whereby the regular meetings of the
Benchers of the Law Society of the said Province, being for many terms
past interrupted, several young gentlemen have been prevented from
making due application for admission on the books of the said society as
Students-at-Law, and several Students-at-Law have in like manner been
prevented being called to the Bar to their manifest and great injury: and
whereas this evil, as far as in them lay at a meeting of the said Law
Society, held as of Hilary Term in the fifty-fifth year of his present
Majesty's reign, did enter upon their books the names of several persons
who have been prevented in manner aforesaid from obtaining their due
admission as Students, and Barristers, as aforesaid : therefore to remove
all doubts as to the legality of such entry ; it is enacted that all those
persons whose names were then entered on the book of the Law Society
as Students-at-Law, and Barristers, should be deemed, and held to be
legally and regularly entered on the said book, and are thereby declared
to be Students-at-Law, and Barristers, within the Province, and of such
standing as to time as is now allowed to each respectively upon the book
of the Society.
-Sir John Robinson was one of the gentlemen who being
in active service at the front during the war was prevented
going up for call at the regular time, and so was entered
on the books of the Law Society in Hilary Term, 55
George III., and his admission confirmed by this Act of
Parliament. We find that in his case a tribute was paid to his talent
while yet a student: his appointment as acting Attorney-
General taking place 19th November, 18 12, before he was
called to the Bar On peace being proclaimed, Mr
Solicitor-General Boulton (who on a voyage to England
had been made prisoner by a French privateer and taken
to France) obtained his liberty and on his return from
France to Upper Canada in 18 15, was created Attorney-
General, Sir John Robinson taking his place as Solicitor-

126 LIVES OF THE JUDGES.
General, In 1817 Mr Boulton was elevated to the Bench,
and Mr, Robinson was again appointed, and this time
permanently, to be Attorney-General of Upper Canada.
He entered the House of Assembly of Upper Canada in
1 82 1 as member for the Town of York, then the seat of
Government, and was twice re-elected, continuing to be a
member of that branch of the Legislature until he was
summoned to the Legislative Council on the 1st of
January, 1830, of which branch of the Legislature he was
appointed Speaker on the 2nd of January, 1830.
In his professional practice at York, Mr Robinson had
tlie confidence of a great number of people, and on the
circuits he had many friends. I have heard him say that
in going on circuit he had often to travel on horseback
with saddle bags as receptacle of his briefs and his books
for ready reference. There are no published reports of
decided cases from his call to the Bar till 1824, but the
records in Osgoode Hall shew he had a large established
practice, the largest of his day. His name appears in
Taylor's Reports, 1824 to 1829, arguing cases in opposition
to the Solicitor-General and other prominent Barristers of
the time. He was during that time Attorney-General and
head of the Bar
I will not dwell now at large on this period of his life
as it was in his character of Chief Justice that he gained
his great distinction.
It will not be irrelevant to refer to Mr Robinson's par
liamentary career, as in some measure affording a key to
his subsequent judicial life. If I might venture an opinion
I should say that there was no more devoted a King's man
in his Majesty's dominions. I might add that a reverence
for established authority was one of the distinguishing
traits of his life. Mr, Robinson was a Tory of the old school.
Church and State had a charm for him which, to men of
the present day, seems-a relic of feudalism. Well ! — it may
be so, but in the days of feudalism there were many knights-
errant who fought their country's battles bravely and well.
'' Temporn miitautur et nos viutamur in illis."

chief justice ROBINSON, 127
Since the American and French Revolutions the world
has witnessed great changes, the most significant of which
is the spread of democracy. In Mr. Robinson's parliamen
tary day the voice of the people was first beginning to be
heard, but it was a small voice. In Upper Canada it was
stifled by a system of autocracy which prevailed in Upper
Canada as in other colonies.
In. writing the lives of previous Judges I have referred
to the pernicious system which prevailed of Judges being
members of Parliament, I have now to refer to what I
conceive to have been another dangerous element in the
administration of affairs, and that was that the Chief
Justice of the Province was a member of the Executive
Council, frequently, if not always, the head of the Council
-and the adviser of the Lieutenant-Governor of the Province,
this was the state of things in 1828 when Mr, Robin
son was a member of the Legislature and Attorney-
General, It was part of a system which did not strike
him as contrary to principles of good government. The
Roman Catholic Bishop and Archdeacon Strachan were
both members of the Legislative Council, the higher
branch of the Legislature, I can quite understand, con
sidering the school in which Mr, Robinson was educated,
that he could easily convince himself that in a country wheie
the Governor came as a stranger to the Province, its
habits and customs, it was not incompatible with good
government that he should have as his adviser one inti
mately acquainted with the condition of affairs, and none
so likely to fulfil the requirement as the Chief Justice,
That was not, however, the view entertained by the
majority of the members of the Legislative Assembly. On
reference to the Journals of the Assembly, 4th Session, 9th
Pariiament, 9 George IV,, A.D. 1828, iSth March, it will
be seen that the Assembly passed the following address :
To The Kino's Most Excellent Majesty,
Most Gbaoious Sovereign :—
We, Your Majesty's dutiful and loyal subjects, the Commons of
Upper Canada in Parliament assembled, beg leave most humbly to

128 LIVES OF THE JUDGES.
approach Your Majesty upon a subject of the deepest interest connected
with the administration of justice :
We would again humbly and earnestly represent that the Executive
Council is appointed by Your Majesty to advise His Excellency upon the
affairs of the Province, and that the connection of the Chief •] ustice with
it, wherein he has to advise His Excellency upon executive measures,
many of which may bear an intimate relation to the judicial duties he
may have thereupon to discharge is highly inexpedient, tending to-
embarass him in his judicial functions, and render the administration
of justice less satisfactory if not less pure.
Your Majesty's faithful Commons represent their deep sense of the
expediency of rendering the Judges in the Province as independent of the
Crown as the Judges of England.
The prayer of this address was, that His Majesty would
be pleased to discontinue to impose on the Chief Justice a
duty so incompatible with his judicial character.
Mr. Rolph, seconded by Captain Matthews, moved the
adoption of the address. The yeas were : Baby, Beardsley,
Bidwell, Clark, Hamilton, Horner, Lefferty, and nine other
members, names well known in Canadian Parliamentary
History, in all sixteen. The nays were : the Attorney-
General, John Beverley Robinson, and five others,
six in all. The address was carried by a majority of
nine. As we have seen Mr. Robinson voted with the minority.
This vote is singularly illustrative of the spirit of the times
actuating those who wished to preserve the " status quo!''
We find here the Attorney-General voting against a.
measure calculated to dissever the administration of justice
from the executive and political head of the Province, and in
the same division others of the members who usually voted
with the Attorney-General are found voting for the measure.
This like many other measures passed upon and reported
in the Journals shew that at that time it often occurred
that Tories and Reformers voted on the same side. There-
was not nearly so much partisanship then as now, every
man voted according to his conscience, there was no man
in Parliament big enough to hold in his pocket the votes
of his fellow members, or curb the aspirations of a pro
gressive people.

CHIEF JU.STICE ROBINSON, 129
In the same session of the same Parliament we find the
Religious Denominations Bill passed, the object of which
was to enable religious congregations, Presbyterians,
Lutherans, Calvinists, Methodists, Congregationalists,,
Independents, Anabaptists, Quakers, Menonists, Tunkers,
or Moravians, to appoint trustees, and their successors in
perpetual succession to hold land for the purpose of their
meeting house, chapel, or burying ground. We find
the Attorney-General, (Robinson,) Bidwell, Perry, and
McDonald, of Glengarry, voting on the same side for this
measure, while we find Rolph and nine others on the
opposite side. The measure seems to have been carried
by a majority of nine, and amongst these Episcopalian,,
Roman Catholic, and Methodist members. This rule
shews that Mr, Robinson by his acts evinced his high
regard for the early settlers of the country of whatever
faith or political complexion, Mr, Robinson, a noted
Tory, is found voting on the same side as Bidwell and
Perry, the most pronounced Liberals of their day.
A great deal has been said and written in Canada about
family compactism — that there was a family compact, and
Mr. Robinson the head of it. This is all very true. At the
same time it must be remembered that the chief men of
the Province were called " Family Compact " thirty years.
before Mr. Robinson came upon the scene. The old family
compact was something like the F. F. V.'s of Virginia
They were a party of themselves, and monopolised the
most and best offices of the state.
Much has been written about Mr Robinson's Parlia
mentary treatment, sometimes called bad treatment,
of Barnabas Bidwell, the father of the distinguished
lawyer Marshal S. Bidwell, A close examination of the
facts, however, will dissipate any such erroneous idea.
The Journals of Parliament, A.D. 1821, tell the whole
story. Barnabas Bidwell was in 1821 elected Member of
the Assembly to represent Lennox and Addington in
Parliament. Mr Bidwell was born in the British Province.
of Massachusetts Bay before the American Revolution
17— L. J.

130 LIVES OF THE JUDGES.
He remained in that Province during the rebellion of the
British colonies, being under age, and without taking up
arms against the mother country. After arriving at the
age of twenty-one years he was appointed Treasurer oi
the county of Berkshire, Attorney of the State of Massa
chusetts, and Member of Congress. He took an oath to
support the Constitution of the United States. He came
to Upper Canada in 1810, and constantly thereafter
remained therein, and took the oath of allegiance to His
Majesty the King of Great Britain. On the 29th
December, 1821, the petition of Timothy Stong and one
thousand other electors of the counties of Lennox and
Addington, praying for the expulsion of Mr Bidwell from
the Assembly on the above recited facts, which he
admitted, came up.
On that occasion the Attorney-General (Robinson)
moved that the 29th December be appointed for taking
into consideration the petition of Mr, Stong and others
against Mr, Bidwell's election.
It was moved in amendment by Mr, Jones, of Grenville,
that it be resolved : " That this House is of opinion that
Barnabas Bidwell, not being naturalized by any British
Act of Parliament, is an alien, and therefore incapable of
being elected to serve in the Parliament of this Province,"
(Upper Canada), Twelve Members, including the Attor
ney-General, voted for the amendment and nineteen
against. The amendment was therefore lost, and the
original motion was carried.
No one can say that the Attorney-General and twelve
others most of whom were United Empire Loyallists were
influenced by any other motive than to purge Parliament
of the presence of a gentleman however estimable who had
taken the oath of allegiance to a Government formed on
the wreck of the British Colonies, and with which Govern
ment their country had been at war, but seven years pre
viously. A country of which Mr. Bidwell had been a
Member of Congress, and so in a measure responsible for
the hostility of the United States in the war of 18 12. We

CHIEF JUSTICE ROBINSON. 131
must view these matters as they struck the men of that
day, and not as it could strike men who live half a century
afterwards. In the following year there were found more
members who were willing that Mr. Bidwell should retain
his seat in the House.
On the 4th of January, 1822, the question for the avoid
ance of the election of Mr Bidwell again came up, and
his election was avoided by but one vote. Dr, Baldwin,
Mr Baby, and Col, Nichol voted that Mr Bidwell should
retain the seat, while the Attorney-General voted for the
avoidance of the election.
It may be that the closeness of the vote exasperated
the liberals of that day. Still when they had voting with
them several supporters of the Attorney-General, as well
as personal friends, it may well be conceived that there
was room for divergence of opinion, and that those who
voted either way were acting according as their conscience
dictated. Col. Nichol, who, as we have seen, voted against
the Attorney-General on the Barnabas Bidwell motion on
the 9th January, 1822, five days after the vote on the
Bidwell motion, brought up the report of the Joint Com
mittee of both Houses appointed to draft an address to
His Excellency the Lieutenant-Governor praying him to
appoint John B, Robinson, Esq,, Attorney-General as
Commissioner to take to England and present at the foot
of the Throne the Joint Address of both branches of the
Legislature to His Majesty relative to the financial con
cerns of the Province of Upper Canada ; the Committee
reported that they had agreed to a draft which was read,
and is as follows :
To His Excellency Sib Peregrine Maitland, Commissioner of the Most
Honorable Military Order of the Bath, Lieutenant Governor of the
Province of Upper Canada, and Major General Commanding
His Majesty's Forces therein, dkc.
May it please Your Excellency :
The Legislative Council and House of Assembly while concurring
in a report, and in an address to our Most Gracious Sovreign on the
subject of our Provincial relations with Lower Canada, have also united

132 LIVES OF THE JUDGES.
in a desire that on an occasion of such vast importance to the interests of
this Province some person of talent and consideration may be appointed
to lay this address at the foot of the Throne.
The Legislative Council and House of Assembly while they disclaim i
all desire of interfering with an appoiixtment which by their joint resolution,
rests solely with Your Excellency : and repose the fullest confidence in.
your Excellency's wisdom to select a person fully qualified for this im
portant mission on considering the magnitude of the subject, have agreed
in opinion, from the experience of the extensive information of his
Majesty's Attorney General on the affairs of this Province that the duties-
suggested by the report will be fulfilled by him in the manner most con
ducive in the attainment of the important end they have in view.
Now as the resolution expresses this was an important
mission — there was considerable friction between the
Province of Upper Canada and the Province of Lower
Canada ; the duties on goods coming to Upper Canada
from England were levied in Montreal or Quebec in Lower
Canada, These duties largely tended to swell the revenues
of Lower Canada, while Upper Canada contributed she
had not received her proper share of the revenue. Other
questions of great moment affected the body politic of
both Provinces. Committees of the Legislature of the
two Provinces had been appointed, met, received evidence,,
and reported. It became necessary that England should
be called in to adjust the difficulties that had sprung up in
the Provinces.
It was no small compliment to Mr. Robinson that he
at this epoch at the early age of thirty years, should in-
such flattering terms have been selected to represent so
important interests to the Parent State. Mr. Robinson im
mediately, on receipt of the resolution, wrote a letter to the
Speaker of the House acknowledging the honor done
him by appointing him commissioner, and then went on
to say :-
I trust that it -will be believed that on an occasion of this kind con
siderations of a personal nature would not have more weight with me
than it is necessary to give them, but having no private interest or
object to advance by discharging the duty committed to me, I owe it to
myself to represent that however willing I may be to incur the incon
venience which must attend my immediate departure for Europe, my
present circumstances do not admit of my making any considerable-

CHIEF JUSTICE ROBINSON. 133
• sacrifice, and that I cannot meet the expenses which must attend the com
mission and sustain the loss which must arise from an immediate abandon-
¦ment of my public emoluments, and the total interuption of my professional'
[pursuits for an indefinite time without an adequate provision.
Subsequently adequate provision was made, he under
took the commission, and fully satisfied the expectations
¦of the Legislature in his manner of performing the duty
•entrusted to him. On his return to the Province he
received the thanks of both branches of the Legislature
-couched in the strongest language of approval. During
his stay in England he was called to the English Bar by
"the Honorable Society of Lincoln's Inn, and shortly after
the Imperial Government offered him the valuable appoint
ment of Chief Justice of the Mauritius which he declined,
perferring to follow the career he had so successfully
begun in Upper Canada.
Colonel Nichol, whose name I have mentioned as moving
the address to which I have referred on the subject of Mr,
Robinson's mission to England, was one of the ablest and
;most noted members of the Assembly, and a companion in
• arms with Mr, Robinson and the gallant General Brock on
the occasion of the capture of Detroit and the surrender of
General Hull in 18 12, In the possession of the family of
his son is a gold medal specially awarded to Colonel
Nichol for his service on that occasion. On one side is
inscribed " DETROIT," on the obverse side is the figure of
Britannia ; and inscribed on the outer edge of the medal
"' Lieutenant-Col, Robert Nichol Quarter Master General
to the Militia,"
This medal was awarded Colonel Nichol for special
services. It was a rich souvenir of the past and no one
•congratulated the recipient of it more heartily than Mr
Robinson. In the year 1829 was held the Assembly which sur
passed all others up to that time in advocating those
^principles of reform, which had got a fast hold on the
jjeople. At the first session of this Parliament Marshal
.S. Bidwell, son of the Barnabas Bidwell to whom I have

134 LIVES OF THE JUDGES,
previously referred, was a Member of the House, and
elected Speaker A large majority of the Members of this
House were opposed to the policy of previous Legislatures,
mainly guided by John Beverley Robinson, then and
still, Attorney-General,
The proceedings of the House show that the popularity
of the Attorney-General was visibly on the decline. It
was not without a protest that he had gained his seat for
the town of York, He was, however, sworn in as Member
on the 8th January, 1829, No sooner, however, had he
secured the position than he found his place an unenviable
one. Attacks fast and furious were made oh him and his
policy, which must have been truly galling ; and yet the
Attorney-General stood manfully to his guns. On the
1 2th January, 1829, a resolution was passed in the House :
That although the House sees his Excellency, (Sir John Colborne,
Lieutenant Governor), unhappily surrounded by the same advisers as.
have so deeply wounded the feelings, and injured the best interests of the
country, yet in the interval of any necessary change this House entertains
an anxious belief that under the auspices of his Excellency the adminis
tration of justice will rise above suspicion, the wishes and interests of the
people properly respected, the constitutional rights and independence of
the Legislature be held inviolable, the prerogative and patronage of his
Most Gracious Majesty be exercised for the happiness of the people and
the honor of the Crown, and the revenues of the colony be hereafter
sacredly devoted to the many and urgent objects of public improvement,
after making provision for the public service upon the basis of that
economy which is suited to the exigencies of the country and the condition
of its inhabitants.
This resolution was strongly opposed by Mr. Rob
inson (Attorney-General) and five other Members, but
in a full House of forty-eight Members was carried
by a majority of forty-two. The resolution speaks for
itself Every word, and every line of it indicate that the
Legislature (the Assembly) was hot-afoot after reform — it
was a direct stab at the Attorney-General, and the existing
order of things, expressing that : " His Excellency is
unhappily surrounded by the same advisers as have so
deeply wounded the feelings and injured the best interests.
of the country."

CHIEF JUSTICE ROBINSON. 135
The reference in the resolution to the administration of
justice was doubtless aimed at the Attorney-General.
In the life of Judge Willis I have referred to the con
viction of Francis Collins for a libel on the Attorney-
General ; the case was tried before Mr Justice Sherwood,
and resulted in Collins being subjected to a fine of ;^5o,
and sentenced to twelve months imprisonment. During
the Session of 1829 the matter of the conviction was
brought up in the Assembly, Collins had petitioned tlie
Lieutenant-Governor for remission of his sentence, and
the prayer of the petition was refused. The Legislative
Assembly undertook to second the application of Collins
for executive clemency, but met with a rebuff from the
Governor, and that not in very mild terms. Events were
proceeding rapidly to a crisis. On the 26th Januar}', 18 2g,
the Assembly passed a resolution :
That they owe it to their own dignity and honor to declare that by
their application for the exercise of the royal clemency towards Francis
Collins they have not merited the imputation which they apprehend to he
conveyed in his Excellency's message, that their request was inconsistent
with the due support of the laws, and their duty towards society.
This resolution was carried, twenty-four Members
voting for it, and nineteen against. The Attorney -Gen
eral voted with the minority. The carrying of this
resolution shews that the Attorney-General had lost his
hold on the House, and that, in a matter in which he was
personally concerned, the Legislature were desirous of
condoning the offence of Collins, the libel on the Attorney-
General, On the i6th January, 1829, the Sedition Law Repeal
Bill was read a third time and passed in a full House,
forty-one Members voting for the Repeal, and one (the
Attorney-General) against the Bill. By these proceedings
it became quite evident to the Attorney-General that he
should no longer oppose the will of the peofile as expressed
in Parliament.
At the close of the session, in July, 1829, an offer of
the Chief Justiceship, (become vacant by the retirement

136 LIVES OF THE JUDGES.
of Chief Justice Campbell,) having been made to him,
he accepted the office, not displeased to be rid of the
turmoil of political life.
On his elevation to the Bench the Chief Justice found
himself called upon to administer and interpret laws, a
very considerable part of the Canadian statutory portion
of which he had either framed or assisted in framing. A
reference to the Statute Book for the term he was in
Parliament will shew that during that period many laws
of a truly practical and beneficial character were passed,
especially laws relating to legal procedure and the
administration of justice. It can well be understood, then,
how much at home Sir John found himself on the Bench.
It would be idle to attempt to give even a synopsis of the
judicial decisions come to by him during the thirty-three
years he was Chief Justice of the Queen's Bench. It is
sufficient to say that during this whole period, the longest
ever attained by any Chief Justice or Judge in the
Province, he was looked up to, as indeed he was the head
of Bench, and that his decisions, contained in thirty
volumes of the Reports, uniformly had the respect of the
Bar He had much to do in giving interpretation to the
laws regulating the division of lands in the Province, and
was familiar with all the intricacies of the boundary laws.
In commercial law he was ever for a liberal interpretation
of the laws affecting banking and commerce, regarding
these matters as of the utmost importance to the advance
ment of the Province. He had no difficulty in bringing
his mind to a clear conception of the different circum
stances of the mother land and the colony in relation to
land matters. Evidence of this is found in his decision in
Dean v. McCarthy, 2 Q. B. 448, where he made a bold
attack on the English law in regard to the owners of land
kindling fire ob», their own land whereby a neighbour's
fence was burned)4jplding that in Canada, where such fires
were useful. Or necessSsQ' to clear the lands, such owner
was not an insurer thatNjo injury should happen to his
neighbour, but was responsive only for negligence. This

CHIEF JUSTICE ROBINSON. 137
¦decision was followed, and in effect its correctness
¦affirmed by the subsequent case of Gillen v. North Grey
R. W. Co., 33 Q. B. 128, affirmed in Appeal, 35 Q. B, 475,
In the administration of Criminal Law the Chief Justice
was strict to a degree. Before promotion to the Bench
his long practice in Crown Law, as Attorney-General,
had directed his mind in channels that ever after pursued
their even course. Having practised before him for
seventeen years of my professional life, and in my early
professional career engaged in a great many criminal cases,
I can bear testimony that while the Chief Justice was
strict he was ever ready to hear what counsel had to say in
¦defence of a prisoner, giving due weight to all counsel's
arguments in his charge to the jury. I am aware that
there are those who think that his bias was unduly to the
Crown, I can not say this, but can say that I do not
believe he ever forgot his duty to the Crown in this or any
¦other matter, I was once concerned in a criminal casci
the eminent counsel Henry Eccles, Q. C, and myself
being for the prisoner, and on the trial before Judge
Draper, at Toronto, were unsuccessful in procuring an
acquittal. The charge was embezzlement, and from the
position of the prisoner, a clerk in a bank, was a serious
one. After conviction we moved Draper, J., to arrest the
judgment, but failed again, the Judge sentencing the
prisoner to seven years imprisonment. We were then
entitled to carry the case into the Queen's Bench, presided
over by the Chief Justtce, which we did ; 9,nd there again
failed to convince the Chief Justice that the ruling of
Judge Draper was erroneous. We then carried the case
to the Court of Appeal, then composed of the Judges of
the Courts of Queen's Bench, Common Pleas, and
Chancery, when the case received much consideration, the
points were much debated at the Bar The Court of Appeal
(the Chief Justice assenting), was at first disposed to con
firm the opinion of the Judge who made the ruling at the
•Court of Oyer and Terminer confirmed by the decision of
the Court of Queen's Bench, but after much difference of
18— L. J.

138 LIVES OF THE JUDGES.
opinion on the Bench, and much discussion there, just
before giving judgment the Chief Justice reversed his
previous ruling, admitted that the ruling at the trial had
been wrong, that the ruling of the Court of Queen's Bench
confirming that ruling and in which he concurred was wrong-
The majority of the Court adopting this view the conviction
of the prisoner was quashed, the judgment arrested, and he
was saved from the severe infliction of imprisonment for
the term of seven years to which he had been sentenced.
I think in this case the Chief Justice shewed the highest
attribute of a Judge in reversing a decision which he had
come to when a fuller investigation and argument satisfied
him that the decision was wrong. I mention this case as
shewing that the Chief Justice was capable and willing, in
all cases, to answer the demands of justice.
In the Rebellion of 1837 the Chief Justice doffed the
ermine for the sword. The morning after the College bell
called the citizens of Toronto to arms to meet the invaders
marching down Yonge street to disturb the city's quiet, he
was at St, Lawrence Hall, where the Governor had taken
up position to meet those who were willing to defend the
town from attack. I was a College boy at the time and
well remember with the enthusiasm of youth applying for
arms to shoot down the rebels, and being rejected on the
ground of being too young for the service, the Governor
saying that the arms could better carry me than I carry
arms. The Chief Justice was there as a volunteer, making
common cause with his fellow townsmen in defence of
hearth and home. As to the rebellion itself I say
nothing, Mr, Dent has so well written of the events of
the time in his History of the Rebellion, that it is quite
unnecessary to enlarge on the subject.
In 1838 it fell to the lot of the Chief Justice to have to
try a number of persons charged with treason in the
rebellion of 1837, Two prisoners William Lount and
Peter Matthews were arraigned before him charged with
this offence ; the prisoners candidly and honestly admitted
the charge, and pleaded guilty, Thej- were in fact some

CHIEF JUSTICE ROBINSON, 1 39
of the principals in an armed force destined to attack
Toronto, seize all the public property, overthrow the
Government, and inaugurate a Provincial Government for
the direction of the affairs of the Province. There never
has been a doubt in the minds of any one that had the
insurgents been successful in their attack on Toronto, not
only the public property of the place but the public men
would have been made subject to the invading force.
However that may be the indictment against the prisoners
was full and comprehensive, thej'- admitted the charge and
all the Chief Justice had to do was to pass the sentence
of the law, which was capital punishment.
The Chief Justice, in passing sentence on the prisoners,
expatiated at large on the crime of High Treason ; and in
a touching manner referred to the misery and ruin entailed
upon the families of the prisoners, and not only on their
families, but the families of others engaged in the rebellion.
The Christian Guardian newspaper of April 4th, 1838,
in a three column article, published in full the remarks
of the Chief Justice on that melancholy occasion. After
dealing in generalities the Chief Justice addressed each of
the prisoners separately in the following words :
With respect to you William Lount, you are known to have held that
station in this Province, that you must have taken, and probably on more
than one occasion a deliberate oath to bear true allegiance to that
Sovereign against whom you are convicted of having levied open -vv-ar, I
hope you have now some sense of the aggravated guilt of violating so
solemn and express an obligation. In a country in which you had been
admitted to the honorable privilege of making laws to bind your fellow
subjects, it was due from you to set an example of faithful obedience to
public authority ; instead of combining with desperate unprincipled men
to overthrow the Government of your Sovereign, and to set the laws at
defiance, you should have been found to resist such an attenjpt by every
sacrifice of life or property. You are too intelligent not to have known
your duty. The signal fidelity of thousands of people of this Province of
humbler station than your own shews that there was no room for doubt
as to the part which it became you to act as a man, as a subject, and
as a Christian. That you have so fully deviated from that course must
now be the occasion of bitter remorse to yourself, as 1 have no doubt it is
the occasion of sorrow to most, if not all of those who were exposed to
danger from the wicked rebellion in which I fear I must say you took a
very prominent part.

• I40 LIVES OF THE JUDGES.
In addressing Peter Matthews the Chief Justice said :
With regard to you, Peter Matthews, it is not unkown to me that in one
- period of your life, you proved yourself willing to render useful service in
defence of your country. You certainly are not ignorant of that duty of
allegiance which binds a subject to his Sovereign, and it is to be deplored
that you should have so freely betrayed it. I fear that the part which is
known to have been borne by you in the late miserable rebellion was too
conspicious to allow it to be supposed that you were a reluctant or
unwilling agent. But I take it for granted that the evidence of these
facts which, if you had not confessed your guilt, would have been laid
before a jury on your trial, will be submitted to consideration in the
proper quarter.
Addressing both prisoners the Chief Justice thus
delivered himself:
I need hardly tell you, prisoners, that the painful duty which your con-
¦ viction of the crime of treason imposes on this Court is marked out to them
by the law. We have no discretion to exercise. The awful sentence of
death must follow your conviction. But although a power to pardon
resides only in the Sovereign whose authority you endeavoured to subvert,
if I could conscientiously encourage in you a hope that pardon could be
extended, I would gladly do so, for it would render infinitely less painful
the duty which the Court has to discharge. I know no ground on which
I can venture to hold out to you such a hope, and I do therefore most
earnestly exhort you to prepare yourselves for the execution of the sentence
which is about to be pronounced. In the short time that may remain to
_ you I pray that you may be brought to a deep sense of the guilt of the
course of which you are convicted, and that you may be enabled to
address yourselves in humble and earnest sincerity to the infinite mercy
-of the Saviour whose Divine commands you have transgressed.
No one, the most hypercritical can take exception to
this charge. It was no doubt a painful thing to the Chief
Justice to be obliged to sentence men who in other days
had well served their country ; in Peter Matthew's case,
no doubt, in the militia in the War of i8i2. I have it
from the best authority that in the evening after the
sentence was passed the Chief Justice said to an old friend
that he had never performed a more painful duty in his
life. It has been supposed by some laymen, and it may be
by others, that the Chief Justice should have in some way
interposed to save the lives of the prisoners. It seems to

CHIEF JUSTICE ROBINSON. 14 r
be forgotten by such persons that the province of mercy is
exclusively with the Crown. The Court after condem
nation has but to pass the sentence of the law.
Sir George Arthur was Governor of the Province, and
it rested with him to have extended the clemency of the
Crown if he had reason to believe that the public interest
demanded or even warranted its exercise. The Governor
was much importuned to spare the lives of the prisoners.
As many as thirty thousand people petitioned him to
extend the mercy of the Crown to the prisoners. All
attempts to procure a commutation of the sentence proved
to be of no avail. The prisoners were subjected to the
extreme penalty of the law. The Governor might, and
probably did, call on the Chief Justice for a report of the
case as it stood before him ; and it would then have been
the duty of the Chief Justice to say whether or not he saw
any ground for recommending a pardon or reprieve,
Mr, Lrndsey, in his life of Mackenzie, has written
(referring to Lount and Matthews) :
There was indeed no question about their guilt, but the Chief .Justice
afterwards performed the ungracious office of assuring the Executive that
he saw no ground upon which he felt that he could properly recommend
a pardon or respite.
To say " that there was indeed no question about their
guilt, but the Chief Justice afterwards performed the
ungracious task," &c., is something akin to a non sequitur.
However that may be, the Chief Justice in reporting as
he did, or is said to have done, to the Governor was but
performing a plain duty. Without travelling out of the
record, what other report could he have made? The
prisoners had admitted .guilt, and the Chief Justice had a
duty to perform to the Crown and the country. Unless
he admitted that rebellion was justifiable, which he was
not likely to do, he could not have done otherwise than he
did. Even if rebellion could be justified it had not been
set up as a defence. The Chief Justice at this time was a
Legislative Councillor He had been for many years a
member of that body and its Speaker As a member of'

142 LIVES OF THE JUDGES.
the Legislative Council he was sworn " to defend the Crown
against all traitorous conspiracies and attempts whatever
which should be made against the Queen's person. Crown,
or dignity." This oath the Chief Justice under all
circumstances religiously observed.
The Christian Guardian newspaper, the influential organ
of the large body of Methodists in the Province, in an
editorial under date of April i8, 1838, affected to give
some reasons why Sir George Arthur could not see his
way clear to exercise the clemency of the Crown. The
editorial reads as follows :
We understand that several petitions, praying for the exercise of the
Boyal prerogative in their behalf, were sent in to the Governor, -who ex
pressed his deep regret that the circumstances were such as to
render his interference improper, and that a sense of public duty con
strained him to allow the law to take its course in relation to them.
This decision was probably founded mainly upon the consideration that
Lount was the leader of the band of rebels who marched to Montgomery's
on the fatal night in which the gallant Colonel Moody was murdered, and
that no facts have transpired to elicit the actual perpetrators of that
horrid deed ; and that Matthews was the leader of the party who burned
the property of Mrs. Washburn, attempted to burn the Don bridge,
killed a man, and fired upon a woman who expostulated with them.
With these particulars before them, and many others which have not yet
been made public in consequence of the prisoners having avoided a trial
by pleading guilty. It appears that the Executive deemed it imperative
that such an example should be made as would be likely to deter persons
in time to come from entering upon a project so fraught with evils of the
highest magnitude, and so utterly subversive of everything that is
essential to the good order of society.
The members of the Executive Council at this time
were : The Honorable Robert B. Sullivan,
William Allan,
" Augustus Baldwin,
" John Elmsley,
William H, Draper
I do not call this a Family Compact council.
In writing the life of Chief Justice Robinson the work
would be unfinished if some allusion were not .nade to the
Family Compact, of which he was the recognized chief;

CHIEF JUSTICE ROBINSON. 143
and there are not wanting writers who have laid to the
door of the Family Compact all the sins that flesh was
heir to in those days, including the non-reprieve of Lount
and Matthews. After all, what was the Family Compact .?
It was an organization composed of those who had origin
ally settled the Province, and no doubt thought they had
at least a pre-emptive right to it, many of them having
occupied positions of trust in the old colony. They were
men not of the same family or always of kin to each other,
but like the soldiers of old, when they had conquered
a place they meant to hold it. The government of the
country got into their hands, and they were determined to
hold it against all comers. The citadel had many defen
ders, Beverley House one of the principal bastions, no
doubt, being held by the Chief Justice, who never sur
rendered till the last gun was fired.
In 1839 Mr Charles Poulett Thompson, an English
merchant, was appointed Governor General. In pursuance
¦of instructions of the English Ministry he proposed for the
acceptance of the people of Canada a measure which
united the Provinces of Upper and Lower Canada, pro
vided for the equal representation of both Provinces in a
conjoint Legislature, and conceded the full acknowledg
ment of the long wished for right of Responsible Govern
ment. Mr Poulett Thompson, the Governor General, after
wards Lord Sydenham, in his message to the Legislative
Council said : " I have been instructed by her Majesty to
administer the government in accordance with the well
understood wishes of the people, and to pay to their
feelings, as expresssed through their representatives, the
deference that is justly due to them." This message was
a sad blow and great discouragement to the Tory party.
The practice heretofore had been not to pay to the feelings
of the people, as expressed through their representatives,
the deference that was justly due them. On the contrary^
the Executive and the Governor had oyer and over again
totally disregarded the will of the people, as expressed

144 LIVES OF THE JUDGES.
through their representatives in Parliament. The "vox
populi " of those days was as so much thin air, evanescent
and unsubstantial.
Mr Robinson was startled, but not discouraged by
the action of the governor, Poulett Thompson. In the
following year, 1840, we find him in England, when he
wrote a pamphlet entitled " Canada and Canada Bill, being
an examination of the proposed measure for the future
Government of Canada, with an introductory chapter-
containing some general views respecting the British Pro
vinces of North America," In this pamphlet he took the
ground that a union of the Provinces was in every way
unwise, inconvenient, and would turn out to be impracti
cable, A perusal of this pamphlet will shew that some of his
prognostications have proved but too true ; the racial pre
judice in the Province of Quebec has been so great that
the existence of an Englishman in that Province has
become well nigh intolerable. The Chief Justice had
a prescience of this, and was therefore tor the adoption of
some other scheme. The Imperial Federation Act, which
superseded the Act of Union of 1841, had not been
enacted in his lifetime.
In 1850 he was appointed a Companion of the Bath,
and in 1854 received the high distinction of being made
a Baronet of the United Kingdom. In 1856, on the
occasion of his last visit to England, the honorary Degree
of D. C. L. was conferred on him by the University of
Oxford. Sir John Beverley Robinson, in the performance of his
public duty as Judge and in his private life, was one of
the most courteous of men. The junior Barrister as well as
the senior recognized that the Chief Justice always heard
all he had to say in advocating the cause of his clients.
The Chief was always dignified in manner, adding dignity
to the Court over which he presided.
In 1862 the Chief Justice retired from the chief justice
ship of the Queen's Bench and was appointed presiding

CHIEF JUSTICE ROBINSON. 145
Judge of the Court of Appeal, (i8th March, 1862,) which
office he held up to the time of his death.
On Sir John's retirement from the Chief Justiceship of
the Queen's Bench the Bar of the Province entertained
him at a banquet of the most distinguished character at
Osgoode Hall. The banquet was in June 1862, and was
of the most rechercM description. The Bar had given
many invitations to guests, and the company numbered two-
hundred ; the military, the Church, clergy of more than
one denomination, the Provost of Trinity College, the
Bishops, and the Chief Justice's brother Judges, graced the
occasion. It was a memorable event, the first great banquet
given in the new library of Osgoode Hall. Those of us
who were there have some recollection of the speech made
by the Chief Justice in response to the toast in his honor.
It was full of tenderness and made a lasting impression on
all those present. In it the Judge gave a short synopsis
of the history of his early life and subsequent judicial
career I will only give the peroration of his speech. The
speech itself was lengthy, and every word was of great
interest. Concluding, he said :
They (the Bar) would recollect, and he would remind some of the
younger members of the profession, that it was the solemn oath adminis
tered to all Judges for irtore than five hundred years, framed in the reign
of Edward III., and worded in the plain, expressive language of that^
time : "That he will well and lawfully serve our lord the King, and his
people in the office of justice ; that he will do equal law and execution of
right to all the King's subjects, rich and poor, without having regard to^
any person.
Sir John Beverley Robinson through his whole judicial
career paid the utmost regard to this oath. The Globe
newspaper of Toronto, after the great banquet given in his.
honor, thus wrote :
We are not of the school of politics to which Sir John B. Robinson
belonged, and were he in public life now, it is certain that we should
differ widely from his views. But that ought not, and shall not prevent
us paying a tribute of praise to a well spent and honored life. Sir Johir
B Robinson in his speech of last evening gave cordial thanks to the late
Rev. Dr. Stewart, of Kingston, and to the Rev. Dr. Strachan, who sat-
19— L. J.

146 LIVES OF THE JUDGES.
beside him, a hale man of 84 years, for their kind protection and training
bestowed on him in his early years when left an orphan ; and doubtless
to them he owed something of his early rise. But it is evident that the
youth who distinguished himself on the field of Queenston at the age of
25, and was thereafter made Attorney General, ere he had been actually
dialled to the Bar in a formal manner, needed but little help in life. He
-was the architect of his own fortune. Possessed of a ready and clear, if
not a profound intellect, a steady will, great activity, will and persever
ance, Mr. Robinson would doubtless have succeeded in any country, but
in a backwoods region like Canada, it is not wonderful that he rapidly
took the -first honors of profession and was called to the Bench at the
«arly age of 40. He was at that time, and remained for some time after,
the head of a powerful political party, and shewed invincible deter
mination and courage in advocating its views. Doubtless he was often in
"the wrong — who has not been proved by time to be in the -wrong ? — but no
one ¦will deny to him the credit of being perfectly sincere and honest in
his convictions, and ha-ving laboured for them with conscientious zeal and
assiduity. In reference to one part of his public career no limit need be
placed on our praises. He was a strong friend of British connection, and
defended this outpost of England with a courage which knew no difficulty.
As the acknowledged head of society in this Province, Sir J. B. Robinson
has exercised as great an influence as in his political sphere, and has used
it in an eminently beneficial manner. In his own personal habits,
temperate, frugal, chaste, and dignified, liberal in his hospitality, a
iriend of morality, and an enemy of excess, there can be no question that
his example has had a powerful influence on social habits, not only in this
city but throughout the whole Province. As subject, parent, and member
-of society, he stands before his countrymen sans peur et sans reproche,
worthy of the honors bestowed upon him by his Sovereign, and of the
esteem and respect of his fellow citizens,
I will not let any words of mine weaken this noble
tribute to departed worth, not written as an obituary, but
in the full blaze of light, during the lifetime of the Chief
Justice, and at a time when the great organ of public
opinion declared itself as not of the school of politics to
which the Chief Justice belonged.
Sir John in his latter days was a martyr to the gout, and
died at Beverley House on the last day of January, 1863, in
the 72nd year of his age, " Pallida mors cequo pulsat pede'.'
The Bar, the Bench, and general public testified the
respect in which they held him by attending his funeral
obsequies in St. James's Church of which he had been a
member for many years, in large numbers. It is doubtful if
ever before in Toronto so large a cortege followed to the

CHIEF JUSTICE ROBINSON. 147
grave the bier of any citizen. His memory will be held in
-affectionate remembrance by all who knew him.
The portrait in oil by Berthon, hanging on the western
wall of the library of Osgoode Hall, is a very perfect
likeness of him as he was at the time it was taken.
I have been able to give but a brief memoir of a life
full of interest and incident. It may serve as a foundation
-at least on which some future writer may raise a super
structure more worthy of so distinguished a Judge.

XIIL
The Honorable Sir James Buchanan Macaulay„
Knight, Chief Justice of the Court or
Common Pleas.
|IR JAMES B. MACAULAY was the son of
James Macaulay, Esquire, M. D., of the 33rd
Regiment of Foot. Dr Macaulay came to
Canada soon after the formation of the
Upper Canada Government in 1792.
At that early period Niagara was the chief town and
the seat of Government of the Province. It was there
Governor Simcoe had his headquarters, before spying out
York as a future capital. The Queen's Rangers, Gover
nor Simcoe's old regiment, was stationed at Niagara, and
the father of the Chief Justice, being attached to that
regiment, came out with the regiment from England. Dr.
Macaulay was afterwards appointed Inspector General of
Hospitals. James B. Macaulay, the second son of Dr.
Macaulay, and afterwards Chief Justice, was born at
Niagara on the 3rd of December, 1793. He received his
early education from Dr., afterwards Bishop Strachan, in
Cornwall, and was a life-long friend of the Bishop.
Mr Macaulay had no sooner completed his educa
tion with Dr Strachan than he longed to enter the
army. He had not long to wait, and soon obtained a.
commission as ensign in the 98th Regiment of Foot. Not
only at this early period of his life, but ever afterwards^

chief justice macaulay. 149
-every movement of Sir James was that of a soldier He
had all the instincts of the true soldier — brave, manly,
ingenuous, and of such steriing honesty that his name has
been, continues to be, and will continue to be, as long as
his name is remembered, a household word in Canada,
When the War of 18 12 broke out Mr Macaulay,
though then but nineteen years of age, with alacrity
entered into the military service of the Canadians, called
upon unexpectedly to take up arms for the defence of
their beloved Province. A regiment, the Glengarry
Fencibles, having been raised for the special defence of
the Province, the ensign (Macaulay) obtained a Lieutenancy
in that valiant corps ; and so much of a soldier was he,
that he was afterwards appointed Adjutant of the regiment.
He was with the regiment on that cold winter morning in
February, 18 13, when, Col. McDonald in command, they
made a spirited and dashing attack on Ogdensburg, cross
ing the ice in deep snow, charging the batteries on the
American shore with much heroism, if not complete
success. Captain Jenkins had the command of the right
wing in this engagement, and made a gallant charge on a
seven gun battery, covered by a body of infantry two
hundred strong.
David Thompson, of the Royal Scots, in 1832, wrote a
most excellent history of the events of the then late war.
Writing of this charge of Captain Jenkins, he says :
At the very commencement of this charge the brave Jenkins received a
wound with a grape shot in his left arm, which literally shivered it to
pieces, still his courage nothing abated he continued to lead on his gaUaiit
followers to the assault when he received a severe wound in his right arm,
yet with the most enthusiastic gallantry did he continue to advance at
the head of his little band of Spartans, cheering them forward, until by
the loss of blood and the increasing pain of his wounds he fell in the rush,
•completely exhausted. The command of the right wing then devolved on
Lieutenant Macaulay, of the same corps, who continued the charge on the
•enemy's works.
We thus find the future Chief Justice in the front of
the battle at a very critical point in the history of the
Province.

ISO lives of the judges.
Lieutenant Macaulay was at the battle of Lundy's Lane,.
fought on the afternoon and night of the 25th of July, 1814-
The battle of Lundy's Lane was the most hotly con
tested of all the engagements which took place in the War
of 1 8 12. The invaders of Canada forming the centre
division of the American army under the command of
General Brown ; and the Canadians under the command
of General Drummond, fought for superiority with a
courage which was truly heroic. This battle was not a long
range engagement, but a hand to hand, bayonet to
bayonet, muzzle to muzzle conflict. The American army
had for a considerable time before the battle formed their
line in rear of Fort George (Niagara), with the purpose of
capturing that fort : in this, however, they were not suc
cessful, and were retreating up the road leading from
Niagara to Niagara Falls and Fort Erie. They were
unexpectedly intercepted by a portion of the British and
Canadian forces under General Riall at the point of inter
section of Lundy's Lane with the main road to the Falls.
Just below the point, of intersection of the lane with the
main road there is a rise of ground. The column of British,,
under the command of Lieutenant Colonel Morrison,
following up the Americans in their retreat, formed in line
on the north-east or Niagara river side of the height, their
left resting on the Queenston road. The troops from the
Twelve and Twenty-Mile Creeks, together with a detach
ment of the King's regiment as they arrived, were formed
on each side of Lundy's Lane.
The battle between the contending armies raged most
fiercely in their contest for the commanding position of
the brow of the hill at the east end of Lundy's Lane.
David Thompson previously quoted, states :
The enemy (the Americans,) on this quarter (the brow of the hill),,
for a length of time directed his whole efforts ; and notwithstanding the
carnage was truly appalling, no visible impression had yet (afternoon^.
been made, still on this part of the field did the whirlwind of the conflict
continue to rage with awful and destructive fury. Columns of the enemy
(the Americans) not unlike the undulating surge of the adjacent cataract,.
rushed to the charge in close and impetuous succession.

chief justice macaulay. 15 r
When the shades of night had covered the contending
forces the battle was continued till midnight with
increased fury. The writer, Thompson, says :
Charges were made in such rapid succession, and with such determined
vigor that often were the British Artillerymen assailed in the very act of
sponging and charging their guns ; and often were the muzzles of the
guns of the contending armies hauled up and levelled within a few yards
of each other.
General Drummond's report of this action stated the
number of killed, wounded, and missing on the side of the
British to have been 836. General Brown in his report
of the killed, wounded, and missing on the side of the
Americans stated the number to have been 858.
The American General, Brown, was himself wounded
in this engagement, and so was also General Scott, who
commanded a brigade during the action.
Another writer, in describing this battle a few years-
after it was fought, states :
Of all the battles fought in America the action at Lundy's Lane was
unquestionably the best sustained, and by far the most sanguinary. The
rapid charges, and real contest with the bayonet were of themselves
sufficient to render this engagement conspicuous. Traits of real bravery
and heroic devotion were that night displayed by those engaged which
would not suffer in a comparison with those exhibited at the storming of
St. Sebastian, or the conflict at Quatre Bras.
The Americans had much the larger force at Lundy's
Lane, The result of the engagement is best described by
General Brown, the American Commander In his report
to his Government, after describing the battle, he said : " I
therefore believed it proper that General Ripley and the
troops should return to camp." The camp here referred
to was beyond Chippawa, a distance of nearly four miles
from Lundy's Lane (the field of action.)
On the day after the battle the Americans continued
their retreat, the British force remaining in possession of
the field.
The reader will conclude from this, that the victory was
with the British. The Americans, nevertheless, were able

152 lives OF THE JUDGES.
to make good their retreat to Fort Erie the day of the
battle The quotations I have made, drawn from history, shew
that the Americans, the British, and the Canadians, all
fought with desperatiori in this battle. It is the part of a
good soldier to be generous to those whom he may have
opposed and overcome in the heat of battle. David
Thompson, the Royal Scot, has not forgotten this trait of
a soldier in his relation of the battle. Dr Canniff, whose
father was at the battle of. Lundy's Lane, in a paper read
by him to the York Pioneers on Queenston Heights in
1877, the sixty-third anniversary of the battle, in his turn,
also bears witness to the courage of the Americans in this
battle. He said : " It can not be denied that the Ameri
cans fought with the most distinguished bravery, in fact,
they fought with desperation." And these admissions only
go to shew how great is the credit due to the British regu
lars and the Canadian militia who encountered them, and
beld their ground that eventful night.
On the Plains of Abraham has been raised a monu
ment to Wolfe and Montcalm, the rival commanders of
the English and French armies. It may be that at some
future day a monument may be placed on the battle
ground of Lundy's Lane, to commemorate a battle de-
.scribed as second to none during the American War.
Old veterans like to fight their battles over again. Not
long since I had a conversation with old Mr John Bright,
•93 years of age, then living below the Don, Toronto, a
veteran of the War of 1 8 1 2, who was wounded at the battle
of Lundy's Lane, for which he received a pension. His
eye brightened when his mind was stirred by recalling
the scenes of the eventful night of the 25th of July; and
he could tell how, with the blessed moonlight shining
on the combatants, the moon's pale light was lightened
by the blaze from the cannon's mouth, a sheet of flame :
how man met man in the fearful carnage of bloody war !
The War of 1812, the cause of so much bloodshed,
was not a popular war ; it was a war of ambition.

CHIEF JUSTICE MACAULAY. 153
Had there been no Napoleon Bonaparte there would
¦probably have been no war between England and the
United States. The Northern and Middle States of
America were opposed to the war — if not a majority, at
least a large minority, of the people of those States.
Resolutions were passed at a convention of delegates from
;several counties of the State of New York, held at the
Capitol in the city of Albany, on the 17th and 1 8th
September, 1812, of which one was :
Resolved, that, without insisting on the injustice of the present war,
taking solely into consideration the time and circumstances of its declara
tion, the condition of the country, and the state of the public mind, we
are constrained to consider, and feel it our duty to pronounce it a most
rash, unwise, and inexpedient measure.
The Canadians were on the defensive in this wretched
War of 1 8 12. The Americans had no heart in the busi
ness. Egged on by Napoleon Bonaparte, they continued
a struggle which resulted in uniting Canada more firmly
to the English Throne. In 1791 the United Empire
Loyalists had obtained for themselves a constitution which
was rnodelled on British lines, free from French influences-
They were not likely in 18 12 to give up their free
constitution to satisfy the machinations or intrigues of
Napoleon Bonaparte, even though Mr Madison was
prevailed upon to give countenance to the great despot of
the age.
Very soon after the battle of Lundy's Lane we find
Lieutenant Macaulay with the troops who made the attack
¦on Fort Erie, occupied by the Americans, on the isth of
August. This battle, which was fought with great fury,
was disastrous to the British. Sir Gordon Drummond
with the force under his command, or so much of it as
remained after the bloody onslaught at Lundy's Lane,
thought to capture the army of General Brown in the
strong-hold of Fort Erie, and thus at one blow end the
war The attack was a spirited one. General Drummond
himself, during the conflict performing most extraordinary
-acts of valor, all, however, of no avail. The British, after
20 — L. J.

154 LIVES OF THE JUDGES.
succeeding in gaining admittance within the fortifications,
were compelled to retire, owing to an accidental explosion
of gunpowder which literally blew into the air the greater
part of the attacking force. The fort was thus left in
possession of the Americans.
It was now the turn of the Americans to attack the
British, which they did on the 17th September, with their
forces reinforced by General Brown who had recovered
from his wounds, and again took the field. The attack
was not, however, so successful as had been the defence of
the fort. After about half an hour's desperate fighting the
Americans retired under cover of their works and into
the fort. Shortly after this the Americans evacuated Fort
Erie, and thus ended the campaign of 1814,
It is something to be remembered, that in all these
engagements, Ogdensburg, Lundy's Lane, and Fort Erie,
Lieutenant Macaulay the future Chief Justice did his part
well, doing his duty as a soldier, as he afterwards did in
his professional career as a lawyer and Judge, in the
Province. On the restoration of peace the Glengarry Fencibles
were disbanded, and the Lieutenant exchanged his sword
for BJackstone. In 18 18 he became a student of law and
was called to the Bar in Hilary Term 1822.
At this period of the legal history of the Province the
lawyers were but few in number. So great was the dearth
of professional men, owing principally to the war, that it
had become necessary to pass an Act of Parliament under
which doctors were transformed to lawyers, and students
made barristers without the usual formalities of examina
tions. Mr. Macaulay was not one of them, and went
through the usual course ; but on his call to the Bar the
competition was not so great as in a later period of pro
fessional life. He had not long to wait for clients. Tay
lor's Reports abound with cases in which he was counsel
for one party or the other, frequently in opposition to the
law officers of the Crown, and he rapidly rose in his profes
sion, constantly gaining the respect and confidence of

CHIEF JUSTICE MACAULAY. 155,
all with whom he came in contact in a professional
way. Mr. Macaulay had been but seven years at the Bar
when, in 1829, he was elevated to the Bench as one of the
Justices of the Court of King's Bench. He was Associate
of Chief Justice Robinson in that Court till the constitution
of the Court of Common Pleas in 1849 when he was made
Chief Justice of that Court. The unbounded confidence
which the people had in his integrity singled him out as the
one who ought to be Chief Justice of this newly created
Court, and his appointment was hailed with satisfaction
by the whole profession, as well as by the body of the
people. In the Court of King's Bench he had been
most assiduous in the strict performance of his duties.
Many litigants, who were so unfortunate as to lose
their cases by the decision of the majority of the Court,
were pleased to suffer the loss if they had the judg
ment of Judge Macaulay in their favor. On his elevation
to the Court of Common Pleas he brought to the discharge
of the duties of Chief Justice of that Court the same
untiring industry which had distinguished him as a Justice
of the Queen's Bench. He had a habit of not only con
sulting the principal cases on any given question, but
seemed to have gone over every case to be found in any
way bearing on the subject : so conscientious was he in
the full discharge of his duty. An examination of the
cases in which he gave judgments and reported in the
Common Pleas Reports, will shew a library of cases cited
by him pro and con, in support or defence of his judgment
Mr Macaulay continued to hold the place of Chief
Justice of the Common Pleas till 1856, when he retired
from the Bench, the cause of his retirement being
defective hearing which he thought necessitated his
withdrawal from judicial duty. On his retirement from
the Bench he was elected Treasurer of the Law Society,
and subsequently a commission having being formed for
the revision of the long accumulated Statutes of the Pro
vinces of Upper and Lower Canada as well as of the:

¦<IS6 LIVES OF THE JUDGES.
Statutes of Canada since the Union of 1841 he was
-appointed Chairman of that Commission. No better
-appointment could have been made : his long occupancy of
the Bench, as well as his well known habit of industrious
application to detail afforded a guarantee that under his
guidance nothing would be left undone to make consolida
tion and revision of the statutes a successful work.
As I was one of the Commissioners, and also Secretary
of that Commission, it would be unbecoming in me to
express an opinion on the performance of that trust. I
can, however, say that Chief Justice Macaulay, during the
whole period of the Commission, upwards of two years,
left nothing undone to make the work command success.
He continued to do duty when, as I know, his health was
such that it was with the greatest difficulty he could con
centrate his mind on the work. I have watched him over
and over again, going over the frequent revises submitted
to him by others of the Commissioners to whom portions
of the work had been submitted, with a carefulness and
conscientious regard for the correct interpretation and
consolidation of the body of the law, which well
justified his selection as a safe guide in so important an
undertaking. The altering of the language of the law in
the revision and consolidation gave him great concern,
fearing that the Commissioners in adopting Coode's
system, substituting the present for the future tense in the
Criminal Acts, might by mischance fall into error,
' or misconstrue the law in some case. This difficulty was,
however, got over by the Parliament of the Province
giving legislative sanction to the work of the Commis
sioners. Chief Justice Macaulay refused to accept any
compensation from Government for the work done by him
on the Commission. He was in receipt of a retiring
pension as ex-Chief Justice of the Common Pleas, and
ex-Judge of the Queen's Bench. His sense of right
dictated to his mind that as he was in receipt of a pension
he ought not to receive pay from the Government for

CHIEF JUSTICE MACAULAY. 157-
revising the Statutes. So high a sense of duty as this.
does not in a majority of cases affect the mind of man.
A few months after the completion of the revision of the
Statutes he received the honor of knighthood, and was,.
on the 27th of July, 1857, appointed a Judge of the Court
of Error and Appeal, a position held by him till a few
months before his death. He died at Toronto on the 26th
November, A.D. 1859, and was buried in St. James's
Cemetery. A whole community mourned his loss. He will be ever
remembered as one of the most upright of men and
a most conscientious Judge.
The Law Society have a well executed portrait of the
Chief Justice on the walls of the Library of Osgoode HalL

XIV.
The Honorable Archibald McLean,
Chief Justice.
|HE Honorable Archibald McLean is entitled
^ to be placed in the first rank in the company
of those who have occupied the Bench in
Upper Canada.
His career from early boyhood to a green old age was
-surrounded with many difficulties which only a man
possessed of great determination and indomitable courage
could overcome. Although born in Canada he was of
Highland stock : his whole life shewed that he had in him
all the characteristics of the northmen of Scotland —
bravery, endurance, steadfastness of purpose, and sterling
integrity were among his many virtues.
He was the son of Colonel Neil McLean of St. Andrew's,
in the County of Stormont, Upper Canada, who was
born at Mingarry, in the Island of Mull, Scotland.
Colonel Neil McLean was born in the same year (1759)
-that Quebec was compelled to surrender to British arms.
He was a soldier almost from his infancy. He at an early
age obtained an ensigncy, and afterwards a lieutenantcy
in the Royal Highland Emigrants or 84th Regiment.
We find Colonel N. McLean in 1796 a captain in the
Royal Canadian Volunteers in which corps he served in
Montreal, Quebec, and York, doing duty as a volunteer
¦officer until the regiment was disbanded, when he was

chief justice McLEAN. 159
•appointed sheriff of the Eastern District. When the war
of 18 1 2 broke out Colonel McLean, ever ready to do
service for the Crown and his native Canada, again went
on active service as Colonel of the Stormont Militia and
commandant of the district. He held this position at the
time that Major General James Wilkinson, of the centre
division of the American army formed for the conquest of
Canada, issued his famous proclamation urging the
Canadians to quietly submit to the invading force. The
proclamation of Major General Wilkinson was as follows :
Proclamation of James Wilkinson, Major General, and Commander in
Chief of the expedition against the Canadas, to the inhabitants
thereof :
The Army of the United States which I have the honour to command,
invaded the Province to conquer, and not to destroy, to subdue the forces
of his Britannic Majesty, not to war against unoffending subjects. Those
therefore amongst you who remain quiet at home, should victory incline to
the American standard, shall be protected in their persons and property ;
but those who are found in arms must necessarily be treated as avowed
enemies. To menace is unmanly, to seduce, dishonorable. Yet it is
just and humane to place these alternatives before you.
This proclamation was issued by the Major General at
or in the vicinity of Fort Wellington when he and his
division of his army of the Republic for the subjection of
Canada were about starting on their proposed tour of
conquest down the St. Lawrence, to terminate in the
capture of Montreal. The undertaking, however, was not
as successful as the Americans desired. On the nth
November, 181 3, a superior force of the Americans who
had landed on Canadian soil in the neighborhood of
Fort Matilda between Prescott and Cornwall were
marching down the north shore of the St. Lawrence
en route for Montreal when, arriving at a place called
Chry.sler's farm, they were met by the Stormont Militia,
commanded by Colonel McLean, and other troops pre
pared to dispute the undisturbed march of the Americans.
Here, at Chrysler's farm, was an engagement between
the opposing troops on an open campaign, the battles of
the contending parties having heretofore been principally

l60 LIVES OF the JUDGES.
bush fighting. General Wilkinson, writing of the engage
ment, said : " All was conducted in open space and fair
combat." The Canadians were fighting in defence of their
country, their homes, and their firesides : the invading
force, as the proclamation of General Wilkinson shews,
though not for plunder was for conquest. The fortunes of
the day went against the Americans in what has since
been called the battle of Chrysler's Farm. The Americans
were impeded in their advance on Montreal, and compelled
to retreat across the river to their own country. Major-
General Wilkinson got a severe handling from his
Government for this engagement, and was subjected to a
court-martial. It is but right that I should give his
estimate of the Canadians, who were constantly placing
obstructions in his way from the time he left the head of
the St. Lawrence till his arrival at the point of battle. In
his despatch to the American Secretary of War (intended
to account for his defeat), dated at Headquarters, French
Mills, (adjoining the Province of Lower Canada), i6th.
November, 1863, he wrote:
The enemy deserve credit for their zeal and intelligence, which the
active universal hostility of the male inhabitants of the country enabled
them to employ to the best advantage.
What I have written thus far is important as leading
up to the career of Chief Justice McLean, which will
be found to follow in some respects, especially in the
military part of it, that of his worthy and patriotic
father. Besides his military career, Colonel Neil Mc
Lean will be remembered in his civil capacity of
member of the Legislative Council of Upper Canada..
Colonel McLean was married to the youngest daughter of
John McDonell, of Leek, by whom he had three sons and
five daughters. His sons were John, the eldest, Archibald,.
the second, born at St. Andrews on the 5th April, 1791,
and Alexander John was Sheriff of the Eastern District.
Alexander, the youngest, was for some time M. P. for-
Stormont, and also Commandant of the Eastern District.

chief justice McLEAN. l6l
Archibald, the future Chief Justice, received his early
education at Dr. Strachan's school in Cornwall. Dr.
Strachan, afterwards Archdeacon of York, and afterwards
Bishop, had the honor of educating and, in a measure,
moulding the lives of several of the older Judges of Upper
Canada. Chief Justice Robinson, Chief Justice Macaulay,
and Chief Justice McLean were all pupils of this cele
brated and accomplished scholar.
At sixteen years of age young McLean had acquired
sufficient knowledge to warrant him in striking, out for him
self in pursuit of the purpose he had formed, of becoming
a member of the Bar. To carry out this purpose he
proceeded to York, and in Trinity Term, 1808, was
entered a Student of the Law in the books of the Law
Society, On being admitted he immediately entered the
office of Mr, Firth, the then Attorney-General, where he
continued to pursue his studies until the breaking out of
the War of 18 12, By this time Mr Firth had gone out
of office, the Honorable John McDonell appointed
Attorney-General, 28th November, 1811, succeeding him.
It will thus be seen that the Student McLean and the
Attorney-General McDonell had been brought in very
near relation ; a relation only terminated by the melancholy
death of the Attorney-General not long afterwards. When
the 3rd York Militia was ordered to the front in 18 12,
Mr McLean was given a commission in that regiment.
When on the 13th October, 18 12, General Van Ranselaer's
army, under Brigadier General Wadsworth, affected a land
ing at the lower end of the village of Queenston (opposite
to Lewiston), and made an attack on the small handful of
British troops stationed there (the flank companies and
such of the militia forces and Indians as could be collected
in the vicinity), young McLean was on the ground.
Attorney-General McDonell by this time had been ap
pointed Provincial Aide-de-Camp, and was in attendance
on Major General Sir Isaac Brock. On the morning of
the 13th October, before day-light, the Americans
attempted to force a passage of the river at Queenston ;
21— L. J.

1 62 LIVES OF THE JUDGES.
the attempt to force a passage here was for some time
successfully resisted, and several boats were either disabled
or sunk by the fire from a one gun battery of the British
on Queenston Heights, and from a masked battery about
a mile below the Heights. Following the example, however,
of that Highland force which climbed to the plains of
Abraham by what was supposed an impracticable path, and
so contributed largely to the taking of Quebec, a consider
able force of the Americans effected a landing some distance
above by a path which had long been considered impass
able, and was therefore unguarded, and succeeded in
gaining the summit of the mountain. This force which
made good their ascent to the top of the heights carried
the battery there and turned the right of the British
position, compelling them to retire with considerable loss.
History has recorded that the flank companies of the
York militia to which Lieutenant McLean was attached
much distinguished themselves in their encounter with
the opposing forces on the memorable 13th of October.
Auchinleck, in his history of the first attempt to drive the
Americans from the heights on this eventful day on which
the noble General Brock and his brave Aide-de-Camp
(Attorney-General) Colonel McDonell both lost their
lives in defence of the Province, thus describes the engage
ment :
On retiring to the north end of the village on the Niagara road, our
(the British) little band was met by General Brock, attended by his A.D.
'C, Major Glegg and Colonel McDonelL He was loudly cheered as he
cried '"Follow me, boys," and led us at a pretty smart trot toward the
mountain, checking his horse to a walk, he said, ' ' Take breath, boys, we
shall want it in a few minutes. " Another cheer was the hearty response
both from regulars and militia. At that time the top of the mountain
and a great portion of the side was thickly covered with trees, and was
now occupied by American riflemen. On arriving at the foot of the
mountain where the road diverges to St. Davids, General Brock dis
mounted, and waving his sword, climbed over a high stone wall, followed
by his troops ; placing himself at the head of the light company of the
49th he led the way up the mountain at double quick time, in the very
teeth of a sharp fire from the enemy's riflemen, and ere long, he was
. singled out by one of them, who, coming forward took deliberate aim.

CHIEF JUSTICE McLEAN, 16^
^nd fired ; several of the men noticed the action and fired— but too late 
;and our gallant General fell on his left side, within a few feet of where I
stood. Running up to him, I enquired " Are you much hurt, sir? " He
placed his hand on his breast, but made no reply, and sunk down. The
49th now raised a shout "Revenge the General," and regulars and militia,
led by Colonel McDonell, pressed forward, anxious to revenge the fall of
their beloved leader and literally drove a superior force up the mountain
side to a considerable distance beyond the summit. The flank companies
-of the York Militia, under Captains Cameron and Heward, and Lieuten
ants Robinson, McLean, and Stanton, besides many others whose names I
forget, eminently distinguished themselves on this occasion. At this
juncture the enemy was re-enforced by fresh troops, and after a severe
struggle, in which Colonel McDonell, Captains Dennis and Williams, and
• most of the officers were either killed or wounded, we were overpowered
by numbers, and forced to retreat, as the enemy had outflanked us, and
had nearly succeeded in gaining our rear. Several of our men were thus
. -cut off, and made prisoners, myself among the number.
This description of the first engagement was furnished
-to Auchinleck by Mr G. S. Jarvis who was on the ground.
It was also confirmed by Captain Crooks, Colonel Clark,
Colonel Kerby, and Captain John McMicikin, all of whom
were present on the occasion.
Colonel McDonell, about the same time that General
Brock was shot, received a wound from which he after
wards died. Lieutenant McLean was wounded in the
same conflict. After Colonel McDonell received his
wound which proved mortal he called out to Lieutenant
McLean : " Archie, help me." Lieutenant McLean's
wound also came nearly proving to be mortal. Owing
to delay in extracting the ball, his life was for a time
despaired of, and for several months he could not return
to duty.
When the Americans made their attack on York Lieu
tenant McLean was at his post. He carried the colours of
the 3rd York Militia to a place of safety, burying them in
the woods behind McGill's house, the site where the
Metropolitan Church now stands. York being in the
hands of the Americans the Lieutenant made good his
•escape, and reported himself at Kingston. We next find
him at the battle of Lundy's Lane, so fully described
iby me in the life of Chief Justice Macaulay, that I need

164 LIVES OF THE JUDGES.
not here refer to it more at large. Lieutenant McLean
was made prisoner at this battle, was detained part
of the time in close confinement, and did not obtain
his release till the end of the war After the Declaration
of Peace he was offered, but refused, a commission in the
regular army.
Having thus traced out his military career, we will
return to his civil occupation. As seen, he had lost his
old master Still, determined to pursue his legal studies,
he entered the office of Dr. Baldwin, father of the
Hon. Robert Baldwin, and finished his legal studies with
him, and was called to the Bar in 181 5, Easter Term, 55
George III. On being called to the Bar he returned to
Cornwall, where he had received his early education, and
commenced to practise his profession in that town, and
continued to practise there down to 1837.
During this period he had a very considerable legal;
business. The counties around Cornwall are populated
mostly by Highland Scotch ; and, if there be any truth in
the Clannishness of the Highlanders, we may be sure that
McLean the barrister was in as much favor with them as
was McLean the soldier, fighting side by side with them in
defence of the Province.
In 1807 Mr. McLean was retained by the Hudson Bay
Company to take evidence relating to the difficulties
between that company and the North- West Company,
which difficulties led to the killing of General Semple and
his men in the Selkirk riots at Red River. It was
a difficult business to get to the Red River from York
or Cornwall at that date. The long journey had to
be made by canoe, and the party suffered a great deal of
hardship, the scarcity of provisions, it is said, compelling
them to live three weeks entirely on cat-fish.
In 1820 Mr McLean was elected Member of Parliament
to represent the county of Stormont in the Legislative
Assembly of the Province. He retained the confidence of
the electors, and continued to represent Stormont in
Parliament down to his elevation to the Bench. While a

CHIEF JUSTICE McLEAN. 1 65
Member on the floor of the House he was a strong
adherent of the Tory party, generally acting with Attorney-
General Robinson, the Leader of the House. He was twice
elected Speaker of the House. His dignified appearance
and manner in the Speaker's chair added dignity to the
House itself
The veterans of 18 12 had reason to be devoted to him
then as they had been in the field of battle. In 1825 he
went to England to press their claims for pensions, and
he succeeded in having their claims allowed.
In 1837 he removed from Cornwall to Toronto, arriving
at that place about a month before the breaking out of the
Rebellion. Colonel Fitzgibbon and he being well ac
quainted with the dissatisfaction at the state of affairs
¦existing in the country fully appreciated the situation.
Colonel Fitzgibbon especially was called a croker on this
subject, the inhabitants of Toronto generally thinking they
had nothing to fear, though rebellion was at their very
¦doors. Mr. McLean expressed his fears that there would be a
breaking out of the slumbering fires of revolution. Some
good citizens charged him with too much concern in this
matter, when he replied : " I am afraid we will be caught
napping." He was right — there was not a soldier in town
when William Lyon Mackenzie assembled his forces at
Montgomery's Hill on the confines of Toronto.
On the night of the uprising, in December, when the
city bells rang out the alarm, he was the first to respond
to the call of arms. Immediately the alarm was sounded
he and his son John took his horses, and going to the Old
Fort, they got artillery harness, and limbering up a twelve
pounder drove to the City Hall where the loyalists were
assembled. As they drove up, the word was passed :
" Here comes the rebels," and a hundred guns were levelled,
when fortunately they were recognized by Chief Justice
Robinson who told the men who they were. In the
-attack on Montgomery's Hill Mr McLean, with the rank
-of Colonel, commanded the left wing.

1 66 LIVES OF THE JUDGES.
He was afterwards sent with despatches to the British
Minister at Washington, and when en route would have-
been taken prisoner as a hostage by the sympathizers on
the border (Mackenzie then being on Navy Island) had it
not been for the good offices of Marshal Spring Bidwell,.
who, though a staunch liberal and political opponent of
his, was his personal friend.
Mr. McLean was first appointed to the Bench, on the
23rd March, 1837, when he received his patent as Judge'
(puisne) of the King's Bench. It cannot be said that the
service he had rendered his Sovereign and country did not
entitle him to this mark of favor.
In the year 1850, (19th January,) Judge McLean
exchanged his place in the Queen's Bench for a Puisne
Judgeship of the recently formed Common Pleas Court.
From a junior Judge of the Queen's Bench he thus became
a senior Judge in the Common Pleas under a new Chief,.
Chief Justice Macaulay.
Again, on the 5th February, 1856, he exchanged back
again, taking his place as senior however, of the Court of
Queen's Bench under his old Chief, Sir John Robinson,
and on the i8th March, 1862, was appointed Chief
Justice of that Court (the Queen's Bench).
I will not deal with his Common Pleas Judgeship, any
more than to say that he gave his valuable assistance to-
Chief Justice Macaulay in his headship of that newly
constituted Court, to give confidence and weight to the
decisions for the six years he was Judge of that Court. I
need only refer to the adjudged cases which will be found.
in the first volume of the Common Pleas Reports.
Established again in the Queen's Bench in 1856 he was
not now disposed to accept the conclusions of his Chief as,
always right, though treated with the greatest respect.
The most important case in the Queen's Bench in which
there was a difference of opinion among the Judges was the^
case of John Anderson, a negro slave of Missouri in the
United States charged with the murder of Seneca T.
Diggs, of Missouri, and who had escaped to Canada, his.

CHIEF JUSTICE McLEAN. 1 67
return to the United States being claimed under the
extradition treaty. The facts of the case were simple
enough : no doubt Anderson was a slave in bondage
according to the laws of Missouri and the United States ;
it was equally fclear that in attempting to escape from
slavery and to regain his freedom he had killed Diggs : that
in such attempt Diggs without warrant, but justifiably,
according to the State laws and United States law was
endeavouring to prevent Anderson making his escape ; and
that Anderson, being pursued by Diggs, in order to secure
his liberty, and prevent his return to his master from whom
he had escaped, stabbed Diggs with a dirk knife, from
which wound Diggs died. Anderson on his final escape
and coming to Canada was on the information of James
A. Jenning, of Detroit, in the State of Michigan, taken
before a Magistrate at Brantford, in Canada, on the 30th
April, i860, charged:
That he John Anderson did on the 28th day of September, 1853, wilfully
deliberately, and maliciously murder one Seneca T. P, Diggs, in the
County of Howard, in the State of Missouri, one of the United States of
America. On the argument of the case in the Queen's Bench, on a
habeas corpus which had been issued for the extradition
of 'Anderson after commitment on the charge by the
Brantford Magistrates, many questions presented them
selves : I. Wasthe warrant of commitment sufficient, and if
not sufficient should it not be amended if the information
and depositions established the charge? 2. Could the Court
interfere at all in the matter, or was it not exclusively the
business of the Government to decide whether the prisoner
should be extradited or not without the aid of the Court ?
Lastly, and the greatest question of all was, whether or
not the offence of murder, if committed, must have
been murder according to the laws of Upper Canada,
where the prisoner was found after his escape from slavery,
or according to the laws of Missouri, where the offence was
committed.

l68 LIVES OF THE JUDGES.
At the time the question came up, which was just before
the American Rebellion, in i860, there was great
excitement in the United States caused by slaves
escaping in a mysterious way, commonly known as
" the underground railway," and in other ways to
Canada, defying the laws of the State from which they
came, and the Federal laws of the United States. The
excitement was no less in Canada, where attempts were
made to again deprive such persons of their hard-earned
freedom, and restore them to bondage. I will not refer
in detail to the various questions presented to the Court,
the important one involving the general right of surrender
being the last. This question rested on the construction
to be placed on the Ashburton Treaty, made 9th August)
1842, and ratified October, 1842, and the 89th chapter of
Consolidated Statutes of Canada, taken from 12 Vic.
cap, 19,
The treaty provides that the Governments of the two
countries shall, upon mutual requisition, deliver up to
justice persons charged with any of the crimes specified in
the treaty committed within the jurisdiction of either of
the contracting parties, who should seek an asylum, or be
found within the territories of the other :
Provided that this shall only be done upon such evidence of criminality
as, according to the laws of the place where the fugitive or the person so
charged shall be found, would justify his apprehension and commitment
for trial, if the crime or offence had been there committed.
Statutes of Canada, cap. 89, for carrying out this treaty,
provides, sec. i, that upon complaint made under oath or
affirmation, charging any person found within the limits of
the Province with having committed within the jurisdiction
of the United States of America, or of any of such States,
any of the crimes enumerated in the treaty :
Any of the Judges of His Majesty's Superior Courts in this Province,
or any of His Majesty's Justices of the Peace in the same, may issue his
warrant for the apprehension of the person so charged, that he may be
brought before such Judge, or such Justice of the Peace, to the end that
the evidence of criminality may be heard and considered ; and if, on such
hearing the evidence be deemed sufficient by him to sustain the charge

CHIEF JUSTICE McLEAN. 169
.according to the laws of this Province, if the offence had been committed
therein, he shall certify the same, with a copy of all the testimony taken
before him, to the Governor, that a warrant may issue upon the requi
sition of the proper authorities of the United States, or of any such States,
for the surrender of such person according to the stipulation of the said
treaty, and the said Judge, or Justice of the Peace, shall issue his
warrant for the commitment of the person so charged to the proper gaol,
there to remain until such surrender be made, or until such person shall
be discharged according to law.
Looking at the proviso of the treaty and that part of
section l of the statute to which I have referred, it will be
seen that the wording affords much room for doubt whether
the treaty makes and the Legislature meant that the various
offences, mentioned in the treaty, must be offences of the
same class in the country where committed, and in the
country where the escaped offender is found and his extra
dition demanded ; or, does it mean only that if the evidence
-of the offence were such as to prove an offence in the
country (United States) where committed, and the same
evidence did not prove the offence to be one of the same
class in the country where the accused is found, the treaty
or Act of Parliament demands that he should be extra
dited ?
The case was very ably argued by Harrison, Q, C,
afterwards Chief Justice, and Henry Eccles, Q,C,, for the
Crown, and by Freeman, Q,C,, for Anderson, who was
accused of murdering Diggs.
The conclusion arrived at by the majority of the Queen's
Bench, Chief Justice Robinson and Mr Justice Burns, was,
that if the offence was an offence of murder in Missouri,
although the same facts did not establish the crime of
murder in Canada the prisoner must be extradited ;
that the killing of Diggs would have been murder in
Missouri, although Anderson was endeavouring to relieve
himself from the shackles of slavery ; that slavery was
lawful in Missouri, and an attempt to capture a slave
trying for his freedom there was lawful, and therefore that
Diggs was killed while in exercise of his lawful powers in
his effort to capture Anderson and return him to slavery.
22 — L, J,

I70 LIVES OF THE JUDGES,
Mr Justice McLean dissented from the judgment ore
several grounds, and especially on the main ground, hold
ing that Anderson was in unlawful bondage, and that his
case was in no way different from a white man endeavour
ing to escape unlawful custody who was entitled to use-
all necessary means even to the taking of life in assertion
of his liberty ; that there was not and could not be such a
thing as slavery in Canada, that Anderson's case must be
governed by the law of Canada, that he would have been
in unlawful custody if in bondage in Canada, and would
have been entitled in Canada, and according to her laws
to obtain his release even by taking life if necessary, and
therefore was not guilty of murder according to the laws,
of Canada, and so was not within the treaty or Act of
Parliament. The reader will find a full report of this.case, with all the
arguments pro and con in the published Queen's Bench
Reports, and will there see, not only the able and fair
manner in which the questions presented were considered
both by counsel and bench, but the elaborate judgments.
of all the Judges.
I will only give the concluding part of Judge McLean's-
judgment in which he explains the position he took in
holding that Anderson was entitled to his freedom, and
should be discharged, and his reasons for his judgment]
In concluding his judgment Mr Justice McLean said :
The law of England, or rather the British Empire, not only does not
recognize slavery within the dominions of the Crown, but imposes upon
any British subject -H'ho shall have become the owners of slaves in a
foreign State the severest penalties, and declares that all persons engaged
in carrying on the slave trade when captured at sea shall be liable to be
treated as pirates. In all the British possessions the institution of
slavery, which, at one time prevailed to a certain extent, was abolished at
the enormous expense of twenty million pounds sterling in remunerating
the holders of slaves. An immense amount has since been expended in
efforts to suppress the African slave trade, and by every possible means.
the British Government has put down and discountenanced the traffic in
human beings. Even when slavery was tolerated in some of the British
possessions no person could be brought into England without becoming;
free the moment he touched the soil ; and though other nations have not

CHIEF JUSTICE McLEAN. I71
chosen to follow the noble example of the British nation, and some are
yet embarking in nefarious and unchristian attempts to import human
beings from the east coast of Africa to be held in perpetual bondage, for
the purpose of this world'.t gain, at the risk of being regarded as pirates,
happily the traffic has become too uncertain and too hazardous to be
Carried on to so great an extent as formerly prevailed. In the adjoining
Republic the evils and the curse of slavery are every day becoming more
manifest, and even now threaten to lead to a dissolution of the Federal
compact of the United States, under -vi'hich the several States have
enjoyed an unexampled degree of prosperity. The evil is not less
revolting in a social point of view, for the laws of some of the States of
the Union may tolerate the dealing in human beings as if they were sheep
or oxen. The best feelings of our nature must shudder at the severance of
those endearing relations which usually form the solace and happiness of
mankind. A father and mother, husband and wife, are liable at the
caprice of a master, or perhaps from his necessities, to be separated from
each other and from their children ; and they are bound to submit ; or if
they attempt to escape from bondage, and to consult their own happiness
in preference to the gain of their masters, are liable to be hunted by any
white or black man who chooses to engage in the pursuit, and when cap
tured are liable to severe punishment and increased severity from their
task-masters. The prisoner Anderson, as appears by the statement of Baker, had felt
the horrors of such treatment. He was brought up to manhood by one
Moses Burton, and married a slave on a neighbouring property, by whom
he had one child. His master, for his own purposes, disreg,^rding the
relationship which had been formed, sold and transferred him to a person
at a distance, to whose will he was forced to submit. The laws of
Missouri enacted by their white oppressors, while they perpetuate
slavery, confer no rights on slaves unless it be the bare protection of their
lives. Can it, then, be a matter of surprise that the prisoner
should endeavour to escape from so degrading a position ; or, rather,
would it not be a cause of surprise if the attempt was not made ? Diggs,
though he could have no other interest in it than that which binds slave
holders for their common interest to prevent the escape of their. slaves,
interfered to prevent the prisoner getting beyond the bounds of his
bondage, and with his slaves pursued and hunted with a spirit and
determination which might well drive him to desperation ; and when at
length the prisoner appeared within reach of capture he with a stick in
his hand crossed over a fence and advanced to intercept and seize him_
The prisoner was anxious to escape, and in order to do so made every
effort to avoid his pursuers. Diggs, as their leader, on the contrary, was
most anxious to overtake and come in contact with the prisoner for the
unholy purpose of riveting his chains more securely. Could it be' expected
from any man indulging in the desire to be free, which nature has
implanted in his breast, that he should quietly submit to be returned to
bondage and to stripes if , by any effort of his strength, or any means
-within his reach, he could emancipate himself? Such an expectation, it

172 LIVES OF THE JUDGES.
appears to me, would be most unreasonable, and I must say that in my
judgment the prisoner was justified in using any necessary degree of force
to prevent what must have proved a most fearful evil. He was commit
ting no crime in endeavoring to escape and to better his own condition ;
and the fact of his being a slave cannot, in my humble judgment, make
that a crime, which would not be so if he were a white man. If in this
country any number of persons were to pursue a colored man with an
avowed determination to return him into slavery, it cannot, I think, be
doubted that the man pursued would be justified in using, in the same
circumstances as the prisoner, the same means of relieving himself from
so dreadful a result. Can, then, or must the law of slavery in Missouri
be recognized by us to such an extent as to make it murder in Missouri,
¦B'hile it is justifiable in this country to do precisely the same act ? I
confess that I feel it too repugnant to every sense of religion and every
feeling of justice to recognize a rule, designated as a law, passed by the
strong for enslaving and tyrannising over the weak — a law which would
not be tolerated for a moment, if those who are reduced to the condition
of slaves and deprived of all human rights were possessed of white instead
of dark complexion.
This judgment of Mr Justice McLean, although he was
in the minority on the Queen's Bench, received the highest
commendation in England, the English press pronouncing
it a judgment worthy a Mansfield. As slavery has been
abolished in the United States the reasons of his
decision, or for that matter of the judgment of the Court
which was adverse to his conclusion, are no longer of im
portance on the particular question involved, though the
judgment might be of supreme importance in another class
of cases, offences within the treaty, but not involving the
question of slavery.
Mr Justice McLean, with his other good qualities^
possessed the quality of endurance in a remarkable degree.
On the trial of Dr. Dill at, Hamilton, for a capital felony,
his conscientuous sense of duty in the administration of
criminal law caused him to give undivided attention to
the case from nine o'clock in the morning till four o'clock
the next morning without a break for even a taste of food.
I have frequently been on the circuit, when he presided
at the Assizes, when he, day after day, commenced the
Court at nine in the morning and sat till twelve at night
without a recess. He had to try a remarkable case in the

CHIEF JUSTICE McLEAN, 1 73-
County of Haldimand, The people of this county had'
for a long time been subjected to annoyance caused by
desperadoes going through the country committing all
kinds of offences, murder, arson, rapine, and other equally
heinous crimes. The leader of the desperadoes was sup
posed to be a m.an named Townshend, At length a man,.
supposed to be Townshend, was arrested after the murder
of a man named Beldon, and was tried for the murder
before Judge McLean. He was not only tried once but
several times : as was said at the time one hundred
witnesses swore one way, that the prisoner was Town
shend, and a hundred others were equally clear that he
was not Townshend. All the marks and moles that Town
shend ever had were given in evidence to prove the man's-
identity, and the proofs of identity were most conflicting.
Judge McLean sat week after week for several weeks at
Cayuga Assizes, trying with great patience and endurance.
day and night, to fathom the mystery. The jury did not
agree, and the man was discharged. Shortly afterwards
the same man, or a man supposed to be the same man, shot
a constable at Port Colborne, and was again tried for his
life at Welland, and was acquitted. A large number of
the people of both counties were convinced that the man
who committed the crimes was Townshend, but whether
the man tried was Townshend or not was never solved. He
claimed that he was a mariner named McHenry, and after
his acquittal turned his trial to account by going round
the country with a sister of Townshend exhibiting himself
for money much after the manner of Sir Roger Tichborne
of English notoriety. The Judge at the time was much
commended for his physical endurance
In Church matters Mr, Justice McLean was a staunch
Presbyterian of the Old Kirk, When the disruption took
place in the Presbyterian Church, the Free Churchmen
seceding from the Old Kirk, the Judge remained firm in his
adherence to the Church of his fathers. He even when
called on for opinion expressed his regret at and disappro
bation of the secession ; his strong views on this subject

174 LIVES OF THE JUDGES.
frequently brought him into conflict with those who could
not see eye to eye with him ; he nevertheless had the
respect and high regard of all right thinking Scotch people.
He was more than once honored by being elected
President of the St. Andrew's Society. At their annual
-banquets on St. Andrew's day he graced the festive board
with his presence, as President, doing all the honors of so
loyal and patriotic a body.
In his own house the Jndge was the ever gracious and
kindly host. On New Year's day, that day so much
celebrated by Scotchmen, and which used to be as much
celebrated by Canadians, he made welcome to his hospit
able board the many citizens of Toronto who knew how
to appreciate a Highland heart.
Nor must we here forget the Chief's amiable wife who
so nobly shared in the Chief's hospitality on recurring
New Year's days. Mrs. McLean was of Highland stock.
She was the daughter of John McPherson, of Three Rivers,
and grand-daughter of that McPherson who was in the
company of the chivalrous Donald Cameron of Lochiel,
who, history tells us to the very last in his devotion aided
Charles Edward Louis Philip Casimer Stuart, the Pre
tender, in his desperate but foolhardy attempt to gain the
throne of his ancestors in 1745. For this aid and comfort
this Donald Cameron sacrificed his life. The grandfather
of Mrs. McLean was pardoned after his daring attempt
had failed.
After Mrs. McLean's grandfather was pardoned he was
offered a commission in the army which he declined. He
emigrated to Canada, assisted in the defence of the Sault au
Matelot, Quebec, when Montgomery was killed. One of
his sons was killed during the siege. He was offered pay
ment for his services and for his house which was burned
by a shell, but he refused and replied : " I take nothing
from the House of Hanover"
Chief Justice McLean will long be remembered in.
Canada as an upright Judge and Highland gentleman, a
worthy representative of the chiefs of his nation.

CHIEF JUSTICE McLEAN. 1 75
The Law Society have preserved his likeness in a
portrait of him which is at the head of the east stairway
leading to the Library of Osgoode Hall. The large, life-
size portrait is in a most excellent position, the sunlight
streaming through the glass in the dome frequently
surrounding the portrait with a radiance which adds a
charm to his genial face.
The Chief Justice died on the 24th October, 1865, in
the 75th year of his age. At the request of the Law
Society, and the legal profession generally, his funeral was
a public one. In commenting on his death the Upper
Canada Law jfournal vtrott as follows :
The maimer of the late President of the Court of Appeal (The Chief
Justice McLean had been made President of the Court of Appeal on the
:22nd July, 1863, a short time before his death) upon the Bench was
-dignified and courteous, unsuspicious and utterly devoid of anything
mean or petty in his own character, his conduct to others was always
what he expected from them. The profession generally, the young
student as well as the old practitioners will long remember his courtesy
and forbearance in Chambers and on the Bench ; others will think of him
as an agreeable and entertainig companion and a true friend, while others
will call to mind the stately form of the old Judge as he approached and
entered St. Andrew's Church where he was a constant and devout
attendant, rain or sunshine, until his last illness which terminated in
death. Archibald McLean was a man of remarkable and commanding
presence, tall, straight, and well formed in person, with a pleasant hand
some face and a kind and courteous manner, he looked and was every
inch a man and a gentleman. He belonged to a race most of whom have
now passed away, the giants of early histoi-y of Canada, He was one of
the most brave, honest, enduring, steadfast men sent by Providence to
-lay the foundation of a country's greatness. The funeral proceeded to the
Necropolis where amidst the sorrow of all who knew him were deposited
1;he mortal remains of the Honourable Archibald McLean, the brave
soldier, the upright Judge, and the Christian gentleman.

XV.
The Honorable Jonas Jones, Judge of the
Queen's Bench, Upper Canada.
^^^feHE family of Jones is a very large one in the
nll'lljLIIK Province of Upper Canada. The particular
'^l^S® branch of this large family to which the
^igi*' Honorable Jonas Jones belonged is not
buried in obscurity. The special knowledge, however, is
most, confined to the lineal and collateral relatives of the
Judge. In the early days of the Province when its prin
cipal inhabitants were United Empire Loyalists, the
Joneses in the County of Leeds and Grenville were as well
known as the difficulties which confronted the early
settlers, or the war-whoop of the Indians which disturbed
their midnight slumbers. The Joneses were people who-
did not fear the war-whoop, or any other whoop of the
Indians, for they came from the Mohawk Valley, the
original home of the chiefest tribe of the Six Nation
Indians, in the State of New York, when a British
Province. The first immigrants of this branch of the
Jones family which came to America, like many others of
that day, had Biblical, and Puritan names. I do not know
that they had any other characteristic of the Puritan than
that indomitable spirit of independence which was the
mainspring of Puritan action.
Josiah Jones, the first of the family who came to-
America from England to Boston, crossed the Atlantic
for his New England home about the year 1640. This

judge JONES. 177
Josiah married, and had a son Josiah, who had a son
Josiah, who also had a son Josiah, whom we may call
Josiah the 3rd. Josiah the 3rd, in the latter part of the
last century, settled at Weston, near Boston. He had
several sons, of whom Elisha was the youngest. Elisha
married and had several sons, of whom Ephraim was the
lOth. It is related that one of the Jones family, during the
Rebellion period of the United States, 1774, was hanged
three times by the Rebels, (Continentals), and as many
times cut down before life was extinct, in the vain hope
that information relative to the King's forces might be
obtained from him. This man so thoroughly gained the
enmity of the Continentals by his adherence to the King's
cause, that he was hunted by the Revolutionary Authori
ties like a a wild beast. After the close of the war he
made his way to New Brunswick, and died at a ripe old
age. Ephraim Jones, father of Jonas Jones, at the time of the
Revolution, was a resident of the Mohawk Valley. Not
inclining to the Continental cause, but thoroughly
imbued with love for England, notwithstanding the
eccentricities of a British Ministry, he made his way tO'
Montreal, so as to be within the British, or more properly
speaking, so as to be without the Continental lines. Two
of the brothers of Ephraim Jones succeeded in reaching
Nova Scotia.
People of the present day can scarcely conceive the great
sacrifice made by those who adhered to the King's banner
in the Revolutionary days. It is but little to say they
sacrificed all the comforts of life, they also in many cases
sacrificed their friendships, their family ties, some members
of a family going one way and some another, and more
than this they sacrificed their possessions in the New
England Colony, and all they had on earth, for the sake
of the Royal cause. It does seem strange, too, that those
who came to Canada did so knowing that they were
coming to a Province a large majority of the inhabitants
23— L. J.

178 LIVES OF THE JUDGES.
of which were French ; French too, of the most pronounced
type ; French who had been at war with the New England
Colonies, then Colonies of Great Britain.
For several years before the French Revolution the
New Englanders in aid of the British in the parent state
were at open war with Quebec, and yet it was to Quebec
that the United Empire Loyalists of New England and
and other States flocked in large numbers on the breaking
out of the Rebellion. And why was this ? It was because
the Continentals were not in agreement among themselves,
some were for Paul, and some for Apollos, some for
present submission relying on future reform, others for
immediate revolution and shaking off the British yoke.
It was of great importance to the British in the
Revolutionary War to have the neutrality if not the active
assistance of the French of the Province of Quebec. This
they succeeded in securing. And so it happened that the
Non-Revolutionary Continentals came to Canada to get
rid of their revolutionary brethren of the New England
and other Colonies now the United States. They came
not because they loved Caesar less, but because they loved
Rome more. England had to gain the affections and
assistance of the French in the Province of Quebec, who
had been granted privileges not guaranteed to them by
treaty. The United Empire Loyalists, rather than rebel,
came to such a Province with such privileges, trusting
to that perseverance for which they were so eminently
distinguished, to extort from England in Canada that
British system under British laws that they so much
cherished. How much more is it to their honor then that
they should have endured all they did in such a cause.
The United Empire Loyalists were not long in Quebec
before they demanded of England to be free of French
laws and French customs, so liberally accorded to the
French by the Canadian Constitutional Act of 1774, and
by their demand gained a severance of the Province into
two Provinces of Upper and Lower Canada, and the
Constitutional Act of 1791.

JUDGE JONES. 179
The adherence of the United Empire Loyalists to the
King's cause entitled them to all they acquired thereby
in the British Provinces. Theirs was not a beggar's
petition, but a right acquired as a reward of patriotism.
It was not till 1790 that Ephraim Jones, better known
as Commissary Jones, in consequence of his having charge
of the supplies granted to the settlers in Canada by the
British Government, took up his residence in the Province,
still the Province of Quebec. I was born in the same
township in which he settled on coming to the Province,
not far from where he took up his land (300 acres) for
services rendered the Crown, a little to the east of
Maitland, in the Township of Augusta.
When Ephraim Jones arrived in the Province of Quebec
he was still a bachelor, but shortly after married one of
•Canada's daughters, Miss Coursoll, of Montreal. By this
union he had four sons and four daughters ; the sons were
Charles, in due time the Honorable Charles Jones ;
William Jones, who became Collector of Customs in
Brockville, a few miles from the old homestead ; Alpheus,
who settled in Prescott; and Jonas Jones, who was num
bered among the earliest members of the Bar of the
Province of Upper Canada. Jonas Jones was born in
the year 179 1.
Jonas Jones was a pupil of Dr. Strachan when he kept
his school at Cornwall. From him he received a liberal
•education from which he profited, as did his comrades
John Beverley Robinson and Archibald McLean, both
afterwards Chief Justices. In Easter Term, 1808, 48
George III., he was entered a Student of the Law,
commenced and pursued his studies in Brockville till the
breaking out of the war When the war of 181 2 broke
out he was but twenty-one years of age, not thought too
young, however, to be offered a commission in the militia
of the Province. He received his first commission as
Lieutenant of Cavalry, on the 22nd of June, 1812, (signed
by General Brock) and was attached to the First Regi
ment of Leeds Militia, commanded by Colonel Break-

l8o LIVES OF THE JUDGES.
enridge. He received his second commission on June
1 8th, 1822, as Colonel of the Third Regiment of Leeds.
He was at the attack on Ogdensburg, under Lieutenant-
Colonel McDonell, on the 22nd February, 1813. On the
landing of the attacking force in the environs of the
Village of Ogdensburg, he and Duncan Frazer were
despatched by Colonel McDonell, under a flag of truce, to
the American head-quarters at the Stone Garrison, with a
demand for an unconditional surrender. Forsyth, of the
American defenders of the village, made answer to this
demand : " Tell Colonel McDonell there will be more
fighting." The bearer of the reply had no sooner entered
the ranks than the battle commenced. After a sharp
encounter, Forsyth was driven from his position to
Thuber's tavern, near Black Lake. Fifty-two marines
were taken and conveyed to Canada. Besides, the
Americans lost five killed and eighteen wounded. Most
of the prisoners were paroled and sent to Montreal. The
British held possession of the village during the day,
securing a large amount of public stores and munitions
of war. Before re-crossing the river, the barracks were
burned, and an attempt made to destroy the bridge.
On the conclusion of the war, and the people having
settled down to peaceful pursuits, Mr. Jones availed himself
of the education he had received in Brockville, proceeded
to York, and in Hilary Term, 55 George III., 1815, was
called to the Bar. He at once opened an office for the
practice of his profession in Brockville, where he had a
successful practice. In politics he was a decided Tory..
What time he could spare from his profession, he
employed in supporting and strengthening the Tory
party in the Counties of Leeds and Grenville, He had
not many years to wait for recognition of his services,
the electors of Leeds and Grenville returning him to the
Provincial Parliament, the first time as member of the
eighth Provincial Parliament in 182 1, and again for the
ninth Provincial Parliament in 1825 and 1826,
On referring to the Journals of the House, I find Mr

JUDGE JONES. l8l
Jones, during these two Parliaments, in his place in the
House promoting beneficial legislation. He was, in 1821,
one of the Commissioners appointed by the House to
confer with the Commissioners of Lower Canada on the
subject of duties collected at the Port of Quebec. This
was a matter of much concern to the people of the
Province of Upper Canada. I have referred to the
difficulties at large in the life of Sir John Beverley
Robinson. The selection of Mr. Jones as one of the
Commissioners by the House shews that he was esteemed
a man of business capacity, well qualified to perform his
duty to the Province on this important subject.
In 1821 there was an agitation existing which extended
to the House on the subject of the Sedition Laws. In
the minds of some a more speedy mode of trying and
punishing seditious people than the ordinary Courts
was required. That was not, however, the opinion of Mr.
Baldwin, then a member of the House, as I find that on the
1st December, 1821, he moved :
That it be resolved that the Commons of the Province, well knowing
the ample sufficiency of the ordinary Courts of law for the security of the
Province against all seditious attempts whatever, view with reluctance
any obstacle presented to their reasonable wishes for a recurrence to that
ordinary course, from whence no deviation can be justified but by tem
porary law in times of danger and violence,
Mr Jones voted for Mr Baldwin's resolution.
In the Session of 1823 Mr Jones supported a bill
brought in by Mr. Burwell " to authorize the appointment
of District Attorneys," As a matter of fact District
Attorneys were not appointed till a much later date.
In 1832 the lines of parties were beginning to be more
closely drawn. Thus we find a stormy meeting being
held in Brockville in March, 1832, in which Mr Jones
took a prominent part, espousing the Tory cause. A
requisition had been circulated signed by Charles Jones
(Honorable Charles Jones), Jonas Jones, John L. Read,
(my father), and eighteen others, calling a meeting to be
held in Brockville, for the formation of an Emigrant

1 82 LIVES OF THE JUDGES.
Society in compliance with the recommendation of Sir
John Colborne. After the meeting was over it was
proposed to draft an address to be presented to His
Majesty the King, stating :
That the Province was in a most flourishing condition, enjoying the
blessings of a free constitution and a government most liberally and
impartially administered.
That was not at all the opinion of the malcontents of
that day, who, led by Mr. Buell, organized an opposition
meeting at which a petition was prepared of a diametri
cally opposite character. A historian writing of these
events says :
Year after year the contest increased in bitterness until Mackenzie and
a few followers were driven into rebellion, and it ended in a mad attempt
to capture Little York.
The election of Leeds again sent Mr. Jones to Parlia
ment in 1836. The sessions of 1836 and 1837 were the
most important of all the sessions of the Old Parliament
of Upper Canada before the Union. Great discontent
prevailed in the country, arising from the fact that the
people were getting uneasy at being ruled by an irrespon
sible executive. At last a remedy was sought in the
Union of the two Provinces of Upper and Lower Canada.
The proposition to unite the Provinces was violently
opposed by Sir John Robinson, and by a majority of the
then Houses. On the 3rd March, 1837, Mr. Jones voted
for a resolution of the House, that an address be presented
to His Majesty stating :
That this Province we believe to be quite as large as can be effectually
ruled by one Executive Government. The population which Upper
Canada contains is almost without exception of British descent. They
speak the same language and have the same laws, and it is their pride
that these laws are derived from the Mother Country, and are unmixed
with rules and customs of foreign origin, wholly and happily free from
the causes of difficulties which are found so embarrassing in the adjoining
Province, we cannot but most earnestly hope that we shall be suffered
to continue so, and that His Majesty's paternal regard for his numerous
and loyal subjects in this colony will not suffer a doubtful experiment to

JUDGE JONES. 183
be hazarded which may be attended with consequences most detrimental
to the peace, and injurious to the best interests of themselves and their
posterity. This resolution was carried by a small majority.
Twenty days afterwards on the 23rd March, 1837, Mr.
Jones was appointed a Puisne Judge of the Court of
Queen's Bench.
When appointed to the Supreme Court Bench, Mr.
Justice Jones had had a great deal of experience of
judicial duty as Judge of the District Court, and so
brought to the Bench a mind well trained, with a
discernment which well fitted him for his position. He
was eminently a practical man, and well acquainted with
the ways of the Country. His military and cavalry
experience had given him a jaunty air, and a spring that
would have done credit to the modern athlete.
It was very much his custom in hearing cases to
interrupt counsel in their argument by putting to them a
suppositious case. He would say, " Now Mr.  ,
suppose it was the case of a horse." The old counsel of
his day were always familiar with this fondness of his of
intruding a horse into the case whatever it might be, and
were not slow to follow his example in putting the case
of a horse in argument, which was sure to catch the
Judge's ear.
He had not been long on the Bench before called
upon to give judgment in a horse case which at the
time was the subject of much comment. The case was
Gorham v. Boulton, 6 U. C. O. S. Races were got up in
Toronto by the Toronto Race Club, of which William
Boulton was treasurer The race was for a purse of one
hundred guineas, to be paid to the winner if the stewards
decided in favor of the party claiming the money ; the
one hundred guineas being deposited in the hands of the
treasurer of the course. The race was run, and the
plaintiff claimed the stakes, the plaintiff's horse won the
first heat, and came in first on the second, and it was
alleged there had been foul riding. The case is only

184 LIVES OF THE JUDGES.
important as deciding that where the decision as to who
won the race was left to the stewards, who had not
decided that plaintiff had won, though he proved that in
fact there was no foul riding, he was not entitled to sue
the treasurer for money had and received till he had got
the decision in his favor.
Judge Jones, in giving judgment, said :
The defendant having received the money as !an officer of the club as
proved by their orders, he cannot be liable for money deposited in his
hands as stakes to be paid to the winner of the race, until the race is
decided in favour of the plaintiff by the person authorized to decide.
When money is deposited in the hands of a trustee for a specific purpose,
the depositor cannot recover it back till the trust is at an end, as a part,
unless as a balance in discharge of the trust. There is no express under
taking on the part of the defendant to pay the money to the plaintiff, and
none can be implied by law until, according to the terms of the deposit,
the stewards have decided in favour of the plaintiff. The stewards have
not decided in his favour, but on the contrary have decided against him,
and if the decision is not final, not being by a majority of the whole club,
the matter is still undecided. In either case it appears to me that this
action cannot be maintained for the purse. I think the parties submitted
to the decision of the acting steward, that the plaintiff is bound by such
decision, and can bring no action against the defendant.
I selected this case out of many others in which Judge
Jones gave judgment, because of its directness, perspicuity
of language, and plain, understandable expression of
opinion. There was another case in the Queen's Bench, about
1842, but not reported till four years afterwards, 2 U. C.
Rep, 224, the case of Doe Irvine v. Webster, which was
the topic of much legal discussion at the Bar. The more
important as it settled a principle by a majority of the
Court, the Court itself being divided on the main question.
In this case one Knapp, the nominee of the Crown of
certain land, had, before the patent issued, on 3rd
November, 1880, executed a deed poll by which he
" granted, bargained, and sold," the premises to one
Wood, who conveyed by deed of bargain and sale to
another, and by regular assignments the land was conveyed
to the lessee of the plaintiff, who claimed under this chain

JUDGE JONES. 185
of title. On ist November, 1803, nearly three years
after Knapp made the deed to Wood, letters patent were
completed in Knapp's name for the land, and remained
in the Provincial Registry Office, having been duly
enrolled. Knapp having been made aware of this fact on
lOth September, 1824, disregarding his first deed, executed
a deed of Release and Quit Claim to one Philips, who
conveyed to the defendant. It will thus be seen that the
principal contention was, whether a party in possession of
land claiming under a deed made by the patentee of the
Crown after the Crown had parted with their title to the
patentee, had a better title than a party claiming by
deed from the same patentee before the patent had issued
when the patentee was but a nominee of the Crown, and
had not acquired the legal estate from the Crown, or ever
been in possession. The question resolved itself into a
question of estoppel. Whether or not the party in
possession claiming through the same patentee, Knapp,
who had made the deed of bargain and sale to Wood,
through whom the plaintiff claimed, was estopped from
disputing the title of the plaintiff claiming under the first
deed, though as a matter of fact Knapp had not the Crown
title when he conveyed to Wood.
The question was a most important one and as expressed
by Chief Justice Robinson in the case of McLean v.
Laidlaw, subsequently decided, (but reported first in the
same volume of Reports) the decision was " the result of
a long and anxious consideration." Chief Justice Robinson
in Doe Irvine v. Webster held that there was an estoppel,
and that the defendant was not at liberty to go into
evidence : that Knapp had no title when he conveyed to
Wood, but was estopped from disputing his title, and so
the title of the plaintiff claiming through him. Judge
Macaulay, the senior Puisne Judge, held that no estoppel
was created. Mr Justice Jones while leaning to the
opinion that there was an estoppel, held that it was not
necessary to decide the question of estoppel, and the
plaintiff was entitled to recover on other grounds. He said :
24— L. J.

l86 LIVES OF THE JUDGES.
Although in this case the defendant takes from Phillips, who also holds
under Knapp, it appears to be unimportant to determine whether the
defendant is bound by the estoppel, because if the interest acquired by
Knapp under the patent enured to Wood by reason of his prior deed it
gave Wood the estate in fee, which he could convey to McLean and
McMillan without entry, there being at that time no person in actual
possession of the lot. For the same reasons the deed of Bargain and Sale
from McLean and McMillan to Bowman and Smith, the lessors of the
plaintiff, was effectual to convey the estate to them, and therefore they
had a right to recover in this action.
Although the case is reported as Doe Irvine v. Webster,
it would have been better to have been reported as Doe
Bowman and Smith v. Webster as it appeared in evidence
that Wood, in 1816, conveyed to McLean and McMillan,
who in 1817, conveyed to Bowman and Smith, (Judge
Macaulay's Judgment, p. 248). One of the demises laid
in the action was that of Bowman and Smith who were
the real plaintiffs, no deed to Irvine having been proved,
so that Judge Jones must be understood as deciding that
the interest acquired by Knapp under the patent enured
to Wood by reason of his prior deed, and so Wood got
the estate which he could convey to McLean and McMillan,
which they could convey to Bowman and Smith, and so
the plaintiffs were entitled to recover possession of the
land. I doubt not, but that the reference to this case will be
more interesting to the professional than to the lay
reader. I give it, however, as it established the principle
of estoppel on a basis which I believe has never been
shaken as applied to similar deeds under similar circum
stances in Canada. The case was elaborately argued, and
much considered, judgment being given by four Judges,
Judge Jones being one of those deciding a principle ever
since maintained.
The Honorable John Hilyard Cameron was Reporter of
the Court in 1846, and has appended this note to Doe
Irvine v. Webster :
Judgment was given in this casein Hilary Term, 1842, before the com
mencement of the publication of these reports, but the great import
ance of the question adjudicated upon and the reference to it by the

JUDGE JONES. 187
Court in the preceding case (McLean v. Laidlaw) has induced the
reporter to introduce it here.
One has only to read the judgments of all the Judges
to shew the interest taken in the question involved, and
besides, they shew that Mr. Justice Jones, as well as
every other Judge on the Bench, felt it his duty to give
all the arguments and reasons which induced the conclu
sion to which the several Judges arrived, though not
agreeing in their decision.
The Honorable Jonas Jones will long be remembered
by those who knew him. The active life he had led
before being promoted to the Bench, he retained after his
promotion. His ambition was to keep up with the other
Judges his confreres on the Bench. He would often, in
early morn, wend his way to the Judges' Library at the
Hall, to be armed at every point for a conference with his
brother Judges.
It is to be feared he taxed his strength too severely in
the performance of duty. A plethoric man, such as he,
could scarcely do without his old time exercise. He
was suddenly struck down by apoplexy in Toronto, in
1848, when away from his ov/n house, He never
recovered from the stroke : died, and was buried in St.
James's Cemetery. He left a large family of children,
several of whom are still living. I have read a historical
memoir of him, written by a Brockville gentleman in
1879, which I think but expresses the truth as I knew
him. The memoir says :
His great knowledge of the way and manner of the people caused his
judgment in the District Court and in the Queen's Bench to give great
satisfaction. His manliness of character and honesty of purpose caused
him to beloved by the people of the United Counties of Leeds and Gren
ville, and his removal from Brockville was much regretted by all classes.
His advice and assistance to the early settlers of Leeds and Grenville is.
not yet forgotten.

XVI.
The Honorable Robert Sympson Jameson,
Vice-Chancellor of Upper Canada.
|N writing the life of Vice-Chancellor Jameson,
we travel out of the dull routine of Common
Law into the broader pastures of Equity.
Vice-Chancellor Jameson was the first Judge
that ever presided in an Equity Court in Upper Canada.
Judge Willis hoped to have been the first Judge of a
Chancery Court in the Province ; a reference to his life,
however, will shew how much he was disappointed in such
hope, and the embroglio he got into with his brothers of
the Common Law Bench, resulting in his amoval from his
Judgeship of the King's Bench.
Historically speaking our earliest acquaintance with
Mr. Jameson, V. C, was about the same period (1820),
that he made the acquaintance with Anna Murphy, his
future wife. He is at this time represented as " a young
barrister of good family, handsome appearance, and
fascinating manners, that his powers of conversation were
exceptionally brilliant, his morals irreproachable, and his
learning much beyond that of the average even of profes
sional men of his age."
Mr. Jameson was a barrister of the Middle Temple.
He was the son of Thomas Jameson. Mr. Jameson was
admitted into the Society of the Middle Temple in 18 18,
and in 1824 was a Reporter in Lord Eldon's Court, who
was doubtless his friend and patron. In that year (1824),

vice-chancellor JAMESON. 189-
there was published in London a volume of Reports with
this designation : " Cases in Bankruptcy by Thos. C.
Glyn, Esq., of Lincoln's Inn, Barrister at Law and Com
missioner of Bankruptcy, and Robert S. Jameson, Esq.,.
of the Middle Temple, Barrister at Law, containing
Reports of Cases decided by Lord Chancellor Eldon and
by Vice Chancellor Sir John Leach. From Michaelmas
Term, 1821, to the sitting before Michaelmas Term, 1824,
and a Digest of all the contemporary cases relating to the
Bankruptcy Laws in the Courts."
Although Mr. Jameson has been represented in his
early days at the Bar to have had "learning beyond that of
the average professional man of his age," it has not been
represented whether this average was general average or
special average. However this may be, Mr Jameson was
not a success in his profession as a barrister, his bright
anticipations on setting out in his career of practice at
the Bar were not destined to be fulfilled. It was a fortu
nate circumstance for him that he had so influential a
patron as Lord Eldon, the Chancellor, and that there
were outlying Colonies of the Empire where he might
possibly obtain greater success than in England. In his
early life he had friends, literary men, who in the field of
literature gained great renown. Himself born in the
Lake Country of England, he was naturally intimate with
the poet Wordsworth, who loved to roam over that region,
and commit to verse the beauties of the scenery.
He was also the familiar friend of Coleridge and of
Southey. What wonder then, living as it were in the
realms of poetry, that he should have accepted with
kindness the regard of a romantic young lady even before
he was out of his teens in the law.
In 1820 he met Anna Murphy, the daughter of Brom-
well Murphy, an Irish artist, a miniature painter,
described as a " brilliant, unstable, impecunious Irishman,"
a very Captain Costigan of a man, full of fun and fury.
The life of V. C. Jameson would not be of absorbing in
terest without bringing into it the story of Anna Jameson^

190 LIVES OF THE JUDGES.
ne^ Anna Murphy, so well known as the Authoress of
" Winter Studies and Summer Rambles in Canada," a
book written in a lively animated style, and which was
well received, and had many readers in Britain and the
United States.
Although Mr. Jameson became engaged to Anna
Murphy in 1820, the engagement was not of long duration.
A few weeks had only elapsed before a lover's quarrel
occurred, and the engagement was broken off. Mr.
Jameson soon after commenced and continued his
reporting ; while the lady took the place of governess
in the family of a lady who visited France and Italy.
The governess, during the tour, keeping a diary of her
travels, which she subsequently published under the title
of " Tne Diary of an Enuyee." On her return to England
Anna Murphy accepted the situation of governess in
another family, that of Mr Littleton, Member of Parlia
ment for one of the Ridings of Staffordshire, who was
subsequently raised to the Peerage by the title of Lord
Hatherton. Colonel Edward George Henry Littleton,
who was in Canada as Secretary to Uord Dufferin,
was a grandson of Lord Hatherton.
The position of governess becoming irksome, in 1826,
or about that time, she renewed her engagement with Mr.
Jameson, and they were married. The marriage was not
a happy one. The parties to it thought they were, but
really were not, suited to each other. In her mature years
Mrs. Jameson referring to her girlish life, wrote of herself:
" I was an affectionate but not, as I now think, a lovable
or attractive child." Again writing of herself as she was
at the early age of eight years, she wrote : " I always
fancied evil and shame and humiliation to my adversary,
to myself the role of superiority and gratified pride."
Mr Dent, in his history, has well said of the life of Mrs.
Jameson : " Such a person was not likely to make a man
happy as a wife when grown to womanhood."
The father of Mrs. Jameson was, during the period of
his daughter's girlhood, in straitened circumstances, this

VICE-CHANCELLOR JAMESON. I91
added to his unsympathetic nature was not likely to
contribute to the happiness of the future authoress.
During the residence of her father in London in 1806,
when his daughter was but twelve years of age, she, no
doubt, foreseeing that her future life depended on her own
exertions, applied herself to education, and acquired a
high degree of proficiency in Latin, Italian, and other
languages. Mr Jameson had not been long married, before some
thing more than a lover's quarrel occurred between this
unhappy couple — the union was not a happy one from the
beginning — four years had not passed over their heads in
married life when the husband and wife thought it well
to separate, for a season at least. Mr. Jameson was glad
to expatriate himself for a time, and through influence
obtained the appointment, in 1829, to a puisne Judgeship
in the Island of Dominica, one of the British possessions
in the West Indies.
Mrs. Jameson remained in England, and betook herself
to travel and her favourite literature. She made a tour of
the continent, accompanied by her father and his patron
Sir Gerard Noel. On the continent she made the acquaint
ance of Goethe. She spent some time at Weimar, where
she first met Goethe and other members of the brilliant
circle of the Grand Duke. In 1831 she wrote the "Memoirs
of the Lives of Celebrated Sovereigns." Her husband, in
Dominica, either from neglect or indifference, contributed
but little to her support. She was glad to write for a
living. In 1832 she published her "Characteristics of
Women," a series of disquisitions on the female characters
in Shakespeare's plays. It is a well written work, possessing
great interest to any reader who desires to cultivate an
acquaintance with the female characters of the great
dramatist. Mrs. Jameson never joined her husband in
the West Indies.
In 1833, Mr Jameson resigned his Judgeship in
Dominica, and returned to England. He remained there
a few weeks in the society of his wife at the house of Mrs.

192 LIVES OF THE JUDGES.
Bates, a married sister of Mrs. Jameson. In the same
year, 1833, he came to Upper Canada, and took up his
residence in York, having on the 21st June, 1833, been
appointed Attorney-General of the Province, owing his
appointment to the British Government. His was the
last appoinment made to that office for Canada by the
British Government. In Trinity Term, 1833, he was
entered a member of the Law Society, and on the same
day was called to the Canadian Bar While holding the
position of Attorney-General he followed the English
practice of having a chief clerk ; his chief clerk was
William Keele, remembered as the author of a work on
Justices of the Peace. Mr Keele was himself an attorney,
and was of great service to the Attorney-General (Jameson)
in his practice. As a matter of fact the practical know
ledge in law which Mr. Jameson ,had, was acquired while
on the Bench in Dominica. He had never practised
common law, civil or criminal, while in England. His
practice in Upper Canada as Attorney-General was not
seriously large, nor did it last for a long time.
Mr Hagerman, afterwards Mr. Justice Hagerman, was
Solicitor-General during Mr. Jameson's incumbency of
the office of Attorney-General. At this period of the
history of the Province, the Crown practice was divided
between the Attorney and the Solicitor-General.
In 1835, Mr Jameson was elected a member of the
Legislative Assembly to represent the County of Leeds.
I have a distinct recollection of the election, living as I
did in Grenville, the adjoining county for which my
father was returning officer at the general election of 1836,
then for the first time held at the village of Merrick-
ville, in the rear of the county. The Attorney-General
might have found some cause for writs arising out of that
election, as at about the fourth day of the polling, a body
of men came down from Leeds, and as the returning
officer and his clerk (the village schoolmaster) were
crossing the common, after their mid-day meal, (the clerk,
with poll book in hand), the invaders from Leeds seized

VICE-CHANCELLOR JAMESON. 1 93
the poll book, tore it into a thousand fragments, and thus
broke up the election.
Mr. Jameson sat in Parliament for Leeds until the
general election of 1837, to which I have referred, and on
the 23rd of March, 1837, he was appointed Vice-Chan
cellor. The want of a Court of Equity in this Province had
begun to be seriously felt, consequently the Legislature
on the 4th March, 1837, enacted :
That there be constructed and established a Court of Chancery, to be
called and known by the name and style of ' ' The Court of Chancery of
the Province of Upper Canada, " of which Court the Governor, Lieutenant
Governor, or person administering the Government of the Province, shall
be Chancellor. And that for the better administration of justice in the
said Court, the judicial powers thereof, both legal and equitable, shall be
exercised by a Judge, to be appointed by His Majesty under the Great
Seal of the Province, and to be called and known as ' ' The Vice-Chan
cellor of Upper Canada," and who shall hold his office during good
behaviour ; which said Court shall be holden at the seat of Government
in the said Province, or in such other place as shall be appointed by
proclamation of the Governor, Lieutenant-Governor, or person administer
ing the Government of this Province.
Mr Jameson was the first Vice-Chancellor of this Court.
In 1836, before his appointment to the Bench, he was
Treasurer of the Law Society. He was also elected
Treasurer of the Law Society for the years 1837, 1838,
1839, 1840, and 1845.
During the time Mr. Jameson was Attorney-General he
wrote to his wife more than once soliciting her to join
him in Canada. She, however, clung to her gods of
literature, making another tour of the continent, spend
ing a considerable time in Germany, keeping up an
occasional correspondence with her husband, not, how
ever, of a character shewing much wifely affection. The
relation which subsisted between the husband and wife
may best be judged of by a letter Mrs. Jameson wrote
Mr. Jameson in answer to a letter he wrote to her in May,
1835, in which he had jokingly told her he intended ere
long to take another wife. This was written, no doubt, to
rouse her jealousy, and attract her to Canada ; the effect
25— L. J.

194 LIVES OF THE JUDGES.
is shewn by her answer She wrote, after some months,
and which must have been shortly before Mr. Jameson
was appointed Vice-Chancellor :
You say it is your intention to marry again. My dear Robert, ]estmg
apart, I wish it only depended on me to give you that power. You
might perhaps be happy with another woman, A union such as ours is,
and has been ever, is a real mockery of the laws of God and man. You
have the power to dispose of our fate as far as it depends on each other.
I placed that power in your hands, and had you used that power in a
decidedly manly spirit, whether to unite or part us, I had respected you the
more, and could have arranged my life accordingly. But what an
•existence is this to which you have reduced us both. If you can make
up your mind to live without me, if your vague letters signify a purpose
of this kind, for God's sake speak the truth to me ; but if, on the other
hand, if it is your purpose to remain in Canada, to settle there under any
political charge, and you really wish to have me with you and, make
another trial for happiness, tell me so distinctly and decidely, tell me
what time to leave England, tell me what things I ought to take with
me, what kind of life I shall live, that I may come prepared to render my
•existence and yours as pleasant as possible.
Her husband then wrote her to join him, having
previously informed her that he had secured about three
acres of eligible ground on Brock street, on which to build
a cottage to her taste, and which he wished her to occupy
with him, if possible to illuminate it with her presence.
The result was, that in September, 1836, she sailed for
New York, en route for York, to join her husband. Her
husband did not meet her at New York, nor on her arrival
at York, then truly muddy York, as Mrs. Jameson
described it in her " Studies and Rambles in Canada."
It is no pleasant task to write of these divergences
between a public man who attained the position of Vice-
Chancellor and his clever wife. I may, however, say,
quoting the language used in the introductory chapter to
the life of Wordsworth (the Vice-Chancellor's friend) in
¦"Moriey's English Men of Letters," " I have endeavoured
to write as though the subject of this biography were
himself its auditor, listening, indeed, from some region
where all of truth is discerned, and nothing but truth
desired."

VICE-CHANCELLOR JAMESON. I9S
Mr. Dent, in his life of Mrs. Jameson, has already
published very much of what I have written in regard to
the gifted authoress. It is fitting that I make my acknow
ledgment to him for much of the knowledge I have
acquired of Mrs. Jameson, so well known in years gone by
in the society of York.
The Vice-Chancellor, presiding in his Court, was a
model of gentlemanly dignity, and was ever willing to
give all attention to those who had business in his Court.
He had pleading before him as counsel several barristers
who were distinguished at the Bar, and who afterwards
attained eminence on the Bench. I will mention but some
of the names as I gather them from the reports : William
Hume Blake, afterwards Chancellor ; J. P. Esten, after
wards Vice-Chancellor ; Robert Baldwin Sullivan, after
wards Judge Sullivan. There were others, but these are
the most prominent names of those practising in his Court.
During the time he sat alone as Vice-Chancellor, before
the reorganization of the Court under Chancellor Blake,
the Rebellion of 1837 was in full blast in the Province
for at least a considerable part of that period, so that
Chancery proceedings had a comparative lull ; there are
not, during this time, more than thirty reported cases
heard before Mr. Jameson, Vice-Chancellor, and some of
these were appeals in bankruptcy. None of the decisions
were such as at this day are regarded as affording prece
dents for future decision. The Vice-Chancellor himself
was a great stickler for precedents, not given to striking
out in new paths, or venturing to establish a principle
unfortified by past authority. A friend of mine, who
knew the Vice-Chancellor well, says, that Mr Jameson
told him that he thought the principal duty of a Judge
was to follow precedent.
On March 15, 1837, Mrs. Jameson writing to her
sister Charlotte wrote :
You will be glad to hear that Jameson is appointed Chancellor (sic) at
last. He is now at the top of the tree, and has no more to expect or aspire
to. I think he will make an excellent Chancellor ; he is gentlemanlike, and

196 LIVES OF THE JUDGES.
will stick to precedent, and his excessive reserve is here the greatest of
possible virtues. No one loves him, it is true; but every one approves
him, and his promotion has not caused a murmur. "
This letter in its language certainly bears testimony to
. the fact that in some way his wife knew that he meant to
make precedents his guiding star. It was, perhaps, well
that he should have done so, for it has never been ascribed
to the Vice-Chancellor that very great industry or very
great originality were his principal characteristics. Robert
John Turner, who practised in his Court, was wont always
to ply him with precedents, having a full appreciation of
the Vice-Chancellor's regard in this direction. If by any
possibility a reference, even a dictum of Lord Eldon, could
be found bearing on the subject in question, knowing
the Vice-Chancellor's partiality for Lord Eldon, at whose
feet he sat before leaving England, the dictum was
eagerly seized upon as a precedent which ought to sway
the judicial mind of the Vice-Chancellor.
In very fact the counsel got too strong for the Vice-
Chancellor, and the Court had not been in existence more
than four years before it became necessary to reconstruct
the Court, placing at the head of it the then leading
counsel, Mr. Blake : the Vice-Chancellor being relegated
to second place.
The Vice-Chancellor was fond of music, literature, and
the fine arts. He entertained liberally while his wife was
with him, which, however, was for less than a year.
Arriving in York in November of 1836, Mrs. Jameson
managed to live through the winter with Mr. Jameson, in
a cold, formal way. She wrote :
' I could almost ¦wish myself a dormouse, or a she-bear, to sleep away-
the rest of this cold, cold winter, and to wake only with the first green
leaves, the first warmth of summer wind.
She found time, however, during the winter to visit
Niagara Falls. A gentleman is still living in Toronto
,who accompanied her on that journey. Like many others
who have visited Niagara Falls, her first impressions of
that great cataract were disappointing, as she expresses

VICE-CHANCELLOR JAMESON. 197
lier wish that the Falls were like Yarrow, yet unvisited,
Tinbeheld — " no, it must be my own fault," she cries :
The reality has displaced from my mind an illusion much more magnifi
cent than itself. I have no words for my utter disappointment. Oh ! I
could beat myself ! and there is uo help ! The first moment, the first
impression is lost ; though I should live a thousand years, as long as
Niagara itself shall roll, I can never see it again, for the first time.
Something is gone that cannot be restored. What has come over my
soul and senses ? I am metamorphosed ; I am translated ; I am an ass's
head, a clod, a wooden spoon, a fat weed growing on Lethe's brink, a
stock, a stone, a petref action. For have I not seen Niagara, the wonder
of wonders, and feel, no words can teU what, disappointment.
When spring came Mrs. Jameson, desiring to be
released from her surroundings, the official circle of York,
and a not too happy home ventured on an expedition
through the Western District, and made her way to Sault
Ste. Marie, which at that time was a very arduous under
taking for a man, much more so for a lady, surrounded
by comparative strangers. Her great desire, however, to
see Indian life overcame all obstacles : she made the
journey, shot the rapids of the Sault in an Indian canoe,
and thus accomplished a feat which astonished the stay-
at-homes of York, and excited some, surprise with her
home friends accustomed to continential pleasure trips,
but not to so difficult or hazardous an undertaking as Mrs.
Jameson took on herself to perform.
This trip is a memorable one in many, ways, not only
in the incidents of travel and the notoriety Mrs. Jameson
gained thereby, but because while moving about among
so many scenes, her niece, in the history of her life, tells
us, " arrangements were going on for her final separation
from her husband, and the establishment of her future
independence ;" indeed, the many letters of Mrs. Jameson
which have been published prove conclusively that inde
pendence was what she sighed for, independence of her
husband was what she prayed for. She was wont in early
life to declaim on independence.
" Thy spirit, independence, let me share,
Lord of the lion heart and eagle eye ;
Thy steps I'll follow ¦with my bosom bare,
Nor heed the storm that howls along the sky."

198 LIVES OF THE JUDGES.
All we know of the cause of the Vice-Chancellor and
his wife's disagreements is, that there was that kind of
incompatibility between the two that made both of them
desirous of release.
On May 26th, 1857, she wrote to Mr Noel from
York: I shall be in England about October or November next. The Winter
has been beyond measure dreary and lonely ; but one of the objects of my
coming will he, I think, accomplished, and my future life more easy, and
my conscience clear. It was worth the sacrifice to purchase all I can
have of peace and independence for the rest of my days, and what we do-
from a principle of duty turns out -well surely. So I put my trust in God
and my own firm -will, and wUl not fear what man can do unto me.
From this it is clear that from the time she set out
from England for Canada till her return, she had but one
object in view, separation from her husband. Mrs.
Jameson, before leaving America, paid a visit to Miss-
Sedgwick, who took a lively interest in her, and treated
her with marked respect, indeed, with affection. Mrs.
Jameson was much courted by American Society, and
made a very favorable impression on the literati of the
Republic. At length, early in the year 1838, the time came for her
final departure from America. Before she left the country
legal papers had been drawn up, assuring to Mrs. Jameson
an allowance of three hundred pounds a year ; and she
took her leave in the possession, if not happy possession,,
of a letter from her husband the Vice-Chancellor, dated
September 21st, I837, which was as follows :
My dear Anna — In leaving Canada to [reside among your friends in
England or elsewhere, you carry with you my most perfect respect and
esteem. My affection you will never cease to retain. Were it otherwise
I should feel less pain at consenting to an arrangement arising from no
wish of mine, but which I am compelled to believe is best calculated for
your happiness, and which therefore I cannot but approve.
The obtaining this letter was a victory for Mrs. Jameson.
Mrs. Jameson and her husband never afterwards met,
they were separated for ever Coleridge, one of Mrs.
Jameson's early friends, in his poem of the " Quarrel of

VICjE-CHANCELLOR JAMESON. 1991
Friends," has written lines which may not be inaptly
applied to the case of the Vice-Chancellor and Mrs.
Jameson. Alas ! they had been friends in youth
¦» * * «
They parted — ne'er to meet again.
But never either found another
To free the hollow heart from paining.
They stood aloof, the soar remaining
Like cliffs which had been rent asunder ;
A dreary sea now flows between.
But neither heat, nor frost, nor thunder.
Shall wholly do away, I ween.
The marks of that which once hath been.
The Vice-Chancellor died in Toronto, in 1854. He left
considerable property in real estate, the house and premises
on Brock street, and several acres of valuable land in what
is now Parkdale, bordering on Jameson Avenue, named
after the Vice-Chancellor. Mrs. Jameson survived her
husband several years. In her latter years she took great
interest in what is termed the " Woman's Rights" question.
She had a thorough conception of the idea, since become
a fixed fact, that many employments then confined only to
men, could and should be shaded by woman. Her niece,
Gertrude Macpherson, in the history of her life, says, on
the authority of a Mrs. Parkes, that :
She attended a Local Science meeting at Bradford, in October, 1859,
and sat during the whole of one day in the Section B, where papers on
the employment of women were being read, and occasionally joined in the
discussion which ensued. When Mrs, Jameson spoke, a deep silence fell
upon the crowded assembly, It was quite singular to see the intense
interest she excited. Her age and the comparative refinement of her
mental powers, had prevented her sphere of action from being "popular "
in the modern sense ; and this, of course, created a stirring desire to see
and hear her of whom they knewjittle personally. Her singularly low
and gentle voice fell like a hush upon the crowded room, and every eye
bent eagerly upon her, and every ear drank in her thoughtful and weighty
words. Alas ! she had not many months to live after this
meeting. What time was left to her she employed in
good works, writing a series of books intended to exhibit

200 LIVES OF THE JUDGES.
the manner in which Art had told the history of our Lord
had engaged her thoughts and attention. She did not
live to complete the work. In March, i860, she was
seized with an attack of bronchitis, which settled on her
lungs, and produced fatal results She passed quietly
away, and thus ended an active and troublous life. Her
Niece, in the preface to the memoir of her life, thus wrote
of her :
The story of one who kept a stout heart through all the troubles that
befel her, who kept her unhappiness to herself, and sought unceasingly
to give happiness to all who belonged to her ; who never used a pen to
strike or to wound, nor took advantage of its power to avenge herself on
any one who wronged her ; and who was all her life long the chief
support and consolation of her family, must possess some interest for all
good people.
In concluding the life of the Vice-Chancellor, inter
twined as it has been, with what may be considered by
some, irrelevant matter relating to Mrs. Jameson, only
referred to because history had already recorded the
principal events of her life, I must remind the reader that
when Vice-Chancellor Jameson was appointed to the
Bench, the old English system of Equity, with its inter
rogatories and cross-interrogatories and all other dilatory
paraphenalia of the time prevailed. Mr. Jameson was
compelled to follow this antiquated " Jarndyce v. Jarn-
dyce" system. It was too absurd to last long, and had
finally to give way to an entirely different state of things.
The system was too heavy for one man to carry. A
great improvement took place when the Court was re-con
structed, with Chancellor Blake at its head.
I have mentioned that the Vice-Chancellor died in 1854.
His last resting place was in Toronto where he had lived
so many years. Mrs. Jameson was buried in Kensall.
Green, London.

XVII.
The Honorable Christopher Alexander
Hagerman, Judge of the Queen's Bench.

mi

man, born at Adolphustown on March 28th,
J^ 1792, was the son of Nicholas Hagerman,

^?OHE Honorable Christopher Alexander Hager
|IB ............«._  .„ 
•^^ of Adolphustown, in the County of Lennox,
who was a United Empire Loyalist. Mr Nicholas
Hagerman came to Canada after the American Revolution.
He was among the refugees who followed that portly
Dutchman, Major Vanalstine, who will long be remem
bered by the inhabitants living on the Bay of Quinte, as
one of the first settlers in Adolphustown. Revered and
respected by all the country round. Major Vanalstine
was one of nature's noblemen, giving succour and
assistance to all who were in need when Adolphustown
was a wilderness, and the Bay of Quinte the home of wild
fowl and Indians. Hagerman's Point is a well known
locality in Adolphustown, and got its name from Nicholas
Hagerman, who settled there, near the old United
Empire burying grounds. Mr. Hagerman built his house
near the water's edge, but time and tide wait for no man,
and not only has the burial place of Mr. Hagerman,
the founder of the settlement, been well nigh blotted out,
but the house where he lived, and the land on which it
stood, been effaced by devouring time and the waters of
the bay. 26 — L. J.

202 LIVES OF THE JUDGES.
Judge Hagerman's father, though driven to cultivating
the soil for a living on coming to Canada, impelled thereto
by his devotion to the King's cause, was a man of educa
tion, and it is said studied law before leaving New York.
I find Nicholas Hagerman was called to the Bar in Trinity
Term, 37 George HI., 1797, and was appointed a Bencher
of the Law Society Michaelmas Term, 40 George III., I799-
After his call he commenced the practice of his profession
in Adolphustown, and continued to be a successful
practitioner there till his death. Nicholas Hagerman had
only two sons, Daniel and Christopher Alexander, the
latter in due time Judge of the Queen's Bench.
Dr. Canniff, who wrote the history of the Quinte Bay
settlers, says he knew both Christopher and Daniel as
small boys. That Daniel was a sedate, quiet boy, but as
he has written it, " Chris was a saucy boy." However
this may have been, Christopher, saucy and self-asserting
as he was, had a large head and plenty of brains. As
soon as he had grown out of his pinafore life he was sent
to school in Kingston, where he finished his education,
acquiring a sufficient knowledge Sf the classics to enable
him to pass the Curriculum of the Law Society. He
studied law for a part of the time of the course with his
father at Adolphustown, and for the balance of his time
with Mr Allen McLean, of Kingston.
Christopher Alexander Hagerman was admitted a
Student at Law Michaelmas Term, 49 George III.. 1808 :
was called to the Bar, Hilary Term, 55 George III., 18 15,.
and was appointed a Bencher in Easter Term, i George
IV,, 1820.
After Christopher (the son) was called to the Bar, it
happened that sometimes the father and son came across
each other as advocates of opposing parties in the Courts.
On one occasion at Kingston this opposing of interests
occurred, in a well contested case, the father being on one
side, and the son on the other. Much to the annoyance
of the father, Christopher won the suit for his client. On
the result being proclaimed, the father said to the son.

JUDGE HAGERMAN. 203
"Have I raised a son to put out my eyes?" — "No!" replied
the son, "to open them, father"
At the commencement of the War of 1812 Christopher
went as Lieutenant with a company from Adolphustown
to Kingston, and was shortly afterwards chosen Aide-de-
Camp to the Governor General. This promotion, taking
place just about the time of his becoming of age, was the
means of bringing him into prominence, for we find that
as soon as the War was over he was appointed Collector
of Customs at Kingston. The Gazette of September 5 th,
18 1 5, announces that Christopher Hagerman had been
appointed to His Majesty's Council in the Province of
Upper Canada. As he was then but twenty-three years
of age, it may readily be conceded that there is great
significance in " now and then." What a glorious thing
for young men is War ! — the plain but ambitious young
man of yesterday becomes the hero of to-day.
Mr. Hagerman was appointed to the Bench in 1828 :
this was, however a temporary appointment, only till the
King's pleasure should be known. I have, in the life of
Mr. Justice Willis, given an account of the difficulties
Judge Willis brought upon himself in insisting that the
Court of King's Bench could not be held constitutionally
without the presence of the Chief Justice, who had gone
to England on sick leave, and how ultimately those diffi
culties culminated in the amoval of Judge Willis. At
that time Mr. Hagerman was an available man for the
Bench, and was appointed to fill Mr Justice Willis's place.
The British Government did not restore Mr. Willis to his
place, but sent him to another Colony ; at the same time
they thought proper not to confirm the appointment of
Mr Hagerman. In this way they paid but a left-handed
compliment to the Governor in his action in regard to
Mr. Willis. The action of the Governor was, no doubt,
thought to be precipitate : especially was it so considered
by those who had espoused Judge Willis's cause, and they
were those who were opposed to the Government of the
day.

-204 LIVES OF THE JUDGES.
Although Mr Hagerman, in the disruption that took
place, lost the Judgeship, he secured another Government
-appointment. We find him on the 13th July, 1829,
appointed SoHcitor General. This office he held until, on
the representation of William Lyon Mackenzie, the Colo-
¦ nial Secretary thought proper to cancel the appoint
ment. William Lyon Mackenzie had been repeatedly expelled
from the House of Assembly, to which he had been sent
as representative by the County of York. As a conse
quence of these proceedings Mr. Mackenzie visited
England, bearing many petitions to the King and the
British Parliament praying for redress of grievances.
Lord Goderich, the then Secretary of State, gave much
attention to Mr Mackenzie's representations. One result
of these representations was, the removal from office of
the Attorney-General, H. J. Boulton, and the Solicitor-
General, Mr. Hagerman. Mr. Stanley who succeeded
Lord Goderich restored Mr. Hagerman, and appointed
Mr. Boulton to the Chief Justiceship of Newfoundland.
The reason assigned for the removal of the Crown
officers was, that they had "permitted the repeated
expulsion of a member of the Assembly, although the
constitutional objections to that course had been conveyed
to His Excellency by His Majesty's Government."
Mr Hagerman was elected a member of the Legislature
to represent the town of Kingston for the first time in
1819. His appointment as Solicitor-General, as well
as his practice, requiring his constant attention at the
capital, induced, indeed required that he should change
his place of residence from Kingston to York ; he conse
quently shortly after removed with his family from
Kingston to York, and built for himself a very fine brick
house on the corner of Simcoe and Wellington Streets,
not far from Government House. He also built for
-himself a convenient office just north of the house where
he carried on his practice for some years. The house and
office are still standing, the former being used for the

JUDGE HAGERMAN. 20$
office of the Attorney-General and the latter for the
Ontario Government Emigration Agency.
In the year 1835 ^^- Hagerman formed a partnership
with Mr Draper. The firm of Hagerman & Draper were
well known in their day, not only for the large business
they did, but as having as heads of the firm two of the
most brilliant lawyers of the time. Mr. Hagerman
holding the office of Solicitor General, had to give much
of his time to Crown business, advising with the Govern
ment on all the multifarious matters that came up in the
administration of the law department of Government.
Passing over his earliest Parliamentary career, I pass
on to the exciting Session of 1836, in which he sat in the
Opposition benches, the Reformers, a party to which he
was opposed, having then a majority in the Assembly.
As we see things now-a-days, it seems strange that
the Solicitor-General of the Province should be in the
party of the minority of the Assembly ; yet such was
the case of Mr. Solicitor-General Hagerman. He was
Solicitor-General and a member of the House in the
Session of 1836, which was unequivocally a Reform house,
while Mr. Hagerman was so much of a Tory that he
would not allow himself to be called a Conservative, but a
Tory out and out. I have not anywhere read so clear
an exposition as his of the then agitated question as to
whether the Governor was bound in all cases to consult
his Council in governmental public questions ; whether
his Council had at all times a right to control him in the
public business ; or whether the Governor was only bound
to listen to them when he asked for or required their
advice. It was |a very important question, and on which
hinged the principles of Responsible Government after-
Xvards adopted and carried out ever since the Union of
the Provinces of Upper and Lower Canada in 1841.
In this Session of 1836, a Select Committee of the
House made a long and voluminous report on the subject,
claiming that the Governor's advisers, his Council, and
the Governor himself, were responsible to the people, and

206 LIVES OF THE JUDGES.
that the Governor performing acts of Government without
the advice and counsel of the Council, was contrary to the
Colonial Constitution ; this gave an opportunity to the
Solicitor-General to give to the House his views of
constitutional rights and practice.
Looking to the past, and to the acts of Government of
that day, Mr. Hagerman's speech in Parliament will throw
much light on a very much misunderstood subject. I
will, therefore, place before the reader, not the whole but
part of the substance of the relative and important parts
of his speech in the Assembly on this question. He said :
It appeared to him that the point on which the committee should have
turned their attention was the origin of the Executive Council in the
Colonies, the duties originally assigned to them, and the responsibility, if
any, which attached to them as Councillors. An advantage which would
have resulted from this plan of investigation had it been adopted would
have been that the Committee would have informed themselves of the
utter impossibility of the Lieutenant-Governor's divesting himself of the
responsibility, and that by the laws and constitution he is emphatically
and distinctly responsible to the King as Head of the Empire, politically ;
and to the people of this Province individually in his private capacity,
for every act of his government, and that the Executive Council are not
and can not be made responsible to the people for any acts of theirs.
Without further remark he, the Solicitor-General, would proceed to show
on what grounds and upon what authority he rested these opinions.
There were not many works extant containing a history of the constitu
tions and forms of government in the Colonies but there were a few, and
some of them giving a very explicit account of the Councils appointed by
the Crown, their duties and responsibilities especially in the Colonies of
America, and in order to attract the attention of the House to the line of
argument he intended to pursue he begged honorable members would
bear in mind that it would eventually appear that the Executive Council
-of Upper Canada which it was contended, was created by, as well as
identified with, the Constitution of the Province (as conferred by 31
George III.) was merely the constitution of a body that had existed in
Canada from the first moment of an organized Government, after the
conquest down to the passing of the Act which divided the Province of
Quebec into Upper and Lower Canada, and which was precisely similar
to those existing in the old Colonies on this Continent and the West
Indies. The first authority he should cite in support of this argument
was that of a gentleman who held the office of Chief Justice of Georgia
during the time that State was a Colony of Great Britain, and subse
quently held high legal appointments in the West Indies. This gentle
man in his remarks on the Council says: " They are to give advice to thb

JUDGE HAGERMAN. 207
Governor or Commander-in-Chief for the time being when thereunto
required, and they stand in the same relation to the Governor in a Colony
that the Privy Council does to the King in Great Britain. In some cases
the Governor can act without their advice and concurrence, and there are
other cases in which the Governor is required by his instructions not to
act without the advice and concurrence of his Council. Which (instruc
tions) every Governor and' Commander-in-Chief should carefully attend
to. The Council sit as Judges in the Court of Errors or Court of Appeal.
The Council are named iu every Commission of the Peace as Justices of
the Peace throughout the whole Colony ;'' Stoke's Constitutions of the
British Colonies, pp. 239, 240. Thus we see the origin of Councils in the
Colonies , and the duties assigned to them, and how completely the duties
heretofore performed by the Council in this Province correspond with
those imposed on the Councils iu the old Colonies now separated from
Great Britain as well as those which remain appendages of the Empire.
In the old Colonies they advised the Governor when required by the
King's instructions, they do so here ; in the old Colonies they constituted
a Court of Appeal, by our Constitution that duty is imposed on them
here ; and in this Province as in the other Colonies their names appear as
Justices in every Commission of the Peace throughout the Province.
The same author observes that when a new Governor came to a Province
the names of the persons who were to constitute his Council were named
in his instructions and that no other appointment or commission was
necessary ; but this practice has now fallen into disuse, at least in this
Province. The last set of instructions containing the names of the
¦Council, were those brought out by Sir Peregrine Maitland ; but it should
be borne in mind, that those very instructions are those now laid on the
table by command of Sir Francis Head; that they contain the names of
the Councillors then existing in Upper Canada and prescribed their duties.
These instructions and these duties have undergone no change since that
period. Governor Simcoe the first Governor that came to this Province brought
with him the first instructions that were designed to direct the King's
representative, the Council, and other officers of the Government in their
duties and as they were in the adjoining building on record in the books
of the Council it was somewhat strange that the Committee did not
examine them. They would be found to be the same as those delivered
to Sir Peregrine Maitland.
In some of the old Colonies the Council was possessed of legislative
power conjointly with the Governor, and sometimes formed an inter
mediate legislative branch between the Governor and an Assembly
elected by the people. Of course in all matters relating to the enactment
of laws the Governor could not act independently of the Council, except
in so far as respected the assenting to or refusing of bills. Upon the
death, removal, or resignation of the Governor, the senior Councillor, by
the King's instructions, assumed the Government, as in this country,
unless the senior Councillor happened to be Superintendent of Indian
Affairs or Surveyor-General of the Customs, (which officers were always

208 LIVES OF THE JUDGES,
extraordinary members of the Council,) in which case the government.
devolved on the ordinary member of the Council next in seniority.
Such was the nature and constitution of the Executive Councils in
the old Colonies of America, and although in the majority of those
Governments, Legislative Assemblies existed, one branch elected by the
people as in this country, yet there is no trace of any pretence that those
Councils [were responsible for their official acts to any other person or
party than the King. Responsibility to the elective branch of the Legis
lature was never thought of ; and the Chief Justice of Georgia, whose
work he had quoted, and -who had resided and held office in several of the
other Colonies, distinctly states, that the Executive Council were guided
by the King's instructions, and were therefore responsible to His Majesty
only. They were appointed as in this Province by the King, and removed
at his pleasure ; they advised his representative, when required, in
secrecy ; their acts could be known to the King only, and to him only
were they accountable for them. Let us now consider the origin and
constitutional powers of the Executive Councils in these Provinces, they
will be found to be precisely similar to those already described.
It would be recollected that Canada was obtained by conquest from the
Crown of France, in 1759, and that by the treaty of Paris in 1763, it,
together with other territories in America, was finally ceded to Great-
Britain. The form of Government in Canada between the years 1759 and
1763, was a course of purely military despotism, regulated by the terms
of the capitulation. In the year 1763 the King issued his proclamation,
in which he declared, that the territory in America ceded by the treaty
of Paris, should be erected into four separate Governments, viz : Quebec,
comprising the whole of Canada ; East Florida ; West Florida ; and
Grenada. For the purpose of shewing clearly the views of His Majesty
•with respect to the form of Government intended by him to be established
in those territories, it would be proper to refer to the proclamation itself,
which contains the following passage :
" And whereas it -will greatly contribute to the speedy settling our said
new governments, that our loving subjects should be informed of our
paternal care for the security of the liberty and prosperities of those who
are and shall become inhabitants thereof, we have thought fit to publish
and declare by this our proclamation that we have, in the letters patent-
under our Great Seal of Great Britain by which the said governments are
constituted, given express power and direction to our Governors of our
said Colonies respectively, that so soon as the state and circumstances of
the said Colonies will admit thereof, they shall with the advice and
consent of the members of our Council, summon and call general assemb
lies within the said governments respectively, in such manner and form
as is used and directed in those Colonies and Provinces in America
which are under our immediate government ; and we have also given
power to the said Governors with the consent of our said Councils and the
representatives of the people so to be summoned as aforesaid to make,
constitute, and ordain laws, statutes, and ordinances for the public peace,
welfare, and good government of the said Colonies, and of the people and

JUDGE HAGERMAN. 209
inhabitants thereof, as near as may be agreeable to the laws of England,
and under such regulations and restrictions as are used in other Colonies .
and in the meantime, and until sjich assemblies can be called as aforesaid,
all persons inhabiting in or resorting to our said Colonies, may confide in
our royal protection for the enjoyment of the benefit of our laws of our
realm of England ; for which purpose we have given power under our
Great Seal to the Governors of our said Colonies respectively, to erect
and constitute, with the advice of our said Council respectively, Courts of
Judicature and public justice within our said Colonies, for the hearing
and determining of causes, as well criminal as civil according to law and
equity, and as near as may be agreeable to the laws of England, with
liberty to all persons who may feel themselves aggrieved by the sentence
of such Courts, in all civil causes, to appeal, under the usual limitations-
and restrictions to us in our Privy Council."
Here then was the root from which sprung our present constitution.
In the above extract it will be observed that in the Patent constituting^
the Government of Quebec, allusion is made to " a Council ;'' and that the
Governor, with the advice of such Council, might summon and call a
general assembly, " in such manner and form as is used and directed in
those Colonies and Provinces in America which are under our immediate
government." Now it would scarcely be contended that the Council
thus created by the King, could be responsible to any other power than
himself. There was not at that time, nor for years afterwards, any
representative body in the Colony ; and it might be further remarked,
that had an assembly been convened in pursuance of the power contained
in the proclamation, it (the assembly) was to be constituted as in the
" other Colonies and Provinces of America ;" and it does not appear that
it was not to be clothed with greater powers than they possessed. No-
assembly, however, was ever called under the authority of the proclama
tion, and Canada continued to be goverened by a military officer, assisted
by a Council until the year 1774. For eleven years an Executive Council
did exist clearly and positively irresponsible to any power but the Crown,
and possessed, too, of powers greatly transcending those of the present
Council, for it appears by the 4th section of the Act 14 George III. , oh.
83, that with the Governor it had power to enact laws by which the
inhabitants of the Colony were bound. This Act the 14 George III,, was
the first passed by the British Parliament gi-ving a settled form of govern
ment to Canada, and in it allusion was made to the existence of a Council,
possessing the powers just mentioned. The Act authorized His Majesty
to appoint a certain number of persons as Legislative Councillors, who
when appointed should hold their office for life ; and ordained that the
laws and ordinances passed by them, and assented to by the Governor on
behalf of the King, should supersede all ordinances previously made by
the Governor and the Executive Council, The Executive was not,
however, done away with ; on the contrary it continued to exist to advise
the Governor ; and by an ordinance passed in the year 1785, by the
Council and Governor, it was constituted a Court of Appeal as in the old
Colonies, which ordinance is recognized and confirmed by our oonstitu-
27— L, J.

2IO LIVES OF THE JUDGES.
tional Act 31 George III., ch, 31, sec, 34, Before proceeding to examine
the provisions of the important Act last mentioned it might as well be
asked whether the Executive Council of Quebec between the years 1774
iiiid 1791, could be said to be responsible to any other power than the
King for their official conduct ? It would be manifestly absurd to say
that it was responsible to the people, at a time when the people had no
voice in the government. The Governor and the Legislative Council were
both appointed by the King ; the Executive Council was a body created
by the King which he could continue or suppress at his mere will and
pleasure, there being no law or ordinance that required their existence.
Being appointed their duties were defined by the King, and lessened or
•extended according to his sole decree, unless where particular duties were
imposed by ordinance ; and when so those duties .were of a character
distinct from those of advisers of the King's representative. Where
then should we seek for their responsibility to the people? It could no
-where be found. (Hear, hear). If then up to the time of passing the
Constitutional Act the Executive Council were only responsible to the
King, the next and most important question to be decided was, whether
by that Act their character was changed, whether in fact, as is now
alleged, ''The Executive Council of this Province is by the Constitution
responsible to the people and not to the Crown, and like the Cabinet iu
England should go out of office upon a vote of the Assembly, and that
the Governor is bound by their advice, and is not responsible for his acts
any more than the King is for his acts." Those w-ho blindly contended
for a principle so dangerous to the peace, welfare, and good government
of this Province, would search in vain for support from the great charter
conferred upon its inhabitants for the protection of their liberities. That
Act recognizes a Council to be appointed by the King, but it creates no
such body. It was manifest that when the 31 George III. was passed,
the British Parliament had before it the King's proclamation of 1763, the
Royal Instructions to the Governor, the Act of 14 George III. ch, 83, and
the Ordinances of the Province of Quebec, passed in virtue of the last
mentioned Act ; each of which was specifically referred to iu the Consti
tutional Act ; and Parliament assuming that the King in the exercise of
his royal prerogative would continue a Council which had previously
existed, required of it when created certain specified duties, but no where
making it a Cabinet which by its advice was to govern the Province, and
assume the power and responsibility of the Crown, rendering the King's
representative a mere cipher, subject to its domination and control, A
principle so preposterous as this could no where be found in the Consti
tution, (Hear, hear). Nothing could be more clear than that it irever
was intended that the Council should have greater powers than were
intrusted it prior to the passing of the Constitutional Act ; which powers
were defined in the King's Instructions, and the laws and ordinances then
in force in the Colony, passed in pursuance of the powers given by the 14
George III, By an Ordinance of the Province of Quebec the Governor
and Executive Council were constituted a Court of Appeals, and were
continued such by the 34th section of the Constitutional Act, and by

JUDGE HAGERMAN, 211
-another section the Governor was required to act with the advice of his
¦Council in erecting parsonages and endowing them ; these are the only
duties specifically required of the Council ; all others depend on the will
of the Sovereign. If, as is contended, it was meaut that nothing could
be constitutionally done without the advice of the Council, was it to be
believed that so important a principle would have been left in doubt by
the eminent statesman who framed the Constitution ? It was inconsis
tent with common sense to suppose they would have been so blind to
their duty. (Hear, hear).
But in truth there could be no doubt in the minds of dispassionate and
'intelligent men, the Constitution itself gave a plain and distinct negative
to the assertion, that the Governor is at all times and upon every public
occasion to consult the Council. It would be admitted that no duty
which a Governor has to exercise can be of greater importance than
¦deciding on the laws presented to him by the other branches of the
Legislature for the royal assent; and it may be fairly argued that if upon
any one point more than another he stands in need of the advice of a
•council it must be in coming to a decision on questions which may involve
the safety of the liberties and property of the people of the country ;
•notwithstanding this, however, he is not to be guided by his Council, but
-by the Royal Instructions. This was a provision iu the Constitution
itself, and in the following clear and intelligible words :
" Section XXX. And be it further enacted by the authority aforesaid,
That whenever any bill, which has been passed by the Legislative
Council and by the House of Assembly in either of the said Provinces
respectively, shall be presented for His Majesty's assent, to the Governor
¦or Lieutenant-Governor of such Province, or to the person administering
His Majesty's Government therein, such Governor or Lieutenant-Governor
or person administering the Government, shall, and is hereby authorized
¦and required to declare, according to his discretion, but subject neverthe
less to the provisions contained iu this Act, and to such instructions as
may from time to time be given in that behalf by His Majesty, his heirs
or successors, that he assent to such bill in His Majesty's name, or that
.he withholds His Majesty's assent for such bill, or that he reserves such
bm for the signification of His Majesty's pleasure thereon,''
This section of the Constitutional Act was important for several reasons
-but principally because, in the first place, it at once overthrows the
doctrine that the Governor is on all occasions to consult his Council or
act by its advice ; and secondly, as shewing that the King's instructions
from time to time given were recognized by Parliament, and embodied ia
the Constitution as binding on the Governor. (Hear, hear). The clause
just quoted required the person administering the Government to assent
to or reject bills "according to his discretion," not by and with the
advice of his Council, but in conformity with the instructions he may
" from time to time " receive from His Majesty. How absurd would it
then be for a Governor, were he to apply to his Council in a doubtful
¦case for advice and acting upon it assent to a bill contrary to the orders
contained in his instructions which by the express terms of the Constitu-

212 LIVES OF THE JUDGES.
tion were to be his guide, how would he excuse himself by alleging that
he acted upon the advice of his Council, instead of his instructions ?
Where then must the responsibility rest ? Upon himself, of course ; and
it would be out of his power to rid himself of it and cast it upon another.
(Hear, hear).
The Constitution having thus emphatically recognized the Koyal
Instructions, as binding upon the Governor and forming a part as it were
of the Constitution itself, it would be proper again to refer to those ¦
instructions for the purpose of placing before the House in a clear and
connected manner the duties required by the Sovereign of the members of
his Council when he appointed them to their office ; The following were
the words used :
' ' To the end that our said Executive Council may be assisting to you
in all affairs relating to our service, you arc to communicate to them such
and so many of these our instructions, wherein their advice' is mentioned
to be requisite, and likewise all such others from time to time as you shall
find convenient for our service to be imparted to them, "
Language could scarcely be more intelligible or free from ambiguity
than was here employed, and let it be borne in mind, that these instruc
tions were brought to this country by Governor Simcoe, who was also the
bearer of the Constitution conferred upon this Province and which he was
charged to put in operation. They were moreover delivered to him after
the Constitutional Act had passed the British Parliament, and by the
statesman who had conducted that great measure to maturity, (Hear,
hear). On Friday, the i6th December, 1836, Mr. Hagerman
made his celebrated speech in the Assembly on the
Clergy Reserves question, arguing forcibly that the
Reserves set apart for the support of a Protestant Clergy
in the Province should not be diverted from their original
purpose to promote general education, or for any other
purpose. As I write I have the speech before me ; it was
one of Mr, Hagerman's most able efforts. Happily the
Clergy Reserves question, which caused so much bad
feeling at the time, has been long since settled, I need
not encumber the life of the Judge by any further refer
ence to this great politico-religious controversy.
Mr. Hagerman was a man of very independent mind,
and would not surrender his independence even if thereby
he lost position or secured favor. This trait of his character
is strongly exemplified in the action he thought proper to
take during the Session of the Upper Canada Parliament

JUDGE HAGERMAN. 213
in 1839. He was then Attorney General. His Excel
lency the Governor General had sent a message to the
House recommending a Legislative Union between the
Provinces of Upper and Lower Canada. Mr. Hagerman
was opposed to the Union of the Provinces. While the
House was in Session on 19th December, 1839, Mr.
Hagerman gave his reasons for opposing the union.
Some of which I will give as illustrating his independence
-of character, but which may be read with profit as of
historical importance. He said :
As it was my duty, I at a very early period after the arrival of the
Governor-General, sought an interview with His Excellency, and respect
fully but plainly stated the opinions I entertained on this great question,
and declared that I should feel it my duty, as a matter of principle and
honor, to vote against it, should it be brought under discussion. / felt
then, as I feel now, that upon receiving this communication his Excellency
would have been fully justified in immediately dispensing with my services;
and that he did not do so I impute to the entire absence of that unjust
and arbitrary disposition that would persecute a public servant for main
taining a long expressed opinion upon a question of vital interest to his
country and which, until within a few months, had been concurred in by
a government of which he was a member. Under these circumstances, I
find myself for the first time during a Parliamentary career which com
menced just twenty years ago, in direct opposition to a measure proposed
by the authority of the Crown * * It may reasonably be supposed I
would not now depart from my usual course, but for reasons of a very
powerful nature ; and this I may truly and emphatically declare to be the
case. In the vote I am about to give, I firmly believe is involved the
question of allegiance and as far as depends on my humble advice, the
integrity of the Empire. Sir, I believe that the union of the Provinces
of Upper and Lower Canada will place in imminent peril the connection
of this country with the Parent State ; and believiog this, I cannot, I
dare not, -without violating the oath of allegiance I have so frequently
and so willingly taken, vote in favour of this measure.
The main grounds on which the union of the Provinces is recommended
and advocated, are ; First, that a Constitutional Government may be
restored to Lower Canada ; and second, that the Province may be relieved
from its financial difficulties by charging its public debt on the joint
revenues of Upper and Lower Canada.
1 will endeavour to examine these two propositions separately ; and
with respect to the first, I desire to ask what claims Lower Canada has
on this Province to consent to peril its very existence as a dependency
of the British Crown for the purpose of restoring to it a government it
has lost by open rebellion to its Sovereign, and which for years past it
ias used for the most factious and ungrateful purpose, and with singular

214 LIVES OF THE JUDGES.
disregard for the peace, welfare, and prosperity of this Province ? Sir, if
we look back to the history of Lower Canada, it may be fearlessly
asserted that no people on the face of the globe ever exhibited such.
proof of ingratitude to the best, and noblest, and most disinterested of
benefactors. Nor did a people so recklessly and wickedly cast aside and
repudiate the blessings that were offered for their acceptance, and never
did a case occur in which fewer claims to the sympathy of loyal subjects
have been established. When England became possessed of the Canadas
by conquest, it might be said that its inhabitants were by that event
emancipated from a state of thraldom approaching to slavery ; and the
freedom conferred upon them was that of British subjects, released from
the vassalage in which they had been previously held by the feudal laws
of the French Empire. The Criminal Law of England was speedily
introduced, life and property were made secure, and the blessing of the
British Constitution were gradually and generously conferred. Step by
step did the Imperial Government proceed in its earnest desire to raise
the Canadian people to the same social and political condition enjoyed by
British subjects, and which would place within their reach the happiness
and prosperity which the institutions of England are alone calculated to
. secure and perpetuate. The proclamation of 1763, the Act 14 George
III,, wnich established a Legislative Council, composed of persons
resident in the Province, and who enacted some of the best laws on the
Provincial statute book, and lastly granting the Constitution of 1791, the
most perfect and liberal ever before or since conferred on any Colony,
are striking and conclusive proofs of this assertion ; and to that may be
added the undeniable fact, that the government of the Province from the
conquest to the present time, has been conducted with mildness and
justice, and without afibrding the slightest ground for the factious and
violent opposition that successive Governors have experienced from an
ungrateful and unjustly dissatisfied people. Indeed it may be said that
in proportion as benefits -were heaped upon them did the hatred of the
Lower Canadians toward everything British, the source of all their
blessings, go on increasing, until at last they rose in open rebellion
against their government and benefactors, and evinced that hatred
to all of British origin that even Lord Durham has declared to be
incredible * *
It is my belief that the best means for reconciling the Lower Canadians
to British authority, British institutions, and British society, is by intro
ducing a well organized system of education and by employing the
resources of the country in improving the roads, forming canals, and
making other obvious improvements, the benefits of which can be seen.
and felt. By this means you may at last convince these people, if any
thing will convince them, that it is far better and more to their advantage
to attach themselves to a party which is plainly seeking to preserve their
peace, and increase their wealth and comfort, than to one that would
embroil them in rebellion and misery. Let this experiment be tried for a
few years, and then it -will be fit to consider whether the Constitution of
1 791 may not again be introduced.

JUDGE HAGERMAN. 21 5
The peroration of Mr. Hagerman's speech was eloquent,
and secured the applause of the whole House. He said :
So strongly do I feel the fatal consequences of the measure, that were
I permitted to approach my gracious Sovereign, I could, on my bended
knees, implore Her Majesty to withhold her assent to it. I could humbly
say to Her Majesty : I am the son of one of those loyal and devoted men
who hazarded their lives, and shed their blood, and forfeited their estates
m support of their allegiance to your Majesty's revered and illustrious
ancestor. Driven from their once happy homes, they, in numberless
thousands, took refuge in this Province, which was assigned them by
their justly beloved King, where they and their descendants might live
as British subjects, in the enjoyment of British laws, and British insti
tutions. At the time of their first settlement the whole country was
a wilderness, and the means of subsistence was for years scanty and
precarious. They complained not of their privations, but laboured on
in their endeavoring to establish their children in peace and independence,
and to imbue their minds with love to their Sovereign, and a dutiful
obedience to the laws and constitution of their Country. As they left
this world — few, very few of them are living now— they had the happi
ness of seeing their most sanguine hopes of prosperity to their children
fully realized. 'The forests had disappeared, fertile fields had spread over
the land, and the whole Country was dotted with the habitations of half
a million souls, possessing every comfort that could be desired by
reasonable men, and a greater share of the blessings of this world than is.
to be found within the same space of the habitable globe. Too much
prosperity led them to engage in undertakings for the improvement of
their country, which has involved them in temporary embarrasments —
and in a moment of despondency, they besought your Majesty to unite
them with Lower Canada, and place under the control of the Legislature
the Sea Ports of the Provinces. They were not insensible to the peril to
the institutions of their Country, and the dangers that would be incurred
by separation from Your Majesty's Crown and Empire, by becoming thus
identified with half a million of people who had evidenced by open
rebellion, their desire to be released from their allegiance, and gladly
would they have sought and accepted any other means of relief. I would
humbly remind Her Majesty that the British Nation did not think it
too much to give twenty million sterling to release the slothful African
from compulsory labour imposed upon him by long existing laws, and to-
wipe out the foul stain of domestic slavery, that rested upon the British
Empire ; and I would venture to implore that £100,000 might be given,.
or the credit of the Nation might be pledged for that sum to her indus
trious, and enterprising and devoted subjects in this Province ; I would
represent, that this favor granted, joy and happiness, contentment and
prosperity would be extended to half a million of as devoted subjects as
are to be found within the limits of Her Majesty's extensive and mighty
Empire. The present dangerous weapon would then be no more thought

2l6 LIVES OF THE JUDGES.
-of ; the integrity of the Empire would be established, and secure in the
permanency of their institutions and their connection with the parent
State, Her Majesty's grateful people in Upper Canada would redouble
their exertions to repay the generous gift, and the glory of having placed
them in security and prosperity, would be no slight reward to Her
Majesty, for her noble and parental interference in their behalf.
By the time the Rebellion of 1837 had broken out, Mr
Hagerman had succeeded to the Attorney-Generalship, to
which place he was appointed on the 23rd March, 1837.-
Mr Hagerman, in performing the duty of Crown officer
at the Assizes, was generally considered to be more
pungent than polite. He was a man of good presence,
-about six feet in height, with a large head and massive
forehead, with intellectual organs all well developed.
He was a formidable man for any one to meet, whether
in the forensic arenas or on the floor of Parliament.
What he wanted in grace of manner, he made up in
intellectual strength. He was a wonderfully persuasive
speaker, and could hold a jury of twelve, or a jury of a
hundred, in or out of Parliament, spell-bound with his flow
¦of eloquence and persuasive oratory. He was not unlike
the Honorable William Ewart Gladstone in public
discussion. He could, if need be, roar as a lion, or
entrance an audience with silvery tones of the most mellow
modulation, I have frequeritly heard him, when addressing
the House, and even now bear in memory the hard hits
of invective he used to indulge in when he thought it
necessary to do so ; and then again the smooth, soothing
sentences with which he would cover over the invective,
leading on his auditory to adopt his view of the subject
of debate.
In prosecuting those who were engaged in the rebellion
of 1837, Mr Hagerman brought down upon himself many
a stricture and hostile criticism from those of the people
and profession whose sympathies lay in the direction of
the revolters to constituted authority. It was thought by
them that milder doses of legal medicine might well have
been administered than he was in the habit of prescribing.

JUDGE HAGERMAN, 217
Appeals made to him as Crown officer did not, as a
general rule, receive a favorable response; he went on in
the even way of prosecuting the ofifenge whatever it might
be, leaving the consequences to others.
People of the present day can hardly realize the state
of things that existed then. Society seemed heaved up
from the foundation ; the terms Loyalist and Rebel were
bandied about in wild confusion. Men as loyal as their
neighbors with more pretension, were as loyal as they in
heart, and loved their country as well ; it was the admin
istration of the affairs of the Country they complained of
All that then occurred must be left to history. Good
men on both sides were not agreed, they seemed but to
agree to disagree.
Mr. Hagerman, the Attorney-General, was no doubt a
pronounced Tory, and would give no countenance to
those he esteemed rebels. As Attorne)'- General he had a
difficult duty to perform, and it is not surprising that in
the performance of it he incurred the odium of many who
sympathized with those he was called on to prosecute.
Mr. Hagerman received his Patent as a Puisne Judge
of the Court of Queen's Bench on the 15th of February,
1840. The cases of any importance in which Mr Justice
Hagerman gave judgment will be found in the second
volume of the Upper Canada Reports. He was the Puisne
Judge giving judgment in the case of Doe Irvine vs.
Webster, reported in that volume and which I have
referred to at large in the life of Mr Justice Jones.
In this case Mr. Justice Hagerman differed from
Chief Justice Robinson. In his judgment he argued the
case at large giving very sound reasons for his conclusion,
which was the same as that arrived at by Judge Macaulay
the then senior Puisne Judge of the Court.
Any one reading these judgments will be of the opinion
that the points involved are just .such points as it would
be desirable to have settled by the Privy Council, and
indeed Sir John Robinson, in McLean z/j, Laidlaw where the
same point came up, expressed a wish that sometime the
28 — L. J.

2l8 LIVES OF THE JUDGES.
question should be reviewed by the Court of Appeal. The
Chief Justice said :
The doctrine of estoppel is likely to have a much more extensive appli
cation in this country than in England : and it has therefore been always
much desired by the Court that the parties in some case would by a
special verdict or otherwise place . the question upon record in such a
shape that the opinion of the Privy Council might be taken upon appeal.
In Doe Irvine vs. Webster, Mr. Justice Hagerman com
menced his judgment by saying:
It would be presumptions in me to say that I have arrived at these
conclusions free from all doubt as to their correctness, the difference of
opinion which prevails among my learned brothers, and the able manner
in which they have sustained their views, shews how much may reason
ably be said on both sides, and sufficiently evinces the difficulty of coming
to a determination altogether satisfactory on the important questions
raised for the decision of the Court ; but belie-ving that certain admitted
principles are opposed to the plaintiff's right to recover in this action, L
have no alternative but to pronounce a judgment to that effect.
Chief Justice Robinson came to the exactly opposite
conclusion. To shew how near they were to an agree
ment, we must refer further to Mr. Justice Hagerman's
jydgment, which demonstrates that if the party to whom
the first conveyance was made had gone into possession,.
Judge Hagerman would have held that there was an
estoppel. He says :
I do not wish it to be understood that I give any opinion that would
affect this case if the party to whom the first conveyance was made had
gone into possession, and the attempt were made to eject him by the
patentee of the Crown after obtaining his patent, or by any subsequent
assignee or purchaser under him. In the first case the law of estoppel
would probably be held to apply, and in the second the statute forbidding
the purchase of pretended titles to land would very likely invalidate the
conveyance. These, however, are cases that must be adjudicated as they
arise. In the present instance, I am of opinion, upon the foregoing
grounds, that judgment should be for the defendant, independently of
any consideration that may arise from the operation of the Statute of
Limitations, Not only on the ground that there was no estoppel, but
for other reasons, Mr, Justice Hagerman was of opinion
that judgment should go for the defendant. His opinion

JUDGE HAGERMAN. 2x9^
was, that no title ought to be said to be acquired in Crown
lands by a party dealing with them before the patent
issued. He said :
But there is a further consideration which in my opinion would be
conclusive against the plaintiff in this case and which has been adverted
to by his Lordship the Chief Justice, namely, that it must be regarded as
most unreasonable, fand as I think against all law that any agreement,
covenant, or conveyance entered into between two persons for the
disposal of the Queen's domain, in the occupation of neither of them, and
which it must have been known to both it was unlawful for them to
interfere with, could attach to the land, or at any time constitute a legal
title or give a right of occupation either to the grantee or any one
claiming under him.
I will not quote from this judgment further — sufficient
is shewn to prove that Mr. Justice Hagerman could have
very decided opinions, and express them in very decided
language. There was another case in which Judge Hagerman gave
judgment in which a point was determined, possessing
some interest as regards claims against deceased persons' '
estates. The question was, whether in the case of a debt
barred by the Statute of Limitations, an acknowledgment
of the existence of the debt given by the executor without
an express promise to pay the debt, was sufficient to take
the case out of the Statute of Limitations ; and it was
held that it was not, but an account stated by the executor
of a debt due by his testator which had never before such
accounting been ascertained or determined, was sufficient
to charge the executor as a substantive debt without an
express promise to pay. This case is reported in Upper
Canada Queen's Bench Reports, 291. The judgments were
by Chief Justice Robinson and Mr Justice Hagerman,,
who took pains to examine into the authorities carefully
before coming to a conclusion.
There are now only two parties living who were con
cerned in the case, namely, Clarke Gamble, Q.C, who
was a witness ; and Sir J. Lukin Robinson, who was
Counsel for the plaintiff". A written acknowledgment of
the debt was put in as given by Mr. Morrison, as agent

220 LIVES OF THE JUDGES.
for the executrix of Mr. Washburn, Attorney-at-Law.
This was Mr Justice Morrison, since deceased. Mr
Blake, afterwards Chancellor Blake and now deceased,
was Counsel for the defence. The Judges who heard the
case, and gave judgment, are no more.
I well recollect Judge Hagerman, and have practised
before him. I remember him as a powerfully built, thick
set man, who filled his place on the Bench with dignity,
and gave attention to arguments of the Bar. I find a
case reported in 1846 where I moved a rule before him to
set aside an arrest. The case is Barry v. Eccles, 2 U. C-
Q. B. Rep. 383. After the arrest the parties had left all
matters to arbitration. An award was made for a much
smaller sum than the defendant had been arrested for.
Judge Hagerman, on this ground, set aside the arrest.
The case is impressed on my memory from the fact that
it was the first in which I had ever moved to set aside an
arrest ; and also gives an opportunity of saying that the
vile law of arrest as it then existed, by which a party
could be arrested for debt on the ex parte affidavit of a
plaintiff, and without the intervention of a Judge, has
happily long since been repealed.
I do not find that Judge Hagerman was, for the few years
he was on the Bench, called on for his judgment in very
many important cases. He frequently held the Practice
Court, which did not give much scope for the exercise of
talent, and for a part of the time that he had the appoint
ment of Judge he was absent in England. I believe he
gave satisfaction as a Judge. I never in his life time
heard that he was considered other than a painstaking
upright Judge.
Mr. Hagerman was three times married. His first wife,
Elizabeth Macaulay, was a sister of Sir James B. Macaulay,
by whom he had three daughters and one son. Mrs. John
Beverley Robinson, wife of the Hon. John Beverley
Robinson, late Lieutenant-Governor of Ontario, was his
daughter by his first wife. It may occur to many that
the sweet voice with which she used to delight the people

JUDGE HAGERMAN. 221
of Toronto v/hen singing for charities, was a family gift,.
inasmuch as her father was likewise so gifted.
Judge Hagerman, after the death of his first wife,.
married Emily Merry, who died, leaving one daughter,
and in 1846, after his appointment to the Bench, he
went to England, where he married Caroline Tysen, an
English lady, who, on her introduction to Toronto, was
pronounced a lady of that English type, which is generally
considered par excellence the perfection of womanhood.
The Judge did not long survive his third marriage. He
died at Toronto on the 14th May, 1847. I may be
permitted to quote from the monument erected to his
memory in St. James's Cemetry by his daughter Mrs.
Beverley Robinson without giving the whole inscription.
After the heading of " Sacred to the memory, &c.", the
inscription states that he " died in Toronto on the 14th
May, 1847. Endowed with a quick and clear percep
tion and a strong understanding and by nature eloquent,
he discharged his duties with credit to himself and advan
tage to the Province."
The inscription contains other terms of endearment
which I need not transcribe. I think Mrs. Robinson has,
in that part of the inscription I do quote, given what was
the general estimate of the Judge, by those who knew
him, and is deserving of regard for so perpetuating the
memory of her distinguished father. A daughter's sacred
tribute to his worth, the conclusion of the inscription is
as touching as it is responsive. " His affectionate daughter
erected this to his memory."

XVI n.
The Honorable William Henry Draper, C.B.,
Chief Justice of Upper Canada.
SILLIAM HENRY DRAPER was an
Englishman, the son of English parents,
and was born in the Surrey Suburbs of
London, on the nth March, 1801. His
father was a clergyman of the Church of England, the
Reverend Henry Draper, who was successively Rector of
St. Anthony's Church, in the heart of London, and of South
Brent, in Devonshire. It was while the Reverend Henry
Draper was Rector of St. Anthony's that William Henry
Draper was born. He had not yet got out of his teens,
had, indeed, but just entered them, when he, like many
another boy of the great metropolis of the world, conceived
a passion for a seafaring life. To gratify this passion he
is said to have taken French leave, and run away from
home. The sea, the open sea, had a charm for him which
he could not resist. He had not long to wait before an
opportunity offered itself of securing a Cadetship on an
East-Indiaman. How many voyages he made I have not
been able to ascertain. He, it is certain, stuck to the ship
till he was eighteen years of age, when he made a pause,
and soon after emigrated to America. He arrived in
Canada early in the summer of 1820, then in his twentieth
year Stranded on the shores of this to him unknown
land, with a scant purse, but a good deal of experience, he

CHIEF JUSTICE DRAPER. 223
looked about him for some occupation to gain a liveli
hood. He made his way to Port Hope, in the County of
Durham ; not a considerable place at that time, but a place
where the people had a proper appreciation of education.
Young Draper was of manly bearing and good attain
ments. In his early youth he had been given a good
education ; was no stranger to the dead languages, and
proficient in the living tongues. He soon secured
employment as a school teacher, at Port Hope, and
faithfully pursued this employment for two or three years,
when he tired of it, aiming at higher things. Mr Thomas
Ward was at this time a practising barrister in Port
Hope who -was well esteemed, and had a good practice in
his profession. Mr. Ward took a lively interest in the
young sailor and school teacher, and offered Mr Draper a
place in his office if the young man could gain admission
to the Law S^jciety.
Mr. Draper's school teaching was a good introduction
.for him in his new venture of becoming a Law Student.
He proceeded to York, and in Easter Term 4 George IV.,
1821, he was duly admitted a Student of the Law by the
Benchers of the Law Society. Returning to Port Hope
he continued his studies with Mr Ward till 1825, when
he entered the office of the Honorable George Boulton
for the completion of his studies. His aptitude for
business while here, and general knowledge soon secured
for him an appointment which not only gave him steady
employment but some emolument. While yet a student
•of Mr Boulton he was appointed Deputy Registrar of
the United Counties of Northumberland and Durham.
He did more than this, for, during the same time he
became a married man, taking to himself a wife in the
person of a Miss White, daughter of Captain George
White of the Royal Navy. In 1828 he made another trip
to York, passed his examination, and in Trinity Term 9
George IV., 1828, was called to the Bar
Mr. Draper had prepared himself for the hard work of
the Bar, not only by his experience at sea, but by hard

224 LIVES OF THE JUDGES.
work on land. While he was Deputy Registrar he resided
at Port Hope : the Registry Office was at Cobourg, seven
miles away. It was his custom to make daily visits to his
office, walking both ways : being of vigorous constitution
and robust habits he had no difficulty in doing this. He
was one of those who then and ever after during life
believed in healthy exercise, " Mens Sana in Corpore Sano"
Those who knew him in after life, as I did, will bear
testimony to this in the recollection of the skill and
endurance he exhibited in the manly game of cricket,
Mr, Draper had only been a short time at the Bar when
the then Attorney-General, the Honorable John Beverley
Robinson, afterwards Chief Justice, had occasion to be at
the Coburg Assizes, A brief had been prepared for him
in a case which he was conducting ; the brief was so well
got up, shewing so much knowledge and skill, that the
Attorney-General at once determined to have its compiler
in his office in York, The Attorney-General at once
made an offer to Mr, Draper of a good position in his
office which the young barrister accepted. He removed
to York and entered on his duties with the Attorney-
General, opening up to himself an avenue which led to his
future success in life. The Attorney-General had at this
time an immense business, and thus was afforded to Mr.
Draper a chance of making his mark. Applying himself
diligently both to civil and criminal law he soon gained a
reputation second to none of his time. In November,
1829, he was appointed Reporter of the King's Bench.
Draper's Reports on the shelves of the Library of Osgoode
Hall, are evidence of his work as Reporter. In Hilary
Term 5 William IV., 1830, the Benchers of the Law
Society appointed him one of their body.
It will thus be seen that the promotion of Mr. Draper
was as speedy as it was deserved. Few men starting as
he did, literally casting himself on the sea of life, voyaging
on the great deep, have come to port with more flying
colours than he.
In politics he was a Tory.

CHIEF JUSTICE DRAPER. 22$
The Tories on the the arrival of Sir Francis Bond Head
in the Province, in 1836, determined if possible to capture
the new Governor who had come out under Reform
auspices. It is a matter of history that when Sir Francis
Head assumed the reins of government there were only
three Executive Councillors, and that he, deeming it
expedient to increase the number, invited Mr. Robert
Baldwin to a seat in the Council, which Mr. Baldwin at first
declined, as he did not find that he was in accord with
the Governor as to the theory of Responsible Govern
ment. The Governor having secured the services of two
other prominent Reformers, the Honorable J. H. Dunn,
Receiver-General, a Liberal Englishman, and Doctor
Rolph. Mr. Baldwin consented to act with their addition,
and the three were accordingly sworn in.
These Councillors had not been in office many days
before they ascertained that, after all, the Governor instead
of consulting his Council on the public affairs of the
Province, had made up his mind to follow in the wake of
his predecessors, and, by the uncontrolled exercise of the
Royal Prerogative, to govern the country in his own way,
irrespective of his Council. On this stand being taken
the Council resigned in a body. This brought about a
crisis in the affairs of the country, and parties became
completely divided. The Prerogative men stood by the
Governor, while the Reformers claimed that they had been
deceived by his Excellency. The only way out of the
difficulty was to appeal to the people. This brought
about the exciting elections of 1836.
Mr. Draper was a candidate for the suffrage of the
electors of Toronto in this election, and received a majority
of votes, and was returned to represent the capital in the
Assembly: this was the beginning of Mr Draper's political
life. Mr. Draper, being^ now in Parliament, was ripe for a
government appointment, nor had he long to wait. In
1837, Lord Glenelg, the then Colonial Secretary wrote a
despatch to the Governor, Sir Francis Bond Head, in
29— L. J.

126 LIVES OF THE JUDGES.
answer to a despatch of Sir Francis to him, in which, after
recommending three judicial appointments, he recom
mended Mr Hagerman and Mr Draper as Attorney and
Solicitor-General. On this recommendation Mr. Draper
¦\\:as, on the 23rd March, 1837, appointed Solicitor-General,
.an office which he was eminently qualified to fill.
Sir Francis Head, however, by this time was beginning
to disregard the instructions of the Colonial Office, and
was forced to resign the Governorship. The Colonial
Secretary, Lord Glenelg, on the 24th November 1837,
accepting his resignation very plainly gave him to under-
.stand that while he confirmed Mr Hagerman and Mr.
Draper in their appointments of Attorney and Solicitor-
General, he totally disapproved of the removal from office
of another official, Mr. George Ridout, whom he had
removed for political reasons. In the Autumn of 1837
Mr Draper was appointed a member of the Executive
Council. After the resignation of Sir Francis Head as Governor,
and his exit, the incoming Governor Sir George Arthur,
on assuming office appointed Mr. Draper his aide-de-camp
which appointment he continued to hold during the
^Rebellion, and, in 1838, was appointed Colonel of a York
battalion. In 1840 he was appointed Attorney-General,
.as successor to Mr. Hagerman who was appointed to the
Bench. The time was now approaching when it was evident to
most men that a change must take place in the manage
ment of Canadian affairs. During the Session of the
Imperial Parliament 1839, a Bill for re-uniting the Pro
vinces of Upper and Lower Canada had been introduced
into the British Parliament by Lord John Russell,
It was thought, and properly thought, desirable before
passing such a bill to obtain the formal concurrence of
the Canadians, as expressed through their respective
Legislatures, To obtain the consent of those Legislatures
it was deemed es.-ential to send out a properly authorized
officer to Canada, who should be able to explain the

CHIEF JUSTICE DRAPER, 22-7
views of the British Government in regard to a Union of
the Provinces.
The person selected for this office was Mr Charles
-Poulett Thompson, a member of the British Parliament,
of acknowledged tact and ability. Perhaps no better
man could have been selected for the work to be done.
He sailed for Quebec on the 17th October, 1839, and
-summoned the Lower Canada Council to meet on the
1 8th November, 1839, The Upper Canada Parliament,
in Session the same, year, had the Draft Bill of Union
sent out by the British Parliament submitted to them
also. The Bill was not in itself acceptable to either the
Lower or Upper Canada Representatives ; but still, with
the powerful influence of Mr. Poulett Thomp.son, after
wards Lord Sydenham, the Bill, with some amendments,
was sent back to England crystallized into an Act of
¦Parliament (the Act of Union), which was finally passed
by the British Parliament, and by a Proclamation of the
5th February, 1841, issued under the hand of Dominick
Daly, Provincial Secretary, declared to come into effect
•on the loth F"ebruary, 1841.
On the 13th February, 1841, three days after the
Proclamation of Union took effect, His Excellency Lord
Sydenham called to his Executive Council eight gentle
men who already occupied the highest offices of State,
namely, Messrs, Sullivan, Dunn, Daly, Harrison, Ogden,
Draper, Baldwin, and Day; and on 17th March, 1841,
¦ added H. H. KiUaly. It is thus seen that Mr Draper,
who, before the Union, had occupied one of the highest
¦offices of State as Attorney-General, becomes a member
of a Coalition Ministry after the Union; many of the
members, Mr. Baldwin among the number, having been
pronounced Reformers, while Mr Draper had all his life
been a pronounced Tory.
Mr. Draper, at the request of Lord Sydenham, retained his
¦office of Attorney -General forUpperCanada in thisMinistry
for a brief period, sharing the Leadership of the Ministerial
¦party in Upper Canada with the Honorable S. B. Harrison.

228 LIVES OF THE JUDGES.
The elements of discord were not long, however, kept.
under in a Ministry so composed. There is no doubt the
members of the Ministry were actuated by the desire to-
promote the interests of their common country. There
was no man in it, however, of more independent mind, or
more resolved to have the Goverment carried on in strict
accordance with British precedent, than the Honorable
Robert Baldwin. It was simply a question with him
whether the Governor was to rule, or the people through
their responsible advisers.
At the beginning of the Session of 1842 Mr Baldwin
resigned his position as member of the Ministry,
Mr, Draper from the first had opposed the union of the
Provinces. That union had been brought about by Lord
Sydenham who had surrounded himself with an adminis
tration the majority of whom were antagonistic to the
views of Mr. Draper and those who acted with him.
Notwithstanding the resignation of Mr. Baldwin, Mr.
Draper continued to hold the office of Attorney-General
and his place in the ministry hoping in the near future
more harmony would prevail. This, however, was not the
case, and before many months the whole ministry resigned.
By 1843 the Rebellion had been crushed out, and a
totally new order of things was existing. Mr. Baldwin,.
for Upper Canada, and Mr. Lafontaine, for Lower Canada,
had succeeded in securing the reins of power, and held
office of chief advisers of the Governor from the union of
1841 onwards. In the same year the British Government
thought proper to appoint Sir Charles Metcalfe Governor
in the place of Sir Charles Bagot the successor of Lord
Sydenham. Sir Charles Metcalfe was essentially a Prerogative man,
and nothing was more natural than that he should distrust
the Baldwin-Lafontaine administration, which had entirely
rejected Prerogative for Responsible Government ; nothing
more natural also than that he should take into his.
confidence an able, willing, and in every way true Preroga
tive minister. Such a minister he found in Mr Draper.

CHIEF JUSTICE DRAPER. 229
During the whole season of 1844, Sir Charles, with the
single aid of Mr. Draper, managed to carry on the execu
tive business of the country.
Sir Charles had been in office in the East Indies, and
had become enamored of despotic rule. Was he not
Governor ? Why should he be encumbered with a
minister or ministers who had the confidence of the people ?
It was true that Mr. Baldwin and his confreres had a
majority in Parliament. No matter, it was enough for
the Governor that Mr. Baldwin and his friends did not
enjoy his confidence. Sir Charles Metcalfe, in order to
carry out his views, in the Autumn of 1844 brought about
the resignation of the Baldwin-Lafontaine ministry, and
threw himself into the arms of Mr. Diaper. Mr. Draper
a man of courage as well as ability was not at all appalled
at the task of forming a new ministry, and he succeeded
in the work of forming one to fill a gap. The new
ministers were :
James Smith, Attorney-General, East,
William Henry Draper, Attorney- General, West,
D. J. Papineau, Commissioner of Crown Lands,
William Morris, Receiver-General,
D. B. Viger, President of the Council,
Dominick Daly, Provincial Secretary.
To form a ministry, is one thing, to get the people to
-accept that ministry, another
New elections were ordered which came on late in the
Autumn of 1844. It was a most exciting time in the
Province, the issue being a direct one between the Governor
and the people. Responsible Government in its new dress
was on its trial. Mr Draper affected to believe that now
that the new system had been adopted, his ministry
should possess the confidence of the people. He offered
himself as a candidate for the City of London, told the
constituency that he intended to carry on the Government
on English principles, but at the same time in his address
to the electors he adroitly asked the people to support the
'Governor, Sir Charies Metcalfe.

230 LIVES OF THE JUDGES.
The electors of London returned Mr Draper as their
representative. It is alleged by those who were opposed
to him that, having gained his seat, he forgot his pledges.
and the true principle of responsible government which
required that a Minister, being defeated on a government
measure by a majority of the House, should resign.
Mr Draper stated at the beginning of the Session after
the election that he would stand or fall by the University
Bill, which he introduced into the House, but found that
his supporters were not as favorable to the Bill as he-
expected. Many of his followers shirked the vote, and
left the House. This rebellion in the ranks induced him
to withdraw the Bill on the second reading ; but the
Minister did not resign. It may be that he thought a
withdrawal of the Bill was not a defeat.
There was no man in the Parliaments of which Mr
Draper was a member, who could so readily enforce a.
dogma or turn a period as Mr. Draper He was a most
eloquent speaker, with a silver tongue and blandness of
manner that had a mighty power in Parliament. A
writer has said of him: "His tact and dexterity in passing
measures through the House, were unrivalled." At the
Bar he was considered one of the best of his class to
influence the minds of a jury. His reasoning powers were
of the first order, though perhaps technical : given any
subject, he would first deal with it in all its aspects with
the mind of a philosopher, and coming to a conclusion
enforce it with the tongue of an orator. He acquired
from some the soubriquet of "Sweet WilHam," — his melli
fluous tones and winning manners may well have entitled
him to the distinction. He was for some time a partner
with Mr Hagerman. The firm of Hagerman & Draper
practised in Toronto, had a large business, and generally
had the confidence of the public.
Mr Draper's Parliamentary life after the arrival of
Lord Elgin in the country as Governor, became irksome
to him. Lord Elgin inclined to govern the country under
Liberal auspices, which was distasteful to Mr Draper He-

CHIEF JUSTICE DRAPER. 23 1.
had, before the advent of Lord Elgin, enjoyed the confi
dence of several Governors ; he had represented two
constituencies, Toronto and London, and could well afford
to lay down the sceptre which he had for a long time
wielded in Parliament for the more quiet seclusion of the
Bench, In 1847 Mr Draper withdrew from Parliamentary life,
and accepted a seat in the Queen's Bench, of which
Court he was appointed a Puisne Judge on the 12th June,
1847. He was made a Companion of the Bath in 1854,
In the life of the Honorable Archibald McLean Chief
Justice of the Queen's Bench, I have referred to the case
of John Anderson which came before that Court in
Michaelmas Term, i860, on a habeas corpus issued at the
instance of Anderson whose extradition was sought by
the American Government, When the case came before
the Court of Queen's Bench, after full argument, the
Court was divided as to the legality of the proceedings.
Mr. Justice McLean taking the ground that Anderson
was in Canada on free soil, and was entitled to all its
rights and privileges : that in escaping from the United
States and the slavery to which he had been doomed
he was justified " in using any necessary degree of
force to prevent what to him must have proved a most
fearful evil. He was committing no crime in endeavoring
to escape and better his own condition, and the fact of his
being a slave, can not in my humble judgment make that
a crime which would not be so if he were a white man,"
In the Queen's Bench Mr Justice McLean was prepared
to give effect to the technical objections to the warrant of
commitment made out by the Justices in Brantford, before
whom the prisoner had been brought and committed,
Anderson gained nothing by his motion in the Queen's
Bench, was re-committed, and stood a good chance of
being sent back into slavery. When the result of the
decision became known the excitement was at fever heat
in Toronto. He was a man, though a black one, and
he excited a great deal of interest by his demeanor,,

232 LIVES OF THE JUDGES.
and from the daring way in which he had effected his
escape from slavery. It was fortunate for Anderson
that he had as his counsel a most able and experienced
counsel. Mr S. B. Freeman, Q.C, had charge of his
case from the beginning : the more he was baffled, the
more strength he seemed to get : not daunted by the
Queen's Bench declining to give Anderson his freedom,
he brought the case before the Court of Common Pleas,
in which Chief Justice Draper presided, on the same
facts that had been brought before the Queen's Bench, I
refer to the life of Chief Justice McLean for those facts.
The following objections were taken to the warrant of
commitment before Chief Justice Draper in the Common
Pleas :
1st, That it was not issued in conformity with the
statute, because — it did not contain a charge of murder,
but merely of felonious homicide — whereas the treaty and
the Canadian statute did not authorize a surrender, and
consequently not a committal for the purpose of surrender
for any homicide not expressed to be murder.
2nd, That it was not expressed to be for the purpose
of surrender, but only until the prisoner should be dis
charged in due course of law, whereas the statute requires
both, 3rd, That the Magistrate had no jurisdiction unless
and until the prisoner had been charged with the crime in
the foreign country where it was alleged to have been
¦committed. Chief Justice Draper, in giving judgment, stated that it
had been argued by the prisoner's counsel that the Court
had no inherent jurisdiction over offences committed in
the United States : that the Court had no authority in the
matter, except such as was given to them by the Cana
dian Extradition Act : that that Act did not give the
Court power to do any one of the acts to effectuate the
objects of the Extradition Treaty between England and
the United States, and consequently that the sole power
to act on the claim of extradition was the Executive

CHIEF JUSTICE DRAPER. 233
Government, which could if it chose, review the decision
of the committing Magistrates.
It will be recollected that the Court of Queen's Bench
had exercised the power of interfering, and had made a
rule re-committing Anderson to jail. Chief Justice
Draper, referring to this, said :
The effect of the rule in question (Queen's Bench rule) is merely to
remand the prisoner on the Magistrate's warrant, or to commit him by
the authority of the Court alone. After a long and most anxious consi
deration, I have formed the opinion that the rule is not sustainable in
either view. I have already given my reasons for thinking the warrant
defective, and if the prisoner be remanded on that he must be discharged.
As to the other objections, the Chief Justice held the
third objection good, that the Court had no jurisdiction
till the prisoner had been charged with the crime in the
foreign country.
Referring to the power of the Court of Common Pleas
to interfere with the rule of the Queen's Bench he said :
The rule of the Court of Queen's Bench is objected to as being beyond
the power of the Court, and I enter somewhat unwillingly upon its con
sideration. We are in fact called upon to reverse and supersede the
action of a Court of co-ordinate jurisdiction and not in any appellate,
but in our ordinary character. But we have no alternative, for the
prisoner has a right on this application to the benefit of our opinion if it
should be in his favour.
The Chief Justice also held the warrant of commitment
to be defective as it concluded by directing the jailer "him
(Anderson) safely to keep until he should be discharged
by due course of law,'' whereas to be in conformity with
the statute it should have concluded, " him safely to keep
until he should be discharged in due course of law or until
such surrender be made!'
The Chief Justice could not see a way of getting over
the express words of the statute, not only in this particular
but in another, viz., the warrant of committment did not
in express terms state that the prisoner had been charged
with murder which in the opinion of the Chief Justice
was essential. 30— L. J,

334 LIVES OF THE JUDGES,
It was argued before the Court that the defects in the
warrant might be cured by the evidence taken in the
.United States. To this the Chief Justice answered that
he had referred to Bessett's Case, 6 Q. B. 481, who had
been committed on the Imperial Act 6 and 7 Victoria,
cap. 75, passed to carry into effect the Extradition Treaty
between England and France, which was similar to the
Canadian statute passed to give effect to the Treaty
between England and the United States, and then said:
It is true it does not appear in Ex parte Bessett that the depositions
were before the Court, I infer they were not, but nevertheless the
language used by the Judges clearly express to my mind their opinion
that they had no authority to look at them for the purpose of supplying
any defect in the'warraut. The result is, that in my opinion the return to
the writ of habeas corpus shews no sufficient ground for the prisoner's
detention. He ought, therefore, to be discharged, and whatever oonclusion
I arrive at on the more general grounds on his behalf, the result must be
the same.
The Chief Justice never did come to any conclusion on
the general ground seized upon and so ably advocated by
Mr Justice McLean in the Queen's Bench, viz,, that the
prisoner had not committed murder in freeing himself
from slavery. Nevertheless on the other grounds he
adjudged the prisoner entitled to his liberty, the great
aim and object of the motion for his discharge on habeas
corpus. The Chief Justice's subtle mind and strict interpretation
of law proved a great boon to the swarthy son of Africa
on this memorable occasion.
Mr, Justice Draper continued to perform his duties to
the satisfaction of the public as Judge of the Court of
Queen's Bench for nearly seven years after his appoint
ment, and on the retirement of Sir James Macaulay-from
the Chiefship of the Common Pleas, he was appointed to
the Chief Justiceship of that Court on the 6th February,
1856, It is matter of Bar and Judicial history that his
appointment to the Chiefship of this Court, over the
head of his senior Judge McLean, gave grave offence in

CHIEF JUSTICE DRAPER, 235
certain quarters. Judge McLean resigned his Judgeship
of the Queen's Bench,, which he had held for nearly
twenty years, in consequence of what he considered a
slight of the Minister of the day, but was induced by his
friends to withdraw his resignation, accepting the same
day the Senior Puisne Judgeship of the Queen's Bench,
This accounts for the public records shewing two appoint
ments of Judge McLean as Puisne Judge of the Queen's
Bench, one in 1837, and the other on the 5th of February,,
1856. There is no doubt that Mr Justice McLean aspired to
a Chief Justiceship, and this he eventually reached in
1862, thus becoming the Chief Justice of the Senior Court
before Mr. Draper, who was appointed its Chief in July,
1863. The Bar hailed with satisfaction his promotion to
this office, regarding him as in every sense a lawyer who
administered law for law's sake.
Chief Justice Draper was essentially a man of law.
The great characteristic of his judicial life was, that in
administering law he made it a point always to dissever
law from fact in so plain a manner that he left it to a jury
to determine fact, peculiarly within their province, always
himself taking the law of the case into his own control, so
that juries knew exactly what they had to do. There
was no m.uddling of the matter with him, and so the jury
never became muddled. He did not throw the case at
their head, telling them to make the best of it; but clearly
and distinctly enunciated the law, telling the jury with
that they had nothing to do, and then clearly and criti
cally called the jury's attention to the facts which they
had to determine.
In Banc he always listened with the utmost attention
to counsel, senior or junior, making no distinction, always
aiming at getting at the justice of a case, within the rules
of law applicable to the subject.
In 1869 he was appointed President of the Court of
Appeal. In concluding this memoir of his life I think I can do

-236 LIVES OF THE JUDGES.
no better than quote from the historical work of an author
(Dent), who, as far as I know, did not hold the same
political opinions as Chief Justice Draper before his
appointment to the Bench, but who, in his "History of
the last Forty Years," has truly said :
Fortunately he has left a judicial record which all persons, of whatso
ever shades of political opinion, must unite in admiring. For more than
thirty years he adorned the judicial Bench of which his descendants may
justly feel proud.
The Chief Justice died at his residence in Yorkville, on
the 3rd November, 1877, and was buried in St. James's
Cemetry, lamented by the members of a Bar of which he
had been a most distinguished member, and by a Bench
of which he had been an ornament.

XIX.
The Honorable Robert Baldwin Sullivan, Judge
OF THE Queen's Bench and Common Pleas.
>^|j^ORD BROUGHAM, in his treatise on the
mIIP British Constitution, by way of introduction,
'Igc^^I^ said, that the Constitution had been likened
^1*^' to a pyramid with a broad base, supporting
the whole, which was formed by the people ; that the
middle portion was the aristocracy of rank, property,
talents, and acquirements ; and on the narrow summit
rested the Crown. The judicial power, pure and unsullied,
calmly exercised by men independent of all the other
orders, removed from all faction, and partaking neither
its fury nor its delusions, formed a mighty zone which
girded the fabric round about, connecting the loftier and
narrower with the humbler and broader layers, binding
the whole compactly together, repressing the encroach
ments, and smoothing the ruggedness of every part,
Robert Baldwin Sullivan was one of the builders of the
Canadian Constitution of 1841. Besides being a Judge in
the Province, he was the architect of his own fortune. To
properly understand him it will be necessary to . begin at
the foundation, and trace him up till he reached that
eminence which gives him a foremost place in Canadian
history. Mr Sullivan was an Irish boy, born of Irish parents
who lived at Bandon, near Cork, in Ireland. His father,.

-238 lives OF THE JUDGES.
Daniel Sullivan, during the troubles of 1798, was engaged
in trade, making money, if not a fortune, supplying the
troops with necessaries during that remarkable period of
Irish history.
Daniel Sullivan had been intended for the Church, was
a student at Trinity College, carried off the Greek prize,
and was otherwise well educated in Classical learning.
He was a man of conscientious principles, as well as of
conscientious scruples. When the full time came for his
taking on himself the vows of the ministry, he quarrelled
with the Thirty-nine Articles : rather than submit, he
betook himself to trade. Hence he became dealer in
merchandize rather than Church doctrines. He was a
Protestant with all that name implied, but quailed before
"the Articles. He married Miss Baldwin, sister of Doctor
Baldwin, whose name is so familiar to Canadians of the
past, as well as of the present century. Daniel Sullivan
had four sons, Daniel, Robert, Henry, and Augustus.
Robert was the second son, and was born at Bandon,
¦on the 24th May, in the year 1802. He was from child
hood a bright, intelligent boy, quick to learn, and what
was better, able to retain in a remarkable degree, any
knowledge he acquired. His early education was obtained
at the principal private school of Bandon, supplemented
by his father, who instructed him in the Classics and
higher education.
In 1819, when he was but 17 years of age. Dr. Baldwin
and others of the Baldwin family induced Robert Sulli
van's father to emigrate, and make Canada his future
home. Dr. Baldwin was then living in York, and had
acquired a reputation in this new town in Canada, both
as Doctor of Medicine and Lawyer Dr. Baldwin was
also at this time a member of the Legislature of the
Province. Mr Sullivan, in leaving Ireland to make a
home in Canada, was not coming a:mong strangers, his
brother-in-law the Doctor having raised for himself a sure
foundation in the new land. An incident of his travel
¦has been told to me, which I would not if I could omit,

JUDGE SULLIVAN. 239
as it serves to illustrate the estimate in which the Baldwins
were held, even at places remote from the Capital. I
believe I am correct in saying that the honesty and
honest independence of the Baldwins has ever been pro
verbial in Canada.
Mr. Daniel Sullivan entered Canada at the port of
Quebec ; thence he and his family pursued the usual
route from Quebec to Montreal by steamer ; thence to
Lachine by land, and onward up the St. Lawrence by
batteaux. It was customary in those days, when batteaux had to
be dragged up the rapids and poled up the river, for
passengers occasionally to land and visit settlers on the
margin of the river. Mr. Sullivan landed at a place
between the rapids and Kingston, and entered a farm
house owned by Mrs. Strange. As was natural, Mrs.
Strange enquired of Mr. Sullivan where he came, from
and whither he was going : his dialect pretty well
answered the former, but not the latter enquiry. On
telling Mrs. Strange, however, that he was bound for
York, she cautioned him to beware of the Lawyers in that
town ; that there was but one honest Lawyer in it, and
that was Dr. Baldwin. We can. well understand with
what zest Mr. Sullivan enjoyed the joke, thus advised by
a stranger in a strange land of this characteristic feature
•of his own brother-in-law. After that he had no reason
to doubt that there was at least one person in Western
Canada, who thought there was one honest Lawyer in the
country, at any rate.
When Mr Daniel Sullivan arrived in Toronto, acting
-on the advice of friends, he embarked in trade, and opened
a general store, just east of where St, James's Church now
stands, on King Street.
As was the custom in those days, the boys of the family
were useful to him in shop work. This, however, did not
.long suit his son Robert. His mind was too well stored
with knowledge, to make of the weighing and measuring
of store goods a permanent employment. Doctor Baldwiu

240 LIVES OF THE JUDGES.
his uncle, was engaged both in medical pursuits and in
law. Robert Sullivan, in choosing forhimself a profession,,
preferred the law. The education he had received in
Ireland, now served him in good stead. Applying himself
to his books he prepared himself to become a law student
and was, as student, entered in the books of the Law Society,
in Michaelmas Term, 4 George IV., 1823. On passing
his examination he entered his uncle Doctor Baldwin's
office, where he passed his five years of probation, and was
called to the Bar in Michaelmas Term, 9 George IV.,
1828. During his studies in Doctor Baldwin's office, he was
able to devote a portion of his time to another pursuit.
Just ;then the Library of Parliament was in want of a
Librarian, His knowledge of books and Dr, Baldwin's
influerice secured for him this office — it can hardly be
termed-an office — I should rather say it was an occupation..
As s'oon as Mr Sullivan was called to the Bar, he
determined to strike out for himself Doctor Rolph, who
had lived at Vittoria, in the County of Norfolk, had made
up his mSnd to remove from that place. Mr. Sullivan
thought that this offered an opening for him, to enter upon
the practice of his profession at Vittoria ; true, it was
remote from the capital ; but this did not signify to him —
he was determined to exercise his talents at the beginning,
in some place, where if success were to be his future, it
would be based on his own merits ; he never was a man
to shine with borrowed light. He had been in Vittoria
but a few years, when he was called upon by Dr. Morrison
and his friends, to act as his counsel before the Legislative
Assembly in his contest with Mr (afterwards Chief Justice
Sir) John Beverley Robinson, for the Parliamentary Seat
of York, This was a spirited contest, not only out of, but
in Parliament, and resulted in Mr Robinson retaining his
seat, Mr Sullivan acquitted himself so well before the Legis
lature in this trial of strength, that friends at once
took him by the hand, and insisted on his coming to York^

JUDGE SULLIVAN, 24I
where he would receive their patronage and support.
This was in the year 1830, when he was but 29 years of
age. Mr. Sullivan could not but accept this flattering
offer, and about this time moved from Vittoria to the
Capital, where he became a junior partner in the office of
his uncle.
When he had made his home in York, he soon rose
into popular favor, as is evidenced by the fact that he had
not been a resident of the place more than five years,
when he was elected Mayor of Toronto, over William
Lyon Mackenzie, who was his opponent for the mayoralty
in 1835. Mr Mackenzie was Mayor of Toronto the year
previous, but was not able to hold the position the second
year against Mr. Sullivan, who had been elected member
of the council for St. David's ward,
William Lyon Mackenzie had brought himself into
discredit with the majority of the Council of Toronto, (who
at that day elected their Mayor,) by publicly approving a
letter of Mr, Joseph Hume, a member of the British
Parliament, addressed to Mr, Mackenzie, in which Mr
Hume referred in strong terms to the "baneful domination
of the Mother country," and expressed a hope that the
subsisting connection would terminate. Although Mr.
Sullivan was supposed to have Reform views, from the
fact that he was a partner in the oflSce of Baldwin Sz; Son,
and that Dr, Baldwin and his son Robert, respectively uncle
and cousin, had identified themselves with the Reform
party, yet neither the Baldwins nor Mr Sullivan held any
such extreme views as those expressed by Mr Hume,
and endorsed by Mr Mackenzie. That these gentlemen
were Reformers is a well established fact of history ; but
they were conservative Reformers, not given to change
for change sake, but seeking to build up a new country
strictly on the lines of the Mother land.
Mr. Sullivan, being elected mayor, applied himself
vigorously in advancing the progress of old York, now
Toronto City and the Capital of the Province, in the matter
of drainage and other works of necessary improvement.
31— L. J.

242 IJVES OF THE JUDGES.
It was during Mr. Sullivan's mayoralty that the
citizens of Toronto had occasion to convey their thanks,
through the Mayor, to the Lieutenant-Governor, as repre
senting the Queen, for the liberality of the Crown in
¦assisting them to complete the bridges across the Don,
thought to be of the greatest importance, as leading to
the peninsula opposite the town. The occasion of the
presentation of this address might be said to be a great
•day, a white letter day, in the annals of the city. The
formalities observed on the occasion were as follows: The
civic authorities approached the new structure in pro
cession ; a barricade at the first bridge arrested their
progress ; a guard stationed there also forbade further
advance ; the officer in command (Captain Bonnycastle)
appeared, and the Mayor (Mr. Sullivan) and corporation
were informed that the two bridges were, by the command
of the Lieutenant-Governor, presented to them as a free
gift, for the benefit of the inhabitants, that they might in
all time to come be enabled to enjoy the salubrious air of
the peninsula. The Mayor, arrayed in an official robe of
purple velvet lined with scarlet, read a reply to Captain
Bonnycastle, expressing thanks to the Governor for the
bounty of the Sovereign. He said, among other things :
In the name of the Common Council and the citizens of Toronto, I beg
you to convey to His Excellency the grateful feelings with which this
new instance of the bounty of our Most Gracious Sovereign is received ;
and I take this occasion, on behalf of the city, to renew our assurances ot
loyalty and attachment to His Majesty's person and Government, and to
pray, through His Excellency, a continuance of Boyal favor towards this city.
After the Mayor had read the address, the band, which
was stationed on the bridge, struck up " God save the
King," during the performance of which the members of
the council, followed by a large number of the inhabi
tants, passed uncovered over the bridge. After the usual
cheers the ceremonies came to an end.
The City Council has kept in remembrance the second
mayor by a portrait of Mr Sullivan, which hangs on the
walls of the Mayor's office at the City Hall.

JUDGE SULLIVAN. 243
Mr Sullivan's term of office as Mayor having expired,
be was not long in being sought after for further and
higher employment. The early months of the year 1836
find Sir Francis Bond Head the Lieutenant-Governor of
the Province.
Sir Francis Head, on assuming office, found himself
.surrounded by a Council of the old Tory school. These
Councillors were Peter Robinson, Commissioner of Crown
Lands ; G. H. Markland, Inspector-General ; and Lieu
tenant-Colonel Joseph Wells, Bursar of King's College.
Either influenced by instructions from the Colonial
Secretary, or from some other cause. Sir Francis deter
mined to have a Council composed of the leaders of both
parties, Tory and Reform. He first sought the advice of
Robert Baldwin, and offered him a place m his Council.
Mr Baldwin would not accept a place in the Council,
except on one condition, and that was, that he had the
entire confidence of the Governor, and that Responsible
Government should be established. Mr. Baldwin frankly
•told the Governor that he had no confidence in the other
members of the Council. The Governor would not accept
Mr. Baldwin's conditions, and Mr. Baldwin consequently
declined to accept a place in the Council.
After a time had elapsed. Sir Francis sent again for Mr.
Baldwin, and requested him to reconsider the matter, to
-State whom if any other new advisers than himself he
would suggest to be called to the Council and that he, the
Governor, would try to accommodate himself to his views.
Mr. Baldwin to close the negotiations desired the Governor
to call to the Council Doctor Rolph and Mr. Dunn. The
Governor complied with this request and called these gen
tlemen to the Council. They had not long been members,
however, when they found that his Excellency was
.making appointments on his own responsibility, without
consulting his Council, and that they were kept in igno-
.rance of administrative acts, for which, nevertheless, pubHc
opinion held them responsible. This was carrying on the
business of the country in a way so entirely different from

244 LIVES OF THE JUDGES.
that which the Council had supposed the Governor would'
pursue, that they retired in a body, the old members as
well as the new, and so the Governor was left without any
Council. This was a sad state of affairs for him to be
placed in, and likely to prove disastrous to the Pro
vince. The Governor knowing, or having heard of the distin
guished ability of Robert Sullivan, sent for him, and sought
his advice.
In the general election of 1836, a House hostile to the
existing state of things had been elected. Parliament was
called to meet in November of that year. The Governor
was certainly in a dilemma, and needed advice. Mr.
Sullivan was a non-partizan man ; he was just the kind of
adviser the Governor required in such a crisis. He was
selected as adviser more on account of his talents than
his politics. He was not alone in entering the Council,
others, viz., the Honorable William Allan, Captain (after
wards Admiral) Augustus Baldwin, uncle of Robert
Baldwin, and John Elmsley, were called to the Council
with Mr. Sullivan. Mr Draper (afterwards Chief Justice
Draper) was soon after added.
Mr. Sullivan has sometimes been called a Tory or
Conservative, sometimes a Reformer ; the fact is, he was
Mr. Sullivan and tha.tw3LS all. He was not a party man
in the strict sense. His partyism, if he had any, consisted
in his desire to advance the interest of the Province under
the ^gis of Great Britain — he was a Reformer, but not a
Radical, The Legislative Assembly, in the Session of 1836, as I
have said, was hostile to the Governor. It is equally true
that the Governor was hostile to the Assembly. In the
view of the Assembly, an Executive Council without
Robert Baldwin or Marshall S. Bidwell ought not to
possess the confidence of the country. The Assembly,
holding this view, passed a resolution of want of confidence
in the new Councillors, and Mr Sullivan had to go with
the rest.

JUDGE SULLIVAN. 245
On 4th March, 1837, Sir Francis Bond Head thought
p.roper to dissolve the House of Assembly. A most
exciting election took place which resulted in the return
¦of a House opposed to the introduction of Responsible
Government. When the Rebellion broke out in December, 1837, ^'^•
Sullivan buckled on his armour in defence of the Province.
Both by precept and example he shewed his abhorrence
of rebellion. With Doctor Baldwin and Robert Baldwin,
he felt reform was necessary in the government of the
country, but did not believe that armed revolt was the
proper remedy for existing grievances.
In theAutum of i837Sir Francis Bond Head resigned his
office of Lieutenant-Governor, but held office till the close
of the Session, which took place on the 6th March, 1838.
Mr. Sullivan had the confidence of the Governor during
his whole administration. At the close of the Session,
¦on 6th March, 1838, Sir F'rancis Bond Head, K. C, B,,
Baro.iet, bade farewell to Canada in an address to Parlia
ment, in which he reviewed all the events leading up to
and during the Rebellion, It was a very lengthy address,
which no one can read without concluding that sentiment
more than judgment swayed His Excellency in his utter
ances. The concluding paragraphs of the address read
as follows :
As my successor is hourly expected here, I return to the Mother
country as I left it, totally unconnected with party or politics, but in
retirement I shall remember the lessons the people of Upper Canada have
taught me ; and I feel it my duty to declare that I leave the continent of
America with my judgment perfectly convinced that the inhabitants of
Europe, Asia, and Africa are right in their opinion that all men are not by
nature equal ; that the assertion of the contrary in America is a fallacy ;
and that talent, industry, and character must elevate individuals, as they
do nations, in the gradual scale of society.
May the resplendent genius of the British Constitution ever continue
to illuminate this noble land, and animated by its influence, may its
inhabitants continue to be distinguished for humility of demeanor, nobility
of mind, fidelity to their allies, courage before the enemy, mercy in
victory, integrity iu commerce, reverence for their religion, and under all
circumstances implicit obedience to their laws.
Honorable Gentlemen and Gentlemen, Farewell !

246 LIVES OF THE JUDGES,
Sir George Arthur succeeded Sir Francis Head as-
Lieutenant-Governor on 23rd March, 1838, and Mr.
Sullivan was his most trusted Councillor. Sir George
Arthur's Lieutenant-Governorship • was, however, over-
.shadowed by the advent to the Province of Lord Durham
as Governor-General, which took place in the Autumn of
1839, and, on his return to England, by Mr. Poulett
Thompson, (afterwards Lord Sydenham), who was sent
out specially to build up a Union of the Provinces, founded
on the report which Lord Durham made to the Imperial
Government. The lesser light of the Lieutenant-Gover
norship, was dimmed by the greater light of the Governor
General. ' ' A substitute shines brightly as a King
Until a King be by ; and then his state
Empties itself, as doth an inland brook
Into the main of waters."
Lord Durham was in Toronto for one day, in July, 1838,
and received an ovation from the citizens.
When Lord Sydenham came to Toronto in November,
1839, he took upon himself the management of affairs
with the sole view of promoting the Union. He took up
his residence at Beverley House, and from thence u.sed
all the means at his command to influence Parliament,.
which met in the early part of December, 1839. He
found the Legislative Council composed of Honorable
Members not likely to yield to his wishes, unless he could'
have the support of some trusted man of ability to
advocate his views. He at once became impressed, not
only with the oratorical powers of Mr. Sullivan, but with
his aptitude to advance the work in hand. Mr. Sullivan
was his principal adviser in all the negotiations entered
into, and his spokesman when he wished his views con
veyed through other channels than his own. In the-
Legislative Council he advocated the Union with all the-
eloquence at his command. He dealt with all the argu
ments advanced against the Union in a masterly manner..
He assured the House that Her Majesty was determined

JUDGE SULLIVAN. 247
to maintain the connection between the Colonies and the
Mother Country. This was the foundation on which he
raised a noble superstructure. After some introductory
remarks in favour of the measure he said, as reported :
The cry of discontent had come from loyal British subjects in Lower
Canada, People had declared their willingness for a Union, but on what
terms ? The disfranchisement of the French Canadians, Such a plan of
Union would be wholly unsupported in the British Parliament, England
which had been pursuing steadily a course of emancipation from slavery,
would never consent to establish a nation of serfs, without political
rights, in any part of the British dominions. Honorable gentlemen had
seen a rebellion amongst a people complaining of imaginary grievances ;
but they would be rash to found their calculation from this poor expe
rience, of what a rebellion would be amongst a people struggling against
real oppression. It was true that by the disfranchisement of Lower
Canadians they might banish sedition from the halls of legislation ; they
might impose silence upon the discontented ; but would they make
discontent less dangerous ? Would there be a sword less to be drawn, or
an arm less to wield it ? Would the American emissary be less active or
less successful amongst a nation of slaves ? Would the dislike of Lower
Canada to British be less active, or would not an effective and real
regard be added to the natural prejudice with which they had to contend.
He put it to Honorable Gentlemen, would they consent to be disfranchised
for the sake of the few ? Would they live in quiet in a country, in which
they and their race were branded with disgrace and excluded from com
mon right ? or, if tliey consented to such exclusion, what man amongst
them could so command his children ? Ask, he said, the rising youth of
the country meekly to bow their necks to the chain, and be contented
slaves in the country of their forefathers ! He had seen the experiment
tried ; he had seen the energies of a noble and brave people exhausted in
struggles ; he had seen guilt and murder prevail in a land, in which the
attempt was made to exclude and disfranchise a people upon the grounds
of difference in religion, or of natural origin ; and he could not but
shudder at the prospect of introducing such a system into a British
Province. He preferred to meet the cold and open declamations of the
demagogue ; he preferred contending with him under the protection of
law and within the walls of Parliament, to meeting his bitter, concealed
but unextinguished hatred. On the one hand, truth, justice, intelligence,
British principles, would, however severe the struggle, be at length-
triumphant. On the other, " The muffled rebel would steal forth in the
dark," and night by night, add a brand to the pile which would consume
the country,
Mr Sullivan went on, and expatiated on the conditions
which certain members wished to add to the terms of
union : he concluded with a brilliant peroration as follows :

248 LIVES OF THE JUDGES.
He had heard and read speculations upon the separation of these
Colonies from England ; but he must acknowledge that he did not possess
the coolness and philosophy to consider the question with a view to
consequences ulterior to such an event. He was certain the Honorable
Gentlemen around him, so many of whom had spent their early lives in
the service of that great Empire to which it -was their pride to belong,
would not, for light causes take from their children's inlieritance the pride
of England's glory. Those who had so often stood in the fast thinning
ranks of British battle, would not readily give up, the trophies of the
Peninsula or the medals of Waterloo, for the cotton bags of New Orleans
or the much vaunted heroism of Chifpawa, To them, and to him, the
sound of the British drum -n-hich would beat the last retreat, would indeed
be a funeral note ; and the lowering the " meteor flag of England " in thfe
oountry of their adoption would be a sad blow to England's prosperity, a
blot upon the age in which it would happen, a disgrace to the rulers under
which it would be permitted to take place. But he would turn from this
distressing picture of the downfall of England's Colonial Empire, acquired
with so much toil, defended with so much valour, and consecrated by so
much British blood, to the more cheering and inspiring prospects opening
before them. We have, he exclaimed, conquered our great enemies —
indifference on the part of the Mother Country, and distrust of our
attachment to her interests, and loyalty to our Sovereign, We liave
oonvinced British statesmen of the value of our country ; we have shewn
the true and loyal spirit of the inhabitants, we have obtained from oui^
Queen that invaluable declaration that she will maintain the connection
between these Colonies and the Empire, Let us then join heart and hand
with her Government ; let us cordially support measures intended for our
.safety and our welfare ; let us not impair, by conditions implying distrust,
the generous confidence we are invited to offer ; but bestow it, readily
and cheerfully, in the same spirit in which it is asked, looking forvi'ard
with contidence to a bright future of rapidly advancing prosperity, secure
iu the powerful protection of the Empire,
This eloquent speech of Mr, Sullivan carried the House
as it were by storm, and the Resolutions in favour of Union
were carried by a good majority.
In February, 1839, Mr Sullivan was appointed a
Legislative Councillor, and in the Upper Chamber he
had charge of many Bills, especially the Bills affecting
Legal Matters, Property, and Civil Rights,
On the 3rd April, 1839, he gave notice that he would
¦on the next day bring in a bill to amend the law for the
alienation of the real estate of married women. This bill
was crystalized into ^^an Act of Parliament passed on the
nth May, 1839, and is chapter VI. of the Revised

JUDGE SULLIVAN. 249
Statutes of Upper Canada. The Act was considered a
great boon at the time, as it not only confirmed titles
which had been attacked by reason of certain technical
defects in the certificates on the back of deeds of married
women — providing against such defects in future — but it
facilitated the barring of dower, by enabling married
women to bar their dower by simply joining in the deed
of their husbands, without acknowledging the same before
any Court, Judge, or Justice of the Peace.
At a time when there were not so many Courts or
Judges as now, and fewer Justices of the Peace, this pro
vision of law was considered very beneficent legislation.
The Act of Union between the Provinces of Upper
and Lower Canada, passed in 1840, was, by proclamation,
declared to come into effect on loth February, 1841.
In the life of Chief Justice Draper, I have shewn that
Mr. Draper was a member of the first Executive Council
formed after the Act of Union had been proclaimed.
This Council was formed on the 13th February, 1841, and
Mr Sullivan was a member of that Council. His col
leagues in that Council were Messrs. Baldwin, Daly,
Dunn, Day, Draper, Harrison, and Ogden. This was
clearly a Coalition Council, and did not prove a very
happy family. The Honorable Robert Baldwin retired
from this Ministry at the beginning of the Session of the
Parliament of 1842. Mr. Sullivan continued to hold
office until the formation of the first Baldwin-Lafontaine
administration, which took place on September i6th,
1842. Mr Sullivan was again a member of the Baldwin-
Lafontaine administration. From the period cf the Union,
up to the time of his resignation in 1843, he was the senior
member of the Council and leader of the Government in
the Legislative Council ; while in the Assembly, although
Mr Harrison (the Honorable S. B. Harrison) conducted
the business, Mr Draper was in effect the leader During
the period from the Union in 1841 to the resignation of
the Baldwin-Lafontaine administration, both Lord Syden-
32— L. J.

2 So LIVES OF THE JUDGES.
ham and Sir Charles Bagot were in their turn Governors-
of the United Provinces.
Lord Sydenham met with an untimely death, the result
of an accident, in September, 1841. He was succeeded
by Sir Charles Bagot, who survived his appointment only
about nineteen months, and died at Kingston on the 19th
May, 1843. Sir Charles Metcalfe succeeded Sir Charles
Bagot, and held office until November, 1845, when he was
obliged to resign his position on account of ill-health.
The Baldwin-Lafontaine administration of which Mr.
Sullivan was a member, had the entire confidence of Sir
Charles Bagot. When, however. Sir Charles Metcalfe came
out as Governor, he was not so ready to yield to the
advice of his ministers as Sir Charles Bagot had been.
Sir Charles Metcalfe had been Governor in the East Indies,
and in a Crown Colony in the West Indies. He had no
sympathy with the Baldwin-Lafontaine ministry, or their
supporters in the House — they were altogether too liber
ally disposed to meet his views. Referring to the Conser
vative party, in one of his despatches to the Secretary of
State, he wrote :
It is the only party in the Colony with which I can sympathise I
have no sympathy with the Anti-British rancour of the French party, or
the selfish indifference towards our country of the Republican party. Yet
these are the parties with which I have to co-operate.
Such were Sir Charles Metcalfe's opinions of his consti
tutional advisers, enjoying at the time the confidence of
an immense majority of the Canadian people. A pretty
good idea of Sir Charles Metcalfe's views on the subject
of Constitutional Goverment in Canada, is to be found in
a letter addressed by him to Colonel Stokes, one of his
India correspondents, which is as follows : " Fancy such a
state of things in India, with a Mohammedan Council and
a Mohammedan Assembly, and you will have some notion
of my position."
Sir Charles Metcalfe, in himself a most excellent man,
given to benevolence and good works, had no proper -
appreciation of Responsible Government as Mr Sullivan

JUDGE SULLIVAN. 251
understood, or as Lord Sydenham wished the people to
understand it.
At the end of April or beginning of May, a rupture
occurred between Sir Charles Metcalfe and the Baldwin-
Lafontaine Cabinet. The Governor demanded to have
the patronage of the Crown in appointments to office,
while the Council held that the patronage was theirs to
exercise so long as they had a parliamentary majority.
On this question the Ministry resigned, Mr Sullivan
was no sooner out of office than he took up the pen to
defend the administration and its principles.
Sir Charles Metcalfe had a doughty champion in
Doctor Egerton Ryerson.
Mr. Sullivan wrote a series of letters in the Examiner
newspaper, under the " nom de plume " of " Legion." I
have these letters before me. Never before in Canada
had more scathing letters on a political subject been
written by any man. These letters are full of interest as
to the principles of Responsible Government, enforced with
logic and syllogism which had never been surpassed.
Both the Reverend Doctor Ryerson and Mr Sullivan are
in their graves, and it will not be well therefore to
exhume the controversy which was held by these two
combatants, in which sarcasm as well as reasoning so
much abounded,
I will content myself by making a quotation from
Mr Sullivan's first letter, which will show the power
and force of his intellectual reasoning. Doctor Ryerson,
in his letter signed " Leonidas," had said that Sir
Charies Metcalfe "had spent forty years of public life
in a colony, and has therefore all the habits and feeling.s
of a colonist," Mr Sullivan, in his reply, .said : "That is
to say, as applied to the real fact. Sir Charles Metcalfe
has spent forty years in governing, or in connection with
the government of a colony, and therefore — yes, therefore —
he has all the feelings of a colonist. On the same syllo
gism, an overseer of a plantation must have all the feelings
of the negro slave, the Judge must have all the feelings of

252 LIVES OF THE JUDGES.
the thief ' He has spent all that time,' says Mr Ryerson^
' not in the atmosphere of an exclusive hierarchy, but in
a country where equal civil and religious rights are recog
nized, and has therefore all the feelings of religious
equality, and adaptation of experience and views, for
the government of Canada not possessed by any other
statesman of his rank in the British Empire.'"
" In the name of common sense " says Mr. Sullivan,
" does Mr. Ryerson speak of India, where widows mount
the funeral pile and enjoy their religious rites in fire :
where the Juggernaut rolls in his chariot over the crushed
bodies of his adorers, under the politic eye of a Government
which respects religion : where life, liberty, and property,
are held by permission : where there are no political
rights whatsoever, not even a ' shade of the views ' of
public opinion, to use the Doctor's own figure of speech :
where the breath of freedom never was drawn : where
justice, humanity, and human happiness, have been
weighed against gold, and found as light as the Doctor's
pen : where there is no bill of rights, no habeas corpus, no
parliament, no freeholders, no representation : and so
because Sir Charles Metcalfe helped to govern that country
forty years, according to Doctor Ryerson, he has ' an
adaptation of experience for the government of Canada,
not possessed by any statesman of his rank in the British
Empire.' If fioctor Ryerson hads aid, notwithstanding Sir
Charles Metcalfe's residence in India he may yet be a good
man, we would not deny his proposition ; but to say that
governing slaves for forty years gives a man experience
in the government of free British subjects, is to tell the
latter they are or should be slaves."
The Reverend Egerton Ryerson could and did wield a
caustic pen as well as Mr, Sullivan, His nine letters
before me show that the Reverend Doctor was actuated
by the highest principles of devotion to his country's
interest, but at the same time he took issue with Mr
Sullivan and the Reform Association on the question of
appointments to the public service. Dr Ryerson's views

JUDGE SULLIVAN. 253
on this subject may be compressed in the single sentence
of a speech by the Honorable Joseph Howe; quoted by
the Doctor with approval : " The Sovereign is bound to
bestow all offices for the general good, without reference
to party,"
When Mr Sullivan left the Government he resumed the
practice of the law in Toronto, He and Mr Shuter Smith,
of Port Hope, entered into partnership, and carried on
their practice under the firm name of Sullivan & Smith, in
Wellington street, Toronto.
I became more intimatety acquainted with Mr Sullivan
at this time than before. I have been with him at the
Assizes at Cobourg and Peterborough, where we were
sometimes counsel on the same side and more frequently on
opposite sides. In a case of a prisoner tried for murder at
Peterborough, Mr Sullivan was my senior counsel. He
requested me to interview the prisoner in the jail, which I
did, also to explore the premises where a murder had been
committed, several miles from Peterborough, which I also
did. The prisoner avowed his innocence, but there were
certain expressions of his to me which failed to impress
me with the same conviction on that subject. However,
1 got Mr, Sullivan interested in the case, which came on
late in the aftemoon .before Judge Macaulay, and lasted
well into the night, I have never heard a more powerful
address to a jury than Mr Sullivan made on that occasion.
His speech was argumentative and most impressive ; tears
dropped from many eyes before he concluded his discourse.
The jury acquitted the prisoner. At the Assizes in the
following Spring, he was tried at the Hamilton Assizes
for another offence, but did not meet with so good a fate,.
being convicted and sent to the Penitentiary for several
years. On another occasion, at Cobourg, I was opposed to Mr
Sullivan in a case about the boundary of land. I never
¦can foro-et the amusement which it seemed to afford Mr
Sullivan when, on my calling two or three witnesses of
sixty years of age to prove a blazed tree as indicating the

254 LIVES OF THE JUDGES.
true line, and then Mr Sullivan calling a witness of seventy
years of age whom he thought could settle the matter as
to the original line and the older blazed tree, my client
furnished me with a witness eighty years of age, going
still further back. This caused Mr Sullivan to cry,
Enough ! and with a smile bowing to the Court and
-saying, '' respect for age would prevent his going further,"
he declined calling another witness, letting the old man of
eighty settle the line and the blazed tree.
Mr. Sullivan took great interest in all public matters.
In 1847 he delivered a most excellent address in the
Mechanics' Music Hall, Toronto, on the subject of " Emi
gration and Colonization." This address was productive
of much good in stimulating emigration, and shewing the
capabilities and resources of Canada, as a field for the
husbandmen of England and Ireland. Little was then
known of the country to the west of Lake Superior Mr.
Sullivan related what he had heard from Mr Angus
Bethune and Mr Ermatinger, then very lately from that
country. I remember the address well, and how much I
was struck with Mr Sullivan's statement then made, that
the Saskatchewan River ran from west to east fifteen
hundred miles without obstruction I a truth we all know
now, but which was then thought to be almost fabulous.
Mr. Sullivan's whole address shewed the unbounded con
fidence he had in the possibilities of the future of Canada^
so remarkably realized since his death.
Mr. Sullivan was not only a lecturer, but a lover of
poetry, and often indulged his fancy in versification.
Doctor Milliner, the great German dramatist, is said to
have spent the hours of darkness with the ladies of
Parnassus, and to have disturbed the whole neighborhood
by the vehemence with which he declaimed his newly
composed verses, and late in the morning retired to bed.
I will not say Mr Sullivan did all this ; but that he did
compose verses, and very excellent ones too, appears from
verses on " The Emigrant Ship," published in Sibbald's
Magazine, in January, 1833, under the nom de plume of

JUDGE SULLIVAN. 255
"" Cinna." I transcribe the lines, expressive as they are of
the tendency of the Irish heart, and descriptive of the
-emigrant leaving his native land. The lines are these :
THE EMIGRANT SHIP.
Our native hills are sinking fast
Behind the troubled sea,
Farewell our cherished home, a last, —
A fond farewell to thee.
Oh ! darkly lour the angry skies.
White break the billows foam ;
And tears are sad which dim the eyes —
That look their last on home.
Now driving clouds are all we view,
Above the bounding main ;
And for the landward streak of blue
The eye is turned in vain.
Yet on its last receding trace,
Our ling'ring glances hung ;
And gloom is on the exile's face.
And silence on his tongue !
Tell me, why sinks thy sturdy heart !
Thou peasant hard of hand ?
Methinks, 'twas well for thee to part
From 3'on o'er crowded land.
The fields were green, the clime 'was fair.
And fruitful was the soil ;
But thou could'st look for nothing there.
But thankless, — hopeless toil.
Yet cheer thee up ! a home is found.
With wealth and plenty strewn ;
Where thou shalt till the teeming ground, —
And it shall be thine own !
Thou mother hug thy laughing child.
Not with that grasp of fear !
He seemed to know it, when he smiled,
That pleasant days were near.
Thou hast a letter folded there ?
Thy laboring heart above !
That brings to him a father's care ;
To thee thy husband's love.

256 LIVES OF THE JUDGES.
It tells thee of a woodland cot, —
A sunny lake beside ;
That penury ne'er saw the spot
In which thou shalt abide.
And oh ! not on thy bridal eve,
A maiden bright and fair.
Didst thou a welcome home receive,
More fond than waits thee there !
Then cheer thee up, the storm is kind,
That hastens our career ; —
And He that raised the howling wind.
The whispered prayer can hear !
And thou, oh man of wretched form
And pallid wrinkled brow !
Why smilest thou midst wave and storm, -
Who scarce e'er smiled till now ?
I know thee, 'twas thy wretched fate,
The shuttles course to guide.
The costly robe to fabricate
For luxury and pride :
Yet o'er the silken web to creep.
And count thy sorrows o'er, —
When ceaseless labour could not keep
Starvation from thy door.
Yes, smile upon the eager boys
That cluster round thy knee ;
And tell them of their joys
Within the forest free.
And who upon yon reeling deck.
Steps with a chieftain's stride ?
There are no fears of storm or wreck.
Within his heart of pride.
His arm he lifts as if his hand,
Again a sword did yield ;
He dreams he cheers a gallant band,.
In some contested field.
A soldier once, and does he want
The honours of the war ?
He bears them on his manly front.
In many a dinted scar.

JUDGE SULLIVAN. 257
Yet midst the wealth by valour saved
He drew his pittance scant,
And worse than all the foes he braved
He found neglect and want !
The memory of the happy days.
Alas ! for ever gone — ¦
When young ambitions beacon blaze,
Through danger led him on, —
Came o'er him, and he seeks a grave.
Where first in arms he stood ;
And saw his countries banners wave.
O'er many a field of blood.
But cheer thee soldier in that land.
Thou shalt be happy yet, —
For many an old companion's hand.
Whose hearts do not forget.
The coming of the brave will greet.
And the wild woods will resound,
With friendships pledge, when the soldiers meet j
And the rosy wine goes round.
And should again, stern wars abound.
And the foeman's step be nigh,
A thousand youths will start to arms.
At the veteran's battle cry.
But now breaks forth the setting sun.
All glowing in the west.
The parted clouds he shines upon,
And lights the billows crest.
May He, who gave the sun his light.
To rule the glorious day.
Be with us through the gloomy night.
Upon our trackless way !
York, 25th January, 1833.

The following lines published in the same magazine,
and which were Mr Sullivan's composition will shew that
he had a tenderness not only for the emigrant, but
an admiration for the weaker sex.
33— L- J-

35S LIVES OF THE JUDGES.
ON WOMAN.
(rEOM MEMORY.)
Dame Nature's other works were done,
Just formed the stars, the golden sun,
The blue ethereal skies ;
And wide across earth's verdant lawn.
Arose young morning's orient dawn.
And flowers began to rise —
And now in elegance arrayed.
Her last, her fairest work was made.
Almost a seraph's frame ;
To animate this form was given
A gentle spirit, — sent from Heaven ;
And Woman was her name.
Then on her softly smiling face.
Was lavished every winning grace.
And every charm was there ;
Upon her eye the violet's blue.
Upon her cheek the rose's hue —
The lily, everywhere.
Yes, on that eye was seen to play
The lustre of the stellar ray.
The diamond's humid glow !
She threw, to form her bosom's globe.
Life's tender flush, and beauty's robe
On wreath's of virgin snow.
Then Woman's lips in smiles withdrew
Their veils of rich carnation hue.
And pearls appeared beneath ;
And blest Arabia seems to pour
The perfumes of its spicy store.
To mingle with her breath.
Hark ! hark she speaks, and silver strains
Melodious fioating o'er the plains
A nameless joy impart !
The Nightingale hath caught the tone,
And made that melting voice his own.
That vibrates on the heart.
Eond Nature cast her glance around
The glowing sky, the fiowery ground.
The day diffu-^ing sun ;
On Woman last, her darling child.
She gazed, and said, — with accent mild, —
" Creation's work is done."

JUDGE SULLIVAN. 259
In 1845 and 1846 there had taken place a correspon-
¦dence between Mr Draper, Attorney-General, West, and
leader of the Draper-Daly Administration, which shews
the weakness of the Administration, and the desire
-of Mr Draper to strengthen it by the infusion of French
Canadian Ministers, representing the French Canadian
people of Lower Canada, it being alleged that Mr. Viger
and Mr, Papineau, Mr, Draper's colleagues, had lost their
confidence. This, which was called the Caron-Draper
correspondence, was all made public by Mr. Lafontaine,
then a member of the House, opposed to the Draper-
•Daly Administration.
As may be imagined Mr. Draper was accused of
caballing with the opposition, attempting to undermine
his own colleagues, a charge which Mr. Draper indignantly
repudiated. As is usual in such cases, there were charges and counter
charges made. Mr Lafontaine was blamed bj' his political
opponents for making public the correspondence ; where
upon Mr Baldwin made a lengthy speech in his defence.
-One honorable member prophesied the downfall of the
Administration, and that Mr. Lafontaine would soon be in
power. This all proved true. Lord Elgin arrived as
¦Governor-General in the early part of 1847.
When Lord Elgin arrived he found the Draper-Daly
-Administration in power. As Lord Elgin had come out
with instructions to form a ministry having the confidence
-of a majority of both the English and French members, he
placed himself in the hands of Messrs. Baldwin and
Lafontaine, who formed a ministry composed of French
¦and English members, which commanded a majority of
the House.
On the downfall of the Draper Administration, Mr.
Draper accepted a seat on the Bench. The letters of
"Legion "were now to bear fruit. Mr. Sullivan had so
thoroughly argued the principles of responsible govern-
.ment with Dr Ryerson, that Messrs. Baldwin and Lafon
taine, on coming into power, we • glad to avail themselves

260 LIVES OF THE JUDGES.
of his services in their ministry. He was again made a-
member of the Cabinet.
A vacancy occurred in the Queen's Bench by the death:
of Judge Jones, in 1848, and Mr Sullivan was appointed
to succeed him on, the 15 th September, 1848, and was
transferred to the Common Pleas, on the 21st January,
1850. As Judge of these Courts he held the Assizes in
the various towns, and it was a real pleasure to the Bar to-
have him amongst them. He had a most generous heart,
and could give or take a joke as well as the youngest.
At a trial at Woodstock about the warranty of a horse,.
one of the jurors was constantly interrupting the counsel
in his address to the jury with questions which shewed
that he was determined not to agree with the other jurors,.
and, sure enough, when the jury came into the Court room
to deliver their verdict, he was not among them. " Mr.
Sheriff," said the Judge, "where is the other juror!"
"Please your Lordship," said the Sheriff, "he has escaped!"
The incident and answer of the Sheriff so amused the
Judge, that he was provoked to laughter. He was pro
bably the most witty Judge that ever occupied a seat on
the Bench in Osgoode Hall ; his humor seemed to ooze
out of him by uncontrollable pressure.
The judgments of Judge Sullivan while on the Bench.
were not numerous, and at this day the most of those he
did deliver would, in consequence of the changes that
have taken place in the administration of justice, be con
sidered out of date. They will mostly be found in the
first three volumes of the Common Pleas Reports. I
will cite one of the cases decided, as it was an asser
tion of a principle since maintained. The case was-
Burney vs. Gorham, I C. P. Rep. 358, which decided that
after a conviction by a magistrate, an action on the case
would not lie against him, unless the acts complained of
be proved to have been committed by him without any
reasonable and probable cause and maliciously. And the
question of malice must be left to the jury. In concluding
his judgment he said :

JUDGE SULLIVAN. 261
The learned Judge at the Assizes fell into the error of supposing the
mere fact of the fair claim of right to enter and take the poles being
contended for before the Justice of the Peace, he should immediately
have stopped the proceedings, and considered himself without jurisdiction.
The case of The Queen v. Dodson, already cited, and Parrington v.
Moore, 2 Exch. 223, prove incontestably that the Justice must pass his
judgment on the fairness and reasonableness of the color of right set up ;
and in reviewing that decision in an action on the case against a Magis
trate, the Judge at the Assizes should have pronounced as well upon the
correctness of the decision of the Justice as upon the presence or want of
reasonable and probable cause for a wrong decision, and then he should
ihave left the question of malice to the jury. Instead of this, he treated
the proceedings before the Justice as coram non judice, and the defendant
as a trespasser. I think there was a misdirection in the charge ; and that
if this action can be maintained at all, it must be upon the ground of the
-defendant having convicted maliciously, and without a reasonable or
probable cause.
1 had the good fortune to be much in Judge Sullivan's
• company during the latter years of his practice at the Bar,
on the circuit, and after he was promoted to the Bench.
He was a most agreeable conversationalist, and was a
scholar in every sense of the word, well acquainted with
the prose and poetical writings of the past centuries as
well as the present. He could read and translate French
fluently, and frequently found use for that talent in a
Government composed of English and French members.
A friend of mine who was intimately acquainted with
Mr. Sullivan, and for a much longer period than I knew
him, has thus expressed himself to me with regard to him,
in language which I believe is a faithful portrayal of
his character He says : " He was brilliant in social life,
beloved in his family circle, evinced wonderful pov/er in
rapidly writing ; he would allow nothing to disturb him
while writing — the young people around him could go on
with their iierriment, he would 'currente calamo' proceed
with his composition, whether it were a Government des
patch, or poetical effusion. His despatches to Downing
Street elicited admiration from the Colonial Secretaries
for their beauty of language and clearness of expression.
It was not, even in the preparation of State papers,
in prosaic orations, in the Legislative Council, or on

262 LIVES OF THE JUDGES.
the Bench, that his genius shone forth with the greatest-
splendor : it was rather when in the company of a friend
or two, he soliloquisingly expressed himself on various-
subjects, such as on philosophy, in its highest sense; on
politics, Canada present and future, or kindred subjects ;.
his countenance would then brighten up, his language then
betraying the deep thoughtfulness of his well-balanced
mind." From what I knew of Mr. Sullivan, I can well believe
this. In walk and gait, if met on the street, he would be
called a heavy man ; but when occasion demanded, and
his intellect roused, he was, truly, " fortiter in re."
Mr. Sullivan was twice married : first to a daughter of
Captain Matthews, who was a distinguished officer of"
artillery, and was with Sir John Moore in his retreat at
Corunna. By his first marriage Mr Sullivan had but one
child, a daughter, who died in her infancy. His second
wife was a daughter of Colonel DeLaitre, by whom he
had several children.
Judge Falconbridge, of the Queen's Bench Division of
the High Court of Justice, married one of his daughters :
the late Chief Justice Thomas Moss' also married one of
his daughters, and Charles Moss, Q.C, another.
William Sulliv^an, Counsellor at Law, of Chicago, is his
only surving son.
Judge Sullivan, of whom I have written but an imperfect-
sketch, will be remembered by all those who knew him as
well as I did, with affection and regard. He died in
Toronto, the seat of his triumphs, on the 14th April, 1853,.
at the comparatively early age of 5 1 years.
An obituary notice of him truly recorded that he was
" Distinguished as a lawyer, statesman, and orator, that
he won admiration and esteem by his splendid talents and
the eminent services which he rendered to his adopted-
country in the Legislature and the Executive, curing an
eventful period of Canadian history, while in private he-
gained the affections of his associates and friends by the
gentleness of his disposition and the generosity of his;
heart."

XX.
The Honorable William Hume Blake,
Chancellor of Upper Canada.
|HE Honorable William Hume Blake was of
H Irish parentage. He was the second son of
the Reverend Dominick Edward Blake, a
clergyman of the Church of England, Rector
and Rural Dean of Kiltegan and Loughbrickland, County
Wicklow, Ireland. His mother's name was Hume,
daughter of William Hume, of Homewood, M. P., County
Wicklow. The Blakes were a Protestant family, of the
Blakes of Castlegrove, County Galway, who held a good
place among the country gentry.
In the Rebellion of 1798, William Hume the maternal
grandfather of the Honorable William Hume Blake sent
his children to Dublin for safety, and himself took an
active part in repressing the rebellion. He took personal
command of a corps of yeomanry raised in his county.
While in pursuit of some rebels he was shot near his own
residence at Homewood, and thus fell a victim to the
King's cause in Ireland. Lord Claremont in a published
letter, alluded to this deplorable event " as the murder of
Hume, the friend and favorite of his county," and charac
terized it as an " example of atrocity which excelled all
that went before it''
It will thus be seen that the future Chancellor of Upper
Canada was a man who could boast of a good ancestry.

264 LIVES OF THE JUDGE^.
both civil and religious. His father, a Dean in the Church,
and his maternal grandfather, a loyalist who fell in defence
of his country, at a time when the flames of rebellion were
burning with lurid light all over that Island, which has
been, ever since, more or less, in a turbulent state.
William Hume Blake was born at the Rectory, Kiltegan,
on the loth March, 1809. He spent his early days at his
native place, and on arriving at a suitable age was sent to
Trinity College, Dublin, to finish his education. He was
a ripe scholar on leaving Trinity. After completing his
¦college course, he thought of choosing surgery for a profes
sion, and for a time applied himself to the study of that
noble science. Not being a roystering man, he was not
able to keep pace with other Irish 3'ouths : the dissecting
room, with its concomitants of human suffering and much
levity on the part of those who were his companions irt
study, soon gave him a distaste for his profession. Giving
•up the study of surgery, he entered upon a course of
theological study. His mind naturally turned in the
•direction of the Church, and had it not been that his
elder brother Dominick had made up his mind to emigrate
to Canada, it is possible that he would have become an
ornament of the Pulpit in Ireland, instead of the Bench in
¦Canada. In the year 1832, Sir John Colborne was Governor of
the Province of Upper Canada, and was constant in his
endeavors to promote immigration to the Province.
Several settlements of retired officers and gentry of
Britain, owe their introduction to free life in Canada, to
the inducements to emigrate held out by this old Waterloo
officer. Sir John Colborne was one of those Governors who
took an active and personal interest in the progress of
Upper Canada. There was a larger emigration of Irish
to the Province in 1832, than in any previous year The
immigration was not confined to what has been termed
¦"the poor Irish," but vast numbers of the better class, who
stood higher in the scale of worldly goods and intelligence.

chancellor BLAKE. 265
responded to the call he made for a new population to
come over, and make homes for themselves in a Colony
which opened up a bright prospect for the overcrowded
population of the old land.
William Hume Blake's elder brother had married a
Miss Jones, the daughter of Major Jones, a retired officer
who had held commission in the 37th, 49th, and 60th
regiments, and had served in Canada during the war of
1812, and was at the battles of Lundy's Lane and
Queenston Heights, so famed in Canadian history.
Major, Jones, on his return to his native home, had
influenced his son-in-law, Dominick Blake, with the great
possibilities of Canada, as a field for his future success in
life. Dominick Blake had by this time become the Reverend
Dominick Blake, well known in Canada as Rector in the
Township of Adelaide, in the County of Middlesex, and
afterwards for many years Rector of Thornhill, in the
vicinity of Toronto.
The Reverend Dominick Blake was induced to emigrate,
and not being disposed to come to a sparsely settled
country where, at that time, bears and wolves more
abounded than human beings — excepting wild Indians,
he was glad to have the companionship of his brother.
Not only did he succeed in attracting his brother to his
venture, but also his mother, sisters, and several other
relatives and friends.
To sum up the whole, in July, 1832, a regular family
party was made up, consisting not only of the above, but
also his brother-in-law the late Archdeacon Brough ; the
late Mr. Justice Connor ; Dr Robinson, father of Judge
Robinson of Lambton, the Reverend Benjamin Cronyn,
late Bishop of Huron ; and the Reverend Arthur Palmer,
formerly Archdeacon of the Diocese of Toronto. This was
a goodly party, and well equipped. The party did not
come as ordinary emigrants, but chartered a vessel — the
"Anne, of Halifax" — to carry them across the ocean.
The voyage was not a pleasant one, one of the crew having
34— L- J-

266 LIVES OF THE JUDGES.
died of cholera on the passage across, his body being com
mitted to the deep. It was a question for a time whether
the vessel should not be turned to the eastward, and the
party, if they could escape the cholera, landed on the
shores of the home which tbey had left. Other counsels
prevailed, and they determined to make the port of Quebec.
With such resolves, they battled with the wind and the
waves, and arrived at Grosse Isle, after a six weeks voyage,
late in August They were there subjected to a long quar
antine, and did not arrive at Quebec till September
Following the usual course of travel those days, from
Quebec to the great lakes, partly by land and partly by
water, they made their way to York. Here the party
separated, some going north, and some west. The-
Reverend Dominick Blake, William Hume Blake, mother
and sisters, chose the western country for their future
home ; Mr Brough, Dr Connor, and Dr. Robinson, going
northward to the Township of Oro, on Lake Simcoe..
The Blakes settled in the Township of Adelaide. William
Hume Blake, like most of the new comers to the Province
in that day, determined to take up land, and purchased a
farm at Bear Creek, about seven miles from Adelaide,
near where Strathroy now stands.
How many there are who, without experience in farming
in the Old world, on coming to the New, imagine that if
they only get land their fortunes are made. In nine cases
out of ten, immigrants of this class learn by bitter expe
rience, that the new land is really new land, and with that
old trees, and that an immense deal of labor, as well as
an immense deal of grubbing, has to be done before the
land will produce a subsistence ! A man like Mr. Blake,
who had studied surgery, theology, and the dead lan
guages, is destined soon to find that he is but little fitted
for agricultural pursuits. In a wooded, wild country, such
as the Township of Adelaide was at that time, the charm
it possessed for a new comer was soon dissipated.
Mr. Blake was enabled to endure this kind of life for
two years, when something told him that he was wasting

CHANCELLOR BLAKE. 267"
his energies in fruitless toil. He was not afraid to work, .
and did work with his hands, but he must depend on his
head to make his venture a success in Canada. He
now thought he would try the study of the law.
Mr. Blake, with his young family, emerged from the
woods of Adelaide, and bent his way to York. On arriving
there he entered the office of Mr Simon Washburn, a
well known practitioner of York at that time. Mr Blake's
degrees at Trinity College were sufficient to enable him
without difficulty, to become a student. He was admitted
to the Law Society in Hilary Term, 3 William IV., 1835,
and was called to the Bar three years afterwards, in Ea.ster
Term, i Victoria, 1838.
At this time the Reverend Dominick Blake was still in
Adelaide, actively engaged in the work of the Church,
William Hume Blake, after coming to York, used to be
proud of relating some of his experiences in the country.
Among others he used to tell how, on one occasion, he
had walked to the blacksmith shop to obtain a supply of
harrow pins, and finding them too heavy to carry home, ,
fastened them to a chain which he put round his neck, and
so dragged them, home through the woods. I strongly
suspect it was not long after this incident, that he began
to think seriously that Hargrave would be better than
harrow points : that, after all, the study of Blackstone was
more fitted for him, than a journey to the blacksmith
shop. During the rebellion of 1837, Mr Blake was in Toronto^
and for a .short time paymaster of a battalion. During
his student life in Toronto, and for a short time after he
was called to the Bar, his devoted wife, who was highly
educated, occupied a portion of her time in giving instruc
tion in the higher branches of learning to the daughters
of the well-to-do citizens of the place.
Mr Blake was too much of a student to care to cultivate
society in Toronto, indeed he rather abstained from, than
sought for the attention of the official society of those
days. There was everything in his family connection, in.

268 LIVES OF THE JUDGES.
his education, in the education and family of his hand
maid, that should have made the ruUng powers at the
capital seek him, instead of his seeking them. Mr Blake
did not come to Toronto a rich man, but with a determin
ation to achieve success, if not riches, by hard work and
resolute will. He was a man eminently self-reliant, and
if he had occasion to differ, as he often did, with the
magnates of the day, either in politics or in law, he ever
had the courage of his convictions, and was never afraid
to express his opinions. In his opinion, there was too
much arrogance and self-sufficiency, in the controlling
powers of the country, then designated the " Family
Compact," He adopted liberal views, in fact, was driven
to adopt liberal views, by what he deemed superciliousness
on the part of those who affected to manage public affairs.
He determined to make for himself a name in Toronto,
and he did it
After being called to the Bar, he was not long in
securing clients. It was soon ascertained that he possessed
great powers of eloquence, and added to this untiring
industry and a commanding presence ; these were good
¦qualifications for a successful Lawyer. It was not long
before he had to meet at the Bar, such experienced and
able counsel as William Henry Draper, afterwards Chief
Justice; Robert Baldwin Sullivan, afterwards Judge; Henry
John Boulton ; John Hawkins Hagarty, afterwards and
now Chief Justice; Robert Baldwin ; Henry Eccles; and the
Honorable John Hillyard Cameron. These names are all
familiar to the old members of the Bar, It will be con
fessed by all, that they were all pre-eminent in their
profession, William Hume Blake, when he had been but
a few years at the Bar, was esteemed the equal, at least, of
any of those named, who justly had a high reputation at
the Bar The difference between Mr. Blake and the
others was in this : they, or most of them, were pure
Common Law men, some had a special aptitude for
particular branches of the profession, such as special
pleading. Criminal Law, or Common Law, but Mr Blake

CHANCELLOR BLAKE. 269.
was great not only in these, but was looked upon as
one of the best counsel of his day, in the Court of Chancery
and all matters of Equity.
I can safely say that, of all men I have ever known at
the Bar, I have never known one so thorough as William
Hume Blake, late Chancellor. It was his mind that
swayed the Court, in a case of embezzlement, which I have
referred to in the life of Sir John Beverley Robinson, in
which the prisoner had been committed before Judge
Draper, at the Assizes at Toronto, and sentenced to seven
years imprisonment, and who, on appeal, was set free by
the arguments of Mr. Blake, as one of the Judges in
Appeal, convincing Sir John Beverley Robinson, that the
Court of Queen's Bench had erred in upholding the
conviction. I can speak of Mr Blake as counsel, as well
as Judge, with confidence, having had him as my Senior
at the Bar, and practised before him on the Bench. In a
case where I gave him a brief at Hamilton, he at once
impressed me with his great ability, when he so readily
seized upon the points of the case which ultimately deter
mined the result. In a case of Newton vs. Doran before
him, in which I was counsel for the plaintiff, a witness.
was examined and cross-examined by counsel to establish
a partnership, and as I thought exhaustively examined :
the witness was doing what is called hedging — prevari
cating. The Chancellor took a hand, questioned and
cross-questioned him in such a way that the witness fairly
quailed, and before the Chancellor concluded, became
convinced himself that his scheme to deceive the Court
and certain parties to the case was a failure. The Chan
cellor had excoriated him to such a degree, that he was
glad to leave the Court, a disappointed and defeated man,-
As an instance of Mr. Blake's power as an orator, I
may instance the case of Kerby vs. Lewis, relating to the
disturbance of the plaintiff's farm, at Fort Erie, in which
Mr Blake was counsel for the defendant In this case,
the Court held the law to be clearly with the plaintiff,
and always charged against the defendant The jury

.270 LIVES OF THE JUDGES,
persistently found for the defendant, owing to the force
with which Mr Blake presented his case to their under
standing. The case is reported in I Queen's Bench
Reports, 66, and held that "where the jury in an action
for disturbance of plaintiff, Kerby, found for defendant
perversely, and clearly against law, and evidence, and the
Judge's charge, the Court granted a new trial without
costs." After a practice of a few years, Mr. Blake formed a
partnership with Joseph C. Morrison, afterwards Judge
Morrison ; subsequently Dr. Connor became member of
the firm. The firm had a very large and lucrative practice.
It got for itself the name of the " flourishing concern," It
was during this time that the Markham Gang case came
up, where a gang of men of the township entered into a
conspiracy to steal horses, plunder, lob, and generally to
destroy the property of farmers in the township. They
were a desperate gang, and it took a long time to root
them out When finally ousted and brought to justice,
they required the services of a most experienced counsel.
Mr Blake, in performance of his professional duties, was
¦called upon to defend a number of them, and was but too
successful in procuring their acquittal. It often falls to
the lot of the best counsel to have to conduct the worst
cases. The fault is not of the counsel, but of the cases.
Mr. Blake was Crown prosecutor, in the case of the
-Queen vs. McDermott and G.ace Marks, in 1843, for the
murder of Thomas Kinnear.
The murder of Kinnear was of a most revolting
¦character. Mr. Kinnear was a gentleman who resided
about a mile to the northward of Richmond Hill, He
was a man of considerable means, and had a house-keeper,
¦one Mary Montgomery, and two servants, James McDer
mott and a girl, Grace Marks, 16 years of age. These two
McDermott and Marks, became jealous of the position
Mary Montgomery had, and determined to get her out of
the way. Not satisfied with this fiendish desire, they
^resolved also to murder Mr. Kinnear, with the hope of

CHANCELLOR BLAKE. 27 1
possessing themselves of his money. At an unexpected
moment, McDermott struck Mary Montgomery on the
back of the head with an axe ; stunned her, and then, with
the help of Grace Marks, strangled her to death. On the
same day McDermott shot Kinnear with a musket
killing him on the spot After this double murder, they
both fled to Toronto, and the following morning took the
boat for Lewiston, in the State of New York,
Mr, F C. Capreol of Toronto, hearing of the murder
and escape, chartered a boat in the afternoon of the same
day,secured the services of the Chief Constable of Toronto,
and the two proceeded on the chartered boat to Lewiston
during the night, and before the next morning had the
fugitives under arrest. They were brought back to
Toronto, tried, convicted, and sentenced to death. Mc
Dermott underwent the extreme penalty of the law, but
Grace Marks sentence was commuted to penitentiary for
life. She afterwards feigned insanity, and was in the
lunatic asylum for some years. The greater part of her
life after the murder, was spent either in the penitentiary
or asylum.
I need not quote other cases, but one referred to by
Mr Dent, where in a case of arson a witness was called to
prove that India rubber would not burn. Mr Blake's
ingenuity soon confuted him by placing before his eyes
several strips of old goloshes (India rubber). He then
lit a candle, placed the strips before the candle light,
burnt them up in his presence, and asked him if he
thought he could be believed. The jury did not believe
him, after seeing the rubber burn, and Mr. Blake won his
case. Mr. Blake was a dangerous antagonist to have in a case.
His very appearance gave him weight with the jury. He
could press a point before the Court, and to the Court, in
such a forcible way, that it required great skill in his
opponent to parry his blow.
It was not only before juries, however, that Mr Blake
was successful, or before the Common Law Courts.

272 LIVES OF THE JUDGES.
He had in his time a large Equity practice as counsel,
and, with Mr Esten, was considered leader of the Equity
Bar. In arguing cases before Jameson, V.C., it could
easily be seen that the counsel had the better of the
Judge. The result was shewn in the sequel, for in due
time Mr Blake was appointed Chancellor over the head
of Vice-Chancellor Jameson.
Mr Blake was a Liberal in politics, and so were all his
partners in the firm of Blake, Morrison & Connor He
was a follower of the Honorable Robert Baldwin. In the
early contests for Municipal Institutions, National Educa
tion, Law Reform, and all progressive measures, he took a
prominent part.
The readers of Canadian Political History, know of the
violent contest the Liberals had with Lord Metcalfe, on
the question of Responsible Government and ministerial
responsibility for official appointments.
In the Life of Judge Sullivan, 1 have gone so fully into
the matter, that I need not repeat it. Suffice it to say that
Mr. Blake was looked upon as a valuable coadjutor of Mr
Baldwin in these reforms. At the general election of
1844 he was the Reform candidate for the representation
of the second Riding of York, now the County of Peel.
He was opposed by George Duggan, afterwards Recorder
of Toronto and Judge of the County Court, and was
defeated. He was again, a little later on, defeated in his
candidature for the County of Simcoe by the Honorable
William B, Robinson, Mr Robin.son had in former years
resided and carried on business at Newmarket, and had
gained much influence in the county, Mr. Blake was not
able to overcome this influence. I remember the election
well, having been scrutineer for one of the candidates at
the poll in Essa, and walking after dark, at the close of the
election, six miles over a mud and corduroy road into
Bond Head, to be the first to announce the result of the
poll. There were a good many men devoted to legal studies,,
who did not regret Mr Blake's defeat at this election,

CHANCELLOR BLAKE. 273;
on personal rather than on political grounds. Mr Blake
was Professor of Law in the University of Toronto-
Young men studying for the profession, not members of
the University, were admitted to his Law Lectures, which
he delivered in one of the rooms in the east wing of the
Parliament Buildings, on Front Street. He used to com
mence his lecture at eight o'clock in the morning. It was
one of my greatest delights to attend and listen to these
lectures. The matter and manner of the lectures so com
mended themselves to ¦ me, and those who attended the
lectures with me, that there was not one who did not feel
that they were under great obligations to the University
authorities, in being permitted the advantages to be
derived from their delivery. Each attendant generally
had a book taking notes, which he would amplify at his
leisure. The Lecturer never quailed before any decision,
no matter by what Judge pronounced, English or Cana
dian. If he thought the judgment unsound reasoning, he
did not hesitate to say so, and urge the students to
examine for themselves. I well remember his impressing
the students with the great value of the reports in Douglas.
These were cases decided by Lord Mansfield, one of the
greatest Judges of the English Bench, There are some
living yet who attended those lectures : if I am not mis
taken, ^milius Irving, Q,C,, and Mr. Lewis, the County
Attorney of Huron.
Mr Blake had not long to wait before obtaining a seat
in Parliament. In the general election of 1847, while he
was in England, he was returned for the East Riding of
York in the Reform interest. The result of this general
election was the defeat of the Conservative Government
of Lord Metcalfe, and the advent to power of the
Baldwin-Lafontaine Administration.
Mr. Blake was Solicitor-General in this Administration,
and several notable events occurred during its existence.
The principles under which Lord Elgin undertook to con
duct the affairs of the Colony, as expressed by himself,
were : that he should identify himself with no party, but
35-L- J-

274 LIVES OF THE JUDGES.
make himself a mediator and moderator between the
influential of all parties ; that he should have no Ministers
who did not enjoy the confidence of the Assembly, or, in
the last resort, of the people; and that he should not refuse
his consent to any measure proposed by his Ministry,
unless it were of an extreme party character, such as the
Assembly or the people would be sure to disapprove.
These principles were the Colonial Secretary Earl Grey's
views as recorded by himself in his " Colonial Policy."
Lord Elgin arrived in Montreal, then the Seat of Govern
ment, early in the year 1847, and on the 30th January,
1847, was formally sworn into office.
It is singular what mistaken notions may exist as to
the acts of administration, owing to ignorance of, or not
rightly considering, the motive power impelling Ministers
to a certain line of action. Never, perhaps, has this been
more fully exemplified than in the act of this Government
in passing the Rebellion Losses Bill, which passed both
Houses, and received the assent of Lord Elgin on the
25th April, 1849. The Act is in the Statutes at large: 12
Victoria, cap. 58. This Act, which was assented to by
Lord Elgin, and not reserved for Her Majesty, probably
created more disturbance at the time, and was the cause of
more disgraceful scenes (among others the burning of the
Parhament Houses at Montreal), than any other Act that
"ever passed the Canadian Legislature ; and yet this Act
was but an outcome of a previous Act (9 Victoria cap. 65)
entitled "An Act to provide for the payment of certain
Rebellion Losses in Lower Canada, and to appropriate
the proceeds of the Marriage License Fund," passed under
a previous Governor and Tory Administration. The
preamble of the Act partly gives the moving cause of
the measure. It recites: "Whereas, on the 28th February,
1845, an humble address was unanimously adopted by the
Legislative Assembly of this Province, and by them
presented to the Right Honorable Charles Theophilus
Metcalfe, the then Governor-General of the same, praying
' that His Excellency would be pleased to cause proper

CHANCELLOR BLAKE. 275
'measures to be adopted, in order to insure to the inhabi-
'tants of that part of this Province formerly Lower Canada,
indemnity for just losses by them sustained during the
-Rebellion of 1837 and 1838 :' And whereas, on the 24th
November, 1845, a Commission of five persons was, by
His Excellency the said Governor-General, duly appointed
to enquire into such losses arising from or growing out of
the said Rebellion : And whereas, to redeem the pledge
given to the sufferers of such losses, as well by the
said address of the said Legislative Assembly, and the
appointment of the said Commission, as by the letter
addressed by the Honorable the Secretary of the Province,
by order of the Right Honorable Charles Murray, Earl
Cathcart, the then Administrator of the Government of
the same, to the said Commissioners, on the 27th Feb
ruary, 1846, it is necessary and just that the particulars
of such losses, not yet paid and satisfied, should form
the subject of more minute enquiry under Legislative
authority ; and that the same, so far only as they may
Jiave arisen from the total or partial, unjust, unnecessary,
or wanton destruction of the dwellings, buildings, property,
• and effects of the said inhabitants, and from the seizure,
-taking, or carrying away of their property and effects
-should be paid and satisfied."
After this recital the Act goes on to authorize the issue
of;^ioo,ooo of debentures, to pay such losses, which by
clause ix., should also "include the sum of £(),g86:y:2,
raised by debentures under the said Act, hereinbefore
\mentioned," (9 Victoria cap, 65),
The Act of 1849 was an enlargement of the Rebellion
Losses Bill of 1846. (9 Victoria cap. 65).
Sir Francis Hincks, in his Reminiscences, has thrown
more light on this measure and the reasons of Lord
Elgin's assent to it, than any previous writer. Quoting
Lord Elgin's biographer as follows :
Such was the measure, so clearly inevitable in its direction, so modest
,in its proportions, which falling on au inflamed state of the public mind
in Canada, and misunderstood in England, was the occasion of a riot and

276 LIVES OF THE JUDGES.
nearly a rebellion in the Province, and exposed the Governor-General,.
who sanctioned it, to severe censure on the part of many whose opinions.
he most valued at home.
Lord Elgin himself, in a confidential letter to Lord
Grey, dated ist March, 1846, thus wrote :
A good deal of excitement and feeling has been stirred up in the Province, .
by the introduction of a, measure by the ministry, for the payment of
certain rebellion losses in Lower Canada, I think that it will soon
subside, and that no enduring mischief will ensue from it ; but the opposi"
tion leader has taken advantage of the circumstances to work upon the
feelings of old loyalists, as opposed to rebels, of British as opposed to
French, and of Upper Canadians as opposed to Lower, and thus to pro
voke from various parts of the Province, the expression of not very
temperate or measured discontent, I am occasionally rated in not very
courteous language, and peremptorily required to dissolve the Parliament
elected only one year ago, under the auspices of this same clamorous
opposition who were then in power. The measure itself is not free from
objection, and I very much regret that an addition should be made to our
debt, for such an object, at this time. Nevertheless, I must say I do not
see how my present Government could have taken any other course in this
matter than that which they have followed. Their predecessors had
already gone half way in the same direction, though they stopped short,
and now tell us that they never intended to go further. If the ministry^
had failed to complete the work of alleged justice to Lower Canada,
which had been commenced by the former administration, Mr, Papineau-
would most assuredly have availed himself of the plea to undermine their
influence in his section of the Province, The debates in Parliament on
the question have been acrimonious and lengthy, but Mr, Lafontaine's
resolutions were finally passed by a majority of 50 to 20.
A fortnight later. Lord Elgin again wrote to Earl Grey:
The Tory party are doing what they can by menace, intimidation, and
appeals to passion to drive me to a "coup d'etat." And yet the very
measure which is at this moment the occasion of so loud an outcry is
nothing more than a strict logical carrying out of their own acts. It is
difficult to conceive what the address on the subject of the rebellion losses
in Lower Canada, unanimously voted by the House of Assembly, while
Lord Metcalfe was Governor and Mr, Draper Minister, could have been
meant to lead to, if not to such a measure as the present Government
have introduced.
Lord Elgin, on another occasion, gave his rea.sons for
not reserving the Bill for the signification of Her Majesty's.
pleasure. His reasons were as follows :

CHANCELLOR BLAKE. 277
There are objections, too, to reserving the Bill which I think I shall
-consider insurmountable, whatever obloquy I may, for the time being,
-entail on myself by declining to lend myself, even to this extent, to the
plans of those who wish to bring about a change of administration. In
the first place, the Bill for the relief of a corresponding class of persons in
Upper Canada, which was couched in terms very nearly similar, was not
reserved, and it is difficult to find a sufficient reason in so far as the
representative of the Crown is concerned, for dealing with one measure
differently from the other ; and in the second place, by reserving the Bill
I should only throw on Her Majesty's Government, or (as it would appear
to the popular eye here) on Her Majesty herself, a responsibility which
rests, and I think ought to rest, on my shoulders. If I pass the Bill,
whatever mischief ensues may probably be repaired, if the worst come to
the worst, by the sacrifice of me ; whereas, if the case be referred to
England, it is not impossible that Her Majesty may only have before her
the alternative of preventing a rebellion in Lower Canada by refusing her
assent to a measure chiefly affecting the interest of the hahitans, and thus
'throwing the whole population into Papineau's hands, or of wouading the
susceptibilities of some of the best subjects she has in the Province ; for
among the objectors to this Bill are undoubtedly to be found not a few
who belong to this class ; men who are worked upon by others more selfish
and designing, to whom the principles of Constitutional Government are
unfathomable mysteries, and who still regard the representation of royalty
and, in a more remote sense, the Crown and Government of England, if
not as the objects of a very romantic loyalty, at least as the butts of
a most intense and unrelenting indignation, if political affairs be not
administered in entire accordance with their sense of what is right.
It is deplorable that these noble sentiments of Lord
Elgin could not have been published to the Canadian
public during his lifetime. The seal of secrecy was, how
ever, imposed by official etiquette. When the veil is
thrown aside we can see how truly conscientiously Lord
Elgin acted ; even to the extent of offering himself a
sacrifice on the altar of Constitutional Government "
This was one of the acts of the Lafontaine-Baldwin
administration with which Mr Blake was connected, of
which he, as well as the Government, had in his lifetime
to bear the odium, but of which subsequent events have
shewn the injustice, as directed towards the parties
responsible for the Act.
Mr Blake's appointment as Solicitor-General was on
the 22nd April, 1848, so that he, as well as the rest were
rsubjected to much unmerited abuse.

278 LIVES OF THE JUDGES.
There was another Act passed during the time the-
Lafontaine-Baldwin administration of 1847 was in power,,
of the very greatest importance, which gained for Mr.-
Blake a great deal of undeserved obloquy. That was
" An Act for the more effectual administration of justice
in the Court of Chancery of the Province of Upper
Canada." This Act is the foundation and charter of the
present Court of Chancery, as it existed before the
Judicature Act, and was passed on the 30th May, 1849.
It is the Act, 12 Victoria cap. 64.
The Court of Chancery, under the old system, with no
perceptible Chancellor, but only a Vice-Chancellor, in the
person of Jameson, V C, had got into great disfavor.
The delays were terrible. The whole administration of
the Court seemed to have got into an unrecognizable
mass of stale Equity.
The history of the Chancery Act is this : Five years
before the Act was passed a Commission had been issued
under the Great Seal of the Province, whereby the Chief
Justice of the Queen's Bench, the senior Judge of the
Queen's Bench, Henry John Boulton, Robert Easton
Burns, William Hume Blake, and James C. Palmer Esten,
Esquires, were appointed Commissioners, with authority
to make diligent enquiry whether and what alterations
could be made in the practice established in the Court of
Chancery for the Province of Upper Canada, or in the
offices of that Court, in the different stages of the proceed
ings therein, from the commencement to the termination
thereof, by which the expenses attending such proceedings
and the time during which they depend in Court, might
be lessened and abridged usefully and beneficially to the
suitors of the Court, and the ends of justice be promoted..
The names of the Commissioners are a sufficient evidence
that it was not a political Commission. The members of
it were Judges or leading Barristers, and the Commission
was named at a time when Mr Blake was not in Parlia
ment, was pursuing his practice, and that a large practice^
in his profession, and so far as known, had not at the time

CHANCELLOR BLAKE. 279
any idea of entering Parliament. The head of the Com
mission was Sir John Robinson, the head of the Common
Law Court of Queen's Bench, and with him was the senior
Judge of that Court. This Commission recommended
certain alterations to be made in the pleadings and prac
tice of the Court, of a cardinal nature.
When Mr Blake became Solicitor-General in 1849, '"
the Lafontaine-Baldwin Administration, he had to deal
with the report which the Commission had made, and
take measures to reform the Court. It was quite evident
to his mind, as it was to all those who practised in the
Court, that the whole construction of the Court required
changing. More than this, he thought, and so did all the
profession, that the time had come for doing away with
the old Court of Appeals, which consisted of the Lieuten
ant-Governor or Chief Justice of the Province, and two or
more members of the Executive Council, and substituting
a Court composed of experienced Judges, leaving out
Executive Councillors, who under the new order of things
were likely to be, if not necessarily, politicians and heads
of political Governmental departments. What would be
thought now, if the Court of Appeal of the Province was
composed of the Governor and his Executive Council ?
Entertaining, as Mr. Blake did, the view that the admin
istration of pure justice required a change, not only in the
Court of Chancery, but in the Court of Appeal, he on
the 13th March, 1849, (see Journals), obtained leave
to bring in a Bill to make further provision for the admin
istration of justice, by the establishment of a Superior
Court of Common Law and also a Court of Error and
Appeal in Upper Canada, and for other purposes. This
resolution, which was subsequently passed by the House
is the ground work of all the beneficial legislation of that
Session, tending to the due administration of justice. It
led to the passing of the following Acts : (i) The Court of
Chancery Act, 12 Victoria cap. 64, with its far reaching
consequences. (2) "An Act to make further provision for
the Administration of Justice by the establishment of an

28o LIVES OF THE JUDGES.
additional Superior Court of Common Law, and also a
Court of Error and Appeal in Upper Canada, and for
other purposes." 12 Victoria cap. 63. Under the last
named Act was constituted two new Courts ; the Court of
Common Pleas, and the Court of Error and Appeal which
was composed of the Judges of the Court of Queen's Bench,
the Judges of the Court of Common Pleas, and the Judges
¦of the Court of Chancery, which latter Court, under the
new system, was made to consist of a Chancellor and
two Vice-Ghancellors.
Mr. Blake, during the same Session, brought in and
¦carried "An Act to improve the Law of Evidence in
Upper Canada (12 Victoria cap, 70), under which witnesses
were not to be excluded from giving evidence by reason
¦of interest, in any Civil or Criminal Court This was a
most beneficial measure, in every way tending to the eluci
dation of truth, by the admission of evidence theretofore
totally excluded. If objections were to be made, the
scheme of the Act was that such objections should apply to
the credibility, and not to the admissibility, of the evidence.
The old practitioners have a very lively remembrance
¦of how much of the time of the Courts was taken up, in
¦deciding whether a witness should be excluded on this
ground of interest or not, the nature and extent of such
interest, &c. Many an injustice had been done by this
exclusion of evidence: Mr, Blake's Act was to remedy the
•evil, and did it most effectually.
There were other legal Acts passed during the Session
of a most beneficial character, promoted by the Attorney-
General, the Honorable Robert Baldwin ; and the Solicitor-
General, the Honorable W. H. Blake.
Sufficient has been written to shew the interest Mr.
Blake took in legal Legislation. I do not think it would
be going too far, to say that he was the greatest Law
Reformer that had been in public life, from the early
history of the Province till his time.
It was not only in Law matters that Mr Blake proved
himself a devoted son of Canada ; but in Educational

CHANCELLOR BLAKE. 28 1
matters also he was to the front During the Adminis
tration of Lafontaine and Baldwin, the Attorney-General
Baldwin, on the 3rd April, 1849, obtained leave to bring
in a Bill to amend the Charter of the University of King's
College. This resolution, the object of which was to put
the University on a more liberal basis, was violently
opposed in the House by the Tory party, but was finally
carried on i8th May, 1849 — forty-three members voting
for the resolution, and only ten against. Mr. Blake con
stantly supported the resolution, voting against every
amendment offered to delay the measure. The resolution
became crystallized into "An Act to amend the Charter
of the University establised at Toronto by His late
Majesty King George the Fourth, to provide for the more
satisfactory government of the said University, and for
other purposes connected with the same, and with the
College and Grammar School forming an appendage
thereof: 12 Victoria cap. 82."
What inestimable benefit has the country gained by
that Act. Graduates of the University of Toronto have,
by its degrees, been given a passport to any and every
place, on or off the continent of America, where education
is prized for its own sake.
Mr. Blake was the first Chancellor of the new Court of
Chancery. He was appointed on the 29th September,
1849, and had well earned the distinction. His appoint
ment received the approbation of the Bar generally. Some
political confreres took exception because of his having
been the author of the Chancery Act, a frivolous objection,
unworthy of those who made it. The Act was one which
the country demanded, and who was so well qualified to
administer the Act as the Chancellor, skilled as he was in
the doctrines of Equity, who had held the Professorship
of Law in the University. Time, the ofttime curer of
misconceptions, and allayer of political virulence, has in
this, as in many other cases, with many other persons,
proved that the best men are often the targets at which
men of little minds are willing to aim their harmless shots.
36— L. J.

282 LIVES OF THE JUDGES.
As Chancellor of the Court, the Honorable William
Hume Blake laboured diligently to give the Court a
reputation second to none; a reputation which it has ever
since borne. His judgments were lucid, always shewing
that independence of mind which distinguished him as an
advocate, and never failed him as a Judge, His chief
characteristic was a disregard of case law, where case law
came in conflict with principle, A reading of the numer
ous cases decided by him in the Chancery Court, shews
that he appreciated the difference between an old land
and new country. Wherever the English law, adapted as
it might be to England and her condition, failed to impress
him with its justice as applied to the state of things.
existing in Canada, he threw aside old precedents, to
establish Canadian rights.
As an illustration, the Chancellor, in Chisholm vs.
Sheldon (i Chancery 318), threw out the suggestion,
whether the doctrine applicable in England between
termor and reversioner in respect to felling timber, ought
to prevail as to an estate in Canada, the beneficial enjoy
ment of which is ordinarily obtained only through the
destruction of the growing timber ; and whether the
doctrine of the Common Law as to growing timber, can
be applied in all its extent to forest land. The Chancellor
would have decided that the English law was not applic
able ; but the law did not require a decision on the
question. The suggestion of the Chancellor bore fruit in
subsequent cases. Even the Common Law Courts have
adopted the doctrine. In Drake vs. Wigle (24 C, P, 409),
the Court held "that it was not waste, in a tenant for life,
to cut down timber on wild land for the sole purpo.se of
bringing it into cultivation, provided the inheritance be
not damaged thereby, and it is done in conformity
with the rules of good husbandry," This deci.sion
was founded not only on Chancellor Blake's sugges
tion, but upon subsequent cases, both English and
American, confirming his view. Gait, J., said, in giving
judgment :

CHANCELLOR BLAKE. 283.
When we bear in mind the natural state of lands in this Province, and
that they are almost invariably useless for agricultural purposes until they
have been cleared and cultivated, it appears to me that it would be highly
inexpedient and unjust, if we were to hold that a tenant by the courtesy
could not bring the lands under cultivation, by clearing and cultivating
them ; inexpedient, because it is for the interest of the public that the
lands should be cultivated, and unjust, because it would leave the tenant,
or, at all events, the land, subject to the taxes, and so far from a tenant
by the courtesy deriving a benefit from the lands of his deceased wife, he
would be subject to a loss.
I need not more than quote Chief Justice Hagarty in
the same case, where he says :
When the state of England, in the old time, more resembled that of
our comparatively new country, I do not see anything in the authorities
to have prevented the allowance to a life-tenant of the right to resort to
the only method by which any benefit whatever could be derived from a
piece of original forest, namely, the clearance of a moderate part for culti
vation, by removal of the trees.
The Chief Justice quoted also Mr. Leith's Blackstone in
favor of this view, and held, with Judge Gait, that it was-
not waste to cut trees from uncleared land, in order to
cultivate the same.
I need not refer to other decisions or dicta of the
Chancellor Grant's Chancery Reports abound with his
decisions, the reading of which would be profitable to the
lay as well as legal reader.
Mr. Blake continued to hold the Chancellorship from
30th September, 1849, to the i8th March, 1862. Afflicted
with gout, he sought relief in a milder climate. Failing
health compelled him to retire from the Chancellorship in
Decembet-, 1850. He subsequently, in March, 1864,
accepted a position as one of the Judges of Appeal, He
had not long to enjoy this position ; his health became
completely shattered, and he died at Toronto, on the 17th
November, (870, leaving surviving his widow, his twO'
sons (the Honorable Edward and the Honorable Samuel
Hume Blake), and two daughters. He had always been
a member of the Church of England, in which faith he
died, and was buried in St. James's Cemetery.

XXI.
The Honorable James C. Palmer Esten,
Vice-Chancellor of Upper Canada.
.^y%^HE Honorable James C. P. Esten was the
l\fjn i son of the Honorable John C. Esten, Chief
^^^¦¦® Justice of Bermuda. His father, the Chief
' ^ifc'^ Justice was of English Birth, and was sent
-out to that Crown Colony about the year 1805.
The Vice-Chancellor was born in Bermuda, in the early
part of the present century. His father was Chief Justice
at the time of his birth, Mr Esten's early life was spent
in Bermuda, and in Virginia, near Harper's Ferry, where
he had numerous relations. Those of us who remember
the Vice-Chancellor know that though short and solid, of
English breed, he nevertheless shewed in his face the
effects of a southern climate. He had not the ruddy
¦complexion of an Englishman, but the paleness begotten
•of a southern climate. His father, following in the foot
steps of most of the emigrants from England to Bermuda,
determined that his son should have an English education.
He was sent to England at an early age, and received an
English education at the Charter House, London, which
has attained celebrity from the fact that some of the best
novelists and writers of England have been educated at
that institution. We call to mind names which have
.added lustre to the English nation : Addison, Steele,
Thackeray, and a host of others who have earned renown,
were educated at the Charter House.

vice-chancellor esten. 285
Mr Esten was also a pupil of Dr Crombie, the author
of " Crombie's Gymnasium."
Mr. Esten was called to the English Bar after complet
ing his scholastic studies, and practised his profession for
a short time in London and in Exeter, England. He
read in the Chambers of S, B, Harrison, in London, Mr
Harrison, as is well known, in due time became a Colonist
making Canada his home till the time of his death, Mr.
Harrison had gained a reputation in England before
coming to Canada as a Compiler and Reporter Those
ponderous volumes on the shelves of the Law Library,
Harrison's Digest, were the work of his hands, Harrison
and Wallaston's Reports also serve to keep his name in
mind with the Canadian Lawyer. Mr, Harrison was a
member of Parliament, in this Province, in 1841, and a
member of the Draper Government, holding the office of
Provincial Secretary at the time of the Union of the
Provinces, He was also Judge of the County Court of
the County of York, for a number of years, and was mucli
beloved by the Profession. Being possessed of equable
disposition and unobtrusive manners, he earned the respect
of all who knew him.
I mention these characteristics of Mr. Harrison, because
it would almost seem that Mr, Esten had the same quali
ties which he derived from his quondam master, Mr,
Harrison. Vice-Chancellor Esten was of a quiet, undemonstrative
manner, which in his early professional career, was the
distinguishing characteristic of those who chose the
branch of the profession in which he was educated.
In England, conveyancers are generally Barristers, and
in most instances, of the Equity Bar, Mr, Esten applied
himself to the practice mostly of a conveyancer, the very
essence of which is careful investigation and profound
thought In the year 1836 he was induced by Captain
Truscott, the senior partner in the firm of Truscott &
Green, who carried on business in Toronto, to come to
Canada, Captain Truscott had been a Post Captain in

286 lives of the judges,
the navy, and was a relative of Mr, Esten by marriage,
and thought he could advance his interest, by giving him
a clerkship in his banking house. The banking business
did not prove a success, however, and Mr, Esten instead
of being advanced was thrown backward in his pros
pects. With the collapse of the bank, he was thrown
on his own resources, and determined to become a
member of the Canadian Bar. He was not an Attorney
or Solicitor, either in England or Canada. It was a
venturesome thing for an English Barrister, with no
clientele in Canada, to undertake the business of counsel
alone. Mr. Esten, however, with true English pluck, felt
that with a stout heart and perseverance he might accom
plish his purpose.
As a member of the Bar of England, he was entitled to
be called to the Bar in Upper Canada, without going
through a course of study here. He accordingly applied,
and was admitted Student and Barrister on the same day,
in Trinity Term, i & 2 Victoria, 1838.
Mr, Esten had not been a silent observer of events after
his arrival in Canada in 1836, till the time of his call to
the Bar. On his arrival in Toronto he took up his
residence at Holland House, on Wellington Street, now
the Reform Club.
When the Rebellion broke out in 1837, Mr. Esten had
very little knowledge of the politics of the country. It
was sufficient for him, that the din of battle and war's
alarm were shaking the foundations of society. He volun
teered to take up arms, for the defence of the Province.
When the troops and militia moved from Toronto to the
attack on the insurgents, who were coming down Yonge
street to seize and sack Toronto, he served as a volunteer
in the attacking party. Pie was present at the skirmish
with Mackenzie's force at Montgomery's ; shouldering his
musket on behalf ot the Loyalists, who were engaged in
putting down the Rebellion. Referring to muskets, Mr
Esten's musket was almost too much for him : he was
3hort in stature, but the musket was long and bulky. The

vice-chancellor esten. 287
muskets of those days were not like the rifles of to-day ;
both in latitude and longitude they far exceeded the
present arms. Mr Esten's musket almost got the better
of him : he, however, was enabled, with much fatigue, to
carry it to and from the scene of action; but when the
Rebellion was suppressed, he had a weapon made, some
what shorter and less bulky than the old musket, to use
in case of emergency,
I well remember, on the breaking out of the Rebellion,
that many of the boys at Upper Canada College applied
to Sir Francis Head for arms to put down the Rebellion,
and were told by the Governor to go home, as thj arms
were too heavy for the would-be bearers.
As Mr. Esten, was not a boy, but had grown to man's
estate, he was accepted as volunteer, and, as I have
said, marched up Yonge Street with the men collected to
put down the Rebellion, and was at what has been called
the " Battle of Gallows Hill," or as it might more fitly be
styled the " Skirmish of Montgomery's Farm."
I will give a description of that affair as given by an
eye-witness, a stranger in the city. He said :
Being a stranger in the city, I had not then (6th December, 1837,)
formally volunteered, but took upon myself to accompany the advancing
force, on the chance of finding something to do, either as a volunteer or a
newspaper correspondent, should any opening occur.
The main body, led by Sir Francis himself, with Colonels Fitzgibbon
.-and McNabb as Adjutants, marched by Yonge Street and consisted of six
hundred men, with two guns ; while two other bodies, of two hundred
.and a hundred and twenty men respectively, headed by Colonels W.
Chisholm and S, P, Jarvis, advan jed by by-roads and fields on the east
and on the west of Yonge Street,
Nothing w,as seen of enemy till within half-a-mile of Montgomery's
tavern. The road was there bordered on the west side by pine woods,
from whence dropping rifle shots began to be heard, which were answered
by the louder muskets ot the militia. Presently the artillery opened
tlieir hoarse throats, and the woods rang with strong reverberations.
•^Splinters were dashed from the trees, - threatening, and I believe causing
jnore mischief than the shots themselves. It is said that this kind of
skirmishing continued for half-an-hour, to me it seemed but a few
minutes. As the militia advanced their opponents melted away. Parties
•of volunteers dashed over the fences and into the woods, shouting and
•firing as they ran. Two or three men of both parties were lifted tenderly

288 LIVES OF THE JUDGES.
into carts, and sent off to the city to be placed in hospital. Others lay
bleeding by the road side — rebels by their rustic clothing ; their wounds .
were bound up, and they were removed in their turn.
Soon a movement was visible through the smoke, on the hill fronting
the tavern, where some tall pines were then standing. I could see there
two or three hundred men, now firing irregularly at the advancing
loyalists ; now swaying to and fro without any apparent design. Some
horsemen were amons; them, who seemed to act more as scouts than as
leaders. We had by this time arrived within cannon shot of the tavern itself.
Two or three balls were seen to strike and pass through it, A crowd of
men rushed from the doors and scattered wildly in a northern direction.
Those on the hill wavered, receded under shelter of the undulating land,
and then fled like their fellows. Their horsemen took the side road to
the westward, and were pursued, but not in time to prevent their escape.
Had our right and left wings kept pace with the main body, the whole
insurgent force must Iiave been captured.
Sir Francis halted his men opposite the tavern, and gave the word to
demolish the building, by way of a severe lesson to the disaffected. This
was promptly done by firing the furniture in the lower rooms, and
presently thick clouds of smoke and fiames burst from doors and windows.
The battallion next moved on to perform the same service at Gibson's
house, several miles further north.
Many prisoners were taken in the pursuit, all of whom Sir Francis
released, after admonishing them to be better subjects in future.
The march back to Toronto was very leisurely executed, several of the
mounted officers carrying dead pigs and geese slung across their saddle
bows as trophies of victory.
These pages may meet the eye of some old college boys, if they do I
would recall to their recollection the loot that some of the boarding-house
boys brought home, taken by one of themselves at Montgomery's, This
loot was in the shape of preserves which had been carefully put up by the
Montgomery's for the season, Alas ! for the fate of war, the pots of
preserves were seized upon by the boys, brought to the college boarding-
house where the boys in residence enjoyed a rich feast of preserves, as
loyal young subjects feeding on the " Spolia opima " of their enemies,
I had a conversation, a few days ago, with an old
coloured man, ninety-eight years old, living in St John's
Ward, He told me : " Yes, sah ! 1 was at the Battle of
Gallows Hill, in Colonel Jarvis's Coloured Corps ! Yes,
sah! and we came off victors I" And so they did: the
troops returned with flags flying and drums beating : the
city was saved.
When absolute peace was again restored to the Province
Mr Esten went to work in the practice of his profession

VICE-CHANCELLOR ESTEN. 289
as Barrister, Counsel, and Conveyancer. He soon gained
the reputation of being skilful as a Conveyancer and
Special Pleader. Several firms of Solicitors often availed
themselves of his .services as Special Pleader, and finally
as supporting his pleading in Court Thus he went on,
from step to step, till he obtained a good practice as
Counsel in cases in Equity.
I have known him, when the late Chancellor Blake was
at the Bar, to be engaged as Counsel in opposition to him
in the old Court of Chancery. Frequently Mr. Blake gave
him briefs as Counsel with him, in cases before the Court.
Mr Blake had a great deal of confidence in him, for the
faithful attention he would give to a case.
Mr. Esten's is a singular, and one of the very few,
instances where an English Barrister has come out
here, not being a Solicitor, but Counsel only, who has
successfully undertaken the profession here, and attained
to a seat on the Bench, In his case he had only been
practising eleven years when, on the 29th September,
1849, he was appointed Vice-Chancellor,
While at the Bar he had taken no special interest in
politics. If anything, his sympathies were with the Reform
party. He had taken no active part, however, in political
contests. His success was entirely attributable to a con
scientious discharge of duty on his part, which gained for
him favorable notice and attention from those with whom
rested preferment in the profession. He received his
promotion to the Bench from the second Lafontaine-
Baldwin Government.
During the time Mr. Esten was on the Bench, many
reforms were introduced in the Court of Chancery. He
was on a commission appointed by the Crown to introduce
reforms in the practice of the Court The system of
Circuits for hearing of causes was established in his time,
and other reforms of an equally useful nature.
Mr. Esten was regarded as a Judge the soundness of
whose decisions were seldom challenged by the Bar. This
was specially the case in all matters relating to real estate.
37— L. J.

290 LIVES OF THE JUDGES.
One of the earliest cases decided by Mr Esten is the
case of Newton vs. Doran, i Grant's Reports 473-490,
with the circumstances of which I was familiar, having
been Counsel in the case with Mr Mowat. In that case
the majority of partners, combining with their general
manager Towns, had excluded the plaintiffs from their
due control of the business. The plaintiffs, on default of
answer to the bill, had obtained a injunction restraining
Towns from receiving debts due the partnership, and that
he might make discovery of the facts set forth in the bill,
and for general relief The defendants afterwards answered,
•denying all fraud and collusion, and moved to dissolve the
injunction: 1st Because Wilson, one of the partners not
made a defendant was a necessary party (Wilson was
made a party defendant in the morning, before the sitting
of the Court) ; 2nd No equity for relief prayed ; no relief
prayed against Towns except an account. It was the
second ground that was mostly urged for dissolution of
the injunction. During the argument, Mr Turner, Counsel
for defendants, argued, as to his second objection : " This
is not relief, but discovery; and a plaintiff is not at liberty
to file a bill for discovery as against one defendant,"
Esten, V, C, said: "I do not recollect any instance of such
a bill," However, when he came to give judgment he
•demolished the objection, saying :
This bill must be treated as one for relief against Towns ; it prays that
he may make a discovery; and be restrained from proceeding at law; and
there is a prayer for further relief. He is not bound to make any dis
covery : an account, however, may be obtained under the general prayer,
and an injunction may of course be obtained if proper. Then, is this
proper to be conjoined with the other purposes of the suit 1 We think
this objection cannot govern.
The case has always been kept green in my memory
from the circumstance that Mr Turner, a very experienced
Counsel and Solicitor, well versed in the practice of the
Court, felt convinced that it was improper to have joined
Towns the manager, as a co-defendant with the partners :
that as to Towns the matters were the subject of a

VICE-CHANCELLOR ESTEN, 29I
separate suit. Not so, however — Towns was charged with
fraudulent collusion. When Mr. Esten. V. C, came to
consider the case he readily disposed of the objection.
The case was afterwards heard by Chancellor Blake (i
Grant 496,) and the plaintiff's granted relief
This is the case which I have referred to in the
life of Chancellor Blake, in which he gave the defen
dant Towns in the witness box such a dressing that
he was glad to leave the Court, a sadder, but a wiser
man. The case Chisholm vs. Sheldon (i Grant 319), was an
important case, and was thought to involve the question,
whether the principle of law which settled the rights of
termor and reversioner in relation to growing timber,
would have been regarded in England a,s applicable to an
estate of this kind, as to which the beneficial enjoyment
of the land is ordinarily obtained and can only be
attained through the destruction of the growing timber :
and also, whether the doctrines of the Common Law, as
to growing timber, could be applied in all their extent to
forest lands in this country. The Court did not think
the case called for a decision on these points : the real
point to be decided was, whether a mortgagor of a term
¦ of years could restrain his mortgagee, being in possession,
from felling timber, although he may have obtained the
consent of the reversioner to it, and on this point Vice-
Chancellor Esten held he should be restrained. He said,
in giving judgment :
There is no doubt that, as an abstract principle, the owner of a term of
years who has mortgaged it may restrain his mortgagee, being in pos
session, from felling timber, although he may have obtained the consent
of the reversioner to it. If the plaintiffs (the termors and mortgagors)
have not only a right of enjoyment as to the timber, but also power to
fell it and convert it to their own use, their title to an injunction is
stronger, but not clear or decided. This question it is not necessary to
decide upon the present occasion ; for, admitting that the plaintiffs, as
the absolute owners of a term of one thousand years, have, as against the
reversion, a right to fell forest trees the original growth of the country,
the defendants, as mortgagees, could not claim this right as against the
plaintiffs until foreclosure.

292 LIVES OF THE JUDGES.
Fuller vs. Richmond (2 Grant, 24,) is another case in-
which Mr Esten, as Vice-Chancellor, gave an important
decision on a point much debated at the time; and that
was, whether a manufacturer of logs under an agreement
for advances, when it had been agreed also that when the-
logs were manufactured they should be marked with the
initials of the party so making advances, could give a title
to a third party after such marking had taken place, as-
against the party making advances ; as to which the Vice-
Chancellor decided in favor of the plaintiff — the party
making advances — and granted an injunction against the
transferee of the manufacturer. He said :
The sale and delivery by the defendants Richmond & Case (the manu-.
facturers) was undoubtedly an abuse of their power and a breach of trust
as agents. It could confer no legal title on Eedmond, for Richmond &
Case had no legal title to give, and the plaintiff had not acted in any
manner which would make their disposition effectual for this purpose, for-
he had simply intrusted his goods to his agents that they might be con
veyed to the mouth of the river (the place named in agreement for their
delivery). The case is well worth referring to also as discussing,
though not deciding, the question of the transfer in equity
of unmanufactured goods, so as to give an equitable title
or lien to the transferee, and as to parol agreements collat
eral to the main agreement in writing.
I will cite only one other decision of Vice-Chancellor
Esten, though I might cite a great many, all of which
shew the close attention he gave to the facts and applica^
tion of the law. It was a question whether the Court at
the instance of a first voluntary grantee of land, would use
its power and set aside a second voluntary conveyance to
another party. The point came up in Houlding vs. Poole
(2 Grant, 685,) when the Vice-Chancellor held that where
there are two voluntary settlements the Court will, at the
suit of those interested under the first, set aside the subse
quently executed settlement, and it is no objection to
relief in such cases, that the Courts of Law would give
effect to the first against the second.

VICE-CHANCELLOR ESTEN. 293
Vice-Chancellor Esten was on the Bench fifteen years.
If I were asked to give the chief characteristics of the
Vice-Chancellor I would say it was conscientiousness.
He was regarded by the Bar as possessed of sterling
honesty of purpose, and faithful in the discharge of his
official duties. He was a reserved man, not given to
ostentation or show. He was always ready at the call of
¦duty. I remember when a war was threatened with the United
States, in the matter of the Oregon boundary, a corps of
rifles was formed in Toronto. Volunteers were called for,
and Mr. Esten, though a Judge, enrolled himself with the
Victoria Rifles, of which I was a member We used to
meet nightly in the St Lawrence Hall for drill purposes.
Mr. Esten was always there, and was my right hand man.
We had some difficulty in forming fours, but ultimately
succeeded. Just about this time, the matter in dispute
was settled between Great Britain and the United States,
and drill ceased. Good came out of it, however, as the
Victoria Rifles merged into that crack corps the Queen's
Own, which has a Dominion reputation.
In the year 1861 the Vice-Chancellor was seized with a
lingering and painful illness, ending ultimately in death,
which took place at Toronto, on the 24th day of October,
1864. He left surviving one son and three daughters. Mr.
Esten, the Secretary of the Law Society, is his only
-surviving son.

XXII.
The Honorable Robert Easton Burns,
Judge of the Queen's Bench.
lOBERT EASTON BURNS was the son of
the Reverend John Burns, a Presbyterian
minister, who emigrated from Scotland in
1803 ; and, on his arrival in Canada, settled
at Niagara. Robert Easton Burns was born at Niagara.
on the 26th December, 1805; and was educated by his
father, who was then Master of the Grammar School, and
from whom he received a liberal education. He was a
diligent student, acquiring by industry and perseverance
(his permanent characteristics through life), knowledge
and learning, which fitted him to fill the position of Prin
cipal of the Grammar School in his native town, at a very
early age. When sixteen years of age he determined to
obtain a legal education, and, in Easter Term, 3 George
IV., 1822, was admitted as a student of the laws.
Mr. Burns commenced his studies for the Bar with
John Breakenridge, who was at this period practising as a
Barrister and Attorney in Niagara.
So far as I have been able to ascertain, Mr. Burns
completed his whole course with Mr Breakenridge.
Miles O'Reilly, Q.C, of Hamilton, and at one time
Judge of the County Court of Wentworth, (Hamilton).
was a fellow student of Mr. Burns, in the office of John,
Breakenridge. Mr Burns was called to the Bar in Hilary-

JUDGE burns. 295
Term, 7 George IV„ 1827, after which he prj,ctised his
profession for some years in Niagara, St Catharines, and
Hamilton, with considerable success. He had been at
the Bar only ten years, when, on the 16th July, 1836,
he was appointed Judge of the Niagara District. The
routine of the duties of a District Court Judgeship did not
suit Mr Burns's active and ambitious mind. In the
Spring ot 1838, he resigned his office, and removed from
Niagara to Toronto, when he entered into partnership
with Christopher Alexander Hagerman, then Attorney-
General. The Attorney-General had a large and extended
business, and required a partner to conduct the ordinary
business of his office, while he was engaged in the perform
ance of public duties. Mr Burns had acquired such a
reputation for steady, plodding work, that Mr. Hagerman
had no difficulty in choosing him for a partner. Mr.
Burns had other qualifications which fitted him to fill the
place of partner with Mr Hagerman. He did not aim
at brilliancy, so much as honesty and fidelity, in the
performance of any work he undertook.
When the seat of Government was removed from
Toronto to Kingston in 1841, the Court of Chancery, in
which Mr Burns had, in addition to other work, begun to
practise, was removed with the Government. The Court
of Chancery was young at this time ; still the amount of
work involved was very great, owing to the system then
in vogue. Bills and answers, interrogatories and cross-
interrogatories, entailing much more labor than afflicts the
practitioner of the present day. Mr. Burns's untiring
industry and determination to succeed, induced, if it did
not compel him to give the utmost attention to business.
When the seat of Government was removed from
Kingston to Montreal in 1844, the Court of Chancery was
again removed to Toronto, compelling Mr. Burns to
change his residence from Kingston to Toronto, the seat
of the Court.
On his return to Toronto, Mr Burns formed a partner
ship with Mr. Oliver Mowat, the present Attorney-General

296 LIVES OF THE JUDGES.
of the Province, and Philip M. Vankoughnet who after
wards became Chancellor The firm name was Burns,
Mowat, & Vankoughnet. The business of that firm was
very large, probably the most extensive of any in Toronto.
They had their office on the south side of King Street, at
or near the place where the Remain Buildings now stand.
Mr. Burns did not continue long in this partnership, as
¦shortly after his removal to Toronto, he was offered and
accepted the appointment of Judge of the Home District,
In 1844, he received two appointments from Govern
ment, one, that of Bankrupt Commissioner, on the 24th
February of that year ; and the other, the Judgeship of
the Home District, on 19th August, 1844, which office
he held till 1848, In 1848, he received a Commission of
Enquiry to investigate the management of the Provincial
Penitentiary, Mr, Burns held the appointment of Judge of the Home
District till 1848, when he resigned, and formed a
partnership with the late John Duggan, Q,C, The part
nership name was Duggan & Burns.
In 1850, a vacancy occurring in the Queen's Bench, Mr
Burns was appointed Judge of that Court As a Judge he
was painstaking, and gave general satisfaction. He was
an unobtrusive man. On the Bench he was patient and
careful in consideration of points presented for his adjudi
cation. In charging'juries, he was not as careful as some
other Judges in dissevering the law from the facts, making
an express ruling, but rather submitted the whole case to
the jury. I have practised before him in both Courts, the
District and Queen's Bench Courts. The experience he
had in the District Court stood him in good stead in the
Queen's Bench,
Judge Burns was very much esteemed for his integrity
while at the Bar, and for his unassuming worth on the
Bench, He was very unostentatious in his manner ; and
ready at all times to receive the Bar in a manner which
made them feel that it was pleasant to come before
him.

JUDGE BURNS. 297
He was ever liberal in his dealings with his fellow man.
He was of a generous disposition, and fully illustrated the
-adage, that a friend in need is a friend indeed. In his
declining years he had to stint himself, by reason of his
having come to the rescue of friends in financial straits.
In personal intercourse he was most agreeable. Few men
enjoyed a joke better than he: he had what might be
called a laughing face, and whenever the risible faculties
were agitated, his hearty response shewed itself in his
face with wonderful quickness, so that bystanders could
not but join in the laugh. His intercourse with the Bar
was of the most friendly character : he always acted
with them as an elder brother. He was much beloved
by the Students, who shewed their appreciation of his
urbanity and condescension by year after year electing
him President of the Osgoode Club. His popularity
was further evinced by his election to the Chancellor
ship of the University of Toronto, during the time that
he held the position of Judge. His decisions as a Judge
were much respected, from the fact that he was always
most painstaking, and never adjudged a case till he had
mastered all the facts.
Judge Burns was never in political life, hence the inci
dents of his existence may not possess the attractions
which belong to those who make a study of politics, and
obtain power and place through political agencies. He
was eminently a self-made man, of plodding habits and
honesty of purpose, which obtained favorable recognition
from all who knew him.
There are those still living who practised before him on
the Bench, though few who knew him as 1 did, practising
at the Bar. He was not considered a brilliant man at the
Bar; but his slow, but honest, utterances often commanded
more respect, and had more weight, than the oratorical
displays of the most rhetorical of the Bar of his time. He
was a living instance of success from honesty, rather than
from forensic eloquence, or from what is sometimes called
^'genius," the handmaid of the "heaven-born" lawyer.
3«-L- 1

298 LIVES OF THE JUDGES.
Mr ]5urns was twice married. His first wife was Miss
Anne Taylor, by whom he had four sons. His second
wife was Miss Nanton, a sister of the late Edward Nanton,
of Toronto.
In the early part of 1863, Judge Burns was stricken
down with an illness which terminated fatally. He died
in Toronto on the 12th January, 1863.

XXIII.
The Honorable John Godfrey Spragge,
Chancellor of Ontario, and Chief
Justice of Ontario.
jgr^HE Honorable John Godfrey Spragge was an-
'^^'mlffi Englishman, He belonged to a Dorchester
family, but was himself born at New Cross,
one of the Surrey suburbs of London, in
1806. The family came to Canada in the year 1820, in a
Government ship, as appears by a letter from the Admir
alty, in answer to a letter written them with the object of
their coming out to Canada : Navy Office, 2Sth April, 1820.
Sir, — In reference to your letter of the 22nd ulto., we acquaint you,
for the information of Earl Bathurst, that Mr, Joseph Spragge, his wife,
three sons and two daughters, and his mothei'-iu-law, may embark on
board the Huddart, at Depttord, about the 7th May, for passage to
Quebec, I have a copy of this letter in my possession,
Mr. Spragge's father was by profession a tutor He
was tutor in the Central School of York, now Toronto, in
the years immediately following his coming to the country.
He lived to a good old age, and died about the year 1848.
I remember well being at his funeral, which took place
from the family residence, in or in the vicinity of York
street, between King and Wellington streets.
Mr. Spragge (the Chancellor's father) was not willing
that his son should be entirely educated by himself, and

300 LIVES OF THE JUDGES.
so, in due time, trusted the completion of his education to
Doctor, afterwards Bishop, Strachan, at the Royal Gram
mar school ; or, as it was usually called, the Home District
school. These schools, the Home District and Central, had a
high reputation in the early days of York. They were
both situated in a large six acre field, just to the north of
the plot on which St. James's Church now stands. The
Central School was kept by Mr. Spragge's father, who had
enjoyed the advantage of a regular training in England
as an instructor of the young. Doctor Scadding has given
us a description of him in his " Toronto of Old." He
says of him : " Though not in holy orders, his air and
costume were those of the dignified clergyman.'' Referring
to the Central School, and to the fact that the Chancellor
was educated at it, he says : " Of the: Central School, the
words of Shenstone, spoken of a kindred establishment,
become in one point, at all events, true to the letter :
E'en now sagacious foresight points to shew
A little bench of bishops here
And there, a chancellor in embryo
Or bard sublime.''
To form a proper estimate of the Home District School,
¦the school at which the Chancellor completed his educa
tion, as also a reminder of the boys of those days, 1
transcribe the order of examination at that school on
Wednesday, nth August, 1819, First Examination day.
First Day. — The Latin and Greek classes. Euclid and Triguometry.
Thursday 12th August. Second Day. —To commence at 10 o'clock.
Prologue by Robert Baldwin.
Reading Class —
George Strachan — The Excellence of the Bible.
Thomas Ridout — The Man of Ro-^s.
James McDonell — Liberty and Slavery.
St. George Baldwin — The Sword.
William 'iH.cM.nvrB.y —Soliloquy on Sleep.

CHIEF JUSTICE SPRAGGE. 301.
Arithmetic Class^
James Smith— -^Ae Sporting Clergyman.
William Boulton, Jr. — The Poet's Nem Year's Gift.
Richard Gates — Ode to Apollo.
Orville Cassel — The Rose.
Book Kbefing —
William Myers — My Mother.
Francis Heward — My Father.
George Dawson — Lapland.
First Grammar Class. Second Grammar Class,
Debate on the Slave Trade.
For the Abolition — Francis Ridout, John Fitzgerald, William Allan,,
George Boulton, Henry Heward, William Baldwin, John Ridout, John
Doyle, James Strachan,
Against the Abolition — Abraham Nelles, James Baby, James Doyle, .
Charles Heward, Allan McDonell, James Myers, Charles Ridout, William.
Boulton, Walker Smith,
First GEOfiBAPHY Class, Second Geography Class,
James Dawson — The Boy that Told Lies.
James Bigelow — Th^ Vagrant.
Thomas Glassco — The Parish Workman.
Edward Glennon — The Apothecary.
Natural History — Debate by the Young Boys.
Sir William Strickland — Charles Heward,
Lord Morpeth — John Owens.
Lord Hervey — John Ridout.
Mr. Plomer — Raymond Baby.
Sir William Tom.f/e— John Fitzgerald.
Sir William Windham — John Boulton.
Mr. Henry Pelham — Henry Heward.
Mr. Bernard — George Strachan,
Mr. Noel — William Baldwiu,
Mr. Shippen — James Baby,
Sir Robert W alpole — S, Givins and James Doyle.
Mr. Horace Walpole — James Myers.
Mr. Ptdteney — Charles Baby.
Civil Hlstory —
William Buulton — The Patriot.
Francis Ridout — The Grave of Sir John Moore.
Saltern Givins — Great Britain,
John Boulton — Eulogy on Mr. Pilt.
Warren Clans — The Indian Warrior.
Charles Heward — The Soldier's Dream.
William Boulton — The Heroes of Waterloo.

302 LIVES OF THE JUDGES.
Catechism —
Debate on the College at Calcutta.
Speakers —
Mr. Canning — Robert Baldwin.
Sir Francis Barney — John Doyle.
Mr. Wainwright — Mark Buruham.
Mr. Thornton — John Knott,
Sir D. Scott— WiUikm Boulton,
Lord Eldon — Warren Claus.
Sir S. Laurence— Allun Macaulay,
Lord -ffawicsSio-j/— Abraham Nelles,
Lord Bathurst — James McGill Strachan,
Sir Thomas ./Ifeifa//— Walker Smith,
Lord Teignmouth — Horace Ridout,
Religious Questions and Lectures —
James-McGill Strachan — Anniversary of York and Montreal Colleges,
anticipated for Jcmuary 1st, 18M.
Epilogue by Horace Ridout.
Not half a dozen of the boys who took part in that
-examination are now living. The names of most of them
are household words in Canada. Robert Baldwin, after
wards the Honorable Robert Baldwin, Attorney- General
and Premier of the Provirice, on this occasion delivered
the prologue. In it the administration of Hastings, in
India, is eulogized thus :
Her powerful Viceroy, Hastings, leads the way
For radiant truth to gain Imperial sway,
The arts and sciences for ages lost,
Roused at his call, revisit Brahma's coast,
A school with such a bill of fare as was presented on this
occasion was no mean school. There has perhaps never
been in the schools of Canada a better educated set
¦of boys than Dr Strachar's, In 1833, the Doctor had
presented to him an address, accompanying a piece of
plate. Among the forty-two subscribers to the address
were the names of four gentlemen, all pupils of his, who
had then, Or afterwards, attained to a position of Judge of
the Queen's Bench, These names were, the Honorable
Sir John Beverley Robinson, Chief Justice; the Honorable
Archibald McLean, Chief Justice; the Honorable James

CHIEF JUSTICE SPRAGGE. 303
Buchanan Macaulay, Chief Justice; and the Honorable
Jonas Jones, Puisne Judge,
I have written the lives of all these Judges, and now
add to the list another distinguished Judge, Chancellor
Spragge, On leaving this School (Home District), Mr. Spragge
was equipped for a start in life, and chose the law for his
profession. He was entered on the books of the Law
Society as a Student, in Michaelmas Term, 4 George IV,,
1823. He first was articled to Sir James B, Macaulay,
then plain Mr Macaulay, and afterwards to Honorable
Robert Baldwin, with whom he finished his studies. We
have seen that both Mr. Macaulay and Mr Baldwin had
been pupils of Doctor Strachan, at the same Home
District School at which Mr, Spragge was educated,
Mr Spragge was admitted to the Bar in Michaelmas
Term, 9 George "IV, 1828, On being admitted to the
Bar he commenced the practice of his profession in York.
He secured for himself a good practice, and when the late
Honorable J, H, Cameron was called to the Bar in 1838,
Mr. Spragge admitted him to a partnership, which lasted
for some years, the firm name being Spragge & Cameron.
While at the Bar, Mr, Spragge had a large business. He
had a large agency coupled with a good local business.
When Mr. Cameron joined him in business, the new blood
brought new business. Mr. Cameron soon gained a
reputation as Special Pleader He was at one time
Reporter for the Queen's Bench, and by that time had got
into a large Counsel business.
Mr. Spragge was more of an office than Court-man.
He was the ablest Equity Draftsman of his day practising
in the Courts. He never engaged in politics, having no
taste for the excitements of political life. He was a
steady, industrious, painstaking counsel. English born,
he from boyhood retained an affection for the ways of
the English. He was fond of the English game of cricket,
was an excellent player, and was often to be seen with his
fellow cricketers giving play to physical exercise, to the

304 LIVES OF THE JUDGES.
relief of mental strain. In his youthful days, there was a.
large English emigration to the Province, officers and
sons of officers, besides many civilians of the higher
class. Cricketing, in England, is not confined to the higher
classes. It is the peoples' popular game, cultivated in all
the schools. In Canada, other games in the field have
largely taken the place of the English pastime. The
Chancellor, even to the latest period of his life, retained
his interest in the game, and did not consider it beneath
his dignity, while a Judge, to give countenance and
support to friendly matches of cricketers in their strife
for mastery.
Mr Spragge was elected Bencher of the Law Society
in 1835 ; was at one time Surrogate Judge of the Home
District, having received his appointment to that office in
1836 ; he continued to retain the office till the re-union of
the Provinces of Upper and Lower Canada in 1841.
Upon the establishment of the Court of Chancery, by
the Chancery Act of 1837, Mr Spragge was appointed
Master in Chancery — the first in the Province. His
appointment was made on the 20th June, 1837. He held
this office for a longer time than any Master that has
succeeded him, with the exception of Mr Buel, He was
a most able and efficient Master. The profession univer
sally gave him credit for the manner in which he
performed his new and important duties. The business
of the Master's office in Chancery is always very
onerous and exacting — never more so than when the office
was filled by Mr, Spragge. On the establishment of the
Court rules had to be framed to regulate the procedure
therein. Mr Jameson, the first Vice-Chancellor of the
Court, had not had a very extensive experience, conse
quently Mr Spragge felt the responsibility thrown on him
in inaugurating the new Court He undertook the task
with vigor, and hence was evolved a set of rules which
were of the greatest value in the transaction of the business
of his department.

CHIEF JUSTICE SPRAGGE. 305
On the removal of the Seat of Government to Kingston,
just after the Union of 1841, the Court of Chancery and
its Master had to follow the Government. It was one of
the duties of the Master, during his incumbency of office,
to attend the Legislative Council in that capacity.
The Seat of Government was not destined to favor
Kingston with its presence for a long period of time, and
was removed from Kingston to Montreal in 1844, When
this took place, the Court of Chancery returned to its
old grounds in Toronto, It was a sad day for Kingston,
losing the Governor and the Government officials :
how much sadder was it to lose the Court of Chancery,,
the very fountain of justice as administered in a Court
of Equity, There had surrounded this Court a certain halo,
which seemed to permeate the whole atmosphere. The
gentlemen practising in that Court were mostly real old,
or real young, English gentlemen. There was a Turner, a
Maddock, an Esten, and others who, as it were, gave tone
and dignity to the Court. The removal of the (Zourt gave
occasion to the effusion of some lines by Mr. John Ramsey,
an English Barrister, which are worth recording. Here
are the lines :
Dreary and sad was Frontenac,
Thy Duke ne'er made a clearer sack
Than when the edict to be gone,
Issued from the Vice-regal Throne.
Exeunt omnes, helter skelter.
To Little York again for shelter.
Little no longer : York the New,
Of imports such, can boast but few,
A goodly freight, without all brag,
When comes 'mongst other Master Spragge,
And skilful Turner, versed in pleading.
The Kingston exiles gently leading.
To the lines was appended a note, written no doubt, in
order that there should be no mistake of the names men
tioned in the poetical effusion. The note is as follows :
J. G, Spragge, Esq,, the present very highly esteemed and respected
Master of the Court of Chancery ; R. J. Turner, Esq., a skilful Equity
Draftsman and Solicitor in Chancery.
39— L. J.

3o6 LIVES OF THE JUDGES.
Mr Turner will be remembered as the senior member
of the firm of Turner & Bacon, in Toronto ; and as being
afterwards Referee of Titles, with his office in Osgoode H all.
Mr Spragge was not only Master, but was at one time
Registrar of the Court of Chancery. He was appointed
to this office on the 13th July, 1844,
From what has been written, it will be seen, that in
the various offices held by Mr, Spragge, he had splendid
•opportunities for becoming familiar with all the duties
appertaining to officers of that Court,
I have mentioned before that Mr, Spragge was not a
politician, and had no taste for politics : his sympathies,
and I believe, the voting power he possessed were, how
ever, with the Conservative party.
In the year 1850 and beginning of i85i,the second
Baldwin-Lafontaine Reform administration was m power.
Mr. Baldwin had always a most conscientious regard for
law and its due administration. The Court of Chancery
with its Chancellor and two Vice-Chancellors, was indeed
his and Mr Blake's creation. When afterwards, an
attempt was made in Parliament to abolish the Court
which he thought so essential for the country, he resigned
his place in the ministry, rather than submit to such an
insult The attempt was considered by him like an
attempt to strangle one's own child. When it came to
the appointment of a second Vice-Chancellor, under his
and Mr Blake's Bill, he had no difficulty in offering Mr
Spragge the position, which Mr Spragge accepted, and
thus became Vice-Chancellor of the Court in which he
had held the minor offices for thirteen years. He was
appointed Vice-Chancellor on the 27th December, 1850,
and on the same day Andrew Norton Buel was appointed
Master of the Court.
In 1869, Vice-Chancellor Spragge was promoted to the
Chancellorship of the Court in succession to the Honor
able Philip VanKoughnet
There were many cases before him as Vice-Chancellor,
which he disposed of to the satisfaction of the profession.

CHIEF JUSTICE SPRAGGE. 307
He was always ready to hear a case through, not coming
to sudden or erroneous conclusions. His experience as
Master had paved the way for a successful Judge. I need
not cite any of the cases adjudged by him while Vice-
Chancellor, but will only refer to some cases in which he
gave judgment as Chancellor and head of the Court
of Appeal, of which Court he was created Chief
Justice on the 2nd May, 1881.
Archer vs. Scott 17 Grant 247, was a case decided by
the Chancellor shortly after his promotion to the Chancel
lorship, and is important as bearing on the Statute of
Frauds, The plaintiff brought suit to set aside a convey
ance, which the plaintiff" had been induced to execute,
• and for relief against the second clause in a will, under
the following circumstances : The defendants, Scott &
Erritt, had acted as solicitor and agent, respectively, to
one Mrs. Hill. Erritt was employed by her to get her
will drawn. She was on her death bed at the time, and
was anxious to leave whatever she had to her niece, the
plaintiff. He procured a will to be drawn by a solicitor
(not Mr. Scott), and left it with her for execution, express
ing a wish not to be a witness. She was an intelligent
person, and competent to make a will ; and having read
the instrument, she executed it in the presence of two
female friends. By the first clause, all her real and
personal property were given to the plaintiff". The second
clause was as follows :
Having sold and agreed to convey unto W. H. Scott, Esquire, of
Peterborough, aforesaid, Barrister, the following parcels of real estate,
namely, the south half of lot number nine, in the fourth concession of the
Township of Ennismere, in the County of Peterborough, containing one
hundred acres more or less ; also, the residence and one acre of land in
the Township of Monaghan, adjoining the said Town of Peterborough ; I
hereby devise the said two parcels, sold to Mr. Scott, unto the said
Sophia Archer in fee simple : and I hereby direct her to convey the same
to said Scott ; and I hereby devise and bequeath unto the said Sophia
Archer along with all my other property the purchase money to be paid
in respect of said parcels to be her own property for her own use and
Tbeneiit absolutely.

308 LIVES OF THE JUDGES.
A few days after executing the will the testatrix died,.
and Erritt induced the plaintiff", who was under age, to.
execute to the defendant Scott, a conveyance of the
property mentioned in the will, without his paying or
providing for the consideration. There was no evidence
of any bargain with Scott for the two lots, as stated in the
will. There was a written bargain with Scott as to one of
the lots, and Erritt said there was a verbal bargain to sell
to Erritt the other lot mentioned in the will ; but he did
not set up any writing to that effect, or any part perform
ance of the alleged bargain.
It was argued before the Chancellor that the admission,.
in the second clause of the will, of the sale was sufficient
to sustain the transaction. The Chancellor, however, held
differently, saying :
I do not see how the Statute of Frauds is to be got over. There was
no contract in writing between Mrs, Hill and Erritt, and assuming her
will to be a sufficient note in writing within the Statute, as I think it
would be if it contained all that is necessary to constitute a contract,
there is this difficulty, that it does not contain all that is necessary in a
contract for the sale of land ; the price is an essential element. The will
speaks of the purchase money, and I suppose it is to be inferred that the
amount of purchase money had been agreed upon, but the difficulty
remains that there is no note or memorandum in writing of the person to
be charged upon the contract, of that essential element of a contract.
Mills VS. Cottle, 17 Grant 335, was an interesting case,,
involving the right of a party making advances to a trustee
for the purposes of a trust, but taking the trustee's personal
bond for repayment, the money advanced having been
applied to the purposes of the trustee, to stand in the place
of the trustee to the extent of the advance, against the
trust estate, The Chancellor held that the party advancing
the money had such right. He said :
The plaintiff's equity is, that he advanced money to the defendants as
trustees taking their personal bond for repayment, and that the money so
advanced was applied to the purposes of the trust, and he claims to stand
pro tanto in the place of the trustees as against the trust estate. It is not
disputed that money was so advanced by the plaintifi' and that it was so -
applied by the trustees, I think the plaintiff has the equity which he,
claims by his bill.

CHIEF JUSTICE SPRAGGE, 309
The cases so far quoted may be considered by some,
not all of much importance, they do, however, involve
principles, the elucidation of which is useful for the
instruction of the popular if not the legal mind.
We come -now to consider a case, which has perhaps
been the subject of more controversy, than almost any
¦other case that has ever occurred in Ontario. The mis
fortune is, that the case has been the subject of controversy
not only in the Courts, but in the Councils of two Govern
ments, the Dominion Government and Ontario Govern
ment, and has been the subject of special Local Legislation.
I do not propose to deal with the political questions
involved, but only with the legal and equitable issues. In
these, I think, the Chancellor stands out pre-eminAit The
•question presented for his consideration, and that of his
brothers of the Ontario Court of Appeal Bench, was a
simple one in itself, but in the principle involved of
far reaching consequences, nothing more or less than
the blocking up a stream against parties desiring to
float their logs and timber down that stream, to or
towards the market where the logs or timber were to be
sold. The case I refer to is McLaren vs. Caldwell, reported
'in 6 Ontario Appeal Reports, page 472, et seq. The
plaintiff", a lumber merchant, on the stream in question,
had made improvements 'on the stream, had acquired a
title to twelve parcels of land on the margin of the
stream, and in some, if not in all the cases, including
the bed of the stream ; the stream itself was about two
hundred miles long, and during time of freshets was
capable of floating down its course timber, rafts, and crafts.
The plaintiff's bill was filed for the purpose of obtaining
•an injunction against Caldwell, the defendant, a rival
timber merchant, higher up the stream, to prevent his
.floating his timber down the stream to market.
By the Act of 11 Victoria, cap. 2,'j, sec. 5, embodied in
sees. 15 and 16 of the Consolidated Statutes of Upper
•Canada, it was enacted :

3IO LIVES OF THE JUDGES.
That it shall be lawful for all persons to float saw-logs, and other
timber, rafts, and craft, down all streams in Upper Canada during the
Spring, Summer, and Autumn freshets, and no person shall by felling;
trees or placing any other obstruction in or across any such stream,
prevent the passage thereof.
Now, singular as it may appear, leaving out surplusage
of words, the real point was, whether "all," in the section
quoted, meant what it said, or only meant "some" streams,.
instead of all streams. It had been decided by the Court
of Common Pleas in Boale vs. Dickson, 13 C. P. 337, that.
that section did not apply to the case of any .stream when
improvements were necessary to be made to render the
stream floatable : that the clause did not alter the charac
ter of the private streams, and that the owner of the land
over wliich the stream flowed had a right to prevent an-
intrusion upon it. On the case going before Proudfoot,
V.C, in the Court of Chancery, he granted the injunction,.
in the law applicable to the case following Boale vs.
Dickson. His conclusion, as well as the correctness of the
decision in Boale vs. Dickson, was challenged by the
defendant, who appealed to the Ontario Court of Appeal..
The case was most ably argued by counsel for both sides,
and the judgment of the majority of the Court given on
the 8th July, 1881.
Chancellor Spragge gave a judgment, in which he held
the decision in Boale vs. Dickson not to be conformable
to the Statute : in effect holding that the defendant Cald
well had a right to float his timber down the stream.
Two others of the Judges of the Court of Appeal concurred
in his conclusion, one of them, Mr Justice Patterson,
giving a length)'-, well reasoned judgment As I have
only to deal with the Chancellor, I will only give the
important parts of his judgment, which I may be permitted
to say is clear, non-dififusive, striking the point without
circumlocution, and giving effect to the Statute as it was, and
not legislating to a conclusion, He said, in his judgment:
Upon the appeal to this Court it is contended that the construction
placed upon the Statute in Boale vs. Dickson was not correct. It becomes -
our duty, therefore, to consider and determine that question.

CHIEF JUSTICE SPRAGGE. 311
It is obvious from a perusal of the Acts (which are consolidated in cap.
48 of the Co;isolidated Statutes of Upper Canada) that it was the policy
of the Legislature to encourage the lumber trade of the Province, and to
preserve the fish in the streams. The Act of 1828 (9 George IV, cap. 4),
recites : ' ' Whereas it is expedient and found necessary to afford facility
to the inhabitants of this Province, engaged in the lumber trade, in con
veying their rafts to market, as well as for the ascent of fish, in various
streams now obstructed by mill dams," The same policy is evidenced by
12 Victoria, cap, 87, the 1st section of which supplies what may be taken
to have been omitted in the Act of 1828, viz,, that aprons or slides to mill
dams should be so constructed as to afford sufficient depth of water for
the passage of saw logs, lumber and timber, a provision embodied in
section 4 of the Consolidated Act, Then in section 5 of the same Act we
find enacted what is embodied in sections 15 and 16 of the Consolidated
Act. The first clause of section ,5 is in the same terms as section 15,
beginning thus : "And be it enacted, that it shall be lawful for all persons
to float saw logs, &c. , and other timber, rafts and craft down all streams
in Upper Canada during the spring, summer, and autumn freshets ; and
that no person shall, by felling trees, or placing any other obstruction in
or across any such stream, prevent the passage thereof, " In Boale vs.
Dickson the opinion is expressed "that this right so given extends only to
such streams as, in their natural state, will, without improvements, during
freshets, permit saw logs, timber, &o,, to be floated down them ;" to streams
of a different class to those mentioned in the 3rd section, ' ' down which
lumber is usually brought."
No such qualification of right is to be found in the Act, nor in any of
the previous Acts thereby consolidated. There is nothing in the contexts
of any of these Acts shewing, or tending to shew, that such qualification
was intended ; and we know, from what we find in the evidence taken in
this cause, that, confining the right given by section 15 to such streams
as are described in the passage I have quoted from Boale vs. Dickson,
would go far to defeat the avowed policy of the Legislature.
* * Jt. * * *
To adopt the construction put upon the Act in Boale vs. Dickson, we
must read "all streams" as meaning "some streams,'' and we look in
vain in the Act for any class of streams defined as they are defined in
Boale vs. Dickson, If what is supposed in that case to have been intended
by the Legislature had really been intended, section 15 should have run
thus; "All persons may float saw logs and other timber during the
spring, summer, and autumn freshets, down," not "all streams," but
"such streams as in their natural state will, without improvements, permit
saw logs, timber, &c., to be floated down them."
Is it too much to say that such an alteration of the Act is not construction,
but legislation. I am unable to concur in the construction put upon
section 15 of the Act in Boale vs. Dickson, There being no context, nor
indeed anything whatever in any of the Acts on this subject, to control
the ordinary grammatical meaning of the words used, we must read them
in their ordinary grammatical sense, and should therefore construe section

312 LIVES OF THE JUDGES.
15 as giving the privilege to all persons to float saw logs and other timber
down all streams in Upper Canada, during the spring, summer, and autumn
freshets. Notwithstanding this plainly expressed judgment the
Supreme Court of the Dominion, at Ottawa, reversed the
decision of the Chancellor and Ontario Court of Appeal,
holding that the decision of Boale vs, Dickson was good
law. See McLaren vs. Caldwell, 8 Supreme Court Reports,
435, But, on appeal to the Privy Council, in England, the
decision of the Chancellor was sustained, and the Supreme
Court reversed : 9 Appeal Cases, 392,
The parties to this suit expended as much as $20,000
in costs, before the final conclusion was reached. It
seems a large sum to expend in unravelling the ques
tion involved, but Judges, as well as Doctors, will differ,
and when that occurs, a reference to the Court of final
resort must be made, in order to a final and conclusive
settlement of the controversy.
The case of Regina vs. Hodge, 7 Appeal Reports, is
another case in which the judgment of the Chancellor
was sustained by the Privy Council. The question was,
whether the Ontario Legislature could delegate its
powers in regard to shop, saloon, tavern, auctioneer, or
other licenses, to a Board of License Commissioners. In
the particular case, Hodge, a licensed tavern keeper, in
the City of Toronto, had been convicted by the Police
Magistrate for allowing a billiard table to be used in his
tavern after the hour of seven o'clock at night, in contra
vention of a resolution and enactment of the Board of
License Commissioners of the City. The Court of Queen's
Bench held the conviction to be bad, holding that the
Legislature could not delegate its powers to the Board of
License Commissioners. The Chancellor held that the
Legislature had such power He said:
My conclusion is, that it cannot be correctly laid down as a proposition
of law, that a Legislature cannot delegate its powers to other bodies, or
to boards of officers created by itself, in order to the carrying out its
legislation upon particular subjects. It is not necessary to go further.

CHIEF JUSTICE SPRAGGE. 313
It has been the course of legislation to do this in England and in Canada,
-and also in the neighbouring republic, and it is manifest that a contrary
doctrine would cripple legislation to a very serious extent.
I need not refer to anymore decisions of the Chancellor,
but will add that he was a Judge of sound judgment and
great experience.
The Chancellor was a devoted son of the Church of
England, and was frequently a delegate to the Synod of
the Church. He married a daughter of Doctor Alex
ander Thorn, Staff Surgeon and Medical Superintendent
of the military settlements on the Rideau. He died at
his residence, in Toronto, on the 20th day of April, 1884,
leaving him surviving two sons and two daughters.
One of his sons is a practising physican in Toronto, and
another a clergyman of the Church of England, stationed
at Newmarket, in the County of York. The widow of the
Chancellor only survived him four days, she having died
on the 24th April, 1884.
The memory of the Chancellor and his wife is perpetu
ated by a tombstone inscription in St. James's Cemetery,
which reads as follows : IN
LOVING REMEMBRANCE OF
JOHN GODFREY SPRAGGE,
CHIEF JUSTICE OF ONTARIO,
BORN SEPTEMBER 16tH, 1806,
DIED APRIL 20th, 1884,
AND
CATHERINE SPRAGGE,
BORN JANUARY 26tH, 1815,
DIED APRIL 24th, 1884.

IN DEATH NOT DIVIDED.
"Make them to be numbered with Thy Saints in Glory Everlasting."
ERECTED BY THEIR CHILDREN.
40— L. J,

XXIV.
The Honorable Philip Michael Matthew Scott
VanKoughnet, Chancellor of Upper
Canada and of Ontario.
^^jJHE Honorable Philip VanKoughnet was
^IK second Chancellor of Upper Canada. I omit
. _ the Michael Matthew Scott here, and, as he
"^W-" was generally known as Philip VanKoughnet
before he reached a seat on the Bench, I could not,
if I would, call him by any other name. The pleasures
of memory call me back very many years, to the time
I first made the acquaintance of Philip VanKoughnet.
I think it was in the year 1839, or 1840, when I met him,
a guest at the hospitable table of Robert Hervey, of
Brockville. I wjis then a Law Student in the office of
George Sherwood, who was afterwards Judge of the
County Court of Hastings, and was invited to Mrs.
Hervey's, where, as I have said, I first met Mr. Van
Koughnet and a friend. Doctor Dickenson, of Cornwall.
I had an idea then, which I have since learned was a
mistaken one, that Mr, VanKoughnet was two or three
years older than myself He presented to my mind a
young man of manly qualities, and of sociable disposition.
He was most agreeable in conversation, referring with
engaging vivacity to the life of a soldier, which he had led
during the Rebellion of 1837, He had "turned out," as it
was termed, in defence of the Province, and was an officer

CH.A.NCELLOR VANKOUGHNET. 3 [5'
in the Incorporated Militia. All I knew of him then was,.
that he was the son of Colonel VanKoughnet, of Cornwall,
who had for many years, some time before then, repre
sented respectively the counties of Stormont and Dundas,
in the Upper Canada Assembly. Colonel VanKoughnet
the father of Philip VanKoughnet, was a man who had
earned the respect of his contemporaries, for his sterling
qualities and honest patriotism. He had all the stubborn
ness of a German, with the patriotism of a Briton.
In the early part of the eighteenth century, the ances
tors of Philip VanKoughnet, or, according to the orginal
spelling VonGoughnet, emigrated from Colman in Alsace,
to the British Colonies in America, and the family
remained there till the close of the Revolutionary War.
During the American struggle for Independence, the
VanKoughnets espoused the cause of the Royalists,
adhering to England's Crown and King. At the close of
the war, they found, like many others, that it was all but
impossible to live among a people, who, puffed up with
their success in the revolution, were ready and willing to-
drive from the country those who preferred King George
to George Washington.
In the year 1783, the family left the United States and
settled in the neighbourhood of Cornwall, It is a tradi
tion in the family, that the Americans had become so
incensed at him on account of his loyalty that they set a
price on his head, hoping to force him into submission to-
the new Government. In this, however, they were unsuc
cessful. Philip VanKoughnet, (the future Chancellor,) was born
at Cornwall on the 26th January, 1823. He received his
education there under Doctor Urquhart, who was district
school master at Cornwall, the school being held in the same
building in which Doctor Strachan educated so many of
our Judges. Doctor Urquhart was recognized as one of
the best scholars in the eastern part of the Province.
Doctor Urquhart had a very high opinion of the capacity
of his young pupil, and prophesied for him a future

3l6 LIVES of THE JUDGES.
successful career in whatever profession he might adopt,
Mr VanKoughnet's mother was most desirous that he
should become a clergyman, and directed his earlier
education to that end. The rebellion breaking out, the
sound of martial music was too much for Doctor Urquhart's
pupil, and his experience in these days, diverted his
attention from theological studies in another direction.
Hearing Mr, Hagerman, when Solicitor-General in 1837
or 1838, make a brilliant speech, he determined to abandon
the idea of entering the Church, hardly perhaps his own,
and take up law as a profession. He had no sooner
resolved than he acted. Presenting himself before the
Benchers of the Law Society, he was entered on the
books as Student, in Michaelmas Term, 2 Victoria, 1838,
and at once entered upon his studies in the office of
George Jarvis, Esquire, of Cornwall, afterwards Judge of
the County Court there.
Philip VanKoughnet had very much of the soldier in
him ; to retain soldierly qualities, and at the same time
devote himself to law, he could not have done better than
become a student of Mr, Jarvis, who had performed
distinguished service for his country in the war of 18 12,
After being in the office of Mr. Jarvis for a time, his
ambition caused him to seek out an office in the capital,
Toronto, where he might complete his course of studies.
Messrs. Smith & Crooks of Toronto, then had a very
large and growing business, and were glad to admit Mr
VanKoughnet to their office, where he proved to be a most
studious and painstaking student. Philip VanKoughnet
was one of those men, who, without seeming to be, was
really in his Student and early Bar days, the most
industrious of his class. He could apply himself to the
routine work of an office all day, and apply himself to the
study of law books nearly all night, and not feel the worse
for his labour In his early days he had an iron constitu
tion," which gave him an advantage over most of his
fellows. When he was in the office of Smith & Crooks, he
was recognized by them as their best and most diligent

CHANCELLOR VANKOUGHNET, 317
student He took the lead in the office, and retained it
till the expiry of his articles in 1843, He was called to
the Bar in Hilary Term, 7 Victoria, 1843, and soon after
wards formed a partnership with Robert Easton Burns,
afterwards Judge of the Queen's Bench, and with Oliver
Mowat, the present Premier and Attorney-General of the
Province of Ontario,
At this time, the Act prohibiting County and District
Court Judges practising, had not yet been passed. As-
soon, however, as the Act making such prohibition was
passed, Mr, Burns withdrew from the firm, which then
became the firm of Mowat and VanKoughnet, During
the time he was in the.se firms he was not only a day
worker, but a night worker also ; he and Mr, Mowat
frequently giving a good part of the night, as well as tlie
whole day, to the business of their clients. The practice
of these firms was largely Equity ; and in those days of
long, voluminous bills, and equally long, voluminous
answers, with interrogatories and cross-interrogatories,
now happily abolished, those who wished to practise their
profession successfully, had necessarily to devote their
whole time to work. It must be remembered, too, that
these were not the days of either stenographers or type
writers, consequently the manual labor of an office was
much greater than it is now.
Mr, Mowat and Mr, VanKoughnet were in partnership
for a considerable time, their office being a little above
what are now the Romain Buildings, on King street As
I boarded at McDonald's Hotel, then located on the spot
where the Romain Buildings stand, as did also Mr Mowat,
I had a knowledge of the retirement of Mr. Mowat from
hotel to office, to do night work there, which seemed to-
occupy him as much as his day's labours.
On the termination of Mr. VanKoughnet's partnership
with Mr. Mowat, his brother, Matthew R. VanKoughnet,
joined him, and they carried on business together for some
time. He had by this time got a very prominent position
at the Bar, and was much sought after as Counsel tcv

31-8 LIVES OF THE JUDGES,
conduct important cases. He had great natural ability,
which, added to his legal knowledge and eloquence, made
him a very successful nisi prius Advocate, as well as
Counsel in Term, I have been frequently with him at the
¦Cobourg Assizes, and witnessed the large number of briefs
which fell into his hands, and the ability and successful
manner in which he conducted cases in the Courts,
During the latter years of his practice at the Bar, Mr,
VanKoughnet gave the most of his attention to Equity.
His contemporaries practising in that Court, were Mr
Mowat, afterwards Vice-Chancellor ; Mr, Strong, after
wards Vice-Chancellor, and now Judge of the Supreme
Court; William Roaf, and other prominent Chancery
Barristers, Mr VanKoughnet was one of the few men who practised
both in the Common Law Courts and in Chancery, His
rivals of these days were all men of ability. I don't think
any of them claimed superiority over, if equality with, Mr.
VanKoughnet He was for some time Professor of Equity
Jurisprudence in Trinity University. It was his custom
to lecture orally, which is no doubt the best mode for
impressing the hearers ; of more value than reading from
notes. His lectures were instructive, and much appreciated
by those who heard them,
Mr, VanKoughnet had naturally a large and expansive
mind. He preferred the wide paths of Equity to the
narrow limits of the Common Law.
Mr, VanKoughnet was appointed Queen's Counsel by
the Baldwin-Lafontaine Government in 1850, though he
had been only seven years at the Bar, and was only
twenty-seven years of age. As he was a political opponent
of that Government, it was considered at that time a
tribute to his ability and standing at the Bar.
We now come to Mr. VanKoughnet's Parliamentary
career Up to 1956 the Legislative Council had been
nominative. In 1856, by the Act 19 & 20 Victoria, cap.
140, the Council was made elective. The Act provided
that thereafter the Council should be composed of the

CHANCELLOR VANKOUGHNET. 319
then present nominated members, and of forty eight mem
bers to be elected for eight years, and to that end the
Province should be divided into forty-eight electoral
divisions, twenty four in Upper Canada and twenty four
in Lower Canada. This Act received Her Majesty the
Queen's assent on the 24th June, 1856, and proclamation
thereof was made by His Ejicellency, Sir Edmund Walker
Head, Governor-General, in the Canada Gazette of the
14th July, 1856. By the 8th section of the Act the
Governor was directed on or before the first day of the
following September, to issue writs for the election of
twelve Legislative Councillors to represent the twelve
electoral divisions. In 1856, Sir John Macdonald induced
Mr, VanKoughnet to enter the Government of the day.
He was very reluctant to enter politics. I was with him
half an hour before he accepted office, and know how
unwilling he was to enter the Ministry. Personal friend
ship for Sir John Macdonald, however, prevailed with him,
and be became a Cabinet Minister, as President of the
Council, The choice had to be confirmed by an electoral
•con.stituency, and Mr VanKoughnet became a candidate
for the Rideau division, to represent that District in the
Legislative Council, He was a comparative stranger to
the constituency, but by vigorous action, and the aid of
influential friends, he was elected for the division by a
handsome majority. He was Commissioner of Crown
Lands in the Macdonald-Cartier Government, formed in
1857, on the retirement from the Government of Mr.
Tachd The day after the formation of the Macdonald-Cartier
Government Parliament was dissolved, and the parties
went to the hustings, the "Clear Grits," as the extreme
Radicals had. got to be known, with the cry of " non-
-sectarian schools," and " representation by population,"
By the Union Act of 1841, the Representatives from
¦each Province were equal, although at that time Lower
•Canada had the larger population. The Clear Grits now
•contended that, as Upper Canada had outgrown the Lower

320 LIVES OF THE JUDGES.
Province, and had considerable preponderance of popula
tion, she should have more members than the sister
Province — in other words, should have a preponderance of
power. However popular such a cry might be in Upper
Canada, it gained no assent from the Lower Canadians,
who always contended that the Union was forced upon
them. In the contest which took place on this issue, the
Ministry lost three of their members, viz., Messrs. Cayley,.
Spence, and Morrison. The Lower Canada electors
returned an overwhelming body of Ministerialists.
The new Parliament assembled in February, 1858.
When the House met, they were informed that Ottawa
had been selected as the Seat of Government on the
recommendation of Mr Macdonald, leader of the Govern
ment, The announcement to the House had a very dis
turbing effect The opposition in the House moved a
resolution, and several amendments, to the Address pro
posed by the Government, disapproving of Her Majesty's
choice of Ottawa as a Capital. After an animated discus
sion, Mr. Piche moved, that in the opinion of the House,
" Ottawa ought not to be the Seat of Government for the
Province," which was carried by a majority of sixty-four
to fifty. This was a clear defeat of the Government, and
the Government resigned. Mr. Macdonald treated the
defeat as disrespect shewn by the House to the Queen's
decision. The Government had a majority in the House
on other questions, but on this exceptional matter they
were not able to command a majority.
The Opposition, however, were eager for office, and in
face of the fact that they were in a minority, except
on that sole question, on being applied to by the
Governor for counsel and advice, formed a Government
under the leadership of the Honorable George Brown for
Upper Canada, and the Honorable A. A. Dorion for
Lower Canada, ever since known as the Brown-Dorion
Government. Mr VanKoughnet, on the fall of the Macdonald-Cartier
Government, fell with it. The fall, however, was not to

CHANCELLOR VANKOUGHNET. 32 1
be of long duration, for after an existence of but two days
the Brown-Dorion Government suffered a defeat in the
House, Not more than eight days had elapsed before a
new Government was formed, composed of nearly all the
old members of the Macdonald-Cartier Government, the
exceptions consisting in Messrs, Gait and George Sherwood
taking the places of Messrs, Cayley and Loranger, who
were left out of the new arrangement. The new Ministry
was called the Cartier-Macdonald Ministry, and was
formed on Sth August, 1858, Mr, Macdonald was, how
ever, the real leader, as before.
During the Session of 1857, an Act relating to the
Independence of Parliament was passed, the 7th section
of which provided that :
Whenever any person holding the office of Receiver-General, Inspector-
General, Secretary of the Province, Commissioner of Crown Lands,
Attorney-General, Solicitor-General, Commissioner of Public Works,
Speaker of the Legislative Council, President of the Committees of the
Executive Council, Minister of Agriculture, or Postmaster-General, and
being at the same time a member of the Legislative Assembly, or an
elected member of the Legislative Council, shall resign his office, and
within one month after his resignation, accept any other of the said offices
he shall not thereby vacate his seat in the said Assembly or Council,
As the old Macdonald-Cartier Ministry had not been
out of office a month, the new Cartier-Macdonald Min
istry could, giving a strict interpretation to this Act,
avail themselves of it and, by merely changing places.
retain office without going back to the people for re-elec
tion. This they did. Mr VanKoughnet, from being
Minister of Agriculture in the Macdonald-Cartier Govern
ment, becoming Commissioner of Crown Lands in the
new Government. The other Ministers were: — for Upper
Canada : Honorable John A. Macdonald, Attorney-
General, Upper Canada; Honorable John Ross, President
of the Council ; Honorable Sidney Smith, Postmaster-
General ; Honorable George Sherwood, Receiver-General.
For Canada East : Honorable George E. Cartier, Premier
and Attorney-General ; Honorable A. T. Gait, Inspector-
41— L. J.

322 LIVES OF THE JUDGES.
General; Honorable L. V. Sicotte, Minister of Public
Works; Honorable N, F. Belleau; Honorable Charles
Alleyn. Some of the Ministers made a double change
of office; hence this rearrangement was called, "The
Double Shuffle"
It was fortunate for the Ministry that the Act to secure
the Independence of Parliament, 20 Victoria, cap. 22, was
on the Statute Book, for it saved them a great deal of
trouble and inconvenience. They were not disposed to
go back for re-election so soon after a general election.
They insisted that they had never, as a Government, lost
the confidence of Parliament ; that though defeated as an
old Government, on the question of the locality of the
Seat of Government, they were quite justified, as a new
Government, in taking the benefit of the Independence of
Parliament Act,
This is a grave Constitutional question, which for the
purpose of writing the life of Mr, VanKoughnet, need not
be discussed. As a question of law, the Ministry were
sustained in the interpretation they had placed on the Act
To test the question, two actions were instituted, one in
the Court of Queen's Bench, and the other in the Court
of Common Pleas, The cases were Macdonell vs. Smith,
17 Q, B, 310 ; and Macdonell vs. Macdonald, 8 C. P, 479.
In the pleading in those cases, it was stated that the
Ministry of which the defendant, as Postmaster-General,
was a member, all resigned office on the 29th Juiy, and
on the 2nd August were succeeded by the Opposition,
who resigned on the following day : that, on the 6th, the
old Ministers were re-appointed, but took different offices
from those which they before held, and on the 7th,
resigned again and were re-appointed to their old places ;
and it was alleged that the appointment to a different
office was colorable, and made only to enable defendant
to resume his original appointment, without going back
for re-election.
The Court, after full investigation and considering the
whole case, held, that although such a proceeding was

CHANCELLOR VANKOUGHNET. 323
¦probably not contemplated by the Act it was allowed
by it : that the Court could not look at the motives of
Ministers, or strain the construction of the Statute so as
to impose a penalty ; and that, whether the course taken
was or was not consistent with the system of political
government established in this Province, was a question
which they could not take into consideration.
It will thus be seen, that the Court did not undertake
to decide as to the propriety of the step taken by Minis
ters, to sustain themselves in office. It is enough to say
they had the right, they claimed it, and were within the
law. The precedent was certainly not a good one, and
if ever attempted to be repeated, would probably be the
cause of much constitutional inquiry.
The writer of the "Life and Times of Sir John A,
Macdonald," has cited two instances in which, as he says,
similar proceedings in relation to the holding of office were
resorted to in England, One case, in 1839, by Lord
Melborne, and another in 1873, when the Liberal Govern
ment found themselves defeated on their Irish University
Bill, Mr, Gladstone resigned, and by his advice the Queen
invited Mr Disraeli to form a Ministry. Mr. Disraeli
thought the situation over, and concluded not to try his
luck in the Commons as constituted ; whereupon Her
Majesty again sent for Mr. Gladstone, who, with the other
Ministers, resumed their places. There was no re-election
in either case, as the writer thinks. He says, in reference
to the Canadian case :
The case here differed somewhat, but not so as to change the constitu
tional principle involved in the English cases. There was a slight legal
barrier in the way in Canada, and it was avoided by taking advantage
of the letter of the law.
So far as Mr, VanKoughnet was concerned, he was
probably in a better position than any of the other
Ministers, as he had but recently been returned to the
House to hold his place as Legislative Councillor for
eight years. Had he been a nominative member, instead
^of an elective, he would have had no cause to consider the

324 LIVES OF THE JUDGES.
question of re-election. In his various offices of Minister
of Agriculture and Commissioner of Crown Lands, he
gave great satisfaction, inaugurating reforms in the
departments which were of permanent use. From the-
time of his election to the Legislative Council he was.
leader of the Government in that body. His conciliatory
manner disarmed opposition in the Council, he was
smooth and ready in debate, and could always be
depended upon to do justice to any subject left in his
charge, Mr, VanKoughnet was sent as a delegate to England, to-
confer with the Imperial authorities on the subject of the
Intercolonial Railway, the purpose of which was to unite
the Maritime Provinces by an iron bond, and afford a
ready means of access to the capital, not only for the
colonists, but for emigrants coming to the country, as also
a ready means of transport for troops if required from
England for defence of the country,
Mr VanKoughnet was appointed Chancellor of Upper
Canada, on the i8th March, 1862, On taking his seat on
the Bench, he found the duties onerous, requiring all his
skill in the performance of judicial work. Owing to the-
long illness of his predecessor, Chancellor Blake, and the
vacancy subsequent to his resignation, there were large
arrears to be brought up. The new Chancellor had been
some years out of practice. Notwithstanding that, by
assiduity and attention, he soon had the Court and all its
offices in good working order. It was soon apparent to the
profession and to the public that he was the man for the
place. He had great quickness of perception, and grasped
the points of a case readily. In most of the cases argued
before him he gave judgment at the close of the argument,.
and was seldom reversed by a higher Court. It was
he who introduced the present practice of hearing
the argument of a case immediately on the close of the-
evidence. Before that, the evidence was first taken and
the case subsequently argued at Toronto, whether the
Court had been held in the country or in Toronto. His.

CHANCELLOR VANKOUGHNET. 325
¦courtesy and consideration made him highly esteemed by
the Bar. He introduced many reforms in the practice of
the Court, which were of great value to the practitioners
and to suitors.
The cases heard before him are reported in volumes
ten to sixteen of Grant's Reports. His decisions will
all be found to the point, without undue prolixity. I
remember many such cases, but need only refer to one,
regarding the novelty of an invention. He decided the
¦case in favor of the plaintiff", and that the patent, which
was for an improvement in the method of making the
fluted iron rollers used in the construction of grain-
crushing or chopping mills. The case is Summers vs.
Abell, 15 Grant's Chancery Reports, 532. It went to a
re-hearing, and the Chancellor's judgment was sustained.
The plaintiff was a poor man, the defendant a wealthy
manufacturer at Woodbridge. The plaintiff" claimed that
the defendant had obtained a knowledge of the plaintiff's
machine, and that he was manufacturing machines the
same in form and principle, in violation of the plaintiff's
right as first inventor and patentee thereof The defen
dant denied that Summers, the plaintiff, was the first
inventor ; he also alleged that the machine had been used
for the same, and like purposes, long before the plaintiff"
applied for his patent, Mr. J. A. Boyd, the present
'Chancellor, was of counsel for the plaintiff"; and Mr.
Maclennan for defendant As may be supposed, with
such counsel, the case was vigorously contested. The
defendant, among other objections to the patent alleged
that the machine was so simple that it could not be the
subject of a patent ; but the Chancellor, in giving
judgment, said :
Upon the evidence, I find that the invention of the inclined plane, or
perhaps the form and position of the inclined plane, employed by the
plaintiff as a means, or appliance, for directing the tool cutter, or the
roller upon the tool cutter, so as to produce spiral or curved grooves in
the roller, was and is a novelty, first introduced and discovered by plain
tiff ; and that his invention is of great utility in reducing the labor and
•cost formerly incurred in preparing such grooves. Its simplicity is no

326 LIVES OF THE JUDGES,
objection, but is its greater recommendation. Many of the most valu
able contrivances, when produced, are remarkably simple in character,
and therefore of the greater benefit and advantage. One may be
astonished that everyone did not before adopt so simple a plan ; but the
merit of it belongs to him who first suggested and brought it into use.
This inclined plane is, I think, the novelty in the plaintiff's cutting
machine. That the plaintiff has combined with it, for the purpose of
working the machine, other things — not new — cannot detract from the
value of this invention, else no machine could be patented, as boards,
nails, screws, bolts, &c,, necessary to its construction are not new in
character. The cutting of straight grooves in solid, or hollow, rollers,
or cylinders, by machinery appears not to have been new ; and so the
cutting of spiral grooves by hand, or chipping, was well known ; and
perhaps other means have been used : but it does not appear to have
occurred to any one but the plaintiff to produce spiral grooves by giving the
plane, on the edge of which the turning or index wheel works, an incline,
the necessary effect of which is to give the grooves more or less curva
ture, according to the dip or steep of the incline — very simple, true —
when it is pointed out to you ; and yet, introduced into practice, how
valuable, I will not pursue the Chancellor any further in the
matter of judgments — they were generally terse, not too
diffusive, and, reading them, readily understood.
The Chancellor was an intimate and life-long friend of
mine. While at the Bar, I had much companionship
with him. Always pleasant and agreeable : with a great
sense of humour, which lent a charm to his conversation
his society was always welcome, "A merrier man.
Within the limit of becoming mirth,
I never spent an hour's talk withal."
In his political life, I had the means of knowing his
sentiments and opinions. He was a man very firm of
purpose ; of a most generous disposition ; unostentatious,
and ever ready to help a friend. He was naturally of
a vivacious temperament, and had hosts of friends. He
married the daughter of Colonel Turner, an officer of one-
of the regiments of the line. He had two sons born of
the marriage — Philip and Edmund, The latter is now a
Commander in the Navy : he earned distinction with Lord;
Charles Beresford in his brilliant achievements in Egypt..

CHANCELLOR VANKOUGHNET. 327
The Honorable Philip VanKoughnet died at Toronto,
on the 7th November, 1869, after a short illness.
At the time of his death the Honorable Mr Mowat was
one of the Vice-Chancellors of his Court He was at
that time holding the Court at Cobourg. On receiving
intelligence of the death of the Chancellor, he pronounced
the following eulogy, which, coming from one who had
known him at the Bar, was his partner in business, and
colleague of the Bench, has especial value. Vice-Chan
cellor Mowat said :
As a Judge he was most conscientious, he had a profound love of
justice, and an exalted sense of judicial duty. In the discharge of his
office he acted without fear, favor, or affection, if any Judge ever did.
He was from the first prompt in deciding, and that he was generally
.accurate as well as prompt is shewn by the fact that his decrees were
generally (I believe) as seldom appealed from as those of any Judge we
ever had. Whatever those opposed to him, politically, may have thought
of the measures or proceedings of the Government of which be formed
part, nobody doubted the purity of his motives or the soundness of his
patriotism. He loved this Canada of ours, which was the land of his
birth, and he earnestly desired to promote its interests,
Mr Mowat had not been of the same political party as
the Chancellor, had indeed often found occasion to differ
with hi-n on political subjects. The estimate he formed
and expressed of him as a Judge, was but voicing the
opinion of the opinion of the whole Bar, and of the
public. His too early death was a great loss to the
Bench, He was not 47 years of age when he died. If
it had pleased providence to prolong his life, there was
open for him a career of great usefulness. Personally, he
was to me one of my most special friends, and it was
with pain and sorrow that I joined the cortege which
followed him to his last resting place in St. James's
Cemetery. " Friend after friend departs.
Who has not lost a friend ?
There is no union here of hearts,
That finds not here au end, "

XXV,
The Honorable Gegrge Skeffington Connor,
Judge of the Queen's Bench.
^g^HE Honorable George Skeffington Connor
JIK was Irish to the manner born. He was the
son of a successful Irish Lawyer, who prac
tised in Dublin.
George Skeffington Connor, better known in Canada as
Doctor Skeffington Connor, was born in the City of
Dublin. He was an out and out Dublin man, and took
his D. L. Degree at Trinity College. Doctor Connor was
an accomplished and highly educated man. Before
coming to Canada he had been called to the Irish Bar,
noc with the intention of practising however, as he had
expectations of a good income- from other sources than
the Bar — he only went to the Bar " causa honoris." It
was the custom of Irish gentlemen who were men of
wealth, or expected to come into a fortune, to take a
Degree at the University and attach themselves to the
Bar as an honorable and liberal profession. Doctor
Connor came to Canada with William Hume Blake, after
wards Chancellor Blake, in 1832, In July of that year
a number of young Irish gentlemen formed themselves
into an emigration society, determined to leave their
native land and make their future home in a new country,
where with prospects of fortune from tilling the soil, they
could at the same time satisfy the love for adventure so

JUDGE CONNOR. 329
-congenial to the Irish heart. The company was a goodly
one ; it consisted of William Hume Blake ; the Reverend
Dominick E. Blake ; their mother and sisters ; the late
Archdeacon Brough ; Doctor Robinson ; the Reverend
Benjamin Cronyn, late Bishop of Huron ; the Reverend
Mr Palmer, afterwards Archdeacon Palmer ; and Doctor
Skeffington Connor.
It must not be supposed that these emigrants had the
titles of honor or dignity, which I have ascribed to them,
when they left Ireland. These were all, or nearly all, of
Canadian growth. They did not come out as ordinary
emigrants, but chartered a vessel, the " Ann of Halifax,"
to carry them across the Atlantic. When only three days
out, one of the crew was seized with cholera, and before
morning his body was thrown overboard. Owing to the
prophylactic measures of Doctor Robinson, the plague
was stayed.
There was after this an inclination in the hearts of the
emigrants to return to Ireland ; but taking courage they
persevered in their undertaking and after a six weeks'
voyage, arrived in the St. Lawrence. They were subjected
to a long quarantine at Grosse Isle. The cholera was
epidemic in Canada this year (1832), and the emigrants
were not allowed to proceed on their journey till Septem
ber ; they then took up their course for York (Toronto),
where they arrived unattacked by the dreadful disease
which in that year carried off" so many native Canadians
and emigrants. The party separated in York : Mr, Brough,
Doctor Robinson, and Doctor Connor going northwards,
to the Township of Oro, on Lake Simcoe, and the
remainder going west, to the Township of Adelaide, of
which the Reverend Dominick E. Blake had been appointed
Rector by Sir John Colborne, then Governor of the
Province. Doctor Connor settled in Oro, and tried his hand at
farming. It is hardly to be supposed that a Trinity
College man, whose life had been devoted to study and
polite literature, would be a perfect success in extracting
42— L. J.

330 lives of the judges.
stumps in the back woods of the Township of Oro. He
bought land in the neighborhood of Orillia, but after being
there a few years, he left Canada, and spent some years
on the continent, and then returned to Canada,
I first heard of him on going to the County of Simcoe,
on the occasion of the contest for representation of
Simcoe in Pariiament, between William Robinson and
William Hume Blake, in 1846. I took some part in that
election, having been scrutineer at the poll in the Town
ship of Essa, in the interest of Mr Robinson, I recollect
hearing of a gentleman named Connor, who had been
speaking in different parts of the county on behalf
of Mr Blake, He was represented as an Irishman, fluent
of speech and weighty in argument, doing yeoman service
for Mr Blake in his candidature for representation of
the county, I did not expect then that at some future
time I would meet Doctor Connor at the Bar, and know
him as the cultured gentleman he was, and as a member
of the Canadian Bar,
As I look back and ponder over the events of those
days, 1 find I have to acknowledge that Doctor Connor,
at the time of the election, was really a member of the
Canadian Bar, without my being aware of it, for I find
him entered on the books of the Law Society, as an
admitted student, in Easter Term, 5 Victoria (1842), and
called to the Bar the same day. Having a degree, he
was entitled to be called to the Bar without service in
Canada, I think he must have come down from Oro,
taken his call to the Bar, and then returned again north,
where he was found on the occasion of the election to
which I have referred.
Some time after being called to the Bar, Doctor
Connor became a partner with Mr Blake (William Hume
Blake), and Mr. Joseph Morrison, under the firm name of
Blake, Morrison, and Connor This firm had their office
in what had been the old Toronto Club Building, on the
corner of King and Bay streets, where the Mail Building
now stands. The firm did a large busine.ss. Mr. Morri-

judge CONNOR, 331'
son had attached himself very much to the people of
Toronto, and had established for himself a good mercan
tile business, Mr Blake, as head of the firm, had gained
a great reputation as Counsel, and also in conducting the
Equity department of the office. Doctor Connor came
in to give his services in the development of their large
business, I remember Doctor Connor as member of that
firm. He did not, while with them, do much outside
business ; but was generally to be seen at his desk draw
ing pleadings, or in consultation with clients. His
appearance was remarkable. He had become prematurely
grey, or rather white, for both his countenance and hair
were as white and delicate as that of any lady who had
passed the meridian of life ; and yet he was a young
man, he was active and vivacious, and in every move
shewed the Irish gentleman. He had more the appear
ance of a poet, or a man of literature, than one who had
ungergone the hard life of one of the back townships of
his adopted country.
After being several years a member of this firm he
withdrew, and formed a partnership with George Boomer,
who afterwards became Police Magistrate. The firm was
Connor & Boomer, and had their office on the corner of
Church and King streets. He did the counsel busi
ness of that firm, and held outside briefs for a goodly
number of clients. He was a Queen's Counsel, and one
of the Commissioners for Consolidating the Statutes of
Canada and Upper Canada in 1858, On that Commission
he made it a specialty to consolidate and revise the Real
Property Acts,
In politics the Doctor was a Reformer, He commenced
his active political life in 1859, when he was elected mem
ber for Oxford, and sat for that constituency for that year
and until 1862.
Shortly after he entered Parliament, the House and the
country were much excited over a matter of much
moment in the administration of justice. It arose out of
what was alleged to be a sale of the office of Sheriff" of

332 LIVES OF THE JUDGES,
the County of Norfolk, by the incumbent Sheriff Rapelje
to Laurence W, Mercer, for a money consideration and
an annuity. Politics ran high at this time, and inasmuch
as Mercer, who was to be the successor of Rapelje, would
receive his appointment from the Government of the day, it
was thought by those opposed to the Government, that it
afforded a good weapon for the probable demolition of the
Government. The Attorney-General was compelled to
take notice of the matter, as there were complicating
opinions as to the legality of the transaction. Mercer
contending that he had not bought or negotiated for the
purchase of the office, but only, that through political
influence, Rapelje was to resign and he was to be
appointed in his place, Mercer, before taking the step he
did, had advised with counsel, and Doctor Connor was
one of the counsel he consulted. The result was, that the
transaction was consummated, so far as an agreement in
writingcould consummate it The Attorney-General filed an
information in the Queen's Bench against Mercer, claiming
penalties, that the transaction was illegal, and contrary to
the policy of the law. The Court decided that the agree
ment was void, and that by entering into it Mercer had
subjected himself to penalties, which involved disability to
hold the office. The judgment was forfeiture of office
and the penalties.
From the Court the matter got into Parliament On
17th February, 1859, Laurence W. Mercer petitioned the
House to be relieved from the penalty of disqualification
of office. Leave was given to bring in a Bill to remove
the disqualification. The Bill was read the first time on
i6th April, 1859, when Mr Simpson moved, seconded by
Mr McMicken, that the Bill be read a second time. Mr
Rymal moved in amendment, that the Bill be read
that day three months. The question did not come
to a vote till the 23rd April, 1859 when the House
divided, and twenty-five members voted for the amend
ment and fifty-one against On the main question
being put that the Bill should pass the second read-

JUDGE CONNOR, 333
ing, was carried, fifty-one voting aye, and twenty-five
nay. There was another division of the House on 25th April,,
when Mr Dunkin, from the Private Bills Committee,
reported the Bill with amendments, and the Honorable
George Brown moved in amendment, " that the Plouse
would resolve itself into a committee to consider the
same that day six months." Mr, Brown's motion was
lost, twenty-two voting for the motion, and thirty-three
against The Bill was reported to the House, and on
the 26th April, 1859, on the motion of Mr, Simpson,,
seconded by Mr McMicken, was read a third time, and
on the 29th April, 1859, passed the Legislative Council,
The Act as it now appears on the Statute Book is
22 Victoria, cap, 128, entitled "An Act to relieve
Laurence William Mercer from a penal disability." By
the Act the disability was removed, and Mercer " restored
to his competency to take and hold any office in the gift
of the Crown in this Province, in as full, ample, and
beneficial a manner as if he had never incurred the penalty
of such disability and disqualification,"
Doctor Connor, who was a man having high regard for
professional honour, did not vote on any of the motions in
Parliament relating to the question. Party pressure was
brought on him, to get him to vote for the motion to
disqualify Mercer, but no amount of pressure made him
swerve from his purpose not to vote at all, inasmuch as
he had been one of the counsel consulted. It is due
from me to make this statement, knowing, as I do,
that obloquy was attempted to be thrown on him, in
certain quarters, for abstaining from voting on one side
or the other. His view was, that political considerations
should not allow him to sully his professional honour, and
vote to disqualify an officer, who had in the privacy of
professional intercourse held consultation with him on the
question. He was very sensitive on the subject, and I do
not doubt that this matter somewhat embittered his after^
life.

334 LIVES OF the judges.
On the 26th March, i860, the Opposition, of which
Doctor Connor was a member, made a desperate attempt
to secure a vote of the House to dethrone the Cartier-
Macdonald Administration. The House was moved to
declare that the Administration did not possess the confi
dence of a majority of the representatives of Upper
Canada, but retained power through a Lower Canada
majority. Two amendments were made, the last of which
was, that :
This House is of opinion that the conduct of the Admiuistration in
governing continually and systematically one section of the Province, in
opposition to the wishes of that section, often expressed in this House
by its representatives, is fraught with danger to the well-being of this
Province, This amendment was lost, forty-four members voting
for the motion and sixty-eight against. Doctor Connor
voted with the minority. On the other amendment,
which was :
That the present Administration possesses the confidence of the House
and of the country ;
the vote of the House was seventy yeas and forty-three
nays. Doctor Connor voted with the nays.
During this Session, a question was presented to the
House which caused a great deal of excited discussion.
A member returned to the House, — George Byron
Fellowes, — and two others, Martin Casselman and John
Sexton Casselman, had been committed to the Toronto
jail for the conspiring to obtain the election of George
Byron Fellowes, A motion was made in the House that
an humble address be presented to His Excellency the
Governor-General, praying that he would be pleased to
remit the sentence of these three individuals, inasmuch
as the law had been sufficiently vindicated by their
conviction, and the imprisonment they had suffered.
The motion was carried in the House by a majority of
twenty-four Doctor Connor voted with the minority.
Doctor Connor was very fastidious in all professional
-matters, either of honor or etiquette. No party political

JUDGE CONNOR 335
-consideration would make him deviate from the path of
rectitude. On the 2nd August 1858, Doctor Connor was appointed
Solicitor-General. In that capacity he performed his
•duties ably and well, I have frequently been present
when he conducted the Crown business. He always
acted in a gentlemanly, professional way. He, while
pressing for a conviction in all serious cases of violation
of the criminal law, would not endeavor to twist or
distort the evidence for the mere purpose of getting a
conviction. He did not glory in a conviction for the
-conviction's sake, but only as a vindication of the law
and principles of justice.
Doctor Connor was, in 1848, Lecturer in Law in the
L^niversity of Toronto, He lectured with care, and
instructed the students in a manner as agreeable to
them as it was elegant and useful. He had a pleasant
nianner, with a refined Irish accent : these two attributes
gave zest and point to his lectures.
I remember him as an accomplished gentleman ; if
anything, more fond of literature than law. He was a
good French scholar ; could read and speak French
fluently : he was fond of music and flowers : in social
life he was agreeable and refined. Whether as host or
guest, he was always a perfect gentleman. His political
life was not in every way a success. In one of his
¦contests to gain his seat for South Oxford, he had a very
narrow escape from defeat, being elected by a majority of
but one vote, and, it was said by his opponents, that
majority of one was a mistake, the free and independent
elector, in his excitement, having his vote recorded for
Connor, when he really merely named Connor, with an
•objurgation. However this may be. Doctor Connor's
generous disposition fitted him better for private life, than
the exacting duties of Parliament, He had not a strong
constitution; such as it was, it was undermined by electoral
contests in the country, and the wear and tear of political
warfare.

336 LIVES OF THE judges.
In the beginning of the year 1863, Mr. Connor was-
offered and accepted a seat as Pusine Judge of the Court
of Queen's Bench, He was appointed Judge on the 31st
January, 1863. He had been but a few months on the
Bench, when the seeds of the disease he had contracted
while in Parliament, began to shew themselves with
increase. He survived his appointment to the Bench but
a few months, when he died at his residence on Peter
Street, in Toronto, on the 29th April, 1863, at the age of
fifty-three, and was buried in St, James's Cemetery,
His wife, who was the sister of Judge Charles Robinson,
of Sarnia, survived him.
Doctor Connor left no family to perpetuate his name ;.
his widow since his decease has followed him to the
grave.

XXVI.
The Honorable John Wilson, Judge of the
Court of Common Pleas.
IT is to be regretted that there exists no written
record of the life of this excellent Judge.
That elegant writer, the late W. J,
Rattray, B.A„ in his "Scot in British North
America," alludes to this want in his reference to Chief
Justice Sir Thomas Gait, Referring to him he says :
Mr, Gait was in 1858, appointed Queen's Counsel, and in 1869, on the
death of Judge John Wilson — a Scot of whom unhappily we have no
record — was elevated to the Bench, as a Justice of the Court of Common
Pleas, As I knew Judge John Wilson from my early boyhood,
when he resided in the Bathurst District, and I, with my
family, in the Johnstown District, I have felt it a duty to
endeavour to rescue from oblivion the memory of a Judge,
who was a man of noble instincts, and a Judge of irre
proachable integrity.
Judge John Wilson was a Scotchman, son of Ebenezer
Wilson, and was born at Paisley, in November, 1809.
He was only fourteen years of age when his father
determined to emigrate to Canada, The determination
was put into execution, and soon John's father and family
found themselves settled on a farm in the County of
Lanark, about twenty miles from Perth. The names of
Paisley, Lanark, and Perth, will bring home to the reader
43— L. J,

338 lives of the judges.
the fact that there must have been a good deal of Scotch
in Canada even at that period ; and so there was. Many
North Britain men had left their homes in the old world
to hew out for themselves homes in the new. Ebenezer
Wilson was one of this class.
Ebenezer Wilson, John's father, was a highly intelligent
person. He had a large family of children, and John was
the oldest. Settled on the farm, John had to work hard, as
¦did his father and mother. They were able to purchase a
farm, but the working it was another matter The early
settlers in Canada had all to endure great hardships if
engaged in farming, and the Wilsons were not an excep
tion to the general rule. Clearing land, felling large trees,
summer fallowing, and all the usual labour of the first
settlers is difficult work for the most experienced in such
matters. It may be well understood, therefore, that a Scot
from Paisley, entering upon such an enterprise, would
have his hands full.
In his latter years, John Wilson used to tell of his
having carried the first bag of potatoes raised on the
farm to Perth, the nearest market, twenty miles, and bare
footed. It so happened that the road was part swamp,
part morass, and part stone, so that the young man may
be said, in som; part at least, to have had a hard road
to travel.
The father, mother, and whole family suffered great
hardship. After paying for the farm, they had but scanty
means, and were often obliged to exercise great self-
denial. As Scotchmen are proverbial for their thrift, so it
was with them, John had received something of an
education in Paisley, before leaving Scotland, His
aspirations were something higher than a farm life in the
woods, he therefore bethought himself that he might not
only better his own condition, but relieve his father some
what by completing his education in Perth, John Stewart
¦{familiariy known as four-eyes Stewart, from the fact
that he wore spectacles), at this time kept school in Perth,
and Master Wilson became a pupil of his, John Stewart

judge WILSON. 339
afterwards became a Lawyer, and practised in Stratford.
I knew him well — a highly educated man, something after
the style of Doctor Dunlop. The polish was about the
same, and not much at that. Mr. Stewart, however, was
Irish, while Doctor Dunlop was Scotch.
John Stewart was capable of giving, and did give, John
Wilson a good education : so good that in his turn he was
engaged to teach the children, or some of the children, of
the late Honorable William Morris. The Honorable
Alexander Morris, of Toronto, was a pupil of his.
About this time the late Honorable Malcolm Cameron
was a resident of Perth, carrying on a mercantile busi
ness. John Wilson wrote some verses which had found
their way to a house in town, where Mr Cameron saw
them, and pronounced them so good that he expressed
the opinion that the writer ought to be a lawyer On
inquiry, he found the writer to be John Wilson, and at once
took him into his friendship, which stood young Wilson
in good stead, and they were ever after friends, so long as
-life lasted. They were not of the same politics ; but that
never in the least interfered with their bond of friendship.
While in Perth, by his teaching and otherwise, John was
able to shew his filial gratitude to his kind mother ; not
forgetting to furnish her with some little luxuries, which
•could not be obtained on a newly cleared (or in process
of being cleared) farm, twenty miles from Perth. To her
-he could say, or sing :
"Oh ! be it it mine, with sweet and pious care.
To calm thy bosom in the hour of grief ;
With soothing tenderness to chase the tear.
With fond endearments to impart relief :
With dexterous love, in thy declining hours.
My filial hand shall strew unfading fiowers."
The hopes and prognostications of Mr Malcolm Came-
tron were soon fulfilled, Mr Wilson, by thrift and
industry, was soon enabled to present himself to the
Benchers of the Law Society, and to be admitted a
-Student of the Law, He was entered on the Rolls of

340 lives of THE JUDGES.
the Society, as Student, in Easter Term, 1 1 George IV.„
1830. As soon as admitted, he entered the office of
James Boulton, then practising at Perth, studied his term
with him, and was called to the Bar in Easter Term,
5 Wilham IV., 1835. He had so much the confidence of
Mr Boulton, that he was no sooner admitted to the Bar
than he intrusted him with the conduct of a branch of his.
office at Niagara, to which town Mr. Boulton himself in a
short time removed, leaving a large and lucrative practice
in the County Town of Lanark. Niagara at this time
was a flourishing town, carrying on a successful business
with houses in Montreal, shipping goods westward, to be
portaged to Chippewa, at the foot of Lake Erie.
I remember Niagara in 1836, as a most business-like
place. They still affected to believe there that it was the
Capital, though it had been long since supplanted by
Toronto. The place was not wanting in lawyers, for
there were several there at that time. I call to recollec
tion James Boulton, Miller and Boomer, Charles Hall,
and several others, whose names I have forgotten. It
was not an unusual thing to have upwards of one hundred
records entered for trial at the Assizes.
In 1835, Mr Wilson left Niagara, and settled in
London, to practise his profession in that town. He soon
here gained a wide-spread reputation. He was not only
a good, but a reliable lawyer, just and reliable in all his
dealings. He was a man who was free from all those
blemishes that defaced the credit of the sharp-practice
lawyer Blunt, but honest, he earned the respect of all
who knew him. He soon gained the soubriquet of
"Honest John Wilson." His practice was not confined
to London alone, but to the whole Western District He
used to hold briefs at Chatham, St Thomas, Sandwich,
and in Woodstock, where his brother-in-law, Mr now
Judge Hughes, was practising. I have often met him at
the Bar of that town. From meeting him there frequently,
I had opportunity of judging of his measure. He was
intimately acquainted with all the ways and wants of the

judge WILSON. 341
•country people : he could easily adapt himself, therefore,
to their comprehension, and so had great weight with
juries. He only formed one partnership when at the
Bar, and that was with Mr Hughes, his brother-in-law.
As a man, he was never forgetful of old friends. He
had known my brother in Chatham, and others of my
relations in the eastern part of the Province, which
¦ always earned for me a fatherly regard from him,
Mr, Wilson was a soldier as well as a Lawyer When
the Rebellion broke out in 1837, he was one of those men
of London who did honor to his town, by at once turning
•out to repress the insurrection. There were no regular
troops then in London, and therefore the more necessity
that the loyal should, at whatever cost, by precept and
example, encourage the loyal to stand by their guns ; this
Mr Wilson did in a marked manner, which gained for
-him the confidence and esteem of the whole people.
The insurrectionists had assembled in large numbers in
Gosfield. Mr Wilson, as Captain, mustered all the volun
teers he could gather, and in mid-winter started from
London to march twenty miles a day, with the object of
putting down the revolt Both he and the men suffered
much ; the winter storms, coupled with scant clothing of
.himself and men, made them suffer great hardships on the
route. Both in London and on the march, Mr. Wilson
shewed his courage and devotion to his country's interests
and his comrades wants.
After the Rebellion, the 85th Regiment was stationed
¦at London. A case occurred at this time which enabled
Mr. Wilson to exercise not only his legal but his military
skill. The Colonel of the 85th Regiment laid some
twenty odd charges against the Major of the Regiment.
This caused a Court Martial to be assembled. The Major
was tried on the charges, Mr Wilson acting as counsel
for the prosecutor, the Colonel ; while John Prince, Q.C.)
acted for the Major. The Court sat for three weeks,
while the charges were investigated. A number of the
charges .being sustained, the Major was permitted to retire

342 LIVES OF THE JUDGES.
from the Regiment Mr Wilson, from his manner of
conducting the case, was awarded great credit by the
military authorities in Canada and in England. ,
I should not omit to mention here that James Shanly,.
Master in Chancery at London, was a Student of Mr
Wilson at this time, and acted as his amanuensis at the
Court Martial. He has a great affection for the memory
of the deceased Judge, and says in a letter which conveys.
information as to this Court Martial :
When I came as a law student to the office of my good and kind old!
friend and master, he had been a good many years in practice, and I was
his sixth or seventh student, and when called to the Bar had been for a
year before the senior and managing student of his office. He had a kind
and generous disposition, an earnest love of truth and justice, and
singular originality in the mode and management of nisi prius matters,.
and in his tact before juries.
The following complimentary reference to Mr Wilson
on his retiring from the Colonelcy of the 2nd Batallion,.
Sedentary Militia, was published in the Canada Gazette:
Lieutenant-Colonel the Honorable John Wilson is permitted to retire,
retaining his rank.
His Excellency, the Commander-in-Chief, cannot permit .Lieutenant-
Colonel Wilson to retire without expressing the sense he entertains of the
value of Lieutenant-Colonel Wilson's services in the Militia of the-
Province for the last five and twenty years.
Mr, Wilson was twice returned as representative for
London in Parliament, on the first occasion in 1847, by a
large majority of the electors, and on the second occasion
at the general election of 1854, unanimously.
After his election, in 1847, he sat until the dissolution
of the Parliament, but was defeated in 185 1, and after his.
election in 1854, sat in the House from his return till
1857, In 1863, he was elected Legislative Councillor for
the St Clair Division, but did not take his seat, as he
was shortly after appointed to the Bench.
He was a Conservative in politics; but not such a
bigoted partizan as to cause him to believe there was-
no virtue in his opponents. He was not so strong a.

JUDGE WILSON. 343
party man as to condone any act, however outrageous it
might be, if committed by his own party. This trait in
his character was most conspicuous on the occasion of
the passing of the Rebellion Losses Bill, and burning of
the Parliament Buildings, in Montreal, in 1849, It is
matter of history that, on account of giving his sanction
to that Bill, Lord Elgin was mobbed and hooted by a
mob in Montreal — something more offensive than sugar
balls was thrown at him while returning in his carriage,
from the Parliament House after assenting to the Bill,
and the Parliament Buildings set on fire and burned, by
persons who were said to be supporters of the Opposition
in Parliament, of which Opposition Mr. Wilson was a
member. After the burning of the Parliament Buildings, and the
assembling of the members in another place, the conduct
of the incendiaries was subjected to much Parliamentary
hostile criticism. Some of the members of the Oppo
sition, without justifying, sought to excuse the act. This
gave an opportunity to Mr. Wilson to express his views,
which he did in an independent, non-party, patriotic
way : he condemed the burning of the Parliament
Buildings as most fiendish, and claimed that every
member of Parliament, no matter of what party, should
condemn such lawlessness : as a Conservative, he repu
diated the idea that his party should be held responsible
for the acts of misguided men ; that there was not only
no justice in, but no excuse for such conduct.
The mob riots in Montreal, on the occasion of the
passing of the Rebellion Losses Bill, nearly equalled, and
in some respects eclipsed, the Lord George Gordon Riots,
in London and Westminster, on the occasion of the
passage of the Catholic Relief Bill. The mob on that
occasion did not burn the Houses of Parliament, though
they did burn the house of Lord Mansfield, in Blooms-
bury Square.
Mr. Wilson was a countryman of Lord Mansfield,
and, following the example of the noble Lord, he

344 LIVES OF THE JUDGES.
denounced the outrages committed, although he did not
suffer so much inconvenience and loss. Lord Mansfield,
by the burning of his house, was deprived of a splendid
library, consumed in the conflagration. In London.
troops were called out to put down the riots : in
Montreal, the Parliament Houses were burnt before
the troops could be called out. Some people thought
that Lord Mansfield, by the loss of his books, would lose
his law also. This was not so, however, as when the
right to call out the troops was questioned in the House
of Lords, he said :
I hold that His Majesty, in the orders issued by the advice of his
Ministers, acted perfectly and strictly according to the common law of
the land, and the principles of the constitution; and I will give you my
reasons within as short a compass as possible : I have not consulted
books ; indeed, I have no books to consult.
After arguing at length, and giving his reasons why,
for the repression of those riots, it was not necessary
to have martial law proclaimed, but that the common
law was sufficient to meet the case. Lord Mansfield
concluded thus :
Upon the whole, my Lords, while I deeply regret the cause which
rendered it indispensably necessary to call out the military, and to order
them to act in the suppression of the late disturbances, I am clearly of
opinion that no steps have been taken for that purpose which were not
strictly legal, as well as fully justifiable in point of policy. Certainly
the civil power, whether through native imbecility, through neglect, or
the very formidable force they would have to contend with, were unequal
to the task of putting an end to the insurrection. When the rabble had
augmented their numbers, by breaking open the prisons and setting the
felons at liberty, they had become too formidable to be opposed by the
staff of a constable. If the military had not acted at last, none of your
Lordships can hesitate to agree with me that the conflagrations would
have spread over the whole capital, and in a few hours it would have
been a heap of rubbish. The King's extraordinary prerogative to
proclaim martial law (whatever that may be), is clearly out of the
question. His Majesty, and those who have advised him (I repeat it),
have acted in strict conformity to the common law. The military have
been called in, and very wisely called in— not as soldiers, but as citizens.
No matter whether their coats be red or brown, they were employed, not
to subvert, but to preserve, the laws and Constitution which we aU prize
so highly.

JUDGE WILSON. 345
I make no apology for giving this opinion of Lord
Mansfield from his place in the House of Lords, as there
is in som^ places great misconception as to the extent to
which military power may be used to put down dangerous
riots without the proclaiming of Martial Law. Besides
this, the outburst of public feeling in London on the
occasion of the passing of the Catholic Relief Bill, was
not unlike the outburst in Montreal, on the occasion of
passing the Rebellion Losses Bill.
Mr. Wilson's opinion on the subject of the riots in
Montreal, as expressed in the House, shew that he had a
true conception of the duties of the situation, as expounded '
by Lord Mansfield.
I need not say more of Mr Wilson's Parliamentary
career than to add that he evinced the same manly inde
pendent spirit in the House as out of it : he had an honest
desire to advance the best interests of the country, and
voted and acted accordingly.
Mr Wilson was made a Queen's Counsel in 1856, and
promoted to the Bench as a Pusine Judge of the Common
Pleas on 22nd July, 1863, The Chief Justice of the
Common Pleas, while he occupied a seat on the Bench,
was the Honorable Sir "William B. Richards, afterwards
Chief Justice of the Supreme Court, and his associate
Judge was the Honorable Sir Adam Wilson, lately retired
from the Chief Justiceship of the Queen's Bench Division
of the High Court of Justice, As a Judge, the Honorable
John Wilson enjoyed the confidence of the Bar and the
Bench, After the Fenian Raid in 1866, it fell to his lot to be
obliged to try many of the Fenian prisoners. The atmos
phere of the Toronto Court House, never of the best was
particularly bad at this time. The labour imposed on the
Judge, with the foul air of this much-condemned Court
House, seriously impaired his health. It is believed that
the poisonous air of the Court House hastened his end.
He died on the 3rd day of June, 1869, and was buried
in the Cemetery at London, the place in which he had
44— L- J-

346 LIVES OF THE JUDGES.
lived so many years. His widow, who is the sister
of Judge Hughes of St Thomas, still survives him, and
has her residence with a married daughter in Toronto.

XXVII.
The Honorable Joseph Curran Morrison,
Judge of the Court of Appeal.

HE Honorable Joseph Curran Morrison, as
'|'|LlJ|fe his name would seem to indicate, was not

slfe-^s altogether Irish, though Irish born. His
^^^ father, Hugh Morrison, was a native of
Sutherlandshire, Scotland, which was also the native
county of Sir John Alexander Macdonald, and may in
some measure account for the friendship which existed
between these two (the Judge and the Premier), for a
good part of the life of Mr. Morrison.
Mr. Morrison, (the Judge) was born in the south of
Ireland, on the 20th August, 18 16. His father had
removed from his native Scotland to the south of Ireland
before this period, had married, and for the time being,
made the south of Ireland his dwelling place.
During Mr. Morrison's life time he claimed his Scotch
descent, and was a member of St. Andrew's Society. He
did not at the same time disclaim his native Ireland, and
would often boast that he had received his early education
at the Royal Belfast Institution.
Mr. Morrison had not yet passed his boyhood, when
his father removed to York, Upper Canada, now Toronto.
Mr Morrison on arriving in York, was enabled to avail
himself of the advantages afforded the youth of that time
in receiving further education within the walls of Upper

348 lives of the judges.
Canada College. After leaving Upper Canada College his
ambition led him to adopt the study of the law. In order
to the gratification of his desire he entered the office of Mr
Simon Washburn, a local practitioner of note in those days.
In the life of Chancellor Blake I have mentioned the
fact that Mr Blake was a student of Mr Washburn. He
and Mr Morrison were students in this office at the same
time This must have been about the year 1835 or 1836,
as Mr Morrison was admitted a Student by the Law
Society in Hilary Term, 4 William IV., 1834, while Mr
Blake was admitted just a year afterwards. Mr Blake
being a University man, was admitted to the Bar a year
before Mr Morrison. He was admitted, as the books
shew, in Easter Term., i Victoria, 1838, and Mr Morrison
in Easter Term, 2 Victoria, 1839, They were fellow
students part, if not the whole of the time of their proba
tion, became fast friends, and on being called to the Bar,
formed a partnership which continued until Mr Blake's
elevation to the Bench in 1846. Doctor Connor joined
the partnership at some period of these ten years, after
which the firm was known as Blake, Morrison & Connor,
and had a large and extensive practice. Mr Morrison
had a great many friends in Toronto and surrounding
Townships, and was thus enabled to bring to the firm a
large number of valuable clients. He confined himself
more to the routine of the office, while Mr. Blake's well
known ability secured to the firm a counsel and advocate
with a reputation second to none in the Province. Mr
Blake in his advocacy was not in the habit of going
regular circuit, confining himself to local business and
special retainers in outside counties.
In 1843, Mr. Morrison became Clerk of the Executive
Council ; not so much for the ordinary business of the
Council, but to perform the duties of Clerk of the old
Court of Error and Appeal, composed of the Lieutenant-
Governor and members of the Council.
Mr Morrison and Mr. Blake were Reformers of the
School of Reform as it existed at that time, and were

judge MORRISON. 349-
warm admirers of the Honorable Robert Baldwin, the
then recognized leader of the Reform party. Mr Morri
son's activity and energy, displayed on all occasions when
Reform principles were to be battled for in the struggle
of parties in 1848, secured for him the nomination in the
Reform interest, as candidate for the representation in
Parliament of the west riding of York.
Lord Elgin had arrived in the Province as Governor-
General : the electidn of 1848 was the first general elec
tion after his assuming the Governor-Generalship of the
Province. Mr. Morrison was returned as a supporter of
Mr Baldwin and the Baldwin-Lafontaine Administration
which came into power in March, 1848.
The supporters of Mr. Baldwin were generally called
Baldwin Reformers, as distinguished from the more radi
cal wing of the party. Mr. Baldwin, while demanding
Constitutional Reform, had never sided with those of
revolutionary tendencies. His great object was, to weld
the two Provinces of Upper and Lower Canada together
in one homogeneous whole. Mr Morrison was of his
school, and gave him loyal support in the third Parlia
ment after the Union, elected under Lord Elgin's auspices.
Mr. Morrison sat in Parliament from the beginning to
the close of the third Parliament, in 185 1. Mr. Hincks
(Sir Francis Hincks) had at this time gained great
prominence in Parliament,
Mr, Baldwin retired from the Ministry at the close of
the session of 1851, and it then became the office of Lord
Elgin to secure a new administration, on such principles
as would likely secure the confidence of a new Parliament,
There were many difficulties to overcome, as Mr, Lafon
taine had expressed his resolve to retire from public life,
Mr. Hincks, who had been a member of the Baldwin-
Lafontaine Administration, was entrusted by His Excel
lency with the formation of a new Ministry for the next
Parliament. Mr Hincks called to his aid other gentle
men, representative men of the different sections of the
Reform party, which, after the retirement of Mr Baldwin,.

350 LIVES OF the judges.
had become considerably disorganized. Among the
gentlemen selected was Mr. Morrison. On the 28th
October, 185 1, Mr Hincks was enabled to announce his
administration as fully organized. Mr Morin became
leader of the Lower Canada section of the new adminis
tration, which sailed into power under the name of the
Hincks-Morin Administration. The administration was
all Reform ; some members of it, notably Dr. Rolph and
Mr Malcolm Cameron, being of the advanced wing of
the party. The programme of the administration, as told
by Sir Francis Hincks in his Reminiscences, was, the
secularization of the clergy reserves, the increase of the
representation, the extension of the franchise, the abolition
of the seignorial tenure, the extension of the principle of
election to the Legislative Council, and the encourage
ment of railway enterprises.
In this administration, with this large bill of fare, Mr,
Morrison was allotted the office of Solicitor-General for
Upper Canada, on the 22nd June, 1853, having gained
his seat for Niagara at the general election in the
previous year. On assuming office, he was obliged to
obtain the consent of his constituents to his acceptance
of office, which they cordially gave him, by again return
ing him as their representative in 1854. Mr. Morrison
was always a staunch friend of Mr. Hincks — none more
so — and as such he was recognized by Mr. Hincks.
In order to justly appreciate Mr. Morrison, it is
necessary to refer to Mr Hincks, as being leader of the
administration. He was generally charged with making
exposition of its principles and, so far as possible,
enforcing them in the House. Mr. Morrison was not a
silent member, nor was he an obtrusive one. It was
sufficient for him, in Council and out of Council, to lend
Mr. Hincks his support.
There were members of the House, Reformers, not
pleased with the formation of the administration. Among
these were Mr Brown and Mr McKenzie. So objection
able had their opposition become that, in the spring of

JUDGE MORRISON. 35 1
1854, Mr Hincks advised a dissolution of the House.
As regards the measures proposed to the House, and
passed by that body, prior to the dissolution, they were
large and beneficial to the country ; though not all that
had been placed in the programme at the formation of
the Ministry.
Mr Hincks was obliged to postpone the Clergy
Reserve and Abolition of Seignorial Tenure Bill, which
gave umbrage, or seeming umbrage, to his more advanced
supporters. Mr. Hincks, on September Sth, 1S54, tendered
his resignation in the Ministry to His Excellency the
Governor-General. His colleague from Lower Canada,
Mr. Morin, did the same. On the same day Mr. Hincks
made his explanation to the House, giving reasons for his
resignation, which without giving in full I will quote.
Addressing the Speaker, he said :
I shall not, Sir, go back — for I deem it unnecessary to do so — to any
matters connected with the formation of the administration that preceded
the present one, and of which I had the honor of being a member. But
I shall content myself with stating, that after that administration had
been some time iu office, after we had carried, by very considerable
majorities, measures which have been received, I believe, with very great
satisfaction by the country at large — measures that we shall always be
proud to have our names identified with, and to which, as they are
recorded on the Statute Book of the country, I do not think it necessary
to refer more particularly at present. During the Session of I85I we had
such evidence of the disorganization of the party in Upper Canada, by
whose support and confidence we had been enabled to conduct the affairs
of the Province, that at a late period of that Session, my honorable and
learned friend the then Attorney-General of Upper Canada (Mr, Baldwin)
¦was under the necessity of tendering his resignation.
The bulky Statute Books of 185 1, 1852, and 1853, shew
with how much truth Mr, Hincks could justly say : " That
measures had been passed under his administration which
were received with very great satisfaction by the country
at large,"
I do not find, on going over the old Statutes of Canada,
that there had ever been passed in the same period of
time, as many or as important Acts as during this period.

353 LIVES OF THE JUDGES.
(185 1, 1852, 1853). In the passing of these mea.sures Mr.
Morrison lent his aid and assistance to Mr Hincks.
In 1855, Sir Edmund Head succeeded Lord Elgin as
Governor-General. With the advent of a new Governor-
General there was installed a new administration. The
Tache-Macdonald administration was formed to to succeed
the Hincks-Morin Government On the 24th May, 1856,
Mr. Morrison became Receiver-General in that Govern
ment, and a member of the Board of Railway Commis
sioners. In August 1856, his constituents of Niagara
again returned him to Parliament to represent that Town,
thus confirming his appointment as Receiver-General.
By this time the Baldwin Reformers, of whom Mr
Morrison was one, had become largely merged with, the
Conservative party, owing to their divirgence from the
" Clear Grits " or advanced wing of the Liberal party.
Hence we find Mr. Morrison, whilom Reformer, a mem
ber of the Tory Macdonald-Tache administration.
Mr Morrison not only gave his support to that admin
istration, but he held office in the Macdonald-Cartier
administration which succeeded it.
In 1856, he was appointed one of the Commissioners
on the Commission for revising the Statutes of Upper
Canada, of which I had the honor of being member as
well as Secretary. I will not speak of the work of that
Commission, the work speaks for itself in the bound
volume of the Consolidated Statutes.
Mr Morrison's parliamentary duties admitted of his
only giving occasional assistance to the Commission. In
the Consolidation of the Municipal Acts, which were then
engaging the attention of Parliament, his experience gave
strength to the work, which also derived great advantage
from the assistance cf the Honorable Oliver Mowat, also
a member of the Commission.
The period during which Mr Morrison held office in
the several administrations was peculiarly a Railway
period. Sir Francis Hincks had justly concluded that the
building of railways was absolutely essential to build up

JUDGE MORRISON, 353
the country, Mr Morrison was his faithful lieutenant.
He took great interest in the promotion of the old Ontario*
Simcoe and Huron, now the Northern Railway. The
first sod of this new highway to the north was turned by
Lady Elgin, on the 15th October, 1851. This was an
important event for Toronto — a great deal of her subse
quent prosperity is ascribed to the building of th s
railway. Those of us who look back to the time, and know of
the difficulties which had to be overcome, can well appre
ciate the fidelity to the enterprize shewn by the late F. C.
Capreol and Mr. Morrison. I remember meetings being
held when the cabmen and carters were almost in armed
rebellion because of the work ; they argued if a railway
was built their occupation would be gone.
Mr. Morrison was a constant advocate for the building
of the road, and was for several years President of the
first Board of Directors, succeeding the Honorable Henry
John Boulton in that office. Against much opposition
and overwhelming difficulties the road became a reality.
In May, 1853, the road was opened to Aurora, and in
1855, to CoUingwood, in which year Toronto obtained
direct railway communication with Hamilton by the
Toronto and Hamilton Railway, and with Montreal by
the Grand Trunk road. The latter line was extended
westward to Guelph in the early part of the following
year, and soon after to Sarnia.
Mr Morrison's residence, Woodlawn, was in Yorkville,
and though a long way from the railway offices and the
business part of the city, he gave special attention to
the railway interest, attending faithfully the meetings of
the Board of Directors with whom rested the responsibility
of the work. Woodlawn was a. house which its owner
occupied in no selfish' spirit. The hospitality of Mr.
Morrison was proverbial among his many guests who
always received a warm welcome within its walls. The
grounds, laid out with taste, were not far from the resi
dence of Sir David Macpherson.
45— L. J.

354 LIVES OF the judges.
Mr Morrison was a lover of art, and did not fail to
"adorn his house with pictures of the best masters, which
lent a charm to the hospitalities of his house. In his
travels on the Continent he had secured not only most
valuable pictures, but statuary and other works of art,
with which he graced the interior line of his well furnished
house, Mr Morrison had a taste for horticulture and floricul
ture. His conservatory was as good, if not better, than
any other in Toronto, He used often to carry off prizes
at the horticultural show of fruits and flowers at the
Horticultural Gardens, in Toronto, A well established
rivalry was kept up between him and the late Henry
Eccles, Q.C, and others who, like him, revelled in the
delight afforded by the fairest flowers.
Mr Morrison retained the office of Receiver-General
till the expiration of the fifth Parliament after the Union,
At the general election of 1857, he presented himself as
a candidate to the electors of South Ontario, but suffered ,
defeat In 1858, he sought election for North Oxford,
and was defeated by the Honorable William Macdougall,
The star of the " Clear Grits," as it were, was in the
ascendant, and the Parliamentary life of the Honorable
Joseph C, Morrison, Baldwin Reformer, was rapidly
drawing to a close.
In 1859, he was appointed Registrar of the City of
Toronto, which had been separated from the County of
York as a distinct registration district. In i860 (Feb
ruary), having resigned as Registrar, he essayed politics
again, and was appointed Solicitor-General by the Cartier-
Macdonald Government The appointment was not a
popular one, and was rather the individual act of friend
ship of Sir John A. Macdonald. Mr Morrison sought a
constituency in the County of Grey, and was defeated.
He tendered his resignation to the Government which
they refused to accept. He retained the office of Solicitor-
General for two years without a seat in the House, which
was the subject of much unfavorable comment. In 1862,

judge MORRISON. 355
Mr Notman moved a vote of censure in the House,
because of Mr Morrison's retention of office ; but the
motion was defeated.
During all his political life Mr Morrison made no
enemies and many friends. He was a man so equable
in his disposition, and possessed of such sound good
sense, that it was impossible to quarrel with him, how
ever much one might differ from him in opinion. He
was not possessed of a large fortune, and the fortune he
had was much diminished by his heavy election expenses.
He never wanted friends, however, some of the warmest
of whom were those opposed to him in politics. Even
¦during his Parliamentary life, he was not altogether
removed from association with the Bar, having, during
that time, conducted many criminal prosecutions for the
Crown. Among others, he prosecuted James Brown, in
i860, for the murder of John Sheridan Hogan, M. P. He
also conducted the trial of James Greenwood, convicted
-of murder ; and of the Fenian prisoners, taken at Fort
Erie in 1866.
Mr. Morrison took great interest in educational mat
ters. He was for twenty-eight years a member of the
Council of Public Instruction for Upper Canada. He
was always a friend of the University of Toronto, and
was for twenty-five years a member of the Senate of
that institution., and fourteen years Chancellor of the
University. On the 19th March, 1862, he was appointed a Puisne
Judge of the Common Pleas ; and on the 24th August,
1863, was transferred to the Queen's Bench, as a Puisne
Judge, Entering on his judicial duties. Judge Morrison
found himself surrounded by a Bar which held him in
high esteem. On the Bench he was always complaisant,
and never got ruffled in the performance of duty. Firm
in his rulirgs at Nisi Prius, he was always ready to re
consider his decisions in Banc, directing his mind to
the attainment of justice conformable to the principles of
iaw.

356 LIVES OF THE JUDGES.
Judge Morrison, sitting as vacation Judge, after Easter
Term, 1887, gave a decision which was very much can
vassed at the Bar, and which was pronounced by very
eminent counsel as a wrong decision, but which has since
received the support of the Chancery Division of the
High Court of Justice, in England, in another case, but
on the same point. The case in Ontario is the case of
Allan vs. McTavish, 41 U. C. Q. B. Rep. 567. The action
was on a mortgage, bearing date on or about the 24th
November, 1856, in which the mortgagee covenanted to
pay one Arnold, or his assignee, the sum of ;^30:5s, and
interest, in four annual instalments, the first instalment
whereof became due and was payable on or before the-
24th November, 1857. Arnold assigned the mortgage to-
the plaintiff in the action, who brought suit on the coven
ant for the recovery of the nioney. The defendant
pleaded that the plaintiff's claim was for a sum of money
secured by way of mortgage on lands in Ontario, and that
the alleged cause of action did not accrue within ten years.
before commencement of the suit
The plaintiff" demurred to this plea, on the ground, that
the action was an action of debt arising upon a covenant
contained in a deed, and that the plaintiff" was entitled to
bring his action at any time within the period of twenty
years after the cause of action arose.
Under the Upper Canada Statute of Limitations of 7
WiUiam IV., cap. 3 sec. 3, (Consolidated Statutes of
Upper Canada, page 807), it had been enacted that :
" Actions of covenant or debt upon a bond or other
specialty should be commenced within twenty years after
the cause of such action arose. But the Ontario Act of
38 Victoria, cap. 16, (A,D, 1874), entitled ' An Act for the
further Limitation of Actions and Suits relating to Real
Property,' had by section 1 1 declared that ' no action or
suit or other proceedings shall be brought to recover any
sum of money secured by any mortgage, judgment, or
lien, or otherwise charged upon or payable out of any land
or rent, at law or in equity, or any legacy, but within tea

JUDGE MORRISON. 357
years next after the present right to receive the same shall
have accrued to some person capable of giving a discharge
for, or release of the same.' "
Judge Morrison held that the action was barred at the
end of the ten years, and that the words in Consolidated
Statutes referred to " actions of covenant or debt upon a
bond or other specialty," extended as well to actions on
covenant contained in mortgages as to covenants con
tained in other deeds.
In the minds of many, the provisions of the Ontario
Act, 38 Victoria cap. 16, were confined to actions directly
affecting the land, to liens and other remedies against the
the land, the title of the Act, and general scope of the
Act relating to realty gave colour to this construction of
the Act.
By Judge Morrison's decision many people who had
been delaying taking their actions for debts on mort
gages over ten years due, were suddenly awakened to the
prospect of losing their claims or part of them, where the
land itself was not a sufficient security. They were
refreshed, however, by the decision of the Court of Appeal
in the same case, reversing Mr. Justice Morrison's decision
(Allan vs. McTavish, 2 Appeal Reports, 278).
Not long after the decision of Allan vs. McTavish in
appeal, however, the legal barometer fell, and Judge
Morrison's decision was in effect, though in another case,
upheld by the Court of Appeal in England. Sutton vs.
Sutton, (December 12, 1882,) 22 Chancery Division, 511,
brought up the same question as was decided by Mr.
Justice Morrison, and the Judges, Sir George Jessel, the
Master of the Rolls, and Lord Justice Bowen, were of the
same opinion as had been expressed by Judge Morrison.
Fearnside vs. Flint, 22 Chancery Division, 579, followed
Sutton vs. Sutton, and even apparently went further, as it
held to the ten years limitation on a bond collateral to
the mortgage. I say apparently, but still it did not go
further In Lindsell vs. Philips, 30 Chancery Division,
.291, it was held that the ten years limit does not apply

358 LIVES OF THE JUDGES.
to any covenant which does not immediately affect the
land. Referring to Sutton vs. Sutton and Fearnside vs..
Flint, the Court said :
But these cases decide only that the remedy on the covenant or bond is
barred when the remedy against the land is barred, and in the present
case the remedy against the land is not barred.
The eminent Judges of our Court of Appeal, who
overruled Judge Morrison, fortified their decision by a
reference to many cases to sustain their view. I find
scarcely any of them referred to in Sutton vs. Sutton.
The case of Hunter vs. Nockolds, I Macnaughton & Gor
don 640, cited in Allan vs. McTavish, is referred to, but
not many of the cases cited. In this state of the decisions,
it is difficult to say what the law really is, or will be
declared to be when the point is presented to the Privy
Council, In the mean time, in McDonald vs. McDonald, i r
Ontario Reports, Mr. Justice Proudfoot had the point
before him in the Chancery Division of the High Court
and there determined to follow the decision of the Court
of Appeal, without expressing any opinion of his own.
He there said :
The case of Allan vs. McTavish also answers the other ground of appeal
that not more than ten years arrears should have been given. It is true
that the Court of Appeal in England has taken a different view of the
effect of the reduction of the limitation, and held that it applied to the
covenant as well as the land, Sutton vs. Sutton, 22 Ch, D, 511, But
Allan vs. McTavish is the decision of the highest appellate tribunal in
the Province to w hich an appeal lies from me. The Court of Appeal in
England is not the Court of ultimate appeal for the Province, And
therefore whatever my own view might be, I feel constrained to decide
according to the opinion of our Court of Appeal, The appeal is therefore
dismissed, with costs,
I have thought it right to refer to the decision of
Allan vs. McTavish, as in that case Judge Morrison
decided a new point on a Statute which is open to,
different constructions, in which interpretation he has.
been sustained by eminent Judges in England, though the
Judges of the Ontario Court of Appeal came to a different

JUDGE MORRISON, 359
conclusion, Mr Justice Proudfoot's decision was on the
appeal from the Master's report only. Until the Supreme
Court, or Privy Council, have the point before them, the
decisions are not satisfactory.
On the 30th November, 1877, Judge Morrison was
appointed Judge of the Court of Appeal.
There is another case in our reports of great commer
cial importance, in which Mr. Justice Morrison gave
judgment on a totally new point, with no English or
American decisions to direct, and he was sustained in his
conclusion by the Superior Court The case is Cosgrave
vs. Boyle, 5 Appeal Reports 458, In that case one Purdy
had given a promissory note to the plaintiff" Cosgrave,
endorsed by a man named Stewart. Plaintiff had the
note discounted at a bank, and not being paid by the
maker at maturity, the bank protested the note for non
payment, addressing the notice of non-payment to the
address of Stewart at Toronto, i.e., to Stewart by name,
Toronto, Toronto being the place of date of the note. As
a matter of fact Stewart was at that time dead, and had
left a will which had been proved by his executors. The
plaintiff" paid the note to the bank and then sued Boyle
the endorser. Two questions arose : 1st, Was the notice
sufficient as given by the bank, the holder of the note
at maturity ? 2nd, If sufficient, did it enure to the benefit
of the plaintiff who knew of the endorser's death when
they paid the note.
By the Statute 37 Victoria, cap. 47 D,, it is recited and
enacted :
Whereas it is desirable that the law relating to bills of exchange and
promissory notes should be amended in the particulars in this Act
mentioned. Therefore, &c. Notice of the protest or dishonor of any bill
of exchange or promissory note, payable in Canada, shall be sufficiently
given if addressed in due time, to any party to such bill or note, entitled
to such notice at the place where such bill or note is dated, unless any
such party has, under his signature, on such bill or note, designated
another place when such notice shall be sufficiently given, if addressed to
him, in due time at such other place ; and such notice so addressed should
be sufficient, although the place of residence of such party be other than
either of such before mentioned places.

36o LIVES OF THE JUDGES.
Judge Morrison was of opinion that the judgment of
the Queen's Bench, which decided that the defendant was
discharged by reason of insufficiency of notice, no notice
having been sent to the executors of the endorser either by
the bank or the plaintiff", was erroneous. Judge Armour
in the Queen's Bench, had dis.sented from this holding.
The plaintiff appealed to the Ontario Court of Appeal,
which was equally divided. Judge Morrison was of
opinion that by virtue of the Statute the notice addressed
to the endorser at the place of the date of the note was
perfectly good, although the endorser was dead when the
note matured. Judge Gait was of the same opinion. The
Court being equally divided, the appeal was dismissed.
On further appeal to the Supreme Court the judgment of
the Court of Appeal was reversed, the Supreme Court
holding :
That the holder of the note sued upon when it matured, not knowing
of S's death, and having sent him a notice in pursuance of sec. 1 cap. 47,
37 Victoria gave good and sufficient notice to bind the defendant, and
that the notice so given enured to the benefit of the appellants, the
plaintiffs. Vogel vs. The Grand Trunk Railway Company, lo
App. Rep. 162, in which Mr Justice Morrison gave judg
ment, is an important case on the subject of liability of
railway companies for negligence. The plaintiff had
shipped by the defendant's railway a number of horses, to
be carried by the railway from Belleville to Prescott. It
was alleged that through the negligence of the servants of
the defendants, the trains on which these consignments
were being carried, collided with other trains, and some of
the horses were killed, and all of them more or less injured-
In the shipping note signed by the consignor under the
heading " No. of packages and species of goods," there
was written, " i car horses, O. risk "; meaning, owner's risk.
Amongst the general notices and conditions of carriage
endorsed on the shipping note in each case was the
following :

JUDGE MORRISON. 361
The owner of animals undertakes all risks of loss, injury, damage, and
¦other contingencies in loading, unloading, transportation, conveyance, or
otherwise howsoever, no matter how caused.
On the back it was (amongst other things) declared
that live stock :
Is tiken entirely at the owner's risk of loss, injury or damage, * *
whether in loading, and unloading, conveyance, or otherwise * * all
live stock shall be carried by special contract only, &c.
When free passes are given to those in charge, it is on
condition that the company are not responsible for any
negligence, default, or misconduct of any kind as to the
injury of the person using the pass. A receipt for the
animals was given by the defendants in the same form
and conditions. The animals were killed or lost by the
defendants' negligence. It was admitted that, but for
these special conditions, the company would be liable.
The plaintiff urged that, by statute, the conditions could
not avail where there was actual negligence. To this the
defendants replied, that their company was not bound by
any such statutable provision ; and secondly, that even if
so bound, the law did not prohibit their making a special
contract for the carriage of the goods. The case was
tried at Belleville, before Wilson, C. J. The jury found
in substance that the horses were not carried under the
special contract, and that the plaintiff" did not know what
the terms on the back of the shipping bills were, but that
he supposed the terms were of the like nature as those
upon the other papers he had signed for the carriage of
horses by the Grand Trunk, The jury assessed the dam
ages at $725. The Chief Justice (Wilson) entered the
verdict for the defendants. The plaintiff moved in term
in the Queen's Bench to set aside this verdict, and to
have a verdict entered for him, because the damage
having been occasioned by defendants' negligence, they
were liable, notwithstanding the conditions of the con
tract, under the Consolidated Railway Act, 1879, Revised
Statutes of Canada, cap. 109, sec. 104, sub-sees, i, 2, 3,
46— L. J.

J

62 LIVES OF THE JUDGES,

Passengers and goods shall be taken, transported to and from, and
discliarged at such places (places to which the goods were to be trans
ported) on the due payment of the toll, freight, or fare lawfully payable
therefor. Every person aggrieved by any neglect or refusal in the premises shall
h-ive an action therefor against the company ; from which action the
company shall not be relieved by any notice, condition, or declaration, if
the damage arises from any negligence or omission of the company or of
its servants.
The Court of Queen's Bench held that the defendants
could not escape liability by their conditions, for their
liability was expressly provided for by the above clause
of the Railway Act,
On the same question being presented to the Court of
Appeal, that Court was equally divided, Justice Burton
holding that the company was not precluded by the
terms of the Act of Parliament, from making a special
contract, exempting themselves from liability even in
case of negligence on their part ; and Burton, J,, and
Patterson, J,, holding that the transaction was not within
the Statute, being, in fact, the hiring of a car, and not a
neglect or refusal to perform any other obligations
cast upon them by the Statute, Justices Morrison
and Osier held that the company could not, by any
special contract, relieve themselves from liability or negli
gence. The case was carried to the Supreme Courts
where the opinions of Justices O.sler and Morrison were
affirmed, that Court holding that " the company could
not avail themselves of the stipulation (on shipping
note) that they should not be responsible for the negli
gence of themselves or their servants." In the Court of
Appeal, Mr Justice Morrison, concurring with Mr Justice
Osier in his conclusion, said in his judgment :
The defendant railway is subject to the sections of the Statutes
referred to, which deprive the company of defence in an action like this,
where the loss has been occasioned by the negligence of the company or-
their servants, and I am of opinion, with my brother Osier, that it was
the intention of the Legislature so to deprive them.
Mr Justice Morrison was not in the habit of delivering

JUDGE MORRISON. 363,
long judgments except in cases where the whole responsi
bility was thrown upon himself alone. In other cases he
often adopted the opinion of other Judges, giving his
conclusions, as in this case. The point raised was a new
one on a new statute, and, as will be seen, Mr Justice
Morrison was sustained by the Supreme Court I will
not cite any further judgments of Mr Justice Morrison.
Before Judge Morrison was promoted to the Bench I
knew him well as a practitioner While engaged in
politics I did not see much of him, but know that he was
a favourite with all the members with whom he was
associated. He had good judgment in political affairs.
He was not brilliant, but a well balanced mind enabled
him to give a dispassionate and trustworthy opinion on
public questions. He was, I may say, better in council
than out of council. To serve his friend Mr. John A.
Macdonald, he held office for a year in the Government
without a seat in the House. During this time he was
much abused by the political press, but it was not known
how much he desired to resign his position. He was
induced by Mr Macdonald to believe that public exigency
required him to retain his office, even though a victim of
public displeasure. In this he sacrificed himself to serve
a friend. I believe I know more of Judge Morrison after he
reached the Bench than before. Being on circuit with
him often enabled me to know him well. Off the Bench
he was most agreeable, unostentatious, and companionable.
On one occasion, after the close of the Picton Assizes,
there being a day to spare, he, a couple of friends, and
myself took a carriage and paid a visit to the sand banks
near Wellington, on the Lake Shore. I had spent part of
the time of my professional studies in Belleville, and had
often visited Picton, but never the sand banks. These huge
banks of white sand some distance from the margin of the
lake, form a curious contrast with the waters of the lake
and with the country round. Here we have a fine agricul
tural Township, with good alluvial soil largely covered with

364 LIVES OF THE JUDGES.
mountains of shifting sand, which extend miles longitudi
nally and latitudinally across the country. It is not land
sand either The theory is, that the sand mounds are
formed by drift sand thrown up from the bed of the lake
during great storms. I know not if this be the case, but
there is much to prove this conclusion. Be that as it
may, we were all delighted with our visit to the sand
banks, and whiled away a few hours gazing at a hot sun
shedding its rays not only over Ontario's waters, but over
a bit of country, even though of sand, as interesting as
would be the sand regions in the vicinity of Berlin, the
great German capital, or the northern part of Germany.
At the time of my writing Judge Morrison has
been dead but a little over two years. He was not in
good health for a few years before his death. He died at
his residence Woodlawn, on 6th December, i885, and
was followed to the grave through the avenue of that
beautiful country seat by many mourning friends.

XXVIII,
The Honorable Robert Alexander Harrison,
Chief Justice of Ontario.

HE feeling which possessed me when reading
^ Thomas Carlyle's " French Revolution," pos

sesses me in writing of Robert A. Harrison —
w/ a feeling of wonder and amazement at the
amount of work some men undertake for the accomplish
ment of a purpose, Thomas Carlyle set out in life with
a determination to make himself a great man by unceasing
labor : his works shew how completely he succeeded in
the attainment of the prize, Thomas Carlyle was the
architect of his own future in literature. Chief Justice
the Honorable Robert A, Harrison was the architect of
his own future in law.
I do not wish my readers to understand that, in asso
ciating the name of Carlyle with that of a Chief Justice in
Canada, I do so for the purpose of making a comparison
of men : it is rather with a view of illustrating the value
of work, and perseverance in work, in the accomplishment
of any object in any walk of life. All philosophers are
not lawyers, nor are all lawyers philosophers ; yet there is
so much of philosophy in law that there is, after all, a
kind of kinship — an association of ideas. John Locke,
perhaps the greatest, but certainly the most characteristic
of English philosophers, has given us instruction on
" association of ideas." He is indeed said to have been

366 lives of the judges.
the first author to use the expression, "association of
ideas." " Some ideas, indeed, have," he says " a national
correspondence ; but others, that 'in themselves are not at
all of kin,' come to be so united in some men's minds
that one no sooner at any time comes into the under
standing than the whole gang, always inseparable, shew
themselves together."
Robert Alexander Harrison was the eldest son of
Richard Harrison, formerly of Skegarvey, in the County
of Monaghan, Ireland, by his marriage with Miss Frances
Hall, daughter of the Reverend Alexander Hall, Vicar
of Newton-Butler, in the County of Fermanagh. Mr
Richard Harrison, when he first came to this country,
remained for a time in Montreal. It was there Robert A.,
the Chief Justice, was born, on 3rd August l833- As
soon as he was able, however, he removed from Montreal
to Upper Canada, and took up his residence in Markham,
in the vicinity of York. This removal took place a few
months after Robert was born. Not long afterwards, Mr,
Harrison again made a removal : this time into the City
of Toronto from the outlying township.
I became acquainted with Mr. Richard Harrison soon
after I came to reside in Toronto, in 1844. He was clerk
of the market, and was highly esteemed by every one
who knew him, for his honesty and uprightness of char
acter ; withal he had an Irish heart, which overflowed
with liberality and benevolence. He resided in Queen
-street. His house was a little west of Spadina avenue,
near the residence of the Honorable John Hillyard
Cameron, Robert, on arriving at a proper age. was sent by his
father to Upper Canada College, where his industry
enabled him to make his mark, carrying off many prizes
from his competitors. Not satisfied with a mere College
course, his ambition led him to become a graduate of a
university. At a very early period of the University of Trinity
College history, Robert A. Harrison took his degree frorh

chief justice HARRISON. 367
that institutuion. He acquired the distinction of Bachelor
•of Civil Law in 1855, and Doctor of Civil Law, about
four years afterwards.
It will not be out of place here to record that Trinity
College is a University, situated on a property, which in
the early days of York, had a certain celebrity, from the
fact that Captain S, Smith, while once President of the
Province, selected this property as his residence, and that
" Gore Vale," so named in honor of Governor Gore, runs
through the property. Doctor Scadding, in his "Toronto
of Old,'' is quite enthusiastic in his description of the
College and grounds. Referring to the Smith lot, he says:
The southern half of this lot now forms the site and grounds of the
University of Trinity College, Its brooklet will hereafter be famous in
scholastic song. It will be regarded as the Cephissus of a Canadian
Academus, the Cherwell of an infant Christ Church, The elmy dale
which gives such agreeable variety to the park of Trinity College, and
which renders so charming the view from the Provost's Lodge, is irrigated
by it. The cupola and tower of the principal entrance to Trinity College
will pleasantly, in however humble a degree, recall to the minds of
Oxford men the Tom gate of Christ Church.
Mr Harrison became a Student of the Law Society in
Hilary Term, 1850, As soon as he was admitted he
entered upon his studies in the office of Messrs, Robinson
& Allan, Mr, now Sir Lukin Robinson was the senior
member of that firm, and Reporter of the Queen's Bench,
Mr Harrison was a diligent studerit, ready for any kind
¦of hard work in the line of the law. He had only been
two years in the office, and was but eighteen years of age,
when he conceived the idea of publishing a digest of all
the cases in the Queen's Bench and Practice Courts in
Upper Canada, from 1823 to 1851, He undertook the
work under the supervision of Mr Robinson, The book
came out under the name of " Harrison & Robinson's
Digest," and was published in 1852, This Digest was a
very valuable hand-maid to practitioners of large practice,
placing in their hands a ready reference to all decisions
•during a period of nearly thirty years.

368 LIVES OF THE JUDGES.
During Mr Harrison's student days, he was a prominent
member of the Literary and Debating Society and
Osgoode Club. This Society affords to Students at Law
a good opportunity for developing their nascent legal
intellects, and improving their debating powers. Much of
Mr Harrison's education tending towards making him a
successful counsel at the Bar, was gained within the
doors of the Society. In 1853, he made a change of
office, going from Robinson & Allan to the office of
Hagarty & Crawford, of which Mr Hagarty, afterwards
Chief Justice of the Queen's Bench, and now President of
the Court of Appeal, was the senior member
In 1854, Mr. Harrison received the appointment of
Chief Clerk in the office of the Attorney-General. The
Honorable John Ross was Attorney-General at this time.
On the Honorable John A. Macdonald succeeding to the
Attorney-Generalship in the McNab-Morin administration
in 1854, he retained Mr. Harrison as his Chief Clerk. This
caused him to follow the Government to Quebec. He
was there not less inclined to the gay pleasures of society
than the many government officials of that gay capital,
and it was not to his disadvantage that in the following
year the Government was removed to Toronto, where he
had the less frivolous society of his old friends and
relatives. In Toronto he had all the comforts of a home,
presided over by a good father and fond mother.
Mr. Harrison was called to the Bar in Michaelmas
Term, 1855. He was called with honours. He was,
indeed, the first called to the Bar with honours, under the
new system inaugurated by the Law Society a short time
before his call. The Honorable Robert Baldwin was at
the time Treasurer of the Society, and congratulated Mr.
Harrison on being the first to gain the distinction of
being called with honours.
Mr Harrison had no sooner been called to the Bar than
he shewed a disposition to mix in politics. He had been
a pupil of the Honorable John A. Macdonald, and was
tinged with his ideas of political life. He was of the Tory

CHIEF JUSTICE HARRISON. 369
school, and had it not been for restraining influences he
would have been deeply engaged, too early in life, in
political agitation. He frequently contributed to the
Colonist newspaper, the Conservative organ of the day in
Toronto, articles in espousal of the Conservative doctrines
and principles as he understood them. He soon, however,
ceased this occupation in order to confine himself more
exclusively to his profession. He was fond of writing.
When he gave up writing political articles, he applied
himself to writing on subjects appertaining to law,
probably more profitable and less delusive than political
controversy. In 1857 he published "The Statutes of
Practical Utility in the Civil Administration of Justice in
Upper Canada, Chronologically arranged." This work is
more of a compilation than original matter It required,
however, a discriminating mind. This book, as well as
his book containing the " Rules, Orders, and Regulations
as to Practice and Pleading in the County Courts, with
Notes," was well received by the profession, and obtained
a large sale.
Mr, Harrison, in 1857, was still in the Attorney-
General's office, connected with the Crown Law Depart
ment, It was during this year that a great excitement
existed in the County of Haldimand, on account of
depredations and crimes committed by one Townshend,
alias McHenry. Townshend was arrested and tried at
Cayuga, before Mr. Justice McLean and a jury. There
never has been a case in Canada where such extraordinary
evidence has been given as to the identity of a prisoner.
There was not one trial only, but several trials of the case,
and several weeks were taken up in endeavoring to solve
the question presented. I have referred to the case more
fully in the life of Mr Justice McLean, and need not
repeat what I have already said about this Canadian
Tichborne case. Suffice it to say, it was the most impor
tant case of the period, and was conducted for the Crown
by R. A, Harrison, and defended by that able and
experienced Counsel, the late S, B, Freeman, Q,C,, of
47— L. J.

370 LIVES OF the judges.
Hamilton. This was the first trial of great importance in
which Mr Harrison was engaged. It required great
endurance and skilful management, and was conducted
in a manner satisfactory to the Attorney-General.
Mr Harrison, notwithstanding his employment as
Counsel for the Crown at this time, was devoting a
considerable portion of time to the execution of a most
important work, which he undertook, " Harrison's Common
Law Procedure Act, and County Courts Procedure Acts,"
This valuable contribution to legal literature was, as the
title page expresses, dedicated :
To the Honorable John Alexander Macdonald, Attorney -General of
Upper Canada, to whose ability as a Lawyer and influence as a Statesman
the Profession are indebted for the Acts here annotated, this work is
inscribed, by the Editor,
In the preface to the work, Mr Harrison gave his
reasons for entering on its performance, and bringing it
to a successful termination. He said :
The law, and the administration of the law, are two things essentially
different. By the former we understand the great body of legal rights
a,nd liabilities which teach that justice sliould render to every man his
due ; by the latter we understand the practice of the Courts, or the
machinery used for dispensing justice. All laws are designed either to
prevent a mischief ; to remedy it, if committed ; or to compensate the
sufferer, if no other remedj can be applied. The proper application of
tlie remedy is thus of vital importance to the due dispensation of justice.
The spirit of modern legislation is to make the remedy coextensive with
the mischief intended to be prevented or redressed. For this the Courts
have at all times struggled ; for this the Legislature have labored ; and
for this has the Common Law Procedure Act, 1S54, been passed.
These were very good reasons for the undertaking.
Slovenliness in practice is as prejudicial as unsound law;
any work worth performing is worthy of being well per
formed. Mr Harrison always kept this in view, and
acted upon it as a cardinal principle. The work was got
out specially to instruct the profession in procedure,
Mr Harrison's Common Law Procedure Act will
always endure as a lasting monument to his memory,
and evidence of his work. It was first published in 1858,

CPIIEF JUSTICE HARRISON. 37 1
¦and received great commendation, not only in Canada,
but in England, and in whatever country it reached. The
London legal press placed Mr Harrison in the front rank
of those commentators who had undertaken to edit the
Acts embodied in the work. "The Jurist," in reviewing
the work, said :
These are the Acts which have revolutionized the law of Upper
¦Canada, after their progenitors had exercised a, like radical influence in
the Old Country. They are, in effect, an amalgamation of our Procedure
Acts of 1852-1854, together with an Act applying them, in a great
measure, to the County Courts of Canada, The work is, therefore, almost
as useful to the English as to the Canadian lawyers ; and is not only the
most recent, but by far the most complete edition which we have seen
of the most important Acts of Parliament, The editor has not been
¦content with industriously collecting the numerous decisions which are
now scattered through our Reports upon these Statutes, but has displayed
both skill and judgment in their arrangement, and in deducing, -n-herever
it was possible, the principles of which the decisions are either suggestive
-or illustrative. Notwithstanding a large practice which he had suc
ceeded in getting, Mr Harrison still devoted a part of his
time to writing. In 1859 ^^ brought out " The Municipal
Manual for Upper Canada," containg notes on decided
•cases, and a full analytical index. This work was very
conducive to his success in gaining a name for diligence
and usefulness, not only to the profession at large but to
the whole public. He was, after this, the constant adviser
in municipal matters in a large number of the miUnicipal
questions constantly arising in the Province. His Muni-
¦cipal Manual was largely sought after in outside counties,
yielding him not only a good income but making him
known in the various counties in the Province. Perhaps
nothing tended more to build up his general reputation
than this work.
In 1859 he formed a partnership with James Patterson,
who had a good connection in the Counties of York and
Peel, He was considered one ot the best office men and
.special pleaders of his day. He and Mr Harrison together
-had a large and remunerative business.

372 LIVES OF THE JUDGES.
The firm of Patterson & Harrison was afterwards.
augumented by adding to it Mr Hodgins, the present
Master of the Supreme Court of Judicature for Ontario,
and John Bain, Q.C. Mr. Moss, afterwards Chief Justice-
Moss, was at one time a partner of Mr. Harrison.
In 1859 ^^- Harrison was employed by the Crown to
prosecute in the celebrated case of The Queen vs. Mercer
It arose out of an agreement entered into between Sheriff"
Rapelje of the County of Norfolk and Lawrence William
Mercer, by which the former agreed to surrender his office,.
on doing which he was to receive from Mr Mercer ;^5oO,
and an annuity of ;£^300 a year. This transaction was no
doubt based on the assumption that Mercer would, on the
resignation of Rapelje, get the appointment of Sheriff" of
the County, An information was filed by the Attorney-
General against Mercer, for a misdemeanor, and as being
a transaction involving the sale of an office, and contrary
to the provisions of the English Statute 5 & 6 Edward
VI,, extended to Upper Canada by 49 George III. cap,
126. It was held by the Court of Queen's Bench, that
the transaction was not only illegal under the Statute, but
at Common Law, and that the ignorance of the Govern
ment as to the illegal agreement was immaterial. The
Crown obtained judgment, and Mr Mercer lost his office.
The case will be found reported in 17 U, C. Q, B, Rep,
602. Mr, Harrison was for several years editor of the Upper-
Canada Law Journal, and frequently contributed editorial
articles which were well received. During his partnership-
with Mr Patterson his business much increased. His
early connection with the Law Department of the
Government had secured him the confidence of Mr
John A. Macdonald, who was of great assistance to him
in his profession. Through him. his firm received all the
Upper Canada revenue busine.ss of the Government
About this time there had been a great deal of smug
gling and infringement on the Custom's laws, A great
many suits had to be brought for penalties and forfeitures..

CHIEF JUSTICE HARRISON. 373
These suits were intrusted to him on the part of the
Crown, and were conducted with diligence and success.
He was of counsel for the Crown in the case of the
Attorney-General vs. Sherman Smith Halliday, 26 U. C.
-Q. B. Rep. 397, which deserves mention. It was an
information filed by the Attorney-General against the
defendant, who was a distiller carrying on business in
Maitland, in the County of Grenville. He had gained a
wide celebrity in that county for his hospitality, and
because of his large business, which brought money to
the farmers, who sold grain to him for his distillery
business. He was growing affluent ; but in some way the
Revenue Department were not satisfied that he made
correct returns to them of all the whiskey which he
<listilled. On investigation, they ascertained that it was
more than probable there were upwards of 2,000 gallons
short in his returns, the duty on which, if paid into the
treasury, would have amounted to a large sum ; which
large sum they had not received. The suit for penalties
and duty was tried at Toronto, in 1847, ^'^^ resulted in a
verdict for the Crown for $47,999,00, being the duty on
159,608 gallons of manufactured whiskey not returned.
J. H. Cameron, Q, C, moved a rule nisi in term to set
aside the verdict on many ground.s. Gait, Q. C, Anderson
and Robert A, Harrison shewed cause. S. Richards,
Q. C, supported the rule.
The case was very hotly contested. Mr Halliday held
a prominent position in the county, and if it should be
decided against him, his reputation would be injured, and
his future prospects blasted, on account of crookedness of
dealing. Chief Justice Draper gave the judgment of the
Court of Queen's Bench, and discharged the rule. The
principal question decided was on the onus of proof The
Crown proving that the defendant had sold to customers
more than he returned, was it for the Crown to prove the
•quantity manufactured, or was it for the defendant to
establish that he had paid duty on all manufactured by
him. It was held: (i) That the defendant was liable to

374 LIVES OF THE JUDGES.
pay duty upon all spirits manufactured by him, not
merely on such as had been measured and ascertained in
the manner prescribed by 27 and 28 Victoria, cap. 3. (2)
It was proved by an agent of the defendant that he sold,.
as agent for the defendant, at Montreal, between the days
mentioned in the information, 159,608 gallons more than
appeared on the credit side of the defendant's stock
books, and on which duties had been paid ; and a number
of invoices of these sales, which were produced, repre
sented the spirits to be 50 more than proof Moreover,
the agent said that large quantities of spirits had been
consigned to him direct ; and it was to be gathered from
the evidence that deliveries had been made to the
purchasers direct from the conveyance by which they
had been sent by the defendant. Held, that from this
evidence, unanswered in any way, the jury was warranted
in finding against the defendant for the duty on that
quantity. Held also, that sub-sec. 2, of sec. 14, of 29
Victoria, cap, 3, throwing the payment of duty on the
defendant, was properly treated as applicable, though
passed after the period for which duties were claimed, for
it related to matter of evidence and procedure,
I have written of this case because it not only involved
a much argued legal question as to onus of proof, but
from the fact that so many counsel whose names are
familiar, not only to the Bar, but to the Bench and public,
were counsel in the case, viz,. Gait, Q. C, now Sir Thomas
Gak, Chief Justice of the Common Pleas Division of the
High Court; Harrison, afterwards Chief Justice of the
Queen's Bench ; and M, C. Cameron, afterwards Sir M.
C. Cameron, Chief Justice of the Common Pleas Division
of the High Court of Justice ; besides S. Richards, Q. C;
J, H. Cameron, Q. C; and Mr Anderson, all able counsel,
buc who never occupied seats on the Bench.
Mr. Harrison was also Counsel for the Crown in the
John Anderson case, referred to fully in the life of Chief
Justice McLean. Anderson was an escaped slave, whom
it was sought to get back into the United States on a

CHIEF JUSTICE HARRISON. 375
charge of murder, committed when he was endeavoring to
escape from slavery. The attempt to have him sent back
to the United States failed, he was discharged from
custody on habeas corpus, and given his full liberty.
Mr Harrison was created a Queen's Counsel in 1867,
and elected a Bencher of the Law Society in 1871, He
was for some time an Alderman in the City Council of
Toronto, He found time to perform the duties of a
director of the Life Association of Scotland while at the
Bar, He interested himself in some degree in Church
matters and identified himself with the Church Associa
tions of the Diocese of Toronto, He was evangelical in
his views, and liberally disposed towards all denominations
of Christians,
Mr Harrison had resolved, when about to matriculate
at Trinity College, to proceed to study for the Church
Ministry in case he attained a certain scholarship in his
examination. In this he failed, and turned his attention
to the study of law. Whether rightly or wrongly, he
looked upon the failure as the finger of God directing
his energies to be employed elsewhere. He continued,
however, to take great interest in the Church, and did
"yeoman's service" among its laymen. Brought up
among the associations of Trinity East and St, James's
Cathedral, he was evangelical in his views. As soon as
he ascertained that his youngest brother had determined
on entering the profession of their maternal grandfather,
from which he had felt himself providentially deviated, he
never ceased to help and encourage him, though the latter
had refused a partnership in the famous firm of " Patterson
and Harrison" ~iore than once in the course of his
academical career No difference of theological taste (if
such existed) prevented the Chief Justice from giving
material and other support, whenever required, to this
younger brother, in the various projects of Church work —
whether at St Alban's, Beverley, in the backwoods, or at
St Matthias's, Toronto, under the shadow of their common
Alma Mater He sympathized with good work everywhere.

^^6 LIVES OF THE JUDGES.
Mr Harrison first entered Parliament in 1867, when he
defeated Mr John Macdonald, now a member of the
Dominion Senate, who contested one of the divisions
of Toronto with him. His strong Conservative opinions
gained him the support of the Conservative party in
his candidature for Parliament. He continued to repre
sent the constituency till 1872. He was not altogether
a success in Parliament, Parliamentary life was not
to his taste. Involving, as it did, a great departure
from his professional pursuits, the occupation became
irksome to him. At the general election of 1872, he
declined to contest the seat, and frankly told his con
stituents, in an address which he published, that he was
glad to be relieved of duties that entailed not only a loss
of time, but of money, without adding to his prestige, as
he viewed political life. While in Parliament, he was for
two. Sessions Chairman of the Miscellaneous and Private
Bills Committee, As a member of the House, he was
connected with some important measures. Amendment
of the laws as to stamping promissory notes and bills of
exchange, and Bills relating to the Criminal law, received
his attention. After his retirement from Parliament, he
resumed his active practice at the Bar, when his business
grew to large dimensions.
On the 8th of October, 1875, Mr Harrison was, quite
unexpectedly to hims.elf, appointed Chief Justice of the
Queen's Bench, under the title of Chief Justice of Ontario,
succeeding Chief Justice Richards, who was promoted to
the Supreme Court.
On the Bench the Chief Justice continued the same
unremitting labor he had performed at the Bar, The
profession appreciated the energy he displayed in his
duties There were arrears to be cleared off, which he
soon caused to disappear Accustomed to hard work, and
with a good constitution, he had no difficulty in fulfilling
the expectations that had been formed of him, that his
untiring industry as Chief of the Court would enable him
to keep up with the business of the country. He was

CHIEF JUSTICE HARRISON, 377
¦called upon to decide many important ca.ses, I wiU not
pretend to give more than a few, a.s, though but a short time
on the Bench, he disposed of so much legal business that it
would require more time than I can command to make
full report of it He was called upon to decide the
case of Mclntyre vs. McCracken, which, being a semi-
commercial case, may be referred to as evidencing the
soundness of his decision. In that case, which is reported
at 37 Upper Canada Queen's Bench, 422, and was decided
by him but a few years after he was promoted to the
Bench, he was called upon to decide an equitable ques
tion under an equitable plea, though his practice at the Bar
had been almost exclusively in the Common Law, In sub
stance the principal question was, \vhether a person having
in good faith and for a valuable consideration, without
notice, purchased shares in a joint stock company, incor
porated by the Government of Ontario, under 27 and 28
Victoria, cap, 23, on the representation by the seller that
they were fully paid up shares, and having, before he
purchased, had the representation confirmed by the proper
•officer of the company, could afterwards, at the instance
of a creditor of the company who discovered that in truth
the shares were not fully paid up, be sued by the creditor
Chief Justice Harrison held, that the defendant, before
he purchased, made all the enquirv he was bound to
make. He said :
He had a perfect right to believe the statement of the accredited officer
-of the company ; that he was under no obhgation to discredit it, and
search the books of the company to prove its falsity ; and, under the
-circumstances, he was a bon^ fide purchaser for v.ilue.
Morrison, J., and Wilson, J., concurred in the judgment
of the Chief Justice, Nevertheles.s, the case was carried to
the Ontario Court of Appeal, which overruled his decision,
but the Supreme Court, on appeal, confirmed his judg-
n.ent, Regina vs. Wilkinson — Re Brown, 41 U. C. Q, B., is a
¦case which ought not to be passed over in writing of Chief
48— L. J,

378 LIVES OF THE JUDGES,
Justice Harrison's judicial life. As is well known, the
Honorable George Brown was a journalist who had
control of the Globe newspaper, published in Toronto, In
the Daily Globe of 8th July, 1876, and in the Weekly
Globe of 14th July, 1876, there appeared an article written
by him, wherein there was a description, argument, or
comment, not only scandalizing' the Court, but also
scandalizing Wilkinson, the defendant in a libel suit
Wilkinson applied to the Court of Queen's Bench, and
obtained a Rule calling on Mr Brown to shew cause wliy
he should not be committed for contempt of Court for
these articles. Mr. Brown, in person, shewed cause to the
Rule. The main points decided by the Chief Justice
were: ist That when leave to file 2. criminal information
had been given, there was a pending litigation, though
such information had not in fact been filed, and that such
publication was a contempt of Court 2nd That a Judge
sitting out of Term under the Administration of Justice
Act, did not represent the full Court, so as to enable him
to punish for contempt of Court. 3rd That the article
complained of was a contempt of Court. There were
other points on which Morrison, J,, sitting with the Chief
Justice, differed ; but they both agreed on the main ques
tion, that a contempt of Court had been committed.
There are some remarks of the Chief Justice which I
think it right to quote, as shewing the privilege of the
press, and the duty of, as well as protection afforded to
the Court against newspaper assailants. The Chief
Justice said :
All that now remains of the cause shewn to the Rule is the contention
that Mr, Brown, in publishing these articles, did no more than his duty
as a public journalist, and so is privileged. I have already expressed my
views as to the real and supposed liberty of the press, 1 have no wish to
repeat these expressions. They exclude all idea of privilege on the
present occasion. The argument is, that, considering the notoriety of
what is called the Big Push Letter, and the prominent position of the
writer of it in one of the political parties of the country, that it was for
the public interest that the articles in question should be written,
although severely reflecting on one of the Judges of a Superior Court

CHIEF JUSTICK HARRISON. 379
of Law, in respect of a judgment delivered by him in Court, But it is
not for the public interest that any part of our Judiciary, who, Mi-,
Brown admits, are worthy ot the highest admiration, should be recklessly
assailed in the public press. There is no privilege for any man in Canada,
under the pretext of the public good, rashly to assail in the public press
any of our Judges for his conduct ou the Bench, and to impute to the
Judge assailed, conduct so wicked and corrupt as to render him unfit to
occupy the distinguished and responsible position of a seat on the Bench.
The remedy for such a state of things, if ever it should unfortunately
arise in our country, is wholly different. But whatever may happen, the
Judges must be kept high above the struggles of party warfare and party
rancour. Judges have no political bias. They know nothing, as Judges,
of political parties, or political contests, except when forced on their
attention in controverted election trials. They are neither Reformers nor
Conservatives, It is a matter of no interest whatever to them which of
the political parties for the time being is in office. The moment a man
consents to accept a seat on the Bench, his mere party predilections are
left behind, and should, if possible, be for ever abandoned. He must
henceforward do justice to all men, and so to both political parties. He
cannot do so if he has a leaning to either ; and his usefulness as a Judge
must be impaired, more or less, if either political party entertain the
belief, well or ill founded, that he is a prejudiced or unjust Judge, The
office of a Judge of the Superior Courts, either at Law or Equity, in this
Province is an arduous one. Judges, of all men, in the discharge of their
high and arduous duties, need not only the protection of the law, but the
genuine sympathy of all the honestly disposed classes of the people. One
of the greatest blessings which can be conferred upon an intelligent people
is an able and independent Judiciary : one of the greatest curses would be
the belief on the part of the people, or any considerable portion of the
people, that the Judiciary is either weak or corrupt. The labors of the
Judge permeate all ranks of society. They ascend to the occupants of
the palace, and descend to the hearth of the humblest cotter in the land.
All men and all parties stand before the majesty of the law on an equal
plane. All have, in the eye of the law, equal rights. All have property,
reputation, or life demanding protection. All have the i;ight to the
protection of the blessings conferred upon them. And for the safety of
society, all must feel that all their rights will be protected by the
judiciary. It would not, in my opinion, be in the public interest that the
author of the publications now before us should go altogether unpunished.
Individually I bear him no ill-will ; I admit his talents ; socially I
respect him; I respect his position as a public journalist, a prominent
public man, and a Senator of the Dominion. But the higher the station.
of the offender, the greater the necessity for his being made to bend and
submit to the law. I am sincerely sorry to see Mr. Brown in the position
where he has voluntarily placed himself, and from which, although ample
opportunity was offered him, he refused to extricate himself. If I were
to consult only my own feelings as an individual, I would forbear to
punish. But when I consult my duty as presiding J udge of this Court,

38o LIVES OF THE JUDGFS.
the line of my duty appears to be so clear that I cannot refuse to see and
follow it. It is not because a line of duty is disagreeable that a Judge
is to shrink from follow-ing it to all its consequences. In my opinion the
rule should be absolute.
This case was remarkable for the alleged virulence of
Mr Brown in the remarks made by him in open Court, in
argument of the Rule I heard Mr Brown argue the
Rule on his own behalf and witnessed the expressive
energy which he gave to the discourse. I do not think
he used language stronger than that used by him in his
affidavit in answer to the Rule ; which on reference to it
will be seen to be quite strong enough. The spectacle
presented in the Court of a journalist not only being
guilty of contempt in writing articles reflecting scandal
ously on the Court, but also before the Judges all but
lepeating the scandal, was not an edifying one, and it is
hoped will never be repeated.
In this particular case, owing to the difference of opinion
in the Court on minor questions the Rule, commitment or
attachment, was refused.
The Chief Justice heard Mr. Brown through a long and
vituperative address with much patience, knowing that
not being a barrister, he could not know all the courtesies
of professional decorum. He argued his own case,
although he had two counsel with him. I think for
further guidance the judgment of the Chief Justice is
valuable as shewing the duty of journalists in criticising
the acts of a Court, and the duty of the Court in dealing
with such questions when presented.
Having quoted cases in which the Chief Justice was
engaged at the Bar, and his decisions on the Bench, I may
proceed to shew what manner of man he was. At the
beginning of his Bar life he evinced a determination to
overcome all obstacles. Whether addressing the Court or
Jury, he had about him what some would call a pompous-
ness of manner When analysed, however, it will be
found that it might more properly be called pride of place
than pompousness of manner. He was conscious of his

CHIEF JUSTICE HARRISON. 38 1
own ability and endurance to give full play to a case even
if it took days, where with others, hours might have
finished the business. He was as cool a man as ever I
have met at the Bar Nothing seemed to disturb him,
when other men would be ruffled he would smile at the
most sarcastic and caustic remarks of counsel at the Bar
levelled at him. He may have felt the arrows as they
pierced his side, but he never flinched at the stroke, going
right on with his work as if a shaft had not been shot
from the bow.
He was a portly man, and in conducting cases at nisi
prius, threw all his ponderous weight upon the attention
of the jury. I have known him to be opposed by counsel
more skilful in ethics and not less skilful in law, and yet
he held his own. If opposed by the Court he submitted
kindly, bundled up his papers, put papers and brief in his
bag, and left the Court with a determination to seek
redress in full Court in Term, which often heard of cases
again in which he had been engaged.
In addressing juries he in plain, but not polished
language, with well arrayed arguments, sought with much
force to lead them to a conclusion favourable to his
client's side of the cause.
Doctor Hugh Blair, in one of his lectures, draws
a contrast between eloquence of the Bar and popular
assemblies, Mr. Harrison was more of a success at the
Bar than with popular assemblies, and was proud to have
that distinction.
Blair wrote :
The difference between eloquence of the Bar and of popular assemblies
is this : In the first place, the ends of speaking at the Bar and in popular
assemblies are entirely different. In popular assemblies the great object
is persuasion ; the orator aims at determining to some choice or conduct
as good, fit, or useful. For accomplishing this end it is incumbent on
him to apply himself to all the principles of action in our nature ; to the
passions and to the heart ; as well as to the understanding. But, at the
Bar conviction is the great object. There it is not the speaker's business
to persuade the Judges to what is good or useful, but to shew them what
is just and tru£, and of course it is chiefly or solely to the understanding

382 LIVES OF THE JUDGES.
that his eloquence is addressed. This is a characteristic difference which
¦ought ever to be kept in view.
Young men just budding will, no doubt, read this with
attention, and, I hope, with profit. Some neophytes at
the Bar are apt to think that flowery eloquence is enough
to ensure them attention and success in their profession.
It is not so in the least degree. Sounding brass may be
very good for a town church bell, but is of only momen
tary value to a Lawyer, it has no enduring effect I have
often heard men at the Bar talk, indulge in rhetoric in vast
proportions, be eloquent indeed in words, without one
seeming word of thought. Beware of such men, my
friends. Read Hamlet's advice to the players, it is as
applicable to the barrister as to the actor :
" But if you mouth it as many of the players do * * Nor do not
saw the air too much with your hand, * * Be not too tame neither,
but let your own discretion be your tutor ¦ suit the action to the word,
the word to the action ; with this special observance, that you o'erstep
not the modesty ot nature,"
Chief Justice Harrison, after his promotion to the
Bench, did not forget his old friends at the Bar He was
in the habit of entertaining liberally at his fine, large,
roomy residence and grounds of his Spadina Avenue
residence, Englefield,
His constant work out of vacation gave him the right
indeed it was necessary for his health to have some
recreation during vacation. He then would meet mem
bers of the Bar on his well ordered grounds in friendly
matches of lawn tennis or bowls, and enjoy the change
from mental exercise to healthy amusement.
He \vas an excellent host and had at his table at con
venient times guests, whether their homes were in Toronto
or abroad on a visit to the capital and seat of the Courts,
He was not exclusive, but extended his invitations to
-different professions. The Archbishop of the Roman
Catholic Church, and the Bishop of the Protestant Angli
can Church alike enjoyed his hospitality. He was an
admirer of Doctor Potts of the Methodist Church, both

CHIEF JUSTICE HARRISON. 383
as a preacher and as a man ; he frequently used to attend
to hear him preach at the MetropoUtan Church, and not
unfrequently had him as a guest at his house.
In 1S77 the Chief Justice was appointed one of the
arbitrators on the question of the northerly and westerly
boundaries of Ontario. His associate arbitrators were
Sir Francis Hincks and Sir' Edward Thornton, the
British Minister at Washington. The arbitrators exam
ined all treaties, orders in Council, Acts of Parliament,
and other documents which would enable them to make a
lasting and binding award. Their work of investigation
being completed, they, on the 3rd August, 1878, published
their award as follows :
To all to whom these presents shall come :
The undersigned having been appointed by the Governments of Canada
-and Ontario, as arbitrators to determine the northerly and westerly
boundaries of Ontario, do hereby determine and decide that the following
are and shall be such boundaries, that is to say :
Commencing at a poiut ou the southern shore of Hudson's Bay,
commonly called James's Bay, where a line produced due north from the
head of Lake Temisoaming would strike the said south sliore ; thence,
along the said south shore, westerly to the mouth of the Albany River ;
thence, up the middle of the said Albany River and ot tlie lakes thereou,
to the source of the said river at the head of Lake Joseph ; thence, by
the nearest line, to the easterly end of Lac Seul, being the head waters
¦of the English Kiver ; thence westerly, through the middle of Lac Seul
and the said English River, to a point where the same will be intersected
by a true meridiaual line drawn northerly from the International monu
ments placed to mark the most north-westerly angle of the Lake of the
Woods, by the recent boundary commission ; and thence due south,
following the said meridianal line, to the said International monument ;
thence southerly and easterly, following on the International boundary
line between the British Possessions and the United States of America,
into Lake Superior.
But if a true meridianal line drawn northerly from the said Interna
tional boundary, at the said north-westerly .angle of the Lake of the
Woods, shall be found to pass to the west of where the English River
-empties into the Winnipeg Kiver, then, in such case, the northerly
boundary of Ontario shall continue down the middle of the said English
River, to where the same empties into the Winnipeg liiver, and shall
-continue on a line drawn due west from the confluence ot the said English
River with the Winnipeg River, until the same will intersect the meri
dian above described; and thence due south, following the said meridianal
dine, to the said International monument ; thence southerly and easterly,

384 LIVES OF THE JUDGES.
following upon the International boundary line between the British
Possessions and the United States of America, into Lake Superior.
Given under our hands at Ottawa, in the Province of Ontario, this.
third day of August, 1878. HoBEET A. Harrison.
Edwd. Thornton.
F. Hincks.
Never did three men charged with public duties, enter
upon the performance of them, arid accomplish their work
with more zeal and fidelity, than did the three arbitrators.
who made this award, an award which after full examination
into its merits by the Privy Council, has been sustained
by that Court, and by Her Majesty, the Queen. The
award did not give Ontario as much as was claimed for the
Province, but much more than the Dominion Government
was willing to allow, hence the appeal to the Privy Council.
Notwithstanding the high reputation of the arbitrators,
and the conviction in the minds of those who took the
trouble to examine into the matter for themselves, there
were not wanting objectors and politicians who set about
criticising the award, condemning all, great and small,
connected with it. All this did not disturb the equanimity
of Chief Justice Harrison, Sir Francis Hincks, however,
who had not so impassive a nature as the Chief Justice,
being invited to Toronto to deliver a lecture, complied
with the request and on the 6th May, 1881, in the theatre
of the Normal School, discussed the whole subject of the
award, in a manner which brought conviction to the
minds of all those present that the arbitrators had acted
on the highest principles of justice and true interpretation
of documents forming the basis of their award, and that
the reasons for the award, which were then lor the first
time given to the public, were incontrovertible in defence
of the conclusion of the arbitrators.
Sir Francis, after explaining that the arbitrators had
been governed in making their award by Acts of Parlia
ment, Official Records, and Treaties, and not by Commis
sions to Governors, that some contended they should have
regarded, said :

CHIEF JUSTICE HARRISON, 385
I shall offer no apology for citing a few extracts from letters of the late
Chief Justice Harrison, addressed to me in August, 1878, on the subject
of the criticisms made on the award : -'I feel satisfied that you can give
an answer to all and sundry who attack the award, I believe there
never was an award made in a matter of such importance that is so little
open to honest criticism * ¦* Singular to say, since the award was
made, I have received from Judge McDonald, of Guelph, an old litho
graphed map without name or date, but evidently made long before the
Constitutional Act of I79I, which indicates the northern boundary of
Upper Canada to be the precise line where we have placed it, " * *
Our duty was judicial, we had little or nothing to do w-ith questions of
policy. By the light of the evidence adduced, and the arguments pro
pounded, we unanimously decided upon certain boundaries, for the north
and west of the Province. Whether the land thus given to the Province
was full of diamonds, or only of worthless rocks, was no business of ours.
The surveyor who finds the boundaries of two lots of land is never
influenced by the consideration that one piece of it is intrinsically more
valuable than the other. None of the able counsel who addressed us
ventured so far to take leave of his sense? as to attempt to take such
untenable ground.
The excessive labor which the Chief Justice bestowed
upon this Boundary Award matter, added to his other
judicial work, was no doubt largely the cause of the
impairment of his health. He accomplished an enormous
amount of work in a very short time, so .short, indeed,
that in the minds of some the value of the work was
lessened, because, as viewed by some, it was an utter
impossibility for him to have considered the whole ques
tion. Such people did not know Chief Justice Harrison ;
if they had, they would have known that it was not his
habit to turn out any work only half finished. The
results have shewn that his work was as solid as it was
complete. In 1878 the Chief Justice went to Ottawa on business
connected with the arbitration. His health, which before
this had been somewhat shattered, was not improved by
his trip to the Dominion Capital. On his return to
Toronto, his health being bad partially incapacitated him
for judicial duty. The usual expedient of an over-worked
man was resorted to, in the hope that he might recover.
He undertook travel as a specific. All, however, was to
49— L. J.

386 LIVES OF THE JUDGES.
no purpose. The doctors pronounced that he had dilata
tion of the heart, which must prove fatal ; and so it did.
He died at his residence, Englefield, on the 1st November,
1878, at the early age of forty-five, much regretted by the
Bar and his many friends.
Mr Harrison was twice married. His first wife was
Anna, daughter of Mr. J, M, Mickle, formerly a merchant
¦of Quebec, She died in 1866. His second wife, and now
widow, was Kennethina Johanna MacKay Scobie, only
daughter of Hugh Scobie, formerly of Toronto, and
proprietor of the British Colonist newspaper.
There was issue of the first marriage only one daughter
and no sons, and of the second marriage one daughter
The Reverend Richard Harrison, of Toronto, is a brother
of the deceased Chief Justice.

XXIX.
The Honorable Thomas Moss, Chief Justice of
Ontario.
|HEN I look back upon the sands of time
as they have distributed themselves over
the past, burying so many of high and low
degree, I feel a poignant sorrow for the
loss of so many friends. The old and the young alike,
have been cut down by the relentless scythe of the old
man. Time, shewing how unstable are the things of this
world ; how slippery the paths we tread. It is not, how
ever, within the compass of the work I have in hand to
-compose an elegy. Even if I had the ability to make
elegiac verse or poetic measure, I would not indulge the
sentiment. This is a prosaic, not a poetic age. It is well
to conform to the condition of things as we find them.
The drama of life is made up of so many incidents,
that without indulging in the humours of poetry, one may
interest himself, and perhaps others, in describing in plain
and understandable language, the goodness, and I may
¦add, the greatness of a man so endowed with nature's
best gifts as the Honorable Thomas Moss. To award
praise where no praise is due, is no praise at all ; but to
acknowledge the commanding ability of a man who was
so much beloved as he of whom I am now writing, is only
making a confession which is begotten of appreciation of
true worth and high respect.
The Honorable Thomas Moss was the son of John

388 LIVES OF THE JUDGES.
Moss, formeriy of Cobourg, in the County of Northumber
land, Ontario, and was born in that town on the 20th
August 1836. Mr John Moss subsequently removed to
Toronto, where I first knew him. He lived on Queen
Street west, near to Bathurst Street Mr Moss's place of
business was on Queen Street also, further west Whether
or not his son Thomas, as by inheritance acquired from
his father the spirit of industry, which his father undoubt
edly had, I do not know, but this I can say, that Mr,
John Moss was a man who gave attention to business
early and late, frequently passing my house for his office
at six o'clock in the morning.
I am a great believer in heredity, and so I feel called
upon to mention this quality in Mr Moss pfere, some of
which I would fain believe his son Thomas inherited, or
otherwise I could not account for his rapid and brilliant
career in life. That he was, as a child, precocious and in
advance of most children of his own age I know, I also
know that as he grew in years, he grew in knowledge
at a quicker rate than most of his fellows. Still I am not
prepared to acknowledge that, without industry accom
panying talent, he would have had all the successes which
were his portion in this life,
Thomas Moss, when a boy, attended the public or
common school, where he acquired the rudiments of
learning, and a tolerable proficiency in such subjects as
were taught at the public school. He had, in addition to
this, the advantage of the instruction of his paternal
grandfather, who resided with the family ; and still fur
ther, of one McLachlin, who taught a school for some
time in Toronto, on the corner of Duke and Berkeley
streets, Mr, McLachlin was a Trinity College, Dubhn,.
man, and no doubt took particular pains with Thomas, as
the son of a fellow-countryman, who might give lustre to
the Irish name. The Irish schoolmaster, as well as.
Thomas's grandfather, found in their pupil a diligent
student — not as a groveller in school books only, but as a_
student of general literature.

CHIEF JUSTICE MOSS. 389
Thomas read a great deal, and is said to have had a
•capacious and retentive memory. He had. indeed, a
remarkable memory : he had only to read a book, when
all the principal incidents that had engaged his thoughts
and reading seemed photographed on his memory : added
to this a gift of language surprisingly chaste and beau
tiful, he could at any moment give to listeners a treat
more delicious than nectar, and more invigorating than
the prairie breeze.
At ten years of age, Thomas Moss was intellectually as
old as most boys of fourteen or fifteen years of age. At
this period of his life he also had great physical vigor,
and keenly enjoyed the ordinary sports and amusements of
boyhood. He was fond of athletic sports, and was known
•as an enthusiastic and expert cricketer. What more
manly recreation is there for boys than cricket? The
very rules of the game were founded in honor, integrity,
and principles of right No undue advantage is allowed
to be taken of a man in cricket ; if such a thing were
attempted, the culprit would bring down on him the
disfavor of the whole club.
Cricket is truly the gentlemen's game — gentlemen, not
in the sense necessarily of birth, but of men of every
•degree associated together in an exercise of a most
healthful nature, imparting vigor both to mind and body
to a degree scarcely equalled by any other pastime.
Upper Canada College has been the nursery of cricket
in Upper Canada, Thomas Moss was an instance of the
.good results flowing from the noble game, combined with
diligence in storing the mind with choice morsels of
classical and cognate literature.
The biographer of Sir Walter Scott has said that as he
grew, entered the classes of the college, and began his
legal studies, first as apprentice to his father, and then in
the law classes of the university, he became noticeable to
all his friends for his gigantic memory, the rich stores of
romantic material with which it was loaded, his giant feats
•of industry in accomplishing any cherished purpose, his

390 LIVES OF THE JUDGES.
delight in all athletic enterprises. This description given
of the great Scotch writer is quite applicable to Mr. Moss.
Mr Moss, senior, and family removed from Cobourg to-
to Toronto in 1846. Shortly after arrival in Toronto
Thomas was entered a student of Gale's Institute, which
subsequently developed into Knox College. When
about twelve years of age he left Gale's, and became a
student in Upper Canada College, and was admitted to
the fourth form. His progress through the College was
rapid and brilliant, he carried off many of the prizes
which the College awarded to deserving and proficient
students, amongst others, the Principal's prize, and seventh
form prize, and the Governor General's prize.
In 1854 he matriculated at the University of Toronto.
His previous training, his unwearied industry, coupled
with his material talents of the highest order, soon enabled
him to make his presence felt within the scholastic bounds
of the University. He was a prominent member of the
Literary and Debating Society, that " imperium in
imperio " of this seat of learning which had served to
develope the intellect of the students, giving them place
among the best men of the day. In this Society Mr.
Moss was a prominent member, his speeches there are
said to have been marked by a purity of thought and
chasteness of diction, which are not often associated with
a young man of the early years of the future Chief
Justice. When he graduated at the University in 1858, he took
Triple First Class Honors and won the gold medals in
Classics, Mathematics, and Modern Languages. In 1859
he took his Degree of Master of Arts and wrote the prize
Essay for the year He had now gained a status in the
educational world second to none in the Province. He
had gained a Provincial reputation He was known far
and wide as one of the most brilliant young men of the
country, and all those who knew him foreshadowed that
he was destined to make his mark, to fill a high position
in whatever calling he might adopt.

CHIEF JUSTICE MOSS. 391
In i860 he had the high honor of' being presented to
H. R. H, the Prince of Wales, on the occasion of his visit
to Toronto, as the most distingui.shed Alumnus of the
University, The honors bestowed on Mr Thomas Moss
never caused any jealousy in the bosoms of his competi
tors ; they were so well deserved that not one could say
"nay." Besides this, his was such an amiable, lovable
disposition that he endeared himself to all who knew him.
With his intimates, there was not one, who in case he was
attacked, would not have thrown himself into the breach,
and warded off" every blow. But he had no enemies.
There was no necessity for the knights of the University
to champion his cause,
Mr. Moss's talent eminently fitted him for the profession
of the law. Immediately after taking his Bachelor of
Arts Degree at the University, and before his advance
ment to the higher Degree of Master of Arts, viz., in
Michaelmas Term, 1858, he was entered a Student of Law
at Osgoode Hall, due effect being given to the Degree
which he had taken at the Provincial University, He
immediately entered the office of Adam Crooks, then a
practising Barrister in Toronto, afterwards the Honorable
Adam Crooks, member of the Ontario Government and
Minister of Education. He remained with Mr Crooks as
his student for two years. At this time the firm was
Crooks & Cameron, Mr. Hector Cameron, Q.C, being a
member of the firm. On the dissolution of the firm of
Crooks & Cameron, Mr Moss's articles were assigned to
Mr Cameron, and with him he completed his term of
study. He was called to the Bar in Michaelmas Term, 1861,
(25 Victoria), and soon afterward formed a partnership
with Mr. Hector Cameron. Several years later, he formed
a partnership with the Honorable James Patton, who,
after running the gauntlet of political life and being made
a member of the Government, accepted the office of
Collector of Customs at Toronto, which position he filled
till his sudden death. Mr Featherstone Osier, Justice of

392 LIVES OF THE JUDGES.
the Court of Appeal, was a partner with Mr Patton, and
when Mr Moss joined them the firm was known as
Patton, Osier, and Moss, and had their office in the
Exchange Building, on Wellington street, in Toronto.
All the members of the firm were men of great integrity.
The firm soon acquired a good name and extensive
business, the outcome of a good name and business
capacity. At the Bar, Mr, Moss's career was an exceptionallj'
brilliant one, as it had been at the University. From the
time he was given his first brief, it was evident to the
entire profession that the sanguine expectations formed
of him would be fully realized. Early in his professional
career he was appointed Equity Lecturer of the Law
Society, at Osgoode Hall, and also Registrar of the
University of Toronto.
It was in Equity that Mr, Moss more especially
¦distinguished himself His critical examination of this
branch of jurisprudence had led his mind to favor the
expansiveness of Equity, as compared with the con
traction of Common Law, He was familiar with all
the Equity writers, and had given diligent attention to
the decisions of Equity Judges, He was, in the time of
his first three partnerships, viz,, of Patton, Osier, and
Moss; Osier and Moss; and Osier, Moss, and Foster, nisi
prius counsel of these firms : when Mr R. A, Harrison
became a partner of his firm, the jury part of the business
fell to him.
Mr. Moss, however, preferred the quiet of the Equity
Courts to the confusion of the Common Law Courts.
No man could give an argument on Equity law, before
the Equity Judges, with more skill and ability than Mr
Moss. His manner was quiet, but impressive, and usuallj-
carried great weight with the Court
His partnership with Mr Osier and Mr Harrison, the
firm name of which was Harrison, Osier, and Moss, was a
successful and lucrative one : all the partners deriving a
large income from the business.

CHIEF JUSTICE MOSS. 393
In 1871, Mr Moss was elected a Bencher of the Law
Society. He had no sooner become a Bencher than he
appHed himself to the educational department of the
Bench, so dear to his heart The project of the founding
of a Law School, for the advancement of legal education,
was one in which he took great interest ; and in Novem
ber, 1 87 1, then being Chairman of the Committee on
Legal Education, he brought in a report formulating a
scheme which, after mature consideration, was adopted
by Convocation on the 6th of December, 1872 ; and on
the 3rd of February, 1873, the School was formally
inaugurated, an opening address being delivered by the
Honorable John Hillyard Cameron, Q. C, the then
Treasurer of the Law Society.
Mr. Moss was created a Queen's Counsel in 1872.
Early in 1875 he was appointed a member of the Law
Reform Commission, an evidence of the esteem in which
he was held by the Attorney-General. This Commission
was created for the purpose of inquiring into the expedi
ency of amalgamating the Courts of Common Law and
Equity, and it was on the report of this Commission that
the Legislature acted afterwards, in amalgamating the
Courts and the passage of the Judicature Act. No higher
benefit could have been conferred on the country than
this legal reform. Suitors bandied about from one
Court to another, had begun to think that there was no
abiding place in law.
It is thought by some that the arrangement of the
Courts has increased the expenses of the luxury of law to
the litigant. When it is considered, however, that as the
law now stands, both the equitable as well as the legal
aspect of every question has to be considered in all
matters of controversy, and besides this, that all matters of
controversy between suitors may be determined in one
suit the objection of expense is overcome and deserves no
further consideration. " Interest reipubliccB ut sit finis
¦litium!' The work done by Mr. Moss on the Commission as well
50— L. J.

394 LIVES OF THE JUDGES.
as his .standing at the Bar, entitled him to recognition. He
was offered a Vice-Chancellorship, which he declined.
In the Autumn of 1873, upon the fall of Sir John A,
Macdonald's Government Mr Moss, for the first time-
entered the field of politics. He had always had an
inclination to Reform principles, although his father had
been a Conservative, and generally voted with that party.
Political principle is often formed from professional and
social association, it is not always hereditary, nor in this
age should it be, I think we should always judge, not by
what our fathers were, but what they would have been if
they had lived to witness the changes in men, manners,.
and all that tend to enhance the progressiveness of the
time. There is no reason because our ancestors in break
ing up the soil, used wooden ploughs, that we should
adhere to those primitive implements of husbandry. If
our forefathers wore blue coats with brass buttons, there is
no necessity for our absolutely clothing ourselves in the
same cut of raiment This is an advancing and progres
sive world, and it is necessary to watch the events of the-
times, and act for the best interests of our country.
This was Mr, Moss's idea, and led him to adopt princi
ples, as he conceived, leading to reform and progress. He
was an especial friend of the Honorable Edward Blake,.
an association which did not in the least degree tend to
lessen his Reform principles — principles which Mr. Blake
had inherited, and of which he was an able exponent.
The Reformers of Toronto now selected Mr. Moss as
of their party, not only most deserving, but if he could but
be elected, one in every way able to advocate their cause on
the floor of Parliament. He contested the constituency of
West Toronto with Mr. E. O. Bickford, and was elected by
a triumphant majority. This election took place in con
sequence of the constitutency of West Toronto being
thrown open by the appointment of Honorable John
Crawford to the Lieutenant-Governorship of Ontario.
Soon after, the General Election took place, when Mr
Moss again stood for the constituency and was electedf

CHIEF JUSTICE MOSS, 395
defeating the Honorable John Beverley Robinson by a
handsome majority. The constituency was one in which
he had lived the greater part of his life. It was no small
honor to him to be returned for that constituency, and
equally an honor to the constituency to have returned such
a member On his taking his seat in the House he made a
speech which has been characterized as one of the most
brilliant and masterly efforts ever heard within the walls.
of the Canadian Parliament He continued to sit for
West Toronto till October, 1875, when he was appointed
a Justice of the Court of Appeal,
In 1874, the year before his appointment to the Bench,
he had been appointed Vice-Chancellor of the University
of Toronto, his Alma Mater. He was twice elected to
this honorable position in the University, and continued
to hold the office till 1878, His graciousness as Vice-
Chancellor of the University secured him the confidence
and support of all connected with this seat of learning, I
am not at all sure that he did not prize the position of
Vice-Chancellor of the University of Toronto, more than
the Judgeship in the Court of Appeal,
A writer, in discussing the characteristics of Mr, Moss —
his brilliancy and worthiness of elevation to the Bench —
has written of him thus :
It might be thought that all the brilliancy and solid attainment, the
capacity and industry, implied by a career of such unvarying success,
implied an ambition more eagle-like iu its instincts than one which could
content itself with a prosperous professional career, and au early elevation
to the Bench — a most honorable position, but one, nevertheless, in which
men of strong political instincts and large capacities put on, and are
properly bound to put on, ermine manacles, and bury one of the choicest
privileges of free citizenship in the marble tomb of dignity ; or perhaps
the case might be more fully stated, by saying that the Judges have to
make great sacrifices on the altar of public usefulness.
The writer's conclusion is true enough ; but he is not
quite right in saying, or insinuating, that Mr Moss was a
man of strong political instincts, for this he was not ; and
as to his accepting a position on the Bench, I know that
he had great reluctance to take the position, however-

39^ LIVES OF THE JUDGES.
honorable it might be. I know with what unwillingness
he accepted the Judgeship. It was more the advice of
friends than his own judgment which led him to give up
professional and political life for the assumption of the
Ermine. Mr Justice Moss, as Judge in Appeal, gave great satis
faction to the Bar and the public ; his clear judgment
was also highly appreciated by his brother Judges. In
Council of the Judges he was argumentative, in decision
prompt, in expression lucid.
On the death of Chief Justice Draper, in 1877, he was
promoted from a Judgeship to be Chief Justice of the
Court of Appeal. He was then only forty-one years of
age. He was the first who ever attained that position
at so early an age. Becoming Chief Justice, he applied
himself most diligently to the work — too diligently for
his health. The onerous duties of his office, with the
steady labour which it entails, left him but little time for
recreation. His judgments were remarkable for their
lucidity and beauty of diction, A proper conception of
his value as Chief Justice may best be formed by referring
to and quoting some of his decisions, I will, however,
cite one judgment of his, which was indeed the judgment
of the Court, while he was yet the Junior Judge of the
Court, and which was concurred in by the whole Court of
Appeal, overruling the Chancellor, The case I refer to
is, Gilleland vs. Wadsworth, i Appeal Reports, 82,
Stripped of all verbiage and technicalities, the case was
this : A, owns a lot of land, which he mortgages to B,, a
solicitor ; and B, assigns the mortgage to C, and cove
nants with C, for payment of the mortgage money ; C,
registers the assignment, and should imagine that he was
all safe in his security ; a year after the making of the
mortgage, A, assigns the equity of redemption to D, ; D,
owns another lot of land unincumbered ; he and A, enter
into a bargain to exchange lots ; A,, in getting D.'s lot,
with the consent of A.'s mortgagee C, who both parties
thought still held the mortgage of A., was to satisfy C,

CHIEF JUSTICE MOSS. 397
not by payment of the mortgage money in the terms of
the mortgage, but by giving him a new or substantial
mortgage on the lot he was to get from D. This was all
carried out, or apparently carried out by both parties,
and the assignee of the mortgagee going to the solicitor
to have the deeds drawn up and transaction perfected,
the mortgagor (A.) and D. each bearing half the expense
of the conveyancing. Neither A. nor D. called upon the
solicitor to produce title deeds, or the mortgage which A.
had made to B,, and which B. had assigned to C. The
solicitor did not make known to D, that he had assigned
the mortgage to C, The transaction between A, and D.
was carried out ; the solicitor becoming mortgagee of the
incumbered lot of D,, as a substitute for the mortgage on
the other lot, which he knew he had assigned to C. C.
died, leaving a personal representative ; D. died intestate,
leaving a widow and infant children. The personal
representative of C. filed a bill against the widow and
infant children of D. for foreclosure of the mortgage.
Several questions arose :
1st. Had the mortgage been paid by the substitutional
mortgage made by D. to B. ?
2nd. Could the representative of C, avail himself of the
mortgage against the representatives, widow and heirs of
D, D,, having taken the title of the lot A. had mortgaged,
he, D., at the time not having actual notice of the assign
ment, B, to C, by reason of the fact that the assignment
was registered when he completed the transaction of
exchange, 3rd, Must not D. be taken to have had constructive
notice of the assignment of the mortgage, B. to C, inas
much as B,, the mortgagee, was a solicitor, and his
solicitor in carrying out the exchange drew deeds &c.,,
and took his mortgage in exchange for the first mort
gage, 4th. Was not D, guilty of negligence in not enquiring
for the first mortgage, and getting it discharged before
giving his new or substitutional mortgage ?

.398 LIVES OF THE JUDGES.
According to the judgment of the Chancellor, the plain
tiffs, (representatives of C), were not in a position to
foreclose the mortgage, that in fact the mortgage must be
-considered to have been discharged by the transaction of
exchange and substitutional mortgage given to B. (the
solicitor), and that the security could not be enforced
against the land,
Mr, Justice Moss combated all the po'sitions taken in
the Court below against the plaintiffs rights to enforce the
mortgage, with great ability, and held :
1st, That the registration of the assignment of the
mortgage was notice to D„ under the Registry Act, that
the mortgage had been assigned and hence the settle
ment with the solicitor and mortgagee was no settlement
of the mortgage as against C, or his representatives,
2nd, That it was not necessary for the plaintiff to have
stated the registration in the Bill, one of the reasons given
by the Court below for not giving effect to the registration
as notice.
3rd, That from the position the solicitor and mortgagee
¦occupied, acting for both parties in the transaction of
exchange, notice to him, was constructive notice to his
-client D., and to his representatives.
4th. That D. was not guilty of negligence in not
searching the registry, and in not seeing that the mortgage
-on the land he was acquiring was discharged.
On these points I refer to Mr Justice . Moss's own
language, as being perspicuous and elucidating his opinion
in an expressive manner, omitting the namesof the parties
and using alphabetical letters, as I have done in describing
the facts. Mr Jusrice Moss, inter alia, said :
There is no controversy between the parties as to the facts established
by the evidence. A bargain was made between A. and D. for an even
exchange of properties, Ai undertaking to get the mortgage he had given
on his lot discharged, so that D. should have a clear title (states the
transaction with the solicitor and mortgagor as I have described it).
Neither of the parties made enquiry for the mortgage A. to B. D. lived
for nine years after the mortgage was made, and does not appear to have
•ever asked B. for the mortgage. Supposing, as he did, that it had been'

CHIEF JUSTICE MOSS, 399
•dischai'ged in the usual way, it is probable that he never thought of the
propriety of having possession of the instrument itself. A, not having
received any notice from C, and also believing that the old mortgage had
been discharged, paid the new mortgage before it became due, and some
time afterwards obtained a regular discharge from B, It seems to me
•clear that the question for adjudication is, wliether the law will impute
notice of the assignment. If neither A, nor D, is chargeable with notice,
I think that the giving of the mortgage (the substituted mortgage) may
well be treated as a satisfaction of the original mortgage. The essence of
the transaction would be that A,, without notice of any assignment,
applied to his mortgagee to accept something alse in lieu of the mortgage,
I seo no reason why this should not fall within the rule which protects
payments made to the mortgagee before he hes any notice of the transfer.
Upon the question of notice, the learned Judge went on
to say :
Now I think that if C, is entitled to rely upon the fact that he had
registered his assignment, notice must be attributed to D, The registra
tion of the assignment would not be notice to A, , because a mortgagor
paying off his mortgage, does not come within the cLass of persons to
whom registration constitutes notice. But D. was expressly within the
terms of the Statute, for he was a person claiming an interest in the land
¦subsequent to the registry of the assignment. He became a purchaser of
this land while au assignment of the mortgage stood registered.
Upon the question of constructive notice, Mr. Justice
Moss said :
I think, upon principles too well established, D. would be held to have
had constructive notice. His failure to make any inquiries for the
mortgage deed would itself suffice. The essence of the transaction in
which he was engaged was a purchase of the mortgaged land. He was
to get an unincumbered title. The concurrence of two persons, viz,, the
mortgagee and the inorgagor, was necessary to carry out the bargain.
* ¦* * The law upon this point has been summarized by Sir George
Turner, iu the well known case ot Hewit vs. Looseman, 9 Ha. 458.
His conclusion was :
That in transactions of sale and mortgage of estates, if there be no
inquiry as to the title deeds which constitute the title to suuh property,
the Court is justified in assuming that the purchaser or mortgagee has
abstained from making an inquiry from a suspicion that his title would
be affected if it was made, and is therefore bound to impute to him the
knowledge which the inquiry, if made, would have imparted.

400 LIVES OF THE JUDGES.
I need not cite further. The case is a most interesting
one, involving as it does so many questions, such as
actual notice, constructive notice, registration, payment, and
negligence. The result of the judgment of the. Court of
Appeal, Mr. Justice Moss giving the judgment, carries
out the principles of justice within the well established
rules of Equity and the plaintiff" did not lose his security.
When Mr Justice Moss had been promoted to the
Chief Justiceship, he had brought before him for decision
a question which had previously engaged the attention of
the Courts of this country in Buchanan vs. Brooke, 24
Grant 585, but had not yet been considered by a Court of
Appeal. The question was one of equitable execution, to
what extent, in whose favor, and what equitable interests
would herein attach under a judgment and execution at
law, and how far such judgment and execution could be
made to operate on equitable interests by the machinery
of the Court of Chancery. The case was that Daniel
Brooke, the elder, deceased, had, by his last will and
testament, inter alia, bequeathed to his son, John Edmund
Brooke, and his wife, Betsey Johnston Brooke certain real
and personal estate, upon the following trusts :
In the first place, to and for the support and maintenance of himself
and his wife in a fit and suitable manner, according to their rank and
station, during their joint lives and during the life of the survivor of
them ; secondly, for the support, education, and maintenance of the
children of the said John Edmund Brooke and Betsey Johnston Brooke,
now living, according to their rank and station in life, and at the discre
tion ot John Edmund Brooke and Betsey Johnston Brooke.
Power was given to the defendant and his wife jointly,
during their lives, and to him if he was the survivor, but
not to her if she was the survivor, to sell the lands, mort
gages, and all other securities, and to stand possessed of
the proceeds upon the same trusts. Power was also given
to them jointly, and to the survivor of them to divide the
real and personal estate, or the proceeds thereof, or so
much thereof as remained unexpended and unappropri
ated, in carrying out the trusts, between the children and

CHIEF JUSTICE MOSS. 4OI
their said heirs, if any, in such manner and in such propor
tion as to them might seem fit ; or to exclude any of them
entirely fron any benefit or portion thereof if they should
see fit to do so, or to convey or make over to any of them,
by way of advancement any portion of the same, to^
become theirs absolutely.
Chief Justice Moss, in which his brother Judges con
curred, held, that the gift was for the benefit of the
defendant, John Edmund Brooke and his wife jointly, and
that his interest could not be attached by an execution
creditor. He held also, that the defendant had no estate
in the land corresponding to an estate at law ; at most he
had but a charge upon an income arising out of a mixed
fund, the amount of which was in the discretion of the
trustees. After expressing the opinion that the interest of John
Edmund Brooke under the will was not such an interest
as could be attached in Equity, and that the case of Gilbert
vs. Jarvis settled that point, the Chief Justice said:
But the argument before us was conducted upon a line of cases which
were not discussed in Gilbert ds, Jarvis. These are the decisions in
which assignees in bankruptcy have been entitled to the benefit of a trust
for the maintenance and support of the bankrupt. Assuming for the
present that these cases are authorities where the plaintiff is only a judg
ment creditor seeking to enforce the remedies, which are available in
equity by virtue of his execution, it is far from clear that they establish
the plaintiff's position. The trust here is in the following words (the
trust quoted above set out, also the power). I agree with Mr. Boyd's
argument, that as large rights ought to be accorded to the plaintiff as if
the trustees were not the debtor and his wife, but two wholly independent
persons. It appears to me, however, that the intention of the testator
was that Brooke and his wife should receive suflBcient for their mainten
ance. I cannot bring myself to the conclusion that the language of the
will imports the existence of any right in the husband to file a bill against
the trustees for payment of a separate annual sum for his maintenance,
while he and his wife were living together. The testator did not contem
plate anything resembling a divorce or separation of their interests, and
if not, the authorities do not, in- my opinion, force us to the conclusion
that, upon bankruptcy, any interest in the estate would pass to the
assignee. I think I need not refer specifically to any other cases
decided by the Chief Justice. A number were collected
51— L. J.

402 LIVES OF THE JUDGES.
by the editor of the Law Journal, and cited in that
valuable legal periodical in the number of February ist,
1 88 1, in an obituary notice of the Chief Justice, in which,
after giving the substance of the judgments, the writer said :
We have referred to these judgments, commending them to the special
notice of the profession, because they abundantly illustrate our previous
remarks upon the Chief Justice's peculiar merits as a Judge. To read
them with care and attention is to form a high estimate of the judicial
qualities of our departed friend.
There is this specialty about the judgments of Chief
Justice Moss : the words chosen to express his ideas are
in the choicest language. I have often read Chief Justice
Storey's P^quity Jurisprudence with pleasure and satis
faction. There is no dryness about it ; everything is
expressed in familiar and readable phrases. There is
no attempt at stilting; the sense is made easy to the
understanding. There would seem to have been no effort
in writing this great legal work, and as little effort in
comprehending the principles of Equity which it enforces.
I can only compare Chief Justice Moss's judgments to
the writings of Chief Justice Storey ; nor do I think they
suffer by the comparison.
In the spring of 1880, the Chief Justice had a severe
illness, from which he never quite rallied. In the autumn
of the year, by the advice of his physician, he went to
France, in the hope and expectation that a change of
climate would benefit his health, and ultimately lead to
his recovery. This, however, was not to be; the hand of
death was upon him. He died at Nice, on the 4th day of
January, 1881.
Truly the Bench and Bar lost in him a Judge who, had
he lived, would have been an ever increasing strength to
the Bench ; and an able exponent of those great princi
ples of Equity which, while softening the regime of
Common Law, add immeasurably to the attainment of
complete and absolute justice.
On the day following the news of the death of the
Chief Justice, his colleague and very particular friend, Mr.

CHIEF JUSTICE MOSS. 403
Justice Burton, sitting in the Court over which the Chief
Justice had presided, paid the following touching tribute
to his memory, as elegantly expressed as it was heart-felt
and appropriate :
My colleagues agree with me that it is not fitting to proceed with the
ordinary duties of the day without some allusion to the loss the profession,
the public, and especially the members of this Court, have sustained by
the death of the eminent Judge, who but a few short days since filled the
position of President of this Court and Chief Justice of Ontario,
It is, perhaps, a singular coincidence that within a few weeks death
has robbed this and the Mother country of two of their most distinguished
judges, both of them men in the prime of life, to whom there appeared to
be opening- a brilliant future, and as to each of whom I may say, I thihk
without (exaggeration, a national loss has been sustained. Each of them,
however, has left an imperishable monument of his learning and ability
in the reports of their published judgments, which may well be referred
to as models of judicial style.
Many of those who hear me, have listened with pleasure and admiration
to the oral judgments delivered from where I am now sitting, by the
distinguished Judge whose death we are now deploring, and must have
been struck with the simplicity, ease, and grace of manner, combined
with depth of thought and elegance of diction, with which those utter
ances were delivered ; but few beyond his intimate acquaintainces, were
aware of the untiring energy with which he investigated the cases requiring
more careful preparation, or that the rising sun has occasionally found
him still engaged in examining and verifying the authorities on which he
proposed to base his decisions.
His loss is too recent, and my appreciation of it too keen, to permit me
to make more than a passing reference to his personal and social qualities.
" To know him waste love him," My heart is too fuU for me to venture
to say more,
Wemay, one and all ot us, whether on the Bench, at the Bar, or the
youngest student entering for the first time the portals of the profession,
safely adopt him as our model, combining as he did in his own person,
the kind and courteous gentleman, the brilliant and able advocate, the
upright and impartial Judge, I wish I had the comm.ind of language to
do justice to his many virtues and his great intellectual gifts, but I yield
to none of his numerous friends in admiration of his character, and in
4;ender and affectionate regard for his memory.

XXX,
The Honorable Sir Matthew Crooks Cameron,.
Chief Justice of the Common Pleas Division
OF the High Court of Justice.
|0 many lights in the Legal firmament have
gone out during the last decade that, in
writing the lives and recording the deaths
of the Judges, I feel as if I had been wan
dering among the tombs. As I draw near the close of
the catalogue, and record the fact that within the last
year two of our Judges have passed away, I recognize the
futility of human ambition, and the uncertainty of human;
hopes. Little did I think in the spring of last year, when
everything seemed bright and joyous, that only a few
months would pass before the grave should claim the
mortal remains of that most excellent citizen, and most
upright Judge, the Honorable Sir Matthew Crooks
Cameron. He was one of the boys of Upper Canada
Cqllege when I was there, a boy myself He was my
constant friend during life ; in his death I mourned not
for a friend only, but for a country's loss.
The Honorable Sir Matthew Crooks Cameron was no
ordinary man : he was a man among men. Canada has
produced no more worthy son. He was of Scotch extrac
tion, and possessed all the magnanimity of a Scottish Chief
Descended as he was from the old and illustrious family

chief justice CAMERON. 405
•of Fassifein, he added additional lustre to the Cameron
name, which had already gained renown in the walks of
literature, science, and the military art He was the son
•of John McAlpine Cameron, who emigrated from Inver-
nessshire, Scotland, to Upper Canada, in 1819, and settled
at Dundas, in the County of Wentworth, where he
engaged in commercial pursuits : there he continued till
1826, when he removed from Dundas to Hamilton, and
became Deputy Clerk of the Crown for the Gore District.
Subsequently he entered the service of the Canada Com
pany, and removed to Toronto, where he died at an
advanced age in 1866. I remember him as a man short
in stature, much Canadianized by his long residence in
Canada, but retaining his Scotch accent in sufficient force
to make him distinguishable from the native-born Cana
dian. He had several sons, all of whom I knew. They
were: Duncan, born in Scotland; John, born in Scotland;
and Matthew Crooks, the Chief Ju.stice, who was the
youngest, and born in Canada, at Dundas, on the 2nd
October, 1822. Duncan and John were both lawyers.
John, in his early professional career, practised in Ham
ilton ; but, on the County of Brant being set off as a
separate county, removed to Brantford, the county town
of that county, where he practised his profession for many
years. I knew both of Matthew Crooks Cameron's brothers :
they were both generous hearted men, but had neither
the staid demeanor nor habits of their younger brother.
The mother of the Camerons was English. Her maiden
name was Miss Nancy Foy, and she was a native of the
County of Northumberland. She died many years ago.
Matthew was named Matthew Crooks after Mr-
Matthew Crooks, of Ancaster, brother of the Honor
able James Crooks and uncle of Adam Crooks, Q. C,
formerly Minister of Education for Ontario. When the
father of Matthew Crooks Cameron removed from
Dundas to Hamilton, Matthew Crooks Cameron was
'but four years of age. The first school he attended after

4q6 lives OF the judges.
going to Hamilton was presided over by a Mr Randall..
On the. removal of his father to Toronto, he was placed
at the Home District Grammar School, on the corner of
New street (now Adelaide street) and Nelson street (now
Jarvis street). I have, in a previous page so fully
described this school, that 1 need say no more than
that many boys, subsequently distinguished, received their
early training at the Home District Grammar School.
After leaving this school, in 1838, Matthew Crooks
Cameron entered Upper Canada College, where he-
remained nearly two years. It was at Upper Canada
College I first knew him. He was a day scholar : I was.
in residence; or, as we used in those days to call ourselves,
a boarder. When I first entered Upper Canada College as a.
student. Dr. Harris was Principal, and Mrs. Fenwick kept
the boarding house. Dr. McCaul succeeded Dr. Harris
as Principal, and Mr. Cozens succeeded Mrs. Fenwick in
charge of the boarding house. Everything was built on
the model of the English schools, even in the matter of
plain food and corporal punishment. If the boys of the
present day were subjected to the same discipline and
senna tea, I question if the college would be as popular
as I am glad to say it is. Cameron was a day boy. We
boarders often, in a measure, envied the day boys, as they
had more liberty, and had their single room and comfort
able homes to go to after college hours ; whereas we
boarders were packed in rooms with a dozen beds, for a
dozen sleepers.
Perhaps, after all, the liberty which Matthew Crooks
Cameron as a day boy enjoyed, was the cause of the acci
dent which befel him and which caused him to be lame all
his life. As a boy he was naturally of a lively, sociable
disposition, fond of amusement and the society of other
boys. He was not before the accident, to which I have
alluded, what might be called a studious boy ; he was
rather fond of out-door life. One of the things he dearly
-prized was a gun, and an opportunity of using it in.

chief justice CAMERON. 407
shooting ducks, plover, and other game which was abun
dant in the vicinity of Toronto when he was a College
boy. In 1840, while he was still at College, he and a com
panion, a school-fellow, went up the Don on a shooting
expedition, which ended most disastrously. His com
panion, by the purest accident, in firing off" his gun, made
a mis-shot, and the shot took effect in his schoolfellow's
ankle, part of the joint of which was completely
blown away. Matthew was conveyed home, and was
confined to his room for several months, I well remember
the day of the accident, and how much sorrow for
the occurrence overcame the boys of the College, day
boys and boarders, Cameron was a general favorite.
College boys, if they read this, will understand the feeling
of grief which affects a fellow student when a favorite
meets with an accident like this.
The injury to the leg was so serious that it had to be
amputated, and from that time Cameron had to wear an
artificial leg. He suffered more or less all through life
from the effects of the accident.
The accident caused the withdrawal of Matthew from
College, and probably changed the whole of his after life-
There was to be no more shooting for him, he could not
indulge in the sports of boyhood, or the pastimes of youth.
Companionship seemed to have no further charm for him,
and he became of a serious turn of mind, contemplating
life from an entirely different standpoint than that from
which he had been accustomed to consider it.
When he became sufficiently well enough to get about,
he determined to follow the example of his elder brothers,
and make the law his profession. The education he
had received at College and his own diligence in study at
home, enabled him to pass the examination of the
Benchers of the Law Society, He was admitted a
Student of that Society in Easter Term, 6 Victoria, 1843,
and on his admission immediately entered the law ofiSce
of Messrs. Gamble & Boulton, who had their office on

408 LIVES OF THE JUDGES.
Church street He served the whole term of his articles
with Gamble & Boulton. He was a diligent student, and
soon rose to a prominent position in the office, taking the
lead in the routine work of the office, constant in his
attendance and giving evidence of intellectual strength
which was sure to lead him on to success in his chosen
profession. When I was called to the Bar in 1845, I had my office
in the same building, and it used to be a surprise to me to
see with what ease Matthew Cameron, notwithstanding his
lameness, was able to perform all his duties of clerkship.
He had the entire confidence of the heads of the firm,
which he repaid by assiduity and faithfulness.
He was called to the Bar in Hilary Term, 12 Victoria,
1849. ^^ soon as he was called to the Bar he began to go
on circuit, and soon gained a name in his profession which
procured for him many briefs, and brought him corres
ponding fees. 1 used often to meet him in Court combats,
and had therefore the best opportunity, in the early period
of his professional career, of forming an opinion of his
power and his worth.
Mr Cameron had acquired a very complete knowledge
of his profession. He had subtle powers of analysing
evidence. In cross-examination of witnesses he had few,
if any, superiors. He had ready command of language,
an impressive utterance and delivery, and besides an
•open, candid manner which carried great weight with juries-
He had not been many years at the Bar, when he had
gained a reputation which secured for him briefs in causes
where he used to be opposed by the most eminent counsel
of the day ; such men as John Hillyard Cameron, Q.C,
Henry Eccles, Q.C, P. M. VanKoughnet Q.C, and Mr
Hagarty, the present head of the Court of Appeal. Those
were all doughty champions of their cHent's rights. It is
not too much to say that Matthew Crooks Cameron was
well up in the race with these his contemporaries.
Mr. Cameron was generally very successful with juries ;
in criminal cases, where the result so much depends ori

CHIEF JUSTICE CAMERON 409
their verdict he was " facile princeps." He had so large
a practice in criminal cases, that he familiarized himself
with medicaP jurisprudence, and understood as well the
principles governing the dissection of a subject as the rules
for dissecting a case. I do not know of any at the
Bar who was his superior in this branch of the profession,
unless it was John Hillyard Cameron.
In the early part of Mr. Cameron's career he was more
frequent in attendance at the Hamilton Assizes than else
where ; his brother John, who was practising in Hamilton,
used to give him briefs ; when John removed to Brant
ford, he extended his criminal business to that county. He
and I used often to meet on opposite sides in cases at
Brantford, Simcoe, and Berlin, in the old Oxford Circuit
Thomas Gait, now Chief Justice Sir Thomas Gait, used to
go on that circuit. I think we three were the only Toronto
men who attended the Assizes in these counties. S. B.
Freeman, of Hamilton, used often to be with us.
My readers will excuse my referring to myself ; as I
write, the associations of those days present themselves so
vividly to my mind that my pen seems to run along
without regard to any obstacle.
But to return — Mr Cameron, like so many others in
his profession, did not always carry on business alone.
He had not been long at the Bar when he formed a
partnership with William Henry Boulton, after the
dissolution of the firm of Gamble and Boulton. Several
years later he entered into partnership with the Honorable
William Cayley, who held the port-folio of Minister of
Finance in the Government formed under the auspices of
Sir Allan Napier MacNab, in 1854.
Mr. Cameron, in politics, was a Tory of Tories; William
Henry Boulton will be remembered as of that party, and
at one time Mayor and Representative of Toronto in
Parliament. The names of Sir Allan MacNab, and Mr Cayley, are
well known as representative men, of what may be termed
the old regime of toryism, in days now past and gone.
52— L. J.

4IO LIVES OF The JUDGES.
It will not be out of place here to mention that the
year 1854 was a memorable one for two things ; one, the
Reciprocity Treaty between Canada and the United
States ; the other, the downfall of the Hincks-Morin
Ministry, brought about by a Coalition between extreme
Toryism and extreme Radicalism, the Tories led by
Sir Allan MacNab and Mr John A. Macdonald, and
the Radicals by Mr George Brown, A mixture of
interests in this, as in many other cases, seemd to have
brought about a mixture of parties, for a time at all
events. We will find, further on, that Matthew Crooks Cameron
a recognized Tory of the highest order, who had not at
this time taken much active part in politics, did, when the
necessity of the case presented itself, enter into a coalition,.
not, however, with the extreme Radical, but with the
moderate reforming of the party, under the leadership of
John Sandfield McDonald,
With this diversion brought about by the figures of Sir
Allan MacNab and Mr Cayley crossing my ,vision,
bringing up recollections of political incidents of the
past, 1 must return to Mr Cameron, in his legal and
political capacity. In the year 1856, Daniel McMichael,
better known as Dr. McMichael, became a partner with
Mr Cameron and Mr. Cayley, and the firm was then
known as Cayley, Cameron & McMichael. This firm had
a very large business ; Mr Cameron was its leading spirit
With two such men in the firm, as Mr. Cameron and Mr.
McMichael, it is not surprising that they gained for
themselves as large a business as any firm in Toronto.
Looking back to the time I call to mind of what great
value Dr McMichael was to the firm in the pleading and
general management of the business of the office. He
had not yet reached the high position of counsel which he
afterwards attained. Mr. Cameron continued to do the
principal outside business as counsel, while Dr. McMichael,.
skilled in pleading, of much more importance in those days
than now, used to exercise his refined reasoning powers

CPIEF JUSTICE CAMERON. 41 1
in challenging opponents to a set-to in demurring or
arrest of judgment.
During the first ten years of Mr Cameron's legal career
he devoted his whole time to his profession. Indeed, the
calls made upon him for his services as counsel, from all
parts of the Province, made it necessary for him to give
his undivided attention to legal work.
In 1859, he was induced to take part in municipal
affairs, and was returned as Alderman to represent St.
James's Ward, in the Municipal Council of Toronto. A
good many of his friends were anxious for him to contest
the Mayoralty in i860. I was one of those friends, and
suggested that he should walk up Queen street (St
Patrick's Ward) with me, when I would introduce him to
municipal electors there of influence, who would be of
service to him in promoting his election. I had repre
sented that ward myself in the council, and municipally
I knew the electors better than Mr. Cameron.
Mr. Cameron consented to my proposal, and walked
with me a short distance up the street. Meeting several
influential electors, I introduced him as Mr Cameron,
who intended to run for Mayor. The electors, as was
natural and polite, shook hands with him on being intro
duced. After this had occurred a few times, he said to
me : " Read, must I shake hands in this way ? Is it
necessary in a candidate for the mayoralty?" I said:
"Yes, certainly, the electors like to greet their candidate."
"Then," said he, "if that is so, I must not run for the
mayoralty," turned on his heel, walked away, and aban
doned the candidature.
Mr. Cameron was just that kind of man. He was
manly, open, generous, a lover of men ; but he could not
bear to have it supposed that he would solicit support
from any quarter — if hand-shaking meant soliciting sup-
I port, he would have none of it. I never knew a man like
him in regard to the high sense of honor and indepen
dence, which were marked traits of his character He
was very tenacious of his opinion when he had formed

412 LIVES OF THE JUDGES.
one. He had a decided opinion that a representative
should be sought out by the electors, not that the repre
sentative should seek the electors : anything that seemed
to have even the appearance of solicitation was abhorrent
to his nature.
In 1861, he was induced to be a candidate for the mayor
alty, this time he ran the gauntlet of an election, with a
candidate opposed to him not so sensitive of municipal
ways as he was, and it is not surprising that he was
defeated. Although defeated in his candidature, Mr. Cameron
scored a greater success the same year in being returned
to represent the County of North Ontario in Parliament
He was elected as a Conservative, and continued to
represent the county till 1863, when presenting himself
to his constitutents for re-election he was defeated. I
have been told of an incident that occurred during this
contest, which, I dare say, had much to do with his defeat.
Mr Cameron was a man very jealous of his honor,
thoroughly ' opposed to unfair dealing of any kind or
shape, he would, in a political contest see in acts, inno
cent in themselves, cause for exception, and repudiation.
On the occasion of this election a friend of his offered to
drive him from Whitby around to the different villages
in the county, as the candidate of the party, and did
drive him to a village or two. His friend was a kind,
good-hearted man, and seeing some men working at a
bridge, he went to them and gave them some small sum
of money, twenty-five or fifty cents, to regale themselves
with. Mr Cameron found this out, immediately dismissed
his friend from further escort, and engaged another party
to drive him round. Mr Cameron thought that the
presentation to the men savored of solicitation for votes,
if not more, and at once repudiated the act and the man
performing it. The man returned to Whitby not well
pleased that his candidate shewed himself possessed of so
bigh a sensitiveness in the matter of the rights and
privileges of elections. The result of the contest at this

CHIEF JUSTICE CAMERON. 413
election was that he was defeated. But in 1864, a vacancy
occurring in the representation of the constitutency, he
again offered himself as a candidate and was elected,.
defeating the Honorable William Macdougall, who had
accepted office. He continued to represent the county
till the Confederation of the Provinces, in 1867. He was
a regular supporter of the Cartier-Macdonald Govern
ment, his name appears in the minority on the second
reading of the Militia Bill. He oppossed the Macdonald-
Sicotte Government while in Parliament. Through the
debate on Confederation Mr Cameron voted with the
minority, because he thought that justice was not secured
under it to the Province of Upper Canada. As soon
as the Union was consummated he gracefully bowed to
the decision of Parliament
On the Honorable Sandfield McDonald being entrusted
with the formation of a Government for the Province of
Ontario, he chose Mr. Cameron as a colleague, and he
accepted office, and held a portfolio in the first Administra
tion formed in the Confederated Province of Ontario.
This Administration, of which the Honorable Sandfield
McDonald was leader, was a coalition Administration : Mr.
Cameron and Mr. Carling representing the Conservative
interest in the Government. He was Provincial Secretary
and Registrar from 1867 to 1871, (25th July), when he
becamre Commissioner of Crown Lands ; this latter ofifice
he held until the fall of the Government in the following
December, in consequence of the adverse vote of the
House on the Railroad Subsidy question.
Upon the formation of a new Government under the
leadership of the Honorable Edward Blake, Mr Cameron
became leader of the Opposition, and so continued for
four years. His parliamentary career was marked by
sterling honour and integrity, and constant and infallible
devotion to his party ; he was never open to even a
suspicion of corruption, jobbery, or political dishonesty of
any kind. While Cabinet Minister he performed all his
duties, and, at the same time, when Parliament was not

414 LIVES OF THE JUDGES.
in Session he attended to briefs and other professional
duties. His physical endurance was of the most extraordinary
nature. He thought nothing of being in Court all day
in the Eastern part of the Provirice, and taking the night
train, he would arrive in the West in time to conduct: a
case the next day. If he happened to be at Cobourg or
Belleville, and retained to be in a case the next day at
Brantford, the attorney in the case could be sure that he
would appear in Brantford the next morning in time
for his case ; he rarely failed in his appointments.
The late Mr Rattray, in his " Scot in British North
America," truly wrote of him :
His intellect was eminently a logical one, and had been trained in the
legal school. He knew nothing of compromises, and was given to the
blunt expression of his honest views. There was little pliability in his
disposition, and the necessary shifts and expedients resorted to in active
political warfare were distasteful to him. As a speaker, he has always
been clear and incisive, going straight to the point, as well balanced
minds are wont to do.
I take pleasure in making this extract from Mr
Rattray's excellent work, because of Mr. Rattray's well
known correctness of description, as well as elegance of
expression. No word of mine could better express the
real bent of Mr. Cameron's mind and his general character.
He was a most truthful man ; if he said he would do a
thing, one could rely with certainty that it would be done.
He believed in the truth of the lines —
Dare to be true, nothing can need a lie,
A fault which needs it most grows two thereby.
Mr Cameron had not only the confidence of political
friends, but of those with whom he differed in politics.
In 1852 he was appointed by the Hincks-Morin
Administration, jointly with the late Col. Coffin, to inquire
into the frequent accidents which had then recently
occurred on the Great Western Railway. He took an
interest in many public matters outside of his profession.
He was one of the early promoters and^directors of the

CHIEF JUSTICE CAMERON. 415
Dominion Telegraph Company, and of several prominent
insurance companies. He was a member of several
societies, charitable and national associations, including
the St Andrews and Caledonian Societies.
• His prominence at the Bar entitled him to a seat on the
Bench. He was appointed a Puisne Judge of the Queen's
Bench on the 15th November, 1878. His appointment
Was a very popular one with the profession. There was
no man in the Province in whom the public had more
confidence. He was very reluctant to accept the appoint
ment ; when he had accepted he regretted that he had
done so. After a while, however, he became reconciled to
the position, and settled down to the judicial work with
all the energy and ability which had distinguished him
through life. In the Queen's Bench he gave his utmost
attention to all the various and difficult questions which
engaged the attention of that Court. On the 13th May,
1884, he was appointed to the Chief Juticeship of the
Common Pleas Division of the High Court of Justice.
I might refer to many decisions of Chief Justice
Cameron, both in the Common Pleas Division, and in the
Queen's Bench while he was a Puisne Judge, which shew
that he took especial pains to master every point that a
case presented, always aiming at justice being the result
of his decisions. He soon found that the duties of a
Judge required not only the principles of abstract law
to be regarded, but a fulfilment of the maxim, "Justitia
fiat, ruat caelum." While at the Bar, there was no man
more astute inadvancing his arguments, always in a
clear and comprehensive manner. On the Bench, while
he retained a share of that adhesiveness to pre-conceived
opinions that he generally displayed, he not only listened
to all arguments presented by counsel, but fully con
sidered them, and adjudged in the interest of right.
During the time Judge Cameron was in the Court of
Queen's Bench, that Court was presided over by Chief
Justice Hagarty, and the Senior Puisne Judge was Judge
Armour, the present Chief Justice of the Queen's Bench

4l6 LIVES OF THE JUDGES.
Division. There probably has never been a period in the
history of the Queen's Bench when three such brilliant
jurists were found at the one time on the Bench in that
Court It was not at all surprising then to find that the
sittings of that Court were always looked forward to with
the keenest interest by the Bar, The meetings of the
Court were always full of interest, and any case that came
before these Judges was pretty thoroughly investigated
before it left the hands of the Court They were not
always unanimous , and when differences of opinion arose
between the two Puisne Judges, neither hesitated to
express his opinion in good set terms. These varying
opinions provoked frequent sallies of wit from either end
of the Bench, while the central guardian of the Court not
infrequently added his toll to the humor which floated so
rapidly through the Court,
The method of hearing causes was decidedly Socratic
in those days. The principal occupation of counsel was,
to endeavor to evade or solve propositions of law or fact
originated by the Bench, and the life of a counsel in a
doubtful case was at least exciting. Prosing was unheard
of, or, at least, vigorously suppressed in that Court, and
the consequent mental friction undoubtedly did much to
elevate the intellectual style of counsel practising in this
Court They rapidly learnt to abandon roundabout ways
of argument, and found that if they wished to be heard in
that Court the surest way was to come to the point, and
endeavor to stay there.
In these sessions of the Court Judge Cameron bore no
idle part ; and his rather raspy voice was frequently heard
asking questions, making keen or sarcastic comments, and
throwing light on intricacies.
At nisi prius the Chief Justice preserved his vigorous
style of addressing juries, and brought his keen insight
into men and their motives to bear with penetration. A
witness who shuffled or prevaricated before him had
indeed a hard experience. The Chief Justice generally
reclined backwards in his chair ; but if anything of that

CHIEF JUSTICE CAMERON. 41 7
sort took place, he raised himself forward, eyed the witness
keenly, and presently, in his deliberate incisive tone, put
a question which frequently had the effect of causing that
witness to wish the witness box had an automatic drop
floor, and that he could be comfortably dropped to the
basement of the Court House.
Those who practised before him sometimes complained
that the Chief Justice was too emphatic in his charges ;
and, I have no doubt, many a counsel who had convinced
himself that his cause was just, and hoped he had con
verted a doubtful jury, regretted that the presiding Chief
Justice had the last word with the jury. Many an
ingenious argument was demolished, and many a theory
destroyed in these charges.
The Chief Justice generally formed a pronounced view
of the truth or falsity of a statement of fact ; and, while
he always exerted great self-control in the expression of
his views, his strong opinions frequently unconsciously
shewed themselves. Fortunately his judgment was very
accurate, and no miscarriage of justice could be com
plained of being brought about by his charges to the
juries. After he had become Chief Justice of the Common
Pleas Division, he felt that he had taken on himself addi
tional responsibility, and guided him'^elf accordingly. His
associates on the Bench — Mr. Justice Gait, and Mr. Justice
Rose — recognized his ability, and conscientious perform
ance of the requirements of his high office, and would
almost have wi.shed that he had spared himself more in
the excessive labor he undertook in the exercise of his
ofifice. There were some cases decided by him and his Court
which presented new points and have historical import
ance, and it is only those I will give in speaking of his
judgments. One of those cases is Stuart vs. McKim, reported in 8
Ontario Reports 739. The facts presented in that case
were these. The defendant, a member of the Legislative
53— L- J-

4l8 LIVES OF THE JUDGES.
Assembly, received a sum of money as an inducement, or
bribe, to influence him in his course in the Assembly,
which he handed to the Speaker of the Assembly, to wait
the action of the House with regard to the alleged bribery.
The plaintiffs, judgment creditors of the defendant, issued
an order attaching all debts due from the Speaker to the
defendant, claiming that the money so handed to him
became a debt payable to the defendant
The plaintiffs then applied to the Common Pleas Divi
sion of the High Court, for an order under the Ontario
Judicature Act, 6n Charles Clarke, Esquire, Speaker of the
Legislative Assembly of Ontario, to try the right of the
defendant to a sum of money delivered by him to the
Speaker, on the 17th March, 1884.
It was not necessary on the motion to determine
whether or not the creditors of McKim could garnish the
money in the hands of the Speaker, but only whether the
Court should now make a summary order on the Speaker
to pay over the money to McKim's judgment creditors,
or whether the question as to such creditors' right to the
money should be tried in any manner Chief Justice
Cameron, in disposing of the motion, said :
The garnishee (the Speaker) contends that there is no garnishable debt
or liability on his part to the defendant in respect of the said money,
which he holds, not in his individual capacity, but as Speaker of the
Legislative Assembly.
1 am of opinion, the plaintiff desiring it, and not wishing to leave the
matter with the Court to dispose of on the material before it, is entitled
to have an issue tried under Rule 373 of the Ontario Judicature
Act. The right of an issue is not absolute, but I think the question ought
not to be disposed of on a summary application without pleadings or
evidence taken in the ordinary way, against the desire of the plaintiff ;
and, therefore, withotit intending in so doing, in any manner to intimate
to] the plaintiff, that I have formed any opinion in favour of the merits
on the law or facts being with him, but solely because I think he ought
not to be denied the right of having the question tried, and that an order
for that purpose should be made.
The issue to be tried will be whether, at the date of the attaching order
there was any debt due or accruing due from the garnishee to the
defendant.

CHIEF JUSTICE CAMERON. 419
: It goes wtihout saying that the attempt to bribe a
-Member of Parliament was, in itself, detestable. To
Chief Justice Cameron's mind it was a crime of the
highest magnitude. Yet it will be seen he avoids ex
pressing any opinion on the merits, simply deciding that
a jury should determine who had a right to the money.
The Chief Justice's judicial character and his judicial
fairness present themselves here in a strong and favorable
light. The singular result of this matter was, that neither
McKim nor his judgment creditors got the money, but
the Ontario Legislature by an Act of the Assemby, 48
Victoria, cap. 5, declared that the money was forfeited to
Her Majesty, for the public use of the Province, and to
have been so forfeited from the time of being delivered to
the Speaker. Many people wish that the name of Her
Majesty had not been used in connection with this
matter. The recital of the Act reads :
That certain sums of money (the money in question in Stuart ?w.
McKim being one of them) were delivered during the Session of the
Legislative Assembly held in the 47th year of Her Majesty's reign, by
a certain person, to two persons of said Legislative Assemby for the
.purpose and under the hope of thereby influencing their votes as members
of the Legislative Assembly, to wit : the sum of $1,000 to the one mem
ber, and the sum of |800 to the other. And whereas the said members at
once delivered the said sums of money to the Speaker of said Legislative
Assembly to be by him produced to the said Legislative Assembly : and
whereas, afterwards and during the said Session the said Speaker
produced the said sums of money to said Legislative Assembly.and
thereupon and during the the said Session the said Legislative Assembly,
ordered the said Speaker to impound and keep the said sums of money
on behalf of the said Legislative Assembly, to be dealt with as the
said Legislative Assembly should thereafter decide.
If I understand the recital, it means to convey the
impression that though the money was paid to influence
the members of the Assembly, that nevertheless the
members repudiated the action and at once handed over
the money to the Speaker The Legislature, in other
words, must have considered that although the money
was bribery money, and paid as such, that the State

420 LIVES OF THE JUDGES.
should become possessed of it for public uses, because
the members refused 'to be bribed, and therefore there
should be a forfeiture so far as the payer was concerned.
Logically, it would seem to be the right thing to deprive
the payer of the money and to in effect declare that the
same never vested in McKim, and therefore the creditors
could have no claim to it Nevertheless in the opinion of
many Her Majesty's name ought not to have been used
in connection with the vile money, paid for such a pur
pose. The Act by its first clause enacts: "The said
sums of $i,ooo and $800 are hereby declared to be
forfeited to Her Majesty for the public use of the
Province." The case of Williams vs. McNeely, 9 Ontario Reports
728, is a case in which the Chief Justice was, in his own
Court, overruled by his brother Judges, but was sustained
in the Court of Appeal: S. C, 13 Ontario Appeal
Reports 324, In that case the vexed question as to
how far the Courts will go in admitting verbal evidence
to explain written instruments arose. The plaintiffs sued
for breach of contract to furnish scows and deliver stone
to the plaintiffs at the Omemee bridge, which the plain
tiffs were building under contract for the County of
Peterborough, The defendants wrote the plaintiffs as
follows :
We will furnish scows, and deliver all the stone required for the
Omemee bridge as fast as you require them, for the sum of seventy-five
cents per cubic yard.
To which the defendants replied :
We accept the above offer, at the iirice and conditions named.
The majority of the Court, the Chief Justice dissenting,.
held that parol evidence was admissible to shew that
the carriage was to be by lake and river navigation, and
was only to take place provided the water along the route
remained of a named height, sufficient to enable the
defendants to use their steamers in towing the scows.

CHIEF JUSTICE CAMERON. 421
The Court of Appeal was unanimous in overruling
the Common Pleas Division, and sustained the ruling of
Chief Justice Cameron that the evidence offered to qualify
•^or limit the contract was not receivable. Mr Justice
Burton, after giving his reasons for his conclusion, said :
I am of opinion, therefore, with the learned Chiet .lustice of the
Common Pleas, that the parol evidence was improperly received, and
that the appeal should be allowed, and the rule made absolute for a new
•tiial. Mr. Justice Osier, after giving his reasons, said :
For the foregoing reasons, and for those stated in the able judgment of
'Chief Justice Cameron, the appeal should be allowed, and the 'rule made
absolute for a new trial, if the parties cannot agree upon the damages.
This case has often been referred to since the decision
of the Court of Appeal, as a leading case on the question
of the admission of parol evidence.
Todd vs. Dun, Wiman & Co., 12 Ontario Reports 791,
is a very important mercantile case decided by his Court,
in which the , Court of Appeal has differed from the
Common Pleas Division, overruling and reversing the
judgment in that case. The Common Pleas Division of
the High Court held, that a letter of the defendants, the
proprietors of a mercantile agency, was libellous. The
letter was to the defendant, and requested him to advise
them confidentially of the plaintiff's standing and respon
sibility for credit, stating that the plaintiff "claimed that
his premises had been burglarized, that he had lost froni
$1,200 to $1,600 ;" asking, if this were so, for full parti
culars, and whether there was not something wrong. The
•defendant replied : " I have made enquiry, and find that
the general opinion is, that he was not robbed at all, and
what has been done he has done himself ; at all events, if
he was robbed, it is not of more than $100 or $200. Cir
cumstances are against him ; still I cannot say." The
defendants Dun, Wiman & Co. subsequently issued a
printed circular, or notification sheet on which, after the
plaintiff's name, were the words : " if interested, inquire

422 LIVES OF THE JUDGES.
at the office." This was published and circulated amongst
the defendants' customers, some 800 in Canada and the
United States. The circular also contained the following:
"The words, 'if interested, inquire at the office,' do not
imply that the information we have is unfavorable. On
the contrary, it may not unfrequently happen that our
last report is of a favorable character ; but subscribers are
referred to our ofifice because, in justice to them, the parties
reported, and to ourselves, the information can only be
properly conveyed to those entitled to receive it by the
full report as we have it in our records."
The question to be decided was, were the words used
in the letter privileged. The judgment of the Common
Pleas was pronounced by Mr Justice Gait, now Chief
Justice and Chief Justice Cameron's successor. Chief
Justice Cameron concurring in the judgment The Court
of Appeal, since his death, has given judgment on the
appeal to them reversing the judgment below, and ordering
a new trial.
I will cite but one other case decided by Chief Justice
Cameron : I select this case from many of his decisions as
it so immediately concerns a branch of the law of
daily application in towns and cites. It is what may
be termed a party wall case. The case is James et
al. vs. Clement, 13 Ontario Report 115. The plaintiffs
claimed that the wall between their and the defendants*
buildings was a party wall, that the defendants had,
without the plaintiffs' consent, raised it a foot above the
plaintiffs' premises, and altered the roof from a flat to a
slanting one, whereby water was discharged on the
plaintiffs' premises and injured them, for which they
claimed damages, and also asked for a declaration that
the wall was a party wall that the defendants should be
restrained from preventing plaintiffs from using the wall
together with the new part thereof, on payment by
plaintiffs of half the cost thereof, and also from allowing
the water to be discharged on the plaintiffs' premises.
The wall was proved to be wholly on the defendants'"

CHIEF JUSTICE CAMERON. 423
land. The part constituting the cellar foundation pro
jected some seven inches, upon which the plaintiffs had
rested the joists of their building in the cellar, the joists
of the upper floors being let into the wall. The jury
found that the wall was a party wall, and that the
plaintiffs had sustained $35 damages. Judgment was
entered for the plaintiffs, and a decree made as asked.
On motion to the DivLsional Court Chief Justice Cameron
held, and his brother Judges concurred, " That the wall was
not a party wall, nor was there any evidence from which a
grant of the right to use a part thereof, could be presumed.
That it was a misdirection in the learned Judge who heard
the cause to tell the jury that the user of the wall for the
said purposes for over twenty years constituted it a party
wall, for at most it would merely give an easement for
such purpose. Held, also that the case being one in
which before the Judicature Act it would have been in
the sole jurisdiction of the Court of Chancery to grant
the relief asked, the Divisional Court could act without
the intervention of a second jury, and the evidence failing
to establish the plaintiffs' right to the relief asked for,
the decree was set aside.
1 think I need not quote any more decisions of Chief
Justice Cameron : they will be found in the Ontario
Reports from volumes 6 to 13 inclusive. In the 13th
volume the reader will see he is styled Knight. A very
.short time before he died he was honored by Her Majesty
with the title of K. C B., which he thought proper to
accept. In 1841, he married Miss Charlotte Ross Wedd, who
died on the 14th January, 1868. The Chief Justice
survived his wife nearly twenty years. He never married
again. By his wife he had three sons and three daughters.
Doctor Irving Cameron, of Toronto, is one of his sons.
The Chief Justice had for some time before his death been
suffering from a carbuncle, and had partially recovered
from this, but a week before his death, his system being
run down, he took an unfortunate turn which caused his

424 LIVES OF THE JUDGES.
death on 25th June, 1887. He will long be remembered
as one of the most distinguished in the roll of Canadian
Judges. In his private life Chief Justice Cameron was distin
guished by the amiable kindness of his disposition. No
one could know him and fail to be impressed by the warm
hearted tenderness of his character, which was rendered
all the more striking by the keenness of his wit His
acute penetration led him to quickly detect any sham or
imposture, and his naturally vigorous style of conversation
made him sometimes appear severe. But under this was
ever present the warmest humanitarian, the heartiest feeling
of active benevolence. To be his friend once was to be
his friend always. Loyalty in every detail of life was one
of his most prominent characteristics. His private chari
ties were numberless. To the poor, the afflicted, the
unfortunate, he was ever the prompt Samaritan, and many
an unfortunate had cause to lament the untimely death
of the Chief Justice, whose heart and purse had always
been open for their necessities.
His devotion to duty undoubtedly hastened his death.
During the last days in which he sat in Court he suffered
greatly from the malady he endured with such fortitude,
and it was only at the earnest solicitation of his brother
Judges that he ceased from the labor he was utterly unfit
for Up to the last it was hoped that his iron constitution
would overcome the ravages of disease ; but, weakened by
the sufferings of years, caused by the loss of his leg, he at
last laid down that life which he had spent in untiring
labor and inexhaustible, good works.

XXXI.
The Honorable John O'Connor, Judge of the
Queen's Bench Division of the High
Court of Justice.
ji'«T^HE Honorable John O'Connor was of Irish
- mil descent His parents emigrated from the
slS^ County Kerry, Ireland, to Boston, Massa-
'^ chusetts, in 1823.
John O'Connor was born at Boston, in January, 1824.
When four years old his parents removed to Upper
Canada, and settled in the Township of Maidstone, in the
County of Essex. It was in this township that the future
Judge spent his infancy and early boyhood : it was in this
township that he spent part of his school days and
received such an education as a country place afforded.
Before going to the law he had further advantage in
schooling with Mr. Gordon in Windsof.
The family residence was fourteen miles from the Town
of Sandwich, the road being a mere cart-road cut through
the wood. It used to occupy two days, with an ox-team
and cart, going to Sandwich, and two more to return. It
was not a very inviting place to live in, but the settlers
were nearly all Roman Catholics. The O'Connors being
Catholics had the satisfaction of being among their co
religionists, even though without a Church, for the first
Church built in the township was erected in 1839 or 1840,
at a place called Maidstone Cross, hard by the Willow
54— L- J.

426 LIVES OF THE JUDGES.
Swamp. Up to the time of the building of this Church,
which was nothing but a log building, the O'Connors and
other settlers were visited by clergymen from Detroit and
Sandwich every second Sunda)'.
As an instance of the privations of the settlers, the
Honorable John O'Connor used to refer to a family from
Kilkenny, named Kavanagh, consisting of the father,
mother, three sons, and two daughters. The father, the
sons, and the daughters set to work clearing up the land,
and tilling it from year to year. While they were thus
employed, the mother, forty-five years of age, supplied
them with provisions, which for two years, she carried on
her back from Sandwich, a distance of thirteen miles,
frequently bringing a hundred-weight of flour, while at
every step she was almost knee deep in mud and water.
But what will not an Irish man or woman do and endure
for a fellow countryman and co-religionist.
After young O'Connor had received a tolerable educa
tion under difficulties, he removed to Sandwich, and
entered a law office in that old town. He became a
student-at-law, having been admitted a student by the
Law Society, in Easter Term, ii and 12 Victoria (1848).
As soon as admitted, he entered the law office of W. D.
Baby. He studied with him for a time, and then was
articled to Mr. Vidal, with whom he completed his studies.
He was called to the Bar in Hilary Term, 17 Victoria
(1854). He settled down, immediately after his call, at
Windsor, where he practised his profession successfully
for some years. In the early part of his career he was in
partnership with Mr Charles Baby, He was not long in
gaining a good education : not a little assisted by his
capacity for forensic speaking — a qualification indigenous
to the Irish, as well when transplanted on a colonial or
foreign soil as when at home.
His business at Sandwich was a profitable one. Besides
this, he soon acquired a good deal of local influence, poli
tical and otherwise. He was for a considerable time
Reeve of Windsor He was Warden of the County of

JUDGE O'CONNOR. 427-
Essex for three years, having been twice elected to that
office by the unanimous vote of the County Council. For
twelve years he performed the duties of Chairman of the
Board of Education of Windsor These various appoint
ments shew that he was no ordinary man, and that his
influence was great in the place where he resided and
carried on his business. He was a man of iron will, of
great determination, and secured the friendship of the
majority of his fellow citizens. Not satisfied with being a
member of the Canadian Bar, he procured his admission
to the Bar of the adjoining State of Michigan.
In his practice at the Bar he shewed considerable
ability, and seldom accepted the services of other counsel
in the prosecution of his business. He had the highest
reputation at his own local Bar, and seldom went abroad
in prosecution of professional work.
He had not been long at the Bar, about seven years,
when, in 1 861, he was thought to be an available candi
date for the representation of the County of Essex in
Parliament. He contested the county in 1861, with Mr.
Arthur Rankin, but was defeated. In 1863, however, he
succeeded in unseating Mr. Rankin, and in obtaining a
new election. He was on this occasion returned as
member for the county, and sat in Parliament until the
dissolution of the House in May of that year. He again
contested the county in 1863, when a special return was
made to the House by the returning officer Both candi
dates petitioned the House of Assembly to be declared
entitled to the seat. Mr. Rankin, his opponent, succeeded
in obtaining the seat, and so Mr O'Connor was again left
without a seat in Parliament,
At the first general election after Confederation, he was
returned to the House of Commons; again in 1872, he
succeeded in his candidature, and was returned to repre
sent the county as their representative in Parliament
On the 2nd of July, 1872, he was .sworn in of the Privy
Council, and thenceforward was President of that body
until 4th March, 1873, when he became Minister of Inland

428 LIVES OF THE JUDGES
Revenue. On the ist of July he was transferred to the
position of Postmaster-General, which office he retained
until the fall of the Ministry in the following November.
At the General Election of 1874, he again presented
himself to his constituents in the County of Essex for
re-election, but was defeated by Mr William McGregor
by a large majority. He was out of Parliament the next
four years, and opened an office in Ottawa, where he soon
built up a good practice.
At the General Election of 17th September, 1878, he
was returned for the County of Russell, and upon the
formation of Sir John A. Macdonald's Government in
October of that year, he accepted office in it as President
of the Council, which office he retained till January, 1880,
when he again became Postmaster-General. Before the
next Session of the House he was transferred from
President of the Council to Secretary of State, which
office he retained till he left the Government.
It will thus be seen that Mr O'Connor had a long and
varied political career. He was regarded as a representa
tive Roman Catholic. It was as such that he held his
position in the Government. He was a Conservative in
politics, and an ally and suporter of Sir John A. Mac
donald. His ability in the House was not so conspicuous
for oratory as for sound and lucid argument. Before
accepting office in 1872, he was made a Queen's Counsel.
In the management of the Department of which he was
the head he performed the duties to the satisfaction of his
colleagues. He was always accessible to those who
required his advice or assistance, and to all who had
business to transact with his Department at the seat of
Government. He strongly opposed the introduction of
Fenianism into Canada, and in 1870 wrote a pamphlet,
which he addressed to the Governor-General, strongly
deprecating the introduction of old country issues into
Canada, where his fellow-countrymen and co-religionists
had prospered so well, under the protecting aegis of the
British flag.

JUDGE O'CONNOR. 429
I have appended these letters of the Honorable John
O'Connor at the end of the volume.
Judge O'Connor was loyal to [the Crown throughout
life ; he did not recognize a difference between Catholics
and Protestants in the code of allegiance. In private and
public life he had as many warm friends who were
Protestant as he had of his own creed.
He at one time, during one of the periods during which
he was relieved of the attendance in Pariiament by the
electors of Essex, opened an office in Toronto, formed a
partnership with Mr. John Blevins, now Clerk of the City
Council, and transacted law business at the seat of the
Courts, in addition to retaining a connection with his
business in Wind.sor or Sandwich, The partnership name
was O'Connor & Blevins, and continued through the
years 1863, 1864, and 1865.
While in Toronto, no such thing as differences of
dogma or faith was allowed to influence him or those who
knew him in any way. I will presently shew that any
difference of this kind did not prevent his appointment to
the Bench.
When the Honorable John O'Connor left the Govern
ment he was engaged in the double work of examining
into the question of the disputed boundary between
Ontario and Manitoba, and on the Commission for Con
solidating the Statutes of the Dominion and certain other
Statutes which were passed by the several Legistatures of
the Provinces of Canada before they respectively became
a part thereof The work done by Mr O'Connor was
confirmed by Parliament and crystallized into an Act,
entitled. " An Act respecting the Revised Statutes of
Canada" cap. 4, A.D. 1886, which recites:
Whereas it has been found expedient to revise, classify, and consolidate
the public general Statutes passed by the Parliament ot the Dominion of
Canada and also certain public general Statutes which were passed by
the several Legislatures of the Provinces of Canada before they respec
tively became a part thereof, and which are still in force, and relate to
matters within the Legislative authority of the Province of Canada ; and
whereas, such revision, classification, and consolidation have been made

430 LIVES OF THE JUDGES.
accordingly ; and whereas, it is expedient to provide for the incorporation
therewith of the public general Statutes passed during the present Session,
and for giving the force of law to the body of the Revised Statutes to
result from such incorporation : Therefore Her Majesty etc., etc., enacts.
These Acts now form the volumes which make up the
Revised Statutes of Canada published in 1886, and which
under a proclamation of Lord Lansdowne, the Governor
General, dated at Government House at Ottawa, on the
24th day of January, 1887, were, on the advice of the
Privy Council declared to come into force and have effect
as law from and after the ist day of March, 1887.
The Honorable John O'Connor was appointed Judge
of the Queen's Bench on the iith September, 1884. So
far as I know, he is the first Roman Catholic appointed to
a Judgeship of a -Superior Court in Upper Canada, or
Ontario, When his appointment was gazetted there were
not wanting some who cavilled at the appointment,
because of his being a Roman Catholic, It was well that
it should have been made known by his promotion, that
faith or creed is no bar in Canada to advancement in any
profession, above all, in that of the law. Before his
appointment to the Bench he had been out of practice,
and had had no experience in the fusion of law and
equity under the Judicature Act As soon as he was
appointed he sat down to work, and to the mastery of the
Judicature Act, and was not long in qualifying himself for
active work on the Bench,
Judge O'Connor soon developed into a painstaking
Judge, and thus gradually obtained from the Bar a confi
dence in his rulings, which his independence and desire to
secure absolute justice well deserved.
Judge O'Connor was an unostentatious, unpretending
man ; but he had a great deal of that uncommon com
modity called sound common sense, which stood him in
good stead in all his dealings with questions of law or
fact. It is hardly necessary to refer to any cases decided by
Judge O'Connor, as his judgments are so recent, and

JUDGE O'CONNOR. 43 1
besides, were in many cases concurring judgments. How
ever, in Warren vs. Grover, 8 Ontario Reports, he differed
from the Chief Justice of the Queen's Bench Division of
the High Court throwing in his judicial lot with Mr
Justice Armour. In an action by a tenant against his
landlord, for refusing to give him possession of demised
premises, O'Connor and Armour, J J,, (Wilson, C, J,,
dissenting), held, that the proper measure of damages
in such case is the difference between what the tenant
agreed to pay for the premises- and what they were
really worth. But it is not open to the tenant to
shew that he rented the premises for the purpose of
there carrying on a certain business, of which the landlord
was aware, that he could not procure other premises, and
to claim the profits which he might have made in such
business, if he had been let into possession.
There is another case reported, heard before Mr. Justice
O'Connor sitting alone, and in which he gave judgment,
which I will quote from, as it has general application in
the matter of natural justice, and shews that the Judge
would not allow any tyrranical abuse of legal process : it
will also be of interest to Justices of the Peace in the
performance of their duties. The case is Regina vs. Eli,
lO Ontario Reports, 727. In that case the complainant
was steward of a "social club" in Walkerton. The mem
bers were elected by ballot, and, on paying an entrance
fee of $1 and a subscription of $25 per month, were
entitled to use the club room, and buy from the steward
spirituous liquors. The members were not responsible for
goods ordered, or for any general expenses. An informa
tion was laid against the defendant on loth September,
1885, for an offence against the second part of the Canada
Temperance Act, 1878; and on the 21st September, ^885,
he was, about 4 P.M., served with a summons to apppear,
at 8:30 A.M, next day, before two Magistrates, On the
22nd day of September, informations were, in two other
cases, laid against him for similar offences, and he was in
each, at 8:15 A,M,, served with a summons to appear

432 LIVES OF THE JUDGE.S.
before a Magistrate at 9 AM. that day. When the Magis
trates Court met the cases were partially gone into, and
before it was closed the prosecution asked the Magistrates
to take up the second and third cases. The defendant
stated that he had not understood what the summonses
meant, and, by advice of counsel, he refused to plead.
The Magistrates entered a plea in each case of not guilty,
and went on with both cases. The evidence in both cases
shewed that the offence charged in each case occurred on
dates different from those laid in the informations. The
Magistrates amended the dates in the informations. The
defendant and his counsel were in Court all the time,
awaiting completion of the evidence in the first, but
refused in any way to plead or take part in the second or
third cases, or to ask adjournment thereof The Magis
trates, after taking all the evidence therein, at the request
of the defendant, adjourned the first case, and in the
second and third cases convicted the defendant of the
offences, as charged in the amended informations. It
was shewn by affidavits that the Magistrates were willing
in these cases, had the defendant pleaded, to adjourn
after taking the evidence of the witnesses present There
were also affidavits shewing that the Magistrates had
been, before the " Scott Act," interested in promoting
Prohibition. On the above state of facts, Mr Justice O'Connor, in
giving judgment, said :
To say that these cases were tried is simply preposterous. The pro
ceedings of the morning of the 22nd September, the taking of the
information and the issuing of the summonses apparently before break
fast, and the service on the defendant immediately after that meal, the
short time allowed for appearance thereon at the town hall, allowing
neither time for digestion nor reflection, and the sham trial which fol
lowed so soon, appear dramatic, and irresistibly suggest the notion of a
farce. Three cases tried concurrently ; a witness in one, a witness in
another, and still a witness in the third case, sworn and examined alter
nately or concurrently, as suited the prosecuting counsel, while the
defendant, defending in the first case, is compelled to listen to evidence
in the other oases in which he, after objecting, had refused to plead or
take any part, although only fifteen minutes had elapsed between the

JUDGE O'CONNOR. 435
service on him that morning and the time for appearing at the town hall
to answer the first summons, and no time had been allowed him to
prepare his defence in these last two cases, was actually a display of
injustice and a wanton mockery ot justice not to be expected in a civilized
oountry, 1 trusi; that such exhibitions are of rare occurrence in this
country. The defendant had a substantial and apparently a bonS, fide
defence to offer ; a defence which, however, required a reasonable time to
formulate it, and which would present grave matters of law for consider
ation — matters of law which ought not to be, and which cannot be,
treated in Dogberry's style. In the first place, he produced the constitu
tion of the club. He denies some of the facts alleged against him,
explains others, and denies that he is guilty. He has a right to a full
hearing and a fair trial. In these two cases he has had no trial. To
allow the convictions to stand would, under the circumstances, be
contrary to natural justice, and to the principles of our laws ; and practi
cally the cases fall within the principle of Re Holland, 37 Upper Canada
Reports, 214, The order nisi will be made absolute, with costs against
the complainant, upon the grounds stated in the orders, having reference
to the material facts above stated.
The cases I have stated are sufficient to shew that Mr.
Justice O'Connor had a just appre'ciation of natural
justice, and was desirous to see it carried out.
The Judge, from early manhood, had an infirmity which,.
in some degree, affected his whole life. He was obliged to
walk with a cane and a wooden leg. He lost his leg from
an accident while cutting down a tree in the woods in Maid
stone. In some way the tree fell across him, on a cold
winter's day, breaking his leg and imbedding it as it were
in a vice. When he found himself thus pinned he took his
knife, cut the laces of his shoes, and then, with the knife
or an axe, dug the snow and earth away from under his leg,
and so managed to extricate himself: he then started to
crawl home, but was met by some one who carried him,
where his leg was amputated by Dr Donnelly. This is a
true relation of this incident of his life, which received
much exaggeration from hearsay evidence. It was said
that he had cut off" his own leg : the almost impossibility
of such a thing would bear its own contradiction.
The Judge was a tall, well formed man, and in his walk
on the street or elsewhere, could be noticed as -having an
erect, manly appearance.
55— L. J.

434 LIVES OF THE JUDGES.
In 1849, he married Miss Mary Barrett, eldest daughter
of Richard Barrett, formerly of Killarney, Ireland.
He was in his usual health when called upon to take
the Cobourg Assizes, in November, 1887. While at
Cobourg, holding the Assizes, he burst a blood vessel,
lingered on for a couple of days, when death put an
end to his sufferings, on Thursday, November 3rd, 1887.
Before his death he received the rites of his church.
His body was brought to Toronto for burial, which took
place from his residence on Gerrard street, on the 7th
day of November
He left a widow and five children to mourn his loss.

XXXII.
The Law Society and Osgoode Hall.
IHE writers of letters, when they have forgotten
+1 »¦

i

'alL^lll something they desired to communicate to a
'^*'^^» friend, generally add a postscript, to indicate
'^ they have something more to say.
In launching the " Lives of the Judges," I remember
that I have neglected to write of the cradle in which most,
if not all, of the Judges were nurtured, and therefore
proceed to add a postscript chapter, in order to bring to
the recollection of readers the past of that Society of
which not only the Judges, but Barristers who have gone
to their rest unclothed with judicial dignity, have been
members. The professional reader will at once discover
that I refer to the Law Society.
Eighty years is not a long period in the history of a
nation ; but when, as in the case of Ontario, that period
comprises the whole, or nearly the whole, of the legal
history of a Province, the period has more significance.
The infancy of a nation is of interest to every citizen ; the
infancy of law ought to possess an interest with the
whole community, but is of especial interest to those
•engaged in legal pursuits.
The student of law does not care so much to examine
into the origin of the law, as to travel on in beaten paths ;
the paths that lead to emolument, or future fame^in his
calling. It is well, however, that he should be reminded

436 lives of the judges.
of the early years of the profession on which he has-
entered. The Bar of Ontario is, in some respects, the offspring
of the Bar of Quebec, as it existed prior to the division of
the old Province of Quebec into the two separate Pro
vinces of Lower Canada and Upper Canada, which took
place in 1791, the thirty-first year of the reign of His
Majesty King George the Third.
In the year 1785, the twenty-fifth year of the reign of
King George the Third, there was enacted in the Province
an Ordinance entitled, "An Ordinance concerning Advo
cates, Attorneys, Solicitors, and Notaries, and for the
more easy Collection of His Majesty's Revenue." This
Ordinance enacted that :
No person shall be commissioned, appointed, or permitted to practise
as Barrister, Advocate, Solicitor, or Proctor, unless articled for five years
to some Advocate or Attorney duly admitted and practising in the Pro
vince, or some part of His Majesty's dominion, unless such person shall
have been already called to the Bar, or entitled so to be, and in practice
as an Advocate or Attorney in some Court of civil jurisdiction within
some part of His Majesty's dominion.
The ordinance further provided :
That no person should be commissioned unless examined by some one
of the first or most able Barristers, in the presence of the Chief Justice
or two Justices of the Court of Common Pleas, and found of fit capacity.
It was under this Ordinance that causes were advocated
in the Old Province of Quebec, comprising the Provinces
of Upper and Lower Canada. In 1791, the thirty-first year
of the reign of King George the Third, the Imperial
Parliament passed a law giving to each of the Provinces
a Legislative Council and Assembly ; and the Upper
Canada Parliament at its first Session in the following
year, 1792, passed an Act enacting :
That thereafter, in all matters of controversy or civil rights, resort
should be had to the laws of England as the rule for the decision of the
.same. Up to the passing of this Act, the laws which had been
in force in regard to property and civil rights were the

THE LAW SOCIETY. 437
laws of Canada — the French law. It was soon found,
after the passing of this enactment, that it was necessary
to have Advocates in the Province of Upper Canada,
skilled in the English law, and to that end the Legisla
ture, on the 9th July, 1794, thirty-fourth of His Majesty's
reign, passed an Act entitled, "An Act to authorize the
Governor or Lieutenant-Governor to license Practitioners
in the Law," by which it is enacted that the Ordinance of
Quebec, to which I have previously referred, should be
suspended ; and —
That it should be lawful for the Governor, Lieutenant-Governor, or
person administering the Government of this Province, to authorize by
license under his hand and seal, such and so many of His Majesty's
liege subjects, not exceeding sixteen iu number, as he shall deem from
their probity, education, and condition in life best qualified to act as
Advocates and Attorneys in the conduct of all legal proceeding in this
Province. The 14th section of the Act provided :
That nothing therein contained should prevent any person, duly
•qualified according to the provisions in the said Act or Ordinance (Ordi
nance of Quebec) contained, from being admitted to the exercise of the
practice of the law conformably to the said Act.
In 1803, several gentlemen — William Dickson, D'Arcy
Boulton, John Powell, William Elliott, William Warren
Baldwin — were admitted to the Bar by license of
Lieutenant-Governor Peter Hunter, made in pursuance
•of an Act of the Province entitled, "An Act to authorize
the Governor, Lieutenant-Governor, or person adminis
tering the Government of this Province, to license
Practitioners in the Law." The license is set forth in
extenso in the record, and states that the gentlemen had
been examined by Henry Allcock, Esquire, Chief Justice,
and found fit.
Why these gentlemen availed themselves of this Act,
instead of passing the Law Society, does not appear
Six years before their admission, on the 17th July, 1797,
a meeting of Barristers took place at Newark, now
Niagara, for the formation of a Law Society. The

438 LIVES OF THE JUDGES.
following is an extract from the books of the Law Society
in Osgoode Hall : Newark, July 17, 1797.
In obedience to the direction of an Act passed this Session in the
Parliament of the said Province, the following gentlemen assembled in
WUson's Hotel, at eleven o'clock in the forenoon of the above day :
John White, A. G. Robert D. Gray, S. G.
Angus Macdonell. James Clark.
Christopher Robinson. Allan McLean.
William D. Powell. Alexander Stewart.
Nicholas Hagerman. R. C. Beardsley.
The subject of the meeting, being taken into considera
tion, it was moved by the Attorney-Ceneral that the Act
of Parliament of the Province be read, and it was read
accordingly by Mr. Beardsley, the junior.
The subject of the meeting referred to was the carrying
out of the Act, read by Mr Beardsley, 37 George III.,
cap. 13, passed 9th July, 1797, entitled, "An Act for the
better regulating the practice of the law," by which the
persons theretofore admitted to practise in the law, and
practising at the Bar of any of Her Majesty's Courts in
the Province were authorized to form themselves into a
Society, to be called the Law Society of Upper Canada,
" as well for the purpose of establishing of order among
themselves as for the purpose of securing to the Province
and the profession of a learned and honorable body to
assist their fellow-students as occasion may require, and
to support and maintain the constitution of the said
Province." These records from the books of the Law Society, and
the Acts of Parliament mentioned, are valuable to be
referred to as shewing :
I st. That after the division of the Province of Quebec
into the two Provinces of Upper and Lower Canada the
Legislature of Upper Canada very soon saw the necessity
of retaining and giving effect to the Ordinance of Quebec
relative to Attorneys and Advocates, thus at once giving
license to trained practitioners in the law : not only those
who had been called in the Province of Quebec, but, as

THE LAW SOCIETY. 439
the Ordinance expressed it, " those who had been called
to the Bar, or entitled so to be, and in practice as an
Advocate or Attorney in some Court of civil jurisdiction
within some part of His Majesty's dominions."
2nd. That the further necessity existed of having called
to the Bar gentlemen licensed by the Lieutenant-Governor
of Upper Canada, after examination as to fitness by the
Chief Justice of the Province, as one skilled in English
law. . V
3rd. To crown all, the formation of a Society, " For the
purpose of securing to the Province and the profession of
a learned and honoraHe body to assist their fellow subjects
as occasion might require, and to support and maintain
the Constitution of the said Province."
The young law students of this day hardly realize the
fact that fourteen years had not passed after the Treaty of
Peace was signed declaring the independence of the
United States, before the Legislature of the Province of
Upper Canada had set to work, by legislation in the
direction of providing that gentlemen of education and
probity should be those privileged to conduct legal pro
ceedings for their fellow subjects in the Province. There
were no Inns of Court in Canada in 1797, yet, nevertheless,
the gentlemen of that day had not forgotten the origin of
some, at least, of the English Inns of Court, for they met
in Wilson's Tavern or Inn, at Newark, to transact their
business. Cunningham, in his " Inns of Court," published
in 1780, thus writes of settled places for students of the
law, called Inns of Court and Chancery. He says : " So
that Inns of Court (/. e., after Edward I, had appointed
John de Metingham Chief Justice of the Common Pleas,
and that the other Judges should supply to every Court
Attorneys and Lawyers to do service in the Court),
though we have no memorandum of the direct time or
absolute certainty of the places, we may safely conclude
that they settled in certain hostels or Inns, which were
henceforth called Inns of Court because the students in
them did there not only study the laws, but such other

440 LIVES OF THE JUDGES,
exercises as might make them the more serviceable to
the King's Court ; as Sir John Ferguson, in the forty-
ninth chapter of his book, De Laudibus Legum Anglics,
observes, when he says : " That the students in the Univer
sity of the Laws (for so he calleth the Houses of Court and
Chancery) did not only study the laws, to serve the Courts
of Justice and profit their country, but further learn to
dance, to sing, to play on instruments on the ferial days, and
to study Divinity on the festival, using such exercises as
they did who were brought up in the King's Court."
Whether or not the Lawyers who met in Wilson's
Tavern at Newark, on the 17th July, 1797, to discuss
matters appertaining to their profession, did dance, or
sing, or study Divinity, there is no record. But if they did
they were not without precedent, one of the dearest things
to a lawyer's existence.
The names of those who attended the meeting of the
17th July, 1797, as well as those who were called to the
Bar, by the license of the Lieutenant-Governor in 1803,
after due examination as to fitness by the Chief Justice,
are familiar to all those acquainted with our Canadian
legal history.
So far as can be ascertained from the records in
Osgoode Hall, members were first admitted to the Bar
under the new order of things, following the passing of the
Acts for regulating the practice of the law, passed 9th
July, 1797, in Trinity Term, 1797, when the following
gentlemen were admitted to the Bar :
I. John White,
2. Robert Isaac Dey Gray,
3. Walter Roe,
4. Angus Macdonell,
5. James Clark,
6. Christopher Robinson,
7. Allan McLean,
8. John McKay,
9. Alexander Stewart,
10. Nicholas Hagerman,

THE LAW SOCIETY. 44 1
II. Bartholomew Crannel Beardsley,
12. Timothy Thompson,
13. Jacob Farrand,
14. Samuel Sherwood,
15. William Dummer Powell, jr
Who was the first admitted to the Roll of Barristers of
the gentlemen above named, or if any others were called
to the Bar before them can not be ascertained, as the first
Barristers' Roll is not among the parchments in the
archives of the Court The first Roll there begins with
the names of gentlemen admitted to the Bar in i8o8-
The information as to those admitted in Trinity Term,
1797, is not obtained from the original Rolls, but from the
Journals of the Law Society. As the Roll of 1808 is still
preserved, what has become of the Rolls from 1797 to
1808 ? Were they burned or destroyed by the incendiary
hand of the invaders in 181 3 ?
Doctor Scadding, in " Toronto of Old," in referring to
the site of the first House of Parliament thus writes :
It was nearly on the site of this rather hard-featured building (an old
house near the Don) that the first House of Parliament ot Upper Canada
stood, humble but commodious structures of wood built before the close
of the eighteenth century, and destroyed by the incendiary hand of the
invader in I8I3. They consisted, as a contemporary document sets forth,
of two elegant halls, with convenient offices for the accommodation of
the Legislature and the Courts of Justice. The library, and all the papers
and records belonging to these institutions were consumed.
The Parchment Roll of 1808 bears a very mottled
appearance, and it is not impossible it was saved while
its ancestor perished in the flames.
The Law Society shortly after their organization saw
the necessity of having a head, or Treasurer, as he was
called, (following the English precedent), to their body,
and appointed John White to that office in 1797. He was
the first appointed Treasurer of the Society. Angus
Macdonell was appointed Treasurer in the 43rd year
of the reign of King George the Third, A. D. 1803.
He was an uncle to John Macdonell, whose name figures
56— L. J.

442. LIVES OF THE JUDGES.
prominently and holds high place in both the legal and
military history of Canada. John Macdonell was admitted
a Student of the Law on the 6th April, 1803, and called
to the Bar in Easter Term, 1808. He rose rapidly in
his profession, and became Attorney-General, which office
he filled to the time he was killed in the engagement
on Queenston Heights, while in attendance on General
Brock as Provincial Aide-de-Camp. Alex. Macdonell of
Osgoode Hall is a collateral relative of Angus Macdonell.
In the same Trinity Term, 1808, that John Macdonnell
had been called to the Bar, three other gentlemen, after
wards distinguished in Canadian annals as Judges, whose
names are familiar to the public and the Bar, were
admitted as Students of the Law. I refer to the name of
Archibald McLean, who became Chief Justice, and to the
names of Jonas Jones and Christopher Alexander Hager
man, Judges of the Court of Queen's Bench.
The second Treasurer of the same Society was Robert
Isaac Dey Gray, appointed to that office at the Chambers
of the Attorney-General, Trinity Term, 1798.
William Warren Baldwin was at one time Treasurer, and
appointed in Michaelmas Term, 52 George! HI,, 1812,
There was no Convocation of Benchers froifa this time
down to Michaelmas Term, 56 George III., 25t|h February,
18 1 5. This hiatus of three years ^s, d^jjrotless. occa
sioned by the war, which during tna^ period raged
with the United States, familiarly known as the war
of 1 8 12. An incident .occurred at the meeting on the
28th of February, 1815, which is not likely to occur again
in the annals of the Canadian Bar A member of the
Society, who had been admitted as a Student in 48
George III,, was on this day, 25th February, 1815, made
a Barrister, Solicitor-General, and Bencher This may be
called pretty rapid promotion at the Bar. The incident
proves in what esteem John Beverley Robinson, afterwards
Sir John Beverley Robinson and Chief Justice, must have
been held when he was called upon in one day to fill the
three important offices.

THE LAW SOCIETY. 443
The record in the Journal of the Law Society stands
thus :
The next meeting after Michaelmas Term, 52 George III., (1812), was
not held till Hilary Term, 1815, D'Arcy Boulton, Attorney-General,
presided, and John Beverley Robinson called to the Bar.
Present :
D'Arcy Boulton, Attorney-General,
John Beverley Robinson, Solicitor-General,
Timothy Thompson, )
Allen McLean, \ Esquires.
Wm, W, Baldvyin, '
I owe it to the students, before completing my post
script to the " Lives of the Judges," to make some refer
ence to them as a body. They belong to a class to which
all the Barristers, except those licensed in 1797, have
belonged, and we must not despise the day of small
things. Down to the year 1825 the curriculum for law
students was not very severe. In the Law Society's
Journals, under date of July ist, 1825, is this entry:
Whereas no small injury may be done to the education of that portion
of the youth of the country intended for the profession of the law by
confining the examinations to Cicero's Orations, and it is advisable further
to promote the object of the sixteenth Rule of this Society, passed and
approved of in Hilary Term, 60 George III., it is unanimously resolved
that in future the student, on his examination, will be expected to exhibit
a general knowledge of English, Grecian, and Roman history, a becoming
acquaintance with one of the ancient Latin poets, as Virgil, Horace, or
Juvenal, and the like acquaintance with some of the celebrated prose
works of the ancients, such as Sallust or Cicero, De Offi/:iis as well as his
orations, or any author of equal celebrity which may be adopted as the
standard books of the several district schools ; and it is also expected that
the student will shew the Society that he has had some reasonable portion
of mathematical instruction.
Even with this amended curriculum, the student of the
present day may well exclaim, " O, Fortunate Puer !"
The curriculum is now based on the University model,
and woe betide the student that loiters by the way ! — let
him scrutinize the seal of the Law Society, and he will
there find a column surmounted by the figure of a little
animal, whose example he must follow if he wishes to-
succeed.

444 LIVES OF THE JUDGES.
The seal of the Law Society has more significance and
has given birth to much more deliberation than it ordi
narily gets credit for. In the Journals of the Law Society,
to which I have .so frequently to refer, under date of the
13th November, 1823, there is this record :
At a Convocation of the Law Society at the Chambers of the Treasurer,
the Attorney-General procured, at the request of the Society, a seal upon
the shield whereof are engraved the following arms and motto : — In the
centre of the shield is a Doric column, modestly indicating the state of
the legal erudition of the Society in its first establishment and at the time
¦ of its incorporation, ready to receive at a future day its embellishment
from the finished models of the ancient and learned societies in England ;
surmounted by a beaver, always occupying a compartment in the armorial
hearings of Canada, and forming an appropriate emblem in the seal,
descriptive of the industry of the profession. On the dexter side of the
shield is represented the figure of Hercules, and on the sinister side the
figure of Justice, with the scales in her right hand and a sword in her
left, and are intended to place in a prominent view that spirit of justice
and fortitude which constituted the character of its members. The
words, " Magna Charta Anglic," inscribed upon the ribbon floating round
the column, indicate the foundation upon which Canadian liberty is
established. Upon the exterior circle is inscribed the words, ' ' Incorpo
rated 1822," which seal is unanimously adopted and declared to be the
seal of the Law Society of Upper Canada.
The Law Society of the olden time used to hold their
Convocation at divers places — if not Justices in Eyre,
they were at least Benchers in ' Eyre,' now cropping out
in the Parliamentary Library, now at the Attorney-
General's office, then at the Court House, or at the
Treasurer's private office — they had no abiding place.
The necessity of a permanent house came to be felt, but
how to obtain it was the question.
At a meeting of Benchers of the Law Society of Upper
Canada, held at the Chambers of the Treasurer, on the
first day of Michaelmas Term, in the first year of the
reign of George IV., it was "resolved that the Society do
apply a sum not exceeding ;£'50o in the erection of a
building for the use of the Society, to be called ' Osgoode
Hall,' on the site opposite to the church lately purchased
by them."
I confess to having had some difficulty in ascertaining

THE LAW SOCIETY, 445
what site was here referred to. It is so contrary to the
generally received notion that lawyers would locate their
hall directly opposite to a church that one would hardly
believe it. Besides, the resolution in its terms does not
make it very clear, whether it was a site for a hall or the
church which was purchased.
After consulting Dr. Scadding, I have come to the con
clusion that the site intended was on the then vacant
square to the south of King Street opposite to St. James's
Church : and it' is probable that site would have been
selected for the Lawyers Hall had not the Attorney-
General stepped in and offered to sell to the society the
plot of ground on which Osgoode Hall now stands,
Dr Scadding, in "Toronto of Old," describing Osgoode
Hall thus writes : Osgoode Hall,
The east wing of the existing edifice was the original Osgoode Hall,
erected under the eye of Dr, W, W, Baldwin, at the time Treasurer of
the Society, It was a plain, square, matter-of-fact brick building, two
stories and a half in height. In 1844-46 a corresponding structure was
erected to the west, and the two were united by a building between,
surmounted by a low dome. In IS57-60 the whole edifice underwent a
renovation, the dome was removed, a very handsome facade of cut stone,
reminding one of the interior of a Genoese or Roman palace, was added,
with the Court rooms, Library and other appurtenances, on a scale of
dignity and in a style of architectural beauty surpassed only by the new
Law Courts in London, &c,, &c.
The edifice, called by Dr, Scadding the original
" Osgoode Hall," must be the east wing of the present
Osgoode Hall, at the head of York street ; this, being so,
the original resolution before referred to as passed I
George IV,, 1820, was not carried out, as the site there
spoken of was evidently the site opposite St. James's
Church, whereas the present Osgoode Hall is on the
land purchased of Sir John Robinson in 1828, or about
that time, for i^ 1,000, as shewn by the resolutions of"
Easter Term, 2nd May 1828, which I set forth below as
transcribed from the Law Society Journals.
The subject of acquiring a site and erecting a per-

_446 LIVES OF THE JUDGES.
manent hall seems to have first occupied the attention of
Benchers in 1825 and down to 1828, when the present
site was purchased. There seems to have been a contest
raging in the Convocation of Benchers as to whether the
site should be obtained from the Government on the
square which had been occupied by the Public Buildings
near the Don, or in the west near the Government House.
The west seems to have carried the day, as the following
series of resolutions shew, and which I think, even at
the expense of being pronounced tedious, is a matter of
interest to all Barristers, if not to the general reader
Convocation, ISth day of November, 18S6.
The subject of inquiry for a site for a Hall and the erection of suitable
buildings having been taken into consideration, the former minutes read,
and the matter discussed.
It was unanimously resolved that the Treasurer do draw up a brief
statement of the intention of the Society immediately to appropriate its
funds towards the erection of a Hall, and its disposition to accommodate
the Court of King's Bench, with all necessary apartments, according
with the importance and dignity of its functions, if the funds of the
Society could be aided by a reasonable grant of money on the part of the
Province, and that the Government and Judges should approve of such a
measure of inviting funds in order not only to secure more immediate and
ample accommodation, but also to erect a building worthy of the Province
and its seat of Government. And such statement be presented to the
Judges as soon as practicable ; and that the Treasurer may assure them
of the willingness of the Society to pledge themselves to the extent of
£2,000 towards this desirable object.
W. W, Baldwin,
Treasurer.
The statement having been accordingly drawn up by the Treasurer and
shewn to the Judges in Court and approved by them, was presented to
the Judges on the Bench.
Easter Term, 7 George IV. On motion of the Attorney-General, it
was unanimously resolved : That the Treasurer do prepare a draft of a
memorial to His Excellency Sir Peregrine Maitland, Lieutenant-Governor,
and representing on the part of the Society, the great disadvantage they
labor under by the want of buildings wherein to transact business, collect
and deposit a library, and to accommodate the youth studying the profes
sion. That learning from public report that the new buildings for the
contemplated Parliament House are to be built on Simcoe Place, they
hope His Excellency will not consider them unreasonable in soliciting a
grant of a portion of the old site of the Public Buildings now abandoned,
and that in the event of his favorable reply to their memorial, the Society

Benchers entered and
took their seats.

THE LAW SOCIETY. 447
¦would lose no time in commencing such a building as would be orna-
•mental to the town, as well as convenient to themselves.
W. W. Baldwin,
Treasurer.
Michaelmas Term, 7 George IV. The Treasurer submitted a plan of
the elevation of a building as a hall for the use of the Society, upon which
he was requested to proceed with the plan, and procure an estimate of the
left wing.
Hilary Term, 7 George IV. Mr. Ridout and Mr. Macaulay examined
the Treasurer's accounts, by which examination it appeared that the funds
-of the Society immediately available amount to £1,839 lO.s, IJcf,
The Attorney -General
Jonas Jones, Esquire
Archibald McLean, Esquire
John Rolph, Esquire
Whereupon, General Convocation having met pursuant to the resolu
tion of Tuesday, the 2nd instant, and the Treasurer having laid before
the Society the above general statement of its funds, the Society discussed
the subject of the application to the use of the Society, Wherefore, after
•consideration, upon the motion of the Attorney-General, it was unani
mously resolved :
That the Society is very grateful for the grant of six acres of land
"which they are informed the Honorable the Executive Council have
recommended to be made for the purposes of the Society, but as in their
application no definite opinion was expressed as to the quantity which
would enable the Society to carry their object into effect, and as they
have been given to understand that the most favorable disposition existed
to comply with their wishes, it is expedient that the Treasurer should, on
behalf of the Society, represent to His Excellency that if the grant could
be extended to any convenient tract between fifteen and twenty acres, it
would be much more suitable to the purposes contemplated.
The Treasurer then laid before the Society the plan
prepared and executed by him, agreeably to the request
made of him ast Michaelmas Term, but without an esti
mate, which could not be obtained at present, sufficient
time not having been had for that part of said request.
The plan having been inspected and considered, it was
unanimously resolved :
That William W. Baldwin. Esquire, the President and Treasurer, do
obtain an estimate of the expense of building the south wing of the plan
.submitted by him ; this estimate to be separate from the portico and
vestibule in one amount, and for the hall, library, &c,, in the second
amount. That he do submit the plan to His Excellency the Lieutenant-
Governor, and also to the Honorable the Judges of the King's Bench, for

448 LIVES OF THE JUDGES.
their consideration as to the accommodation proposed for the Court and
offices appendant in the north wing ; and it is further resolved that in
case the Honorable the Judges of the King's Bench and the Executive
Government give any assurance on their part that the plan, so far as
regards the Court of King's Bench, will be pursued with effect on their
part, the said Treasurer shall lay the estimate to be obtained before the
Society in the next Term, for their final approbation, before contract be
entered into. It is also further resolved that a further estimate be made
and procured of the expense of building the Court and range of Chambers
between the wings, as in the design.
Easter Term, 8 George IV. The Treasurer having laid before the
Society a diagram of the Surveyor-General of the plot of land wherein
His Excellency has been pleased to recommend the grant of this site for
the use of the Society, and the Society having inspected the same, and
selected that part therein the most suited to their purpose, directed the
Treasurer to communicate such their selection to the Honorable the
Executive Council, and request their acquiescence in the same.
W, W, Baldwin,
Treasurer
Michaelmas Term, 8 George IV,, November, 1827, The Treasurer
reported that he had as yet received no definite answer from the Execu
tive Council relative to the application of the Society, for the selected
part of the land described in the diagram alluded to in the proceedings of
the Convocation held the 23rd day of April last, upon which, after some
deliberation, it was deemed most prudent to suspend that application for
the present, and that in the meantime the Attorney-General be requested
to inquire how far the application for a site in Russell Square might be
acceptable to the Government.
Hilary Term, 8 George IV., Ilth January, 1828, Criminal Court House.
The Society directs the Treasurer to request the Attorney-General in
their name to renew the application for the portion of ground at the site
of the old Government buildings.
W. W, Baldwin,
Trea.nirer.
Trinity Term, 9 George lA^. A site for erection of a hall was described
and inquiry as to value of those offered by Mr. Mercer and the Attorney-
General was recommended.
Trinity Term, 2nd May, 1828. It was unanimously Resolved, that the
purchase of six acres of land from the Attorney-General in front of his
Park lot be carried into effect without delay, the sum agreed for by the
Society with him being £1,000. Resolved also, that the Attorney
General, the Solicitor-General, Doctor Baldwin, Mr. Ridout, and Mr.
Macaulay be a committee of management for approving a plan, making
contracts, and superintending the erection of a building.
W. W. Baldwin,
Treasurer.

THE LAW SOCIETY. 449
Trinity Term, 9 George IV. At Convocation held on 26th day of June,
1828. Present :
William W. Baldwin, Treasurer.
John B. Robinson, Esquire, Attorney-General.
Henry John Boulton, Esquire, Solicitor-General,
John Rolph, Esquire.
The necessity ot building a hall and chambers for the use of tlie Society
was discussed.
The Attorney-General proposed that a hall and buildings sufficient for
the present purposes of the Society, not to exceed £3,000 in expense, and
to form the central edifice of future buildings, to be extended laterally as
the increase of the Society may hereafter require, should be undertaken.
The Solicitor-General proposed a smaller building, which might cost
about £700, to be built near to the street, for the present purpose of the
Society, and at a future day answering some other subordinate use of the
Society. The proposal of the Attorney-General was approved, and a plan to that
extent for that purpose was desired to be obtained.
The result of this resolution was, the building of Osgoode
Hall which was carried on under the superintendence of
the Treasurer This was the beginning of that handsome
pile, now the seat of the Superior Courts and the head
quarters of the Society whose small beginning I have
described, which now has its hundreds of members, where
it then had tens.

57— L. J.

XXXIII.
The Advocates Society.
^feUE old Barristers were not unmindful of the
lJIK Students. I find that even before the
^'§5® Incorporation of the Law Society, they had
9 s.#jJt created a Society called the Advocates
Society, which was a kind of mock Court where legal
questions were discussed after the manner of Parliamen
tary debates in procedure, and judicial solemnity in
practice. Sir Adam Wilson, late Chief Justice, has
recently presented to the Law Society a manuscript book
from which I make extracts, as they will be found of
interest not only to the professional but to the lay reader.
I give the proceedings of the Advocates Society which are
on record in the book to which I refer :
Monday, 20th January, 1823.
The Society met. The Journals were read. The Bencher made the
following report from the Legal Sitting : On this day three several cases
were argued, (1) A demurrer in an action on a, bail bond, (2) Case —
verdict subject to opinion of the Court in an action for slander. (3)
Practice case as to service of process. The conclusion ot the last case is,
' ' After hearing counsel, held, the Piule be discharged. A. CHBWErr, Bencher.
The Counsel engaged in the above cases were Robert Baldwin, Mr.
Notman, and Mr, Richardson (of Messrs, Smith & Richardson).
Mr. Taylor reported that the Committee had elected Mr. Alexander
•Chewett, Bencher, and Mr. Richard C. Robison, Vice- Bencher.
Ordered, That the Report be received and Messieurs Chewett and
Ilobisou respectively elected Bencher and Vice-Bencher.

THE ADVOCATES SOCIETY. 45 I
Mr, Baldwin, seconded by Mr, Robison, moves for leave to bring in a
Rule to add ordinances to the Constitutions of St, Michael,
Several notices of motions on internal economy made,
Tuesday, 30th January,
Mr, Baldwin, seconded by Mr. Notman, moves that Messieurs Henry
Baldwin and Campbell be a Committee to wait on Mr. Bencher and
request a copy of his address from the Bench. Committee report address
procured, and that the Committee was directed to submit the same to the
Society, Address,
(tEntlemen, — Mr, Dawes iu his address to the Students of the Law
makes the following observations: " Ot all the liberal Prof essions there
is not any so difiicult to study as that of the Law, Those young gentle
men who are intended for it, after they have quitted an University or
Academy, are either impeded in their researches for want of a proper
instructor or they are affrighted from them by the glowing appearance of
a black-lettered folio. Resolution and industry may have overcome many
disadvantages, and time with perseverance may have produced good
lawyers, but the greater number of Students feel their weakness and
forbear a profession in which with the assistance of a tutor they might
have shone with lustre and gained honor and emolument. Many men
who have travelled the wilds of law without a guide to direct them, have
been called to the Bar in the hope ot business, and there experienced that
serious truth that few of them are chosen. What they have acquired is
perhaps undigested and without system. They have either accustomed
themselves to use less oratory and become speakers of infinite nothing, or
they have turned over the pages of an experienced commentator before
they have read an elementary writer, and lost in the mazes of legal
knowledge, they have raised a barrier against it, which ever after they'
are unable to pass ; while on the contrary, had they trodden the paths
which a preceptor would have marked out for them they might have
come forward and made themselves useful, "
So true is this, that at our own Bar we see young men, whose talents
and acquirements led themselves and their friends to hope for every
thing excellent in them as lawyers, but who for want of the advantages
mentioned by Mr. Dawes, are neither good orators nor sound lawyers, who
have acquired an inveterate hatred of " Case hunting " and a petulant
and illiteral spirit arising from their own ignorance when arguing at the
Bar that would disgrace the disputes of a school boy. They rely on a
continual interruption of the course of the reasoning by quoting a, multi
plicity of cases, few of which have the least resemblance to the points in
question. Analogies, ou which many of the reasonings of lawyers depend,
are thought of but by few, and when neglected justice is not done to the
client's cause. The consequence is, that young lawyers of great talent,
and some old ones too, who are thus ignorant or forgetful of their clients'
interest, are astonished that others, with but half their quickness of oon-
• ception, should succeed in cases apparently difficult, while they them-

452 LIVES OF THE JUDGES.
selves in the most simple ones fail, and are disappointed and disgusted
with the profession.
When young men without any guide plunge into the midst of abstruse
cases without having a competent knowledge of first principles they must
make use of fallacious reasoning and consequently run into error,
A habit of this nature when once gained can scarcely ever be shaken,
off, it grows upon them, they imagine it the true method of conducting
business, and seldom or ever succeed :
" These impediments, (says Mr, Dawes) however, are not insuperable.
To defeat them requires an instructor for those Students who want a'
knowledge of the means to the attainment ot ends, and to assist them in
the habit ot arranging their ideas on points of law-, speaking in public,
and making them useful. To this end and presuming that such Students
are not unacquainted with the four books of Sir W, Blackstone, and
giving them credit for a proper share of general reading in history, civil,
political, and ecclesiastical, I recommend them to proceed with syste
matic deliberation on the solution of all questions that may come the
nearest to their comprehension. By seeing how these hinge they will be
better able to argue them and reach in some degree that portion of legal
knowledge they may be so anxious to obtain, while those who study
without that previous intelligence necessary for the discussion of points
either , too abstruse, or for which they are not prepared, will lose their
time and find themselves in the end when the hour ot trial comes, as
unfit for business as if they had never studied at all. "
In the Courts at home mediocrity seldom or never succeeds. There
are so many whose talents, perseverance, and experience have raised
them high in the profession, that there can never be a want of eminent
men to undertake any cause, and in consequence the rest must have no
practice or retire from the Bar in oblivion. The people there have
too much discernment to employ either bad counsel or an indifferent
attorney. Here there is a difference ; no professional man, however mean his abili
ties may be, meets with disregard altogether ; he will have something to •
do even though it should be little, and this will continue to be the case as
long as there are few of the profession in proportion to the population of
the country, and as long as few out ot that few are of superior abilities.
But the certainty you have of being always able to gain a competence
should never allow you to submit to be among the indifferent. You
should aim at a higher mark, your determination should be to arrive at
nothing short of excellence, and the more perfect you become the more
perfect you will wish to be. There are none here but what have talents ;
there are none here whose application may not make them sound
lawyers, good orators, and raise them to the highest acme of their
ambition. Let me, however, caution all those students who have joined you
not to be in too great a hurry to enter into the discussions of the elder
students respecting questions which are to them difficult. Let them not
regret the time passed without trying their unfledged pinions, it is not

THE ADVOCATES SOCIETY. 453
'lost to them, it is not expected that they should blaze on a sudden, nor is
it even supposed they are acquainted with tlie full extent of their own
powers ; they will burst out when they least expect it. Let them for a
while wait with patience till they acquire a sufficient knowledge of the
law and of the practice of the different Courts to enable them to enter
into the more simple questions with confidence. Let them in the mean
time attend those Courts constantly, and observe the manner practised
there of arguing points and other particulars of practice which are all
necessary to give them a general idea of the proceedings in a suit, and of
•points on which many of the questions mooted here turn. By this they
will gain experience, which is the soul of all reasoning with regard to
facts, and this with a little attention and hard study will enable them in
a short time to take their ground here with some hope of success, and
without doubt they will be able in due time to take a side in any question
here or elsewhere. It may be a difficult matter to say what time of pro
bation would be necessary to the student before he makes his attempt ;
the confidence inspired by his own acquirements and perhaps a proneness
to question the assertions of his brother students would best tell him
when to make his debut,
Mr. Dawes says in another place :
' ' Before the alteration of English Terms, in the early part of the reign
-of Charles, the -writers on Law were of great ability and their books were
beneficial to the educated student. Each was his own foundation, and
the number was small. They were read with distinction and the sedulous
enquirer found little or no embarrassment, Scholastically bred he.
freely understood the author he studied. But since the general change
of the Terms with all their appendages, the consequent disuse of real
actions in cases of disputed rights to landed property, and the influx of
¦personal possessions, the fruits of agriculture, manufactures, and com
merce, the Law Library hath continually increased until their language
hath been reduced to the mother tongue and a door opened for students
to pass to the Bar without those solid acquirements found absolutely
necessary to our ancestors. This hath occasioned that inundation of
books which have poured in upon the profession from the Revolution to
the present time. Compilations and breviaries, compendiums and vade-
mecums, abridgments and digests catch the eye of the thirsty student.
These he reads until convinced that he hath sought a phantom, and that
the substance is only tangible in those writers from whom the principles
and spirit of the laws can alone be derived.
Let the well grounded student therefore avoid wandering iu such
seducing books, and look to the law itself. The law of nature, of revela
tion, and of nations should be his first professional study. The Municipal
or Common Law of England, consisting of general or particular customs,
the Canon Law relating to the National Church as a part of the State ;
the Acts of Parliament and the causes and principles of Equity which are
ancillary to the whole for the completion of justice, should be his second
study. Instructed by these he will be prepared for the study of countries
subject to the Laws of England, the rights of persons and things public

454 LIVES OF THE JUDGES.
and private wrongs, with all their respective branches of particulars so as;
to form one entire science of jurisprudence, and apply it when called for-
to the end of practical and distributive justice.
Without this, eloquence will avail but little. It is not a flowing speed
that will make him useful at the Bar, when the brilliancy of words is
obscured by the solidity of law, which with a plain unvarnished tale will
always find a preference.
TuUy said that ' True oratory gained a reputation with the learned, but
with the vulgar for whom it was used, it was in little esteem.' And
Demosthenes himself says : ' Words without deeds are empty and
insignificant, and the more ready we seem to employ them the less credit
they will meet with. '
It is the execution of law business, and not ihere talking in the cause of
it, that will attract employ. The knowledge of the former -will facilitate
the latter. He who can confirm or defeat a title by his legal discernment,
who is acquainted with that heart-string of the law called special plead
ing, or who by the fire of hisi conception can shape the case of his client to
, the spirit and letter of justice so as to affirm or regulate the questions
afloat, will draw business toward him like the steel to the magnet, while
the ungrounded though pleasing speaker will be lost in his own prattle
and do more harm by the freedom of his speech, than good by his judg
ment," It would be absurd in me to comment on this, there is so inuch good
sense, so mucli truth, and so much discernment shewn through the whole,
that it is of itself my best excuse for quoting so largely, and should what
I have already extracted induce you to look at the original I will deem
myself amply rewarded.
To benefit by the instructions to be derived from your books or from
those persons who are to direct your course in the intricate study of the
law, or even to argue here with any hope of success, requires that you
should have your mind free from all boisterous passions, nothing should
disturb you, nothing take your attention from the continued contempla
tion of those great principles on which you are to build your legal structure.
Tranquility is desirable to aid you iu your studies, and to form
any decision of importance it requires a calm unbiassed mind ; when
your judgment is to bear on any intricate point it must be of the utmost
importance, I do not mean that stupid insensibility which weakens the
judgment, but a strict attention to your legal affairs and an absence from
foolish pleasures and other unnecessary pursuits which too frequently
keep the mind in a continual ferment,, and are the destroyers of all
refiection. If you have at heart the respectability of that Bar to which
you expect to be called, if you prefer to rise in the world by practising
there, if you wish that your continued labours in the causes committed
to your charge may be tempered by the amusement and satisfaction of a
cultivated mind arising from the sound reasoning and eloquence of your
contemporaries, and if you wish these contemporaries and their successors
to esteem and admire your judgment and abilities, now is the time to.

THE ADVOCATES SOCIETY. 455
acquire that eloquence, excellence, and discernment which is to enliven
your future prospects ; you may well then be open to every situation in
your country however high, and you may be one day its brightest
ornaments. On the motion of Mr. Baldwin, the Bencher was thanked for thig
address .
The next entry is an account of moneys received and
disbursed during Michaelmas Term, amounting to the
prodigious sum of twelve shillings, five penCe half-penny.
One of the disbursements was :
Cash paid over to Messrs. Phelps and Adams, Commis-nioners of the
Board of Exchequer, to the use of the Treasury.
Ever3'thing seems to have been conducted on the loftiest
principles of Parliamentary or Inns of Court procedure.
It was resolved, " That there remains in the Treasury for
last Term the sum of two shillings and five pence half
penny," Thursday, 20th February, 1823,
The Advocate moves that the name of George S, Jarvis, on the black
side of the roll, be marked called : also, that the names John Low, George
Boswell, James King, Pluto Hawley, and David L, Fairfield be engrossed
on the black side of the roll.
The Prothonotary reports that he did, on the I3th February, 1823, under
the direction of the Benchers, file in his office a book, pursuant to an Act
entitled, ' ' An Ordinance to prevent too hasty a determination to admit
as members of this Society others than students-at-law. "
Mr, Smith gives notice that he will, on 28th February, instant, move
to extend the benefits ot this Society to others as well as students-at-law.
Mr. Baldwin gives notice that he will, on some future day, move for a
Select Committee to take into consideration the expediency and propriety
of admitting othes than students-at-law to seats in the Society.
7th March, 1823.
Mr, Baldwin moved his resolution for extending the benefits of this
institution to others than students-at-law. The resolution was then read
pursuant to the Ordinance,
This question of admitting others than students to the
benefits of the Society seems to have agitated the Society
to its centre. The cause of the whole matter seems
to have been that that clever young man Robert
Baldwin Sullivan, who afterwards became famous as one
of the foremost politicians of the Province, and Judge, was

456 LIVES OF THE JUDGES.
knocking at the door of the Society to be enrolled on its
books. Here is his petition : York, March 21st, 1823.
To THE Learned the Advocate Society :
The Petition of Robert Baldwin Sullivan, of the Town of York,
Gentleman, respectfully shewetli :
That your Petitioner is a Clerk duly articled to William Warren
Bald-win, Esquire, one of the Attorneys of His Majesty's Court of King's
Bench, in and for this Province : that your Petitioner, from unavoidable
circumstances, has been prevented from making application to the Law
.Society for admission on their books as a Student-at-law ; but that your
Petitioner, so soon as he can render himself capable of passing the usual
examination before the Benchers of that Society, intends to make such
application ; and that your Petitioner, in the mean time, is desirous of
becoming a member of your Society. Your Petitioner therefore prays :
that your learned Society will take into consideration the peculiar circum
stances in which he is placed, and if consonant to the spirit of your
Constitution, and consistent with the independence of your learned
Society, that you will take such measures as may be necessary to admit
your Petitioner to a sent in your Society. And your Petitioner will ever
pray, Mr Baldwin and Mr Robinson were supporters of
this petition, while Mr Richardson, on 29th March, 1823,
moved that the Select Committee appointed to take into
consideration the expediency of admitting other than
Students of this Society be dissolved, and that the Society
do now resolve itself into a Committee of the whole for
that purpose. Which was lost ; and the yeas and nays
being called, were as follows :
Yeas. Nays.
Mr, Richardson. Messrs. Robinson.
Baldwin.
Radenhurst. Givins,Notman, Ridout,Henry Baldwin.
, From all of which it would appear that Master Sullivan
was a very popular young man.
William Warren Baldwin sent in a certificate that Mr
Sullivan was articled to him on i8th March, 1823, and

THE ADVOCATES SOCIETY. 457
that in due time he intended to apply to the Law Society
for admission. The Society required evidence to be given
in proof of the facts stated in the petition. There were
several motions and counter-motions made, amendments
and amendments on amendments, finally the question on
Mr Baldwin's motion, that Mr Sullivan be admitted
to the Society was put, the yeas and nays taken, and Mr
Sullivan admitted by a vote on which he had a majority
of one in a full house of nine members, Mr Sullivan's
case caused more commotion, underwent more discussions
and seems to have exercised more voting power than any
question that ever came before the Society. The question
crops up meeting after meeting till finally the petitioner
was safely lodged in the Society to stay.
There is a quaint entry in the minutes of the 8th April,
1823, It is this :
The Bencher informs the Society that Mr. Robert Baldwin has resigned
the keys of the Treasury, A. Chewett, Benc}ier.
Here is another under the same date :
Mr. Advocate Richardson brought down a message from the Bencher,
which having read in his place he delivered at the table, and it was read
as follows :
The Bencher informs the Society that Mr. John Fenuings Taylor has
resigned the Prothonotaryship, A. Chewett, Bencher.
From the minutes of April 15th, 1823, it appears that
this Society was instituted about 1821, and had gradually
increased until in 1823, it was composed of students
residing in most parts of the Province. That in the
infancy of this Institution points of law and such other
general questions as were proposed to it by its members
were argued or discussed indiscriminately. That in its
present state, (1823), it is divided into two branches, one
of which under the presidency of the Bencher, argues
points of law, costs, demurrer, &c,, the other under the
Vice-Bencher, discusses nothing but general themes, each
of which has its respective laws for the governance thereof
58-L, J.

458 LIVES OF THE JUDGES.
The Society was a very useful one in its day, a fit fore
runner of the Osgoode Legal and Literary Society, which
is of so great use in developing the abilities of its
members, and improving their argumentative and oratori
cal power The Advocates Society has gone to its rest.
The Osgoode Legal and Literary Society has in full
measure filled its place.
Osgoode Hall, for the education of students, has exam
inations and examiners. No doubt the students are well
drilled by these means afforded them of getting a sound
education in the law. It is to be regretted that there is
no Law School as there once was, in the time of the
Treasurership of the late Treasurer the Honorable John
Hillyard Cameron, who took great interest in its forma
tion and possible continuance. The late Chief Justice
Moss was always an advocate of this School, and the
present Treasurer, the Honorable Edward Blake, gave it
countenance and support. It, like the Advocates Society,
has passed away. A writer, a member of the Bar, in
1880, published in The Canadian Monthly, reasons which
occurred to him as ground for its re-establishment. I
quote his contribution to the Magazine, as it contains
many matters worthy of consideration. He says :
The enlightened Province of Ontario, iu the study of the law is at a
standstill. Look at the neighbouring Rep-ablio, the decisions of whose
Courts are beginning to have weight in our own ; whose schools, and
none more than those of law, are sending forth men who guide the
councils of half a world, who are able to contend in diplomacy with the
sages ot Europe ; whose suggestions are no longer lightlj" considered in
the social and political countries of Christendom. It is a common faihng
among Englishmen, a failing reproduced in Canadians, to laugh at the
American Republic and her institutions — while young — she has now
reached her majority, though at an early age her efforts were no doubt
feeble and, like those of the school-boy, did not compare favorably with
those ot the graduate. But we need only turn our attention to the Law
School of Columbia College, in New York City, and the departments of
Law in the Universities of Harvard, Yale, and Michigan, to find institu
tions worthy ot our consideration, and challenging our imitation, if we
are only wise.
In Albany School is such an institution as could be established hy the
Law Society of Ontario, which should have, to quote from the Curriculum

THE ADVOCATES SOCIETY. 459-
of that School, "a higiier aim than simply teaching young men the law."
It should use its best endeavors to teach those who are intending to enter
the profession to be lawyers. This is an arduous and difficult task. It
is training the mind to a right use of its own faculties. It is giving it a
power over its own resources, and enabling it fnlly to avail itself of its
own stores of knowledge.
This is to be accomplished in a variety of ways, — principally by accus
toming the young man to do that as a student which will be required of
him as a lawyer. We are fast approaching either the confederation of the
British Empire, or the independence of the Dominion of Canada, We
are either to form part of a vast empire, which will be bound together by
laws as yet unformulated, or we are to become a Dominion, and one of
the xpowers of tlie earth, recognized as an independent, self-governing
body, and amenable to the laws between nation and nation ; and yet
notice the total want of instruction in international law ; notice the want
of instruction in the science and the art of law iu all our institutions.
Our Legislative Halls resound with the labors of law makers.
Ignorantia legis non excusat is echoed by Judge after Judge, and yet
there is no centre of legal thought.
To quote again from the Albany Law School circular :
The student of medicine and surgery can resort to schools in which he
can be thoroughly instructed in all the principle branches of his profes
sion ; while the student of law enjoys few opportunities of acquiring
more than he is enabled to obtain by reading in a lawyer's office.
Who is to blame for this want, which will soon become an urgent
necessity ? Who is to blame for the total want of any instruction in the
subjects which lead to the degree of Barri,ster-at-La-Ar ?
By turning to the Canada Law Journal of March, 1878, we find as
follows :
The consideration of the report ot the Committee on the Law School
was taken up.
Moved, Tbat the Law School be abolished and cease, from and after
the last day of Easter Term next.
Moved, in amendment, That the further consideration of the report of
the Committee on the Law School be postponed until the first meeting of
Convocation in Hilary Term next, and that it be referred to the said
Committee, and the Commitee on Legal Education, in the meantime, to
confer with the authorities of the University of Toronto, with a view to
the affiliation of the Law School with that University, and to consider
such amendments in the system of legal education as may appear to be
desirable ; the said Committee to report to Convocation at the same
meeting — Lost.
The original motion was then carried.
The writer in The Canadian Monthly, to which I have
referred, concluding his contribution to the magazine said:
Notice the wording of the amendment, ' ' to confer with the authorities
of the University of Toronto with a view to affiliation of the Law School

.460 LIVES OF THE JUDGES.
with that University." There can be but little doubt that the authorities
of Toronto University would have raised no serious objection to aflfiliation.
They might have been so induced as to have taken into consideration a
partial alteration ot their course to the degree of LL,B,, so that, on pro
ceeding to the degree of Barrister-at-Law, by a little extra exertion, the
degree of LL,B, could have been obtained. The committee also were
" to consider such amendments in the system of legal education as might
appear desirable. "
The Law Society of Ontario is a wealthy institution. At a meeting of
the Benchers, in February last, the financial report for the year 1878, as
adopted, shews tliat the Society had : invested in Dominion 5 per cent,
stock, $50,000 ; in the Government Savings Bank at 4 per cent,, |5,800 ;
besides a large balance, bearing 4 per cent, , in the Bank of Toronto, and
recommends " that the further sum of $10,000 be invested in Dominion
stock, so as to increase the permanent reserve of the Society to $60,000, '
The receipts for that year shew the notice tees as , amounting to |687 ;
students' admission fees, $8,940 ; Attorneys' examination fees, $4,350 ;
call fees, $6,3,S0 — making the liaudsome total of $20,307, which together
with the other receipts, make up the immense sum of $42,504. The
expenditure for that year was $36,233. The surplus on the whole year's
operation was $6,361. Thus, at a glance, it may be seen that the
students' fees lack only $990 of being the half of the total receipts for the
year. Have any of those contributing to that magnificent sum received
any return from the Society in the way of instruction ?
Each student-at-law pays into the coffers of the Law Society, at the
very least, $225 in his course ; and what return does he receive 1 It will
be answered, he is to be permitted to practise in the Courts of the
Province. Is it forgotten that he will have to pay $17 a year for that
privilege ? Is it, also, forgotten that he will be taxed for the support of
those Courts ?
Let the students who are junior members, and who are contributing to
the standing of this v/ealthy Society, demand, in tones not to be mis
understood, a method of instruction founded on correct principles, and
with the design of instructing them in the art as well as the science of the
law ; of fitting them to enter at once upon the successful practice of
the profession ; a course of instruction which will qualify them to take a
position in the councils of their country, and enable them to contend not
unworthily at the diplomatic board with their rivals.
Happily, as I write these last pages this reproach is in
a fair way of being removed, or at least remedied, by the
Law Society. An arrangement is being made by the
University of Toronto to establish a Law Chair and the
Law Society is, none too early, about to admit graduates
o the degree to be granted by that University, under
suitable regulations, to the degree of Barrister-at-Law,

THE ADVOCATES SOCIETY, 4^1
The Law Society, while it has not founded the Law
School, has lent willing aid to the scheme put forward by
the University, and we can look forward to greater facili
ties being given to students, who have been too long
deprived of that means of sound education of which they
have been so unfortunately deprived in the past.

XXXIV,
Conclusion — Reminiscences
'^^jft'iN actor who has finished his play leaves the
''^i'^lK stage, but with a lingering look at the foot
lights. This is my case in arriving at what
is intended to be the last chapter in the
Lives of the Judges.
I have written of old Judges, old Barristers, old
Benchers and Judges of the near and distant past. I have
referred to some cases, too, cases in which I was either
concerned myself or can tell something about. I have
not in the Lives disfigured the narration with any of
those little incidents 1 have known to occur that bear
evidence to the wit of the Judges, counsel, or witnesses,
which often comes out in Courts of Justice. I did not
think it right to disturb the dignity of the Court with
these matters, not necessary to the decision of the cause.
In this chapter I am off my dignity, and will recall to
mind, and give to the reader something in the nature of
dessert at a banquet, or after-piece to a play.
I remember being in a case some years ago at Wood
stock, in which I was junior counsel, and the present
Chief Justice Hagarty was the counsel on the opposite
side. The case was Kerby vs. Finkle, and was an
action, if I remember right, of slander or libel. The
incident I intend to relate, which occurred in this case,
will shew that our old Barristers had wit as well as
wisdom in their day. My senior counsel, a well known

CONCLUSION. 463
Barrister of his day a.nd a Queen's Counsel, had very red
hair and a partially bald head. In addresising the jury,
he took occasion to say that the defendant's case (Mr
Hagarty was counsel for the defendant) was so weak that
the defendant had found it necessary for strengthening it
to import into the County of Oxford most eminent
Counsel — the leader of the Bar ; in fact, the flower of the
profession ! I thought this very good ; but when Mr
Hagarty stood up to address the jury for the defence, he,
in a quiet way, commenced by disavowing all the compli
ments paid him by the opposing counsel in his address,
then, gently placing his hands just on the head of my
senior counsel, who was sitting near him and in front o^
the jury, as if warming his hands, he said: "I protest,
gentlemen of the jury : I do not claim to be the 'flower of
the profession,' but I do say that beneath my outspread
hands there sits the Sun-flower of the profession," This
was too much, I felt that sally of wit of Mr Hagarty had
hopelessly destroyed our hope of success. And so it did !
The jury were carried away by the joke, and speedily
returned a verdict for the defendant. It is not too much
to say that at the Bar Mr, Hagarty was the wittiest
counsel of his day. It is hard for him to restrain it on
the Bench : he has many a temptation to give it range,
but official dignity forbids.
It is pleasant at times to recall conversations with tho,se
of the old Bar ; especially those who, in the early hi.story
of the Province, had a circuit practice.
The late Henry John Boulton was one of that class.
It is he whose name we find as being consulted by the
Advocates Society about the propriety of admitting
others than students as members, Mr Boulton was, in
his younger days, frequently Crown Officer, and used to
go the circuit on horse back, with the regulation saddle
"bags. This seems to have been the mode in which not
only lawyers, but preachers, made their circuits in the
•early days of the Province,
Mr Boulton, on one occasion, related to me an incident

464 LIVES OF THE JUDGES.
which occurred to him which affected me, as it must have
affected him at the time, with amuserpent. Going to
London on circuit business duty many years ago, on
horse back, he met a man on the roadway three miles
from London. The man touched his hat to Mr Boulton,
and said to him: "Be you the King's Attorney?" — "Yes,
I am," said Mr Boulton : " What do you want with me .'"
Well !" said the man, " I am in jail for horse stealing, and
I want to be tried." How the man came to be in jai) for
horse stealing, and he three miles from the jail, I leave
the reader to guess. Mr Boulton used to tell the story
with considerable gusto. It impressed itself on my
recollection. Sir John Robinson, on an occasion when I was travel
ling with him going from Cobourg to Toronto, related
how once when a young man, before the War of 181 2,
he was sent with despatches from Kingston to Cornwall.
When he got to Brockville he was hungry, and in need of
refreshment. The mistress of the hotel at Brockville
where he stopped stated to her guest that he came to her
house unexpectedly ; she just then had no fresh meat in
the larder However, an hour after, the table was spread,
and fresh lamb set before Sir John. At this he expressed
his surprise, and said to her : " I thought you said you
had no fresh meat, Mrs.  ." "And so I did," she said ;
" but since you came to the house I have had a lamb
killed, and I am glad to set it before you. I would be
sorry if you had to leave my house without fresh meat."
It took the good hostess but one hour to receive her
guest, have a sheep killed, and give him a good dinner off
young lamb. Mr William Henderson, of the Hartford
Insurance Company, who was in the carriage with us
travelling from Cobourg to Toronto with the Chief Justice
and myself, have often reminded each other of this story
of Sir John Robinson's, citing it as an instance of the
rough and ready life of the early settlers.
Speaking of Sir John, I remember an incident con
nected with a case he was trying at Cobourg some years

CONCLUSION. 465
ago, which afforded much amusement to the Bar and to
the audience, but sorely tried the patience of the Chief
Justice. Upwards of thirty years ago, in a Crown
case at the Court held at the Cobourg Court House,
then on the hill outside the Town of Cobourg, one
Weller had been subpoenaed as a witness for the
Crown, The Weller to whom I refer was a fisherman of
the Carrying Place, at the head of the Bay of Quinte. It
was the custom in those days, when a person trespassed
on the suppo.sed rights of the fishermen, to summarily
punish the culprit by making him run the gauntlet, as it
was called ; that is, a double line of fishermen was formed,
the offender placed at the head, and given a chance to run
between the lines to the opposite extremity, if he could,
without receiving a sound bastinadoing from the fisher
men, each of whom was armed with his oar or other
weapon, with which to belabor the gauntlet runner. The
prosecutor in the Crown case had been served in some
such way, and the prisoner put on his trial for the offence.
It was deemed necessary to make Mr, Weller a Crown
witness, though it was strongly suspected that he was
himself implicated. Mr, Weller was of the true cut of a
Carrying Place fisherman : he was in fisherman's dress,
long, black, unkempt hair flowing over his shoulders and
parted in the middle. Before the trial came on the
prisoner's friends had learned that Mr. Weller was to be
a Crown witness, and they deemed it necessary in the
interests of the prisoner that he should be treated to-
something stronger than raspberry vinegar before taking
the stand, and treated him accordingly till his brain
became so excited that he would interlard everything he
had to say with protestations, strange oaths, and modern
instances. The case came on, the Court House full, the
Chief Justice, Sir John Robinson, presiding. The witness,
Weller, came to the stand, which was an elevated one just to
the right of the presiding Judge. Then this scene occurred :
Crown Counsel (to witness) — What is your occupation, witness ?
59— L. J-

466 LIVES OF THE JUDGES.
Weller (witness) — Well, when I am at home I am a fisherman down at
the Carrying Place.
Crown Counsel — Relate what occurred there on the day in question
between the prisoner and the prosecutor.
Witness — A good deal occurred ; the prosecutor was there, I was there
and I guess a good deal more was there.
Crown Counsel — State what happened.
Witness (with au oath — Can't you wait (hic-cup) ? and I'll tell all
about it —
Chief Justice — Witness, remember you are in a Court of justice, and
you are not to swear.
Witness— Well, go on.
Crown Counsel — State now what occurred.
Witness— Oh, what occurred. Well (a large oath) you know —
Chief Justice — I have told you before you were not to swear, I am
afraid you have been drinking, witness, I advise you to he cautious, or
you will get into trouble, I will commit you if you swear again.
Witness —Judge, you can fine, but you can't commit —
Chief Justice — Be careful, witness. The ends of justice require that
what you know of the matter should be given in evidence, but if you
swear again the Court will certainly commit you.
Crown Counsel — Now witness be calm. I just want you to relate
what took place.
Witness — Well, the Prisoner, that is we, not the prisoner, made the
prosecutor run the gauntlet, that we did— yes by —(a very large oath),
we made him run the gauntlet, we did by — (another great oath).
At this stage the Chief Justice could not endure it any
longer, and so ordered the Sheriff to commit witness
Weller to the cells for twenty-four hours for contempt of
Court, whereupon Mr, Weller, looking down upon the
audience from his elevated position, exclaimed in a loud
audible voice to the whole Court. " Well, ha'nt I brought
my fish to a pretty market,"
The Chief Justice felt that the witness had been
tampered with, and for a long time patiently endured his
insolence, till at last the propriety of the law absolutely
required that he should send Mr Weller to the cells, and
so the witness " stepped down and out," .Sic exit, Mr
Weller It is not often that witnesses have a verdict rendered
against them by the jury. It is generally a verdict for
plaintiff or defendant, but in a case in which I was counsel
on one occasion at Berlin, in the County of Waterloo,

CONCLUSION. 467
tried before Judge Burns, several young men were called
who very much defamed the daughter of the plaintiff, who
was a witness for her father, stating that they personally
knew of conduct of hers, which if true was as disgraceful
to the young men, as to the young girl. In my address
to the jury in reply, I referred in pointed terms to the
disgraceful evidence given by the young men witnesses,
and said it ought not to be believed, but if true the young
men should be made to pay damages as well as the defen
dant. I did not of course mean that in that case then
being tried damages should be awarded against the
witnesses. The jury, however, mostly Dutchmen of the
county, retired to the jury room, and in a short time
returned and handed up to the Judge a piece of paper
on which was entered their verdict, which was, " Verdict
for the plaintiff $100 damages against the defendant, and
the witnesses to pay $25 apiece," This was truly a Dutch
verdict. As, however, the Judge who smiled when he read
the paper, could not receive such a verdict, he ordered the
jury to withdraw, and I was content to have a verdict
for the $100 against the defendant, excusing the witnesses
for that occasion.
Another incident occurred during my professional
career which struck me as very extraordinary, and to which
a parallel is not likely to occur again. It was in the days
when John Doe had not yet departed hisjegal existence. It
happened that at the Norfolk Assizes a case came on of
Doe Walker vs. Walker. I was counsel for one of the
parties. The case caused a good deal of interest owing to
the fact that it was a contest about property. Judge
Draper was the Judge of Assize, and took a great deal of
judicial interest in its determination. It happened after a
prolonged trial and an admirable charge from the Judge,
that the jury was unable to agree, and the time for
adjourning the Court arriving, the Judge adjourned the
Court to his rooms at the Norfolk House in Simcoe, at nine
o'clock in the evening, when he would receive the verdict
of the jury, if they had then agreed.

468 LIVES OF THE JUDGES.
At the appointed time the jury filed into the hotel
foUgwed by my client, the plaintiff or defendant in the
suit, I don't remember which. Suffice it to say, that my
client won his suit. The jury marching to the Judge's
room declared their verdict. My client was so much
pleased, that forgetting the respect due to the Court, and
I believe honestly thinking that the verdict was due to
the Judge's charge, the verdict being recorded, thought he
would shew his appreciation by an act of Canadian
hospitality. So as the jury were retiring after rendering
their verdict, he walked forward approaching the Judge
and beckoned to him to come forward. The Judge said,
" Who are you sir, what do you want ?" The suitor
meeting the Judge said, " Judge, what will you have to
drink ?" The Judge was thunderstruck, and said to the
suitor, " How dare you, sir, make such a proposition. You
had better leave this as quickly as possible." My poor
client retreated accordingly, thoroughly convinced that
the Canadian law, although inclined to justice, was not yet
satisfactorily liberalised. I very much incline to think
that if a matter of this kind were to occur at the present
day the offender would be committed for contempt.
I have often been upset in my time, but I think never
more so than on one occasion travelling on circuit in a
sleigh hired by Chief Justice Robinson to take him from
Belleville to Cobourg on his circuit. The Chief Justice
was always very considerate, and invited me, who had
held some briefs at the Belleville Assizes, to share his
sleigh. When within about three miles of Cobourg just
before daylight, we were suddenly surprised to find ourselves
at a standstill. Enquiring the cause we found that our-
driver had gone to sleep, the horses had in some way got
detached from the sleigh, and had left us and the sleigh
in a ditch at the side of the road. I never can forget this
sight There was the Chief Justice in a ditch, I at once
recognized my unpleasant duty, to walk into Cobourg for
assistance, I did walk into Cobourg, but fortunately the
Chief Justice was rescued by the driver, who when awake

CONCLUSION. 469
was equal to the occasion in procuring assistance to carry
the Court to the next Assize Town of Cobourg.
I dare say most of the Bar have had the same experi
ence I have had in regard to witnesses. Barristers do not
have it all their own way when examining witnesses :
they often meet their match, and sometimes more than
their match. In a case at the Hamilton Assizes, many
years ago I was counsel in a murder trial. A young
woman was brought from the cells of the jail, where she
had been incarcerated for some iiinor offence, to give
evidence. She testified that she knew a man in some
way mixed up with the affair, and as evidence of identity
described him as a tall man, and otherwise described his
dress and features. I confess to having entered on a
severe cross-examination of this witness, thinking to con
found her testimony, and at last I said to her, "Now, witness,
you say the man was a tall man, now how tall was he ?''
Looking down from the witness box on myself, who have
no claim to be called a tall man, she answered, " Well,
sir, to tell you the truth the man was really a tall man,
about your size!' I thought the repartee so good, that
short as I was, I believe I lost something of height, and
the Court something of its dignity !
Judicial humour is so common that instances of it are
heard every day, but never more frequently than when
Judge Sullivan was in the Common Pleas. I was told
once of a witticism of his, partially at my own expense.
Doctor Connor and I were arguing before the Court He
was prematurely gray, with an abundance of rather long
hair, which was rather white than gray, while I at the time
had black hair and whiskers, and was rather spare of person.
The Judge meditatively contemplated the counsel, and at
last asked his brother Judges if they were not strangely
reminded of Sir Walter Scott's novels. With surprise the
brothers asked which novels, — " Old Mortality '' and " The
Black Dwarf," said the witty Judge, when his brothers had
to admit that the point was well taken.
Robert A. Harrison was not often the cause of merri-

470 LIVES OF THE JUDGES.
ment in others, but one day the Court got the best of him..
He had on a previous day argued in support of a certain
point of law, and on this day was dangerously near .sup
porting the other side of the proposition. Chief Justice
Richards asked him if he had forgotten his previous
contention. Mr Harrison tried to get away from the
question, but the Chief Ju.stice, firmly holding him the to
point, said with crushing plainness: "Mr Harrison — •There
is a country saying that ' it is hard to chew meal, and
whistle at the same time.' "
I think I will not give any more of my personal remin
iscences lest the reader may subject me to the criticism
of importing into a work of this character something
foreign to the principal subject, and relating to myself
If, during the progress of the work, I have appeared too
frequently on the scene, it has only been because my long
experience at the Bar has given me so many opportunities
of being an actor in the professional proceedings of the
past, that I could not bring the suit to a termination
without calling up many witnesses, myself among the
number

APPENDIX.

Letters of John O'Connor, Esq,, M.P , on Fenianism.

ENGLAND'S DUTY.
To His Excellency, the Right Honorable Sir John Young, Bart. , P. C,
G. C. B., G. C. M. G,, Governor General of Canada, ct-c, d;c., die.
YoUK Excellency, — I take the liberty of addressing you through the
public press, because although the subject which I desire to bring under
your immediate notice is one of vital importance to the public and the
Government ot this country, and although I am a Member of Parliament,
3'et I have no constitutional right to tender to Your Excellency privately
any advice or suggestion relative to the affairs of this country.
Another attempt, as senseless and futile as it was wicked, has been
made to disturb the peace of the country, for the avowed purpose of sub-
^'erting its Government and establishing in lieu thereof something called
an ' ' Irish Republic. '' This last attempt was again weak as usual, so
¦yi-eak, so evanescent, as to have the appearance of a feint rather than of
an intended invasion. But the consequences to this country are, never
theless, serious. The extreme difficulty, or rather the impossibility of
ascertaining in advance the precise magnitude of the threatened invasion,
coupled with the rumors invariably set afloat, produces a vague appre
hension that the preparations and means of the invaders are commen
surate with the end proposed to be effected and the dread of being
over-run by marauding bands, who, being subject to no law, no recog
nized authority, are free from the restraints of all civilized codes, pro
duces panic. I mean not a panic of cowardice, but that which magnifies
the danger, and causes greater and more costly preparations than turn
out to have been absolutely necessary.
The choicest of the male population are withdrawn from their ordinary
avocations ; business is neglected, disjointed, and partly paralyzed ; and
capital which would otherwise naturally flow into, is averted from the

472 LIVES of the JUDGES.
•country. Great expense is also necessarily incurred ; and worse than all
else, unjust suspicion and consequent distrust of a large and important
class of the people of Canada — the Irish Catholics — are entertained, and
ill-will towards them is engendered.
Yet I verily believe, indeed I am certain, that, taken as a body, no
in this country is more industrious and contented, nor is any more
oyally attached to the Constitution, the Government, and the Institutions
•of Canada, than are the Irish Catholics.
For the present, however, I pass this over, and proceed to the object
which I have mainly in view. The results to which I have referred have
recurred frequently during the six years past. In fact we have been at
no time during the period altogether free of the apprehension of danger
from the same source.
When is it to end ? Shall we continue to be vexed in the same way
¦during an unlimited period ? Surely it is not to be tolerated, if a prac
tical remedy may be evoked. I think there must be a remedy for the evil.
I am convinced there is.
What strikes one as the most extraordinary feature of Fenianism iu
the United States is, that the Fenians are recognized citizens of that
country, with which our relations, both national and social, are friendly.
They make no secret of their hostile designs on Canada, They hold
public meetings, great and small, and use the public press of that country
to advocate their designs and propagate their doctrine in the presence
and hearing and within the knowledge of the Government of the United
States, They openly avow and boastingly proclaim their purpose to
levy unprovoked war against the people of Canada, under colour of the
sham pretence of giving liberty to Ireland — a pretence so intensely ab
surd as to excite no other feeling than one of absolute contempt,
Alas, poor Ireland ! Knaves, speculating knaves, are but desecrating
thy name to enable them to prey upon the feelings of the warm-hearted,
patriotic, and generous sons and daughters^ and to-filch from them the
proceeds of their hard labour, their honest earnings. But the real pur
pose, the secret purpose underlying the pretences of the Fenian ring
leaders is not what I propose to consider.
Be their real design what it may, they arc permitted in their course,
without any attempt at secresy, to organize bands of men, to perform
military evolutions, to acquire arms, equipments, military stores, and to
use the public means of conveyance for transporting them from place to
place in the United States.
They adopt and use military titles corresponding with those of the
army of the United States, perform all the functions, and assume the
attributes of a regular constituted military power. In fact, they have
been, and they are an "imperium in imperio," constituted and organized
ostensibly for the invasion of Canada.
If all this were permitted in relation to Great Britain, and with a view
to the overthrow of British power in Ireland, it could be understood, even
though it could not be justified by the law of nations. But in relation to
Canada the case is wholly different, It is simply a crime which nothing

APPENDIX. 473
can excuse or extenuate. History presents uo case of like political
turpitude. It stsmds alone — is in the strictest sense " sui generis "—and
for ob-vious reasons.
Canada, or the people of Canada, 'ai-e in no way responsible for mis-
government, past or present, or for oppression, real or imaginary, in
Ireland. On the contrary, Canada is the home— the free and happy
home— of many, aye, of thousands, who found it necessai-y.to leave Ireland
under circuinstauces tryiugly adverse. Furthermore, the people of Canada,
of every national origin, class, creed, and colour, ai-e content with their
lot, satisfied with and attached to the coustitutiou, which secures to them
the largest measure of rational liberty. They boast with reasonable pride
of being blessed vidtli a system of government more truly free than any
other under the sun. They desire no change but such as may be effected
from time to time, as circumstances require, by constitutional means.
They neither desire nor will accept any impertinent interference of people
who are not of them, and who are not subject to the same allegiance as
tliey themselves are.
American Fenianism, therefore, iu its designs or pretended designs on
Canada, stands without that colour ot justification which is claimed for,
and may iu some instances be accorded to those who aid or attempt to
aid a people, or a large portion thereof, who complain of being oppressed
aud are stvn^liug or desirous of struggling for liberty. It lacks im
measurably that justification which is claimed by the savage Indians of
the Western prairies when they attack, murder, aud rob the white settlers,
¦whom they, not unnaturally, regard as intruders, and even invadei-s.
The savages can and do urge that they are fighting for their primeval
rights. In short, Fenianism in the United States presents an anomaly
wliich is simply Mdeons.
Attihi, self-styled " the scourge of God," with his barbaric hordes de
vastated Lombardy. But he did it -without false pretences, without
pretending to advance the cause of political liberty. Barbarous he -w-as,
but not a sham. Not so is it -with American Eeniauism, and yet that is
the system which has been nurtured and cherished, until it has gro-wn
and become a recognized institution in the United States — ^recognized
appai-ently by the people as a power in the State, and, if not formally
recognized, at Iqast connived at and tolerated by the Government.
If France, great as her empire is, permitted sucli au abuse towards
Great Britain, would the latter brook it? No, not even for an hour.
Were Great Britain guilty of such a crime tovrairds France instant war
would be the result. When Napoleon the Tliii-d found that a few trait
ors, who had found refuge iu England, were secretly plotting there
against his life and empire, did he remain passive as if they were beyond
his reach ? Quite the reverse. He informed the British Government of
the conspiracy, and demanded, as he had a right to demand, that imme
diate and effective preventive action should be taken ; and it was done.
Thus it should he. So, too, would it be as between any of the powers of
1-hirope, for such is tlie requirements of international law. The breach of
that law would produce war between any of the States of Europe, and
60— L. J.

474 LIVES OF THE JUDGE.S.
in sucii a war the injured party would have the active sympatliy of the
other powers of the civilized world. But immeasurably more aggravated
has been the illicit conduct of the United States with respect to us in
the Fenian matter.
I therefore fully concur in the position assumed in recent leading
articles of Toronto papers. I think the time has come when the British
Government, in justice to Canada and in vindication of its own honour,
should interfere diplomatically, determinedly, and unconditionally,
Canada, the largest, the most loyal, and the most important of Britain's
dependencies, has a right to expect such action by the Government of the
empire ; and should the worse come of that action Canada will not be
backward, nor will the Irish Catholics ot the Dominion be the least for
ward in maintaining the national honour.
I am, however, strongly impressed with the belief that no evil will
follow from a stand so taken by the British Government. I have had,
and still have favourable opportunities of obtaining information on the
subject, and I am convinced that the better, the more enlightened, the
wealthy and most influential ot the American people have no sympathy
with Fenianism, particularly in its designs ou Canada ; on the contrary,
they disapproved of and disliked it. I am convinced that to a large ma
jority of the better class of Americms, and even to a large proportion of
the inferior classes, Fenianism and Fenians are objects ot derision and
contempt, mingled, nevertheless, with apprehensions for the results ot
the system as a political institution in the United States. I have be
sides an irresistible conviction that if called on in the name of the law
of nations, which they themselves invoked not long ago under circum
stances infinitely less aggravated, the Government of the United States
will enfcrce the observance of their neutrality laws, and so apply their
police regnlations as to either extinguish Fenianism, or prevent its being
openly offensive and threatening towards Canada. But such a course,
and by it only, can the L^'uited States evince magnanimity becoming so
great a power. By it alone can they maintain an honorable position
amongst nations as a respecter of the laws of nations.
In the United States, as well as in Canada, Vattel is regarded as au
thority on the laws of nations ; and he states the law on this subject as
follows : —
" The nation or the Sovereign ought not to suffer the citizens to do an
injury to the subjects of another State, much less to offend that State
itself, * * If a Sovereign who might keep his subjects within the
rules of justice, suffers them to injure a foreign nation, either in its body
or in its members, he does no less injury to that nation than if he did it
himself," And he further says : — "Since the Sovereign ought not to suffer his
subjects to molest the subjects of other States, or to do them an injury,
much less to give open and audacious offence to foreign powers, he ought
to compel the transgressor to make reparation for the damage or injur}',
if possible, or to inflict on, him an exemplary punishment ; or finally,

APPENDIX, 475
according to the nature and circumstances ot the case, to deliver him up
to the offended .State, to be there brought to justice,
" This is pretty generally observed with respect to great crimes, which
are equally contrary to the laws aud safety of each and every nation.
Assassins, incendiaries, and robbers are seized everywhere at the desire
of the Sovereign in whose territories the crime was committed, and are
delivered up to justice. The matter is carried still further in States that
are more closely connected by friendship and good neighborhood.
The Sovereign who refuses to cause reparation to be made
for the damatfc done by his subject, or to punish the offender, or finally
to deliver him up, renders himself in some measure an accomplice in the
iojify. and becomes responsible for it." So much for Vattel.
The principles, as enunciated by him, are, I doubt noc, a portion of
the laws of nations ; and founded on the law of nature ; and are in ac
cord with the principles of universal justice.
They are necessary to the existence of sovereignties, of nations, of so.
ciety, to the maintenance and advancement of civilization ; of liberty, and
to the peace and happiness of mankind.
Great Britain and the United States are friendly ; and reasons the
most weighty exist for their remaining so. But there are reasons para
mount why frienship and friendly relations, not consistent with im
perial right, should exist between Canada and the United States, Be
cause, though they are governed by systems different in name, and in
some degree in essence, they have nevertheless more in common to be
cherished than in Christendom,
To maintain such relations is eminently the interest, and should be the
aim of both. I am, therefore, unable to think so meanly of the greatness
and civilization of the people of the United States, and the magnanimity
of their Government, as to suppose that when properly and formally
called upon, the American Government will not, according to the well
understood principles by which the conduct ot enlightened nations to
wards each other is regulated. By prohibiting their own citizens and
others domiciled in their country, and claiming the protection of their
laws, from openly conspiring, plotting, and devising against, and invad
ing the people of Canada, the American Government will do but what is
just, and add lustre to their own position among the nations,
I think, therefore, it is the duty of Your Excellency's Government to
urge upon the Imperial Government the propriety, the necessity of pre
senting our case in proper terms to the American Government, and of
demanding that they do justice in the premises, ^
I had intended to offer some remarks on Fenianism and its character,
its relation to and effects upon the Irish people in Ireland, in the United
States, and in Canada, but I find that this letter is already too long, I
will, however, probably take the liberty of addressing to Your Excellency
another letter or two on this subject, I remain.
Your Excellency's humble servant,
Windsor, Out., May 31, 1870, John O'Connor.

476 LIVES OF THE JUDGES,
LETTER FROM MR, .lOHN O'CONNOR, M.P., ON FENIANISM,
To His Excellency the Rifjht Honorable Sir John Young, Bart., P.C.,
a.C.B., G.C.Sr.G., &c., d-c, cfec.
Your Excellency, — In my letter of the' 31st ult,, I intimated that I
would probably take the liberty of addressing to your Excellency a letter
«r two on the subject of Fenianism,
I am impelled to do so by the belief that it may be ot service, not
only to the particular class to which I belong, but to the Dominion,
Since Fenianism in the United States assumed its position of hostility
towards Canada, the Irish Catholics in every locality have been subjected,
more or less, to the suspicion, vituperation, and contumely of their neigh
bors, Oi this 1 have had personal knowledge in many localities, and re
liable information respecting the country generally. Nor have I myself
been permitted wholly to escape the noxious atmosphere of general sus
picion. Hitherto, I havetreated.suchsuspicions,and the taunts arising from them,
with silent, but indignant contempt ; because in the first place, I knew
them to be unfounded ; and, secondly, I considered that a little enquiry
and consideration, guided by a sense of justice, would shew that those
suspicions were groundless and ungenerous. Latterly, however, I have
arrived at the conclusion that a short review of Fenianism, in the relations
mentioned in my letter already published, may be not only not out of place,
but of some service to the country at the present juncture of affairs ; for 1
conceive that everything which tends to dispel unjust suspicion, and to
unite all classes in patriotic sentiment, will add to our country's strength,
and enable her to grapple more vigorously with adversity.
The existence of the suspicion to which I allude is, I apprehend,
attributable, mainly, if not wholly, to Orangeism. This I say, not in a
spirit of vituperation, but simply as a matter of observation and of
political philosophy. My object is, not to rake up the embers of old strifes,
but to trace the wrong of which I complain to its source, and elucidate
my view of it. I will try to explain my meaning.
Orangeism, in Canada, is a plant from Ireland ; and it possesses and
exhibits on the new soil much of, it not all, the qualities, good and bad,
which distinguished it in the old, Orangemen in Canada, being mostly
from Ireland, possess probably not all, but most of the prejudices which
they had in the old country, relative to Catholicism and Catholics, As
they thought and reasoned there, with respect to Catholics and Catholi
cism, so they are prone to think and reason here. This is quite natural ;
for a change from one place to another does not, even though mighty
waters roll between, change a man's nature, nor does it usually change
his principles. And though his opinions and prejudices may be modified
by the circumstances of his changed position, yet in the main they con
tinue, at least for a long time, unchanged.
The misgovernment in Ireland which oppressed the Catholics, aud
caused them to be discontented and frequently rebellious, made the

APPENDIX. 477-
Orangemen prosperous, contented and loyal ; because the misgovernment
consisted of discrimination in their favor. They were, in short, the
favored and dominant class. The Government and acts of Government
which were most favourable to the Orangemen, were the most oppressive
to the Catholics, Opposition of interest created opposition ot feeling,
from which arose strife and enmity. The Orangemen being in possession
of, and enjoying the favors of Government, supported it, aud being
warmly attached to that which gave them ascendancy, they attributed
the opposition and discontent of the Catholics to a perverse and rebellious
spirit,, engendered in them by their religious principles. Hence the
Orangemen acquired the mental habit of attributing disloyalty to the
Catholics, as a normal condition of the Catholic mind. So, by force of
that habit ot mind, the Orangemen of Canada, aud others in social com
munion with them, have suspected the Irish Catholics of Canada, and
attributed to them sympathy with Fenianism, by reason of its professed
object being the liberation of Ireland from British rule. But this attri
bute is an a priori deduction from false premises. The fallacy consists
of applying a conclusion deducted from premises of a certain character to
premises of an entirely different character. This can, I think, be made
clear and satisfactory..
There are two reasons ot omnipotent force, why the Irish Catholics of
Canada do not sympathise with Fenianism, and espeoiallywith that phase
of it in the United States, which consists of threatening the peace of
Canada, and marring its prosperity — two plain reasons why such a feeling
should not be attributed to them.
The first is, that Fenianism is not a Catholic institution ; nor has it
the sanction or approval of Catholic authorit}'. On the contrary, it is,
in its essential characteristics, simply atheistic ; and more inimical to the
Catholic Church than it is to the British Government. As such, it has
been condemned by the Catholic Church, both generally and specifically.
This fact is unquestionable, that it is a branch of, and founded on the
same principles as those revolutionary organizations known as Illuminati,
Carbonari, &c., which have been so long corrupting the manners and dis
turbing the peace of nations on the continent of Europe ; and that it
draws its inspirations from the same source. It is part and parcel of a
general organization formed for the purpose of producing universal revo
lution, of destroying all legitimate authorit}', and of establishing social
ism, with its brutal licentiousness, which is held up as the grand ideal
of pure liberty.
Therefore, the special organization called Fenianism, as soon as its ex
istence became known and its character understood, was, as its continental
parent and prototype had been, condemned by the Catholic Church,
It was condemned by the Pope at Rome ; denounced by Cardinal Cullen,
the head of the Catholic hierarchy of Ireland ; execrated and con
signed to perdition by Doctor Moriarty, the learned, eloquent, and ener
getic Bishop of Kerry ; and discountenanced by other Catholic Bishops
and the clergy of Ireland, It received like treatment at the hands of
that distinguished Englishman, Doctor Manning, Archbishop of West—

478 LIVES OF THE JUDGES.
minister, who is the head aud ornament of the Catholic Church in Eng- •
land. The Catholic Bishops and clergy in England and Scotland gener
ally, and without exception, that I know of, condemned it. In the
United States it has been discountenanced by the Catholic Bishops and
clergy, and denounced in strong terms by many of them. In Canada it
has been universally discountenanced by the Catholic hierarchy and
clergy, and denounced in language clear and strong by that eminent
Irishman and Catholic prelate, the learned, amiable, and venerable Arch
bishop of Halifax, distinguished not only by his zeal for the interests of
religion, but also for his disinterested and powerful advocacy of Confed
eration, Nor could anytliing surpass the uncompromising determination,
and the energy of language and action with which the esteemed Bishop
Farrel, of Hamilton, sought out, and uprooted, and crushed every germ
of Fenianism iu his diocese from the outset. The venerable Bishop of
Toronto, too, as soon as he became aware of the real character and
designs of the infamous brotherhood, placed his foot on the serpent's
head. Neither has the learned and pious Bishop Walsh, of London, been
backward in exhibiting towards it decided disapproval, disfavor, and dis
like ; while his senior Vicar-General, the venerable and plucky Father
Bruyere, has never flagged in the zeal, vigilance, and determination with
which he has labored to expose its character, and prevent its obtaining
a foothold in the diocese ; and in this his example has been followed
successfully by all the clergy.
Strictly in accord with all this has been the practice of the Church ; so
much so, that no person avowing himself, or known to be a Fenian, has
lieen permitted to partake of her sacraments, or other consolations usually
administered to the faithful.
In Buffalo, one of the hot-beds of Fenianism in the United States, the
I'ite of Christian burial has been denied to Fenians after death ; and the
same has been done elsewhere ; and it would be done everywhere if the
friends of deceased Fenians presumed to require the rite. Such being the
state of the case, it is, I apprehend, too clear to admit ot doubt that no
Catholic, be he Irish or not, who is attached to his Church, and guided
by her teaching, can be a Fenian, or harbor sympathy for Fenianism, after
lie learns and understands its character. By the mere fact of joining that
society, the Catholic incurs the censure of the Church, and ceases to be of
her, until he recants.
I desire not, however, to be understood as denying that Catholics have
become Fenians, Undoubtedly many Irish Catholics in Ireland and the
United States joined the organization, allured thereto by artful appeals
to those feelings of dislike for and hatred of British rule in Ireland, which
centuries of misrule and oppression had engendered in the minds of most
Irish Catholics, But those who were so allured were the unreflecting,
many of them generous and patriotic people, who became an easy prey to
wiles of initiated knaves and demagogues, most of whom made the whole
affair a matter of speculation for profit's sake. Yet these poor dupes,
without knowing it, in most instances without even thinking of it, in the
excitement and tumult of their roused feelings, forfeited that which, under

.-APPENDIX. 479
other fircurastances, would be to them of the highest moment, the sanc
tion and favor of their Chnn-h— of that Church for adhering' to which
their forefathers, if not themselves, had endured all the wrongs and suffer
ings, the memory of which was so adroitly urged to them as an incentive
for jfiining an organization whose principles involve the destruction of that
Church as its ultimate aud chief object. The Catholics of Ireland, in days
gone by, and not long gone, endured the proscriptions ot the penal code
because they would be C-atholics ; because they valued the Church and
their faith above all earthly treasures ; and they adhered to and cherished
both when to do so was to incur privation and death, Ave they likely now
to exchange that Church and its faith for Fenianism — a living branch of
the most subtle and deadly enemy with -n hich Christianity has to cope ?
I think not, except by the ignorant, the unwary, or the malevolent.
Thus it has been in CUuiada, At the outset, when little or nothing wiis
known of the real value ot the thing, emissaries from the United States,
by representing that the sole end and aim of the order was the liberation
of Ireland from British misrule, by reviving the memory of the past
wrongs, and by seductive appeals to the feelings thus excited, did succeed,
but to a very limited extent, with some of the poorer, but industrious and
simple-minded class of Irishmen in Toronto, Montreal, and Quebec city,
and duped them for a while. But even this partial success of those imps
of .Satan was ot short duration. The alarm was sounded by poor McGee,
who ultimately fell a sacrifice to his zeal. He had had peculiar means of
learning the real character cf the organization ; and his eloquent tongue
and poA\'erful pen put the clergy instantly on the alert. The truth became
known, and was proclaimed by the sentinels from the watch towers of the
Church, .and the Irish Catholics who had been allured to partake of the
forbidden fruit spewed it out, and cast it from them. A few calling them
selves Catholics did otherwise, but they were strayed sheep, foolish ones,
who preferreil to stray in the wolf's domain.
The second reason, or tliat, why the Irish Catholics in Canada do not
sympatliize with Fenianism, in its designs on Canada, is as obvious as the
first, Canada is a. free country : there is none more so. Her freedom is real^
it is rational, sound, and stable ; liberty without licentiousness ; restraint
without abuse ; protection without discriminative favor or its attributes.
The constitution is one of wisdom, not empirical, but the product of ex
perience and of practical statesmanship. Its provisions which secure to
us the glorious privilege of self-government, are equable and just. Equal
rights are secured to all men and classes of men indiscriminately. There
is no distinction, no preference. The institutions of the country are in
accord with the spirit and character of the constitution, liberal, sound,
and healthy. Life, personal liberty, and the rights of property are secured
by wholesome laws, impartially administered. Industry and good citizen
ship are fostered. The country's natural resources are various and im
mense ; fields for the exercise of profitable industry are illimitable. The
climate is salnbrious, and the soil productive. Particularly, in no other
country is the Irish Catholic so free, prosperous, and happy, greatly more

4^0 LIVES OF THE JUDGES,
so than he is in the United States, notwithstanding the boasted liberty
and equality ot that country. Why then should it be presumed that Irish
Catholics in Canada, merely because they are Irish Catholics, syinpathi
with American Fenianism in its mad and diabolical design on Canada
The assumption is absurd and unjust. It is unreasonable to presume that
the Irish Catholic is less attached and devoted than any other to that
wliich secures to him and his family the enjoyment ot life and liberty, and
the pursuit of happiness ; the enjoyment ot civil and religious liberty. Is
it reasonable to assume that they would encourage the invasion of their
own country, the desecration of their own hearths, the destruction of their
ow n property, by lawless, iri^esponsible hordes — mere marauders, who are
accountable to uo nation or recognized authority ? Surely it is not reason
able. The Irish C'atholics, like all others who have settled in Caur^da, have
made it their lionie, their country. In it they and their descendants are
to blend M'ith the people and descendants of people of the divers other
national origins therein, and to form in time, and ere loni,', a liomogoneous, .
hardy, liberty-loving, law-abiiling, and happy people, delighting in, and
proud of the title, Canadians,
Chie more letter, and I shall have done for the present. Meantime,
I remain.
Your Excellency's humble servant,
John O'Connor,
Windsor, Out,, June 6th, 1870.

LETTER FROM MR. JOHN O'CONNOR, M.P., ON FENIANISM.
To His Excel/en-cy the Right Honorable Sir John Youm/. Bart., P.C.,
G.C.B., a.C.M.G., A-c, <£•(-., d-c.
^'OUR E.xcKLLENCY,— In the letter which I had last the honor of
addressing to you, I endeavored to show somewhat of the nature of
Fenianism ; the position of the Irish Catholics ot Canada in rel.ation to it ;
and the fundamental and principal reasons ¦^^•hy they could have no
sympathy with or affection for it. And I flatter myself with the hope
that I succeeded in doing so to the satisfaction of candid minds,
I now propose to offer for consideration some remarks on the primary
end, the main object at which, as it is professed, Fenianism aims ; the
absence of reasonable ground for expecting that it can attain that end ;
how and why, as I can conceive, the organizaticm has been so long sus
tained ; what its general conduct has been ; and the general results of
that conduct in respect to the Irish people, but particularly the Catholic
people in Ireland, iu Great Britain, and in Canada.

APPENDIX. 481
The professed primary end and object of Fenianism is to ameliorate
the condition of the Irish people, by wresting Ireland from the grasp of
British power, and establishing there an independent government, re
publican in form.
How probable the attainment of this proposed end is, can be judged of,
only by looking at facts as they exist, and paying due regard to " the
logic ot events," rather should I say to the logic of known circumstances.
Ireland is unquestionably, I think, a necessary part of the British
empire. What I mean is, that without it, the British empire as such,
cannot exist. Wrest Ireland from, and make it permanently independent
of. Great Britain, and you virtually terminate the British empire. Fur
thermore, I say, establish a permanent republic in Ireland, acknowledged
amongst the nations as a free, an independent sovereignty, aud the sub
jugation of Great Britain by it must speedily follow. Because, in the
circumstances and civilization of modern times, they must be politically
connected, else neither can be an independent so^'ereignty. This is, I
believe, an inevitable condition of their situation, relative position, aud
proximity— coupled with the character and tendency of governmental
ideas in our day. Such, I apprehend, was the opinion ot Pitt, when, at
the beginning of this century, he, by the use ot means .anything but
scrupulous, bound Ireland to Great Britain more closely than she had
been, by the extinction cf her Legislature,
Such, I doubt not, is the belief of the British people and Government.
Therefore, when Great Britain is compelled to fight for the maintenance
of her dominion in Ireland, she will fight for her own political existence.
Consequently, when Fenianism undertakes to wrest Ireland from the
grasp of British power, it undertakes the more than Herculean task of
overcoming all the resistance which can be made by the great military
and naval power of Britain, sustained by her vast resources, her immense
wealth, her powerful alliances, and above all, by her millions ot loyal
people, impressed with the belief and animated by the consciousness that
the struggle is not merely for the maintenance ot supremacy in Ireland,
but for the preservation of her own distinctive nationality — tor the ex
istence of British sovereignty. The accomplishment of this by any means
within the power of an organization like Fenianism is, I venture to say,
not within the range of what the human mind can regard as probable, I
may even say, possible.
Empirei as great, iu their day-, as that ot Britain— some probably
L-reater more powerful and more magnificent— have existed before, and
passed away. The Babylonian, the Assyrian, the Macedonian, and the
Roman empires existed in turn, and in turn vanished. The Turkish
empire, once so powerful as to menace and jeopardise the liberties of all
Europe, has dwindled into insignificance. But those mighty changes
from magnificent existence and potency to nonentity or insignificance,
were produced not by the direct agency of human power— not by means
devised by human ingenuity for such results, but by a combination or
succession of causes — human or providential, or partly both — the effect
-whereof the human mind could not forsee,— by means, therefore, which
61 — L,T.

482 LIVES OF THE JUDGES.
the human mind could not devise. The British empire may in like manner
decay, and disappear from the list of nations, leaving only her history
behind ; and then Ireland may become free, may be a republic or a king
dom, and may even obtain supremacy over England and Scotland.
But that such an event may be looked for as a result of the direct
agency of Fenianism, or of anything devised or that may be devised by it,
is, I take the liberty of saying, hardly within the province of possibility,
considering the matter as within the cycle of natural causes.
Behold Ireland as she is, every harbor fortified, every city and impor
tant town garrisoned ; the navy of Britain, still the most powerful on the
ocean, surrounding her, or ready to surround her when required ; all
being equipped in the highest style, furnished -^l-ith the latest improve
ments of steam, of guns, of gunnery, aud of all the appliances of war in
abundance. Last, yet not least, add to all this, that the people ot Ire
land are by no means united on the question of independence ; perhaps
not even a majority of them consider it desirable, even were it attainable.
It is then probable, nay, is it possible, that the notion of wrestling Ire
land from British power by such means as Fenianism can possibly bring
to bear, should have entered into any mind possessed of ordinary intel
ligence ? I doubt that it ever has ; the very supposition is preposterous.
Grant that all the men in Ireland who pant for independence are ready
to fight for it at all hazards, what could they do, without discipline,
without arms, without munitions of war, as against trained hosts, sup
plied with all things needed, seconded by a powerful navy, and sheltered
by the garrisons of the land. To suppose that arms and munitions of
war could be supplied in adequate quantities from America, is frivol
ous. The mere mention ot such a scheme is too wild to be entertained
by any mind not controlled by an imagination the most extravagant.
That such a scheme was ever seriously entertained by men so shrewed
as the Fenian leaders iu the United States, is too much to be believed ;
too much for ordinary credulity, I feel constraiued, therefore, to attri"
biite the phenomena exhibited by Fenianism in the United States, in
Ireland, in England — everywhere — during the past six years, to a cause
other than that which appears on the surfiice, aud to the attainment of
an end other than Ireland's independence.
At the close of the late civil war in the United .States, there existed
in the Northern States a class of politicians who had, during the war
amassed wealth by ways aud practices ill-suited to stand the test of in
vestigation in time of peace. Investigation was, therefore, to be, if
possible, averted. The M-ealth accumulated by those men by their specu
lations and peculations gave them power and influence, particularly as
they had the Government almost wholly in their hands. They adopted
a scheme, profoundly laid, of diverting public attention from the consid
eration of the question of burdensome ' taxation, from enquiry into the
causes thereof, and into abuses generally. Hence was raised the cry
for the oppression, for the absolute extirpation of the people of the ."iub-
dued St.ates, which produced the desired excitement, aud the inevitable
party warfare in consequence thereof.

APPENDIX. 483
But this measure alone was not suflScient, The Democratic party
though not in the ascendant, was still powerful, and with the ample ma
terials furnished it, by the past misdeeds ot its opponents, it might pre
vail in the struggle. Safety to the delinquents could be secured only by
dividing the Democrats. For that purpose other objects of diversion were
required. The times furnished those objects, and they were eagerly seized
on and used.
The people of the Northern States had become somewhat exasperated
during the war, against England, and partially so against Canada, Hence
the mischief-makers resorted to the Alabama claims. So far so good.
But the best stroke of all is yet to be told. The Irish of the Northern
States were then, and perhaps they are yet, an important constituent
element ot the Democratic party. They had to be attracted from that
party, or, failing that, so agitated witMn the party as to make the pursuit
ot a domestic party policy weak, and uncertain, and harmless. For effect
ing this, a fitting instrument ready made to hand was found in Fenianism.
It was then an insignificant institution, of which Mr. John O'Mahony
was the head ; and from which he derived an income greater, no doubt
than he could have obtained from any honest pursuit, which he was
capable ot following. But although insignificant then, it contained two
elements which, worked and directed by skilful operators, would render
it most formidable as an engine of agitation. It had that mysteriousness
which always attaches to secresy, which produce marvellousness, and ex
cites and feeds the imagination ; and it had been constituted professedly
to procure or effect the independence of Ireland and the humiliation of
Great Britain, Than this, no instrument could better suit the purpose
of the knaves who had enriched themselves by despoiling their own
country, while she was drenched aud reeking with the blood of her own
people shed in fratricidal strife. It was adapted to answer a two-fold
purpose ; each useful to the other, and both answering the primary object
of the secret operation. Agitation for the payment ot the Alabama
claims served to embarrass Great Britain, and it stimulated agitation for
Ireland's independence, and vice versa. Each so materially aided and
supported the other that they formed a common cause, having unity of
purpose and consistency of end. The proverbial temperament of the
Irish race, their keen sense of the wrongs which their country had suffered,
and their excitability when the memory of those wrongs is revived,
were known to and understood by the shrewd operators ; the game was
therefore plain and certain.
The wrongs of Ireland were glibly recited, exaggerated, and denounced
on the rostrum, on the stump, in saloons, in the Senate, by demagogues
who cared as little for Ireland and the Irish, and for their wrongs, past
and present, as they did for Arabia and the Arabs. The internal enact- ,
ments of the penal code were inveighed against, as if they were all still
in full force. The atrocities of former days were spoken of, as if they
had just happened, and as if they were daily recurring with increased
violence. The Irish heart was assailed and agitated, and the imagination
tortured by every art and wile which the acuteness of cunning men could

484 LIVES OF THE JUDGES.'
devise. Irishmen, many of themselves being themselves dupes, and
others doubtless initiated to some extent, if not altogether, were employed
as secret emissaries. Some of these worked in the United States, others
in Ireland, aud more in England and Scotland, -n herever bodies of the
Irish people had aggregated. The irreligious character of the institution
was so veiled by hypocrisy as to preserve it for a time from detection, and
secure those who were allured to it from the salutary and counteracting
influence of the Catholic clergy.
It is, therefore, not astonishing that many Irishmen, Catholic and Pro
testant, most of them good, kiudhearted, p.atriotic, sympathetic, and
honest, joined the organization in the United States, and in Ireland aud
England. Rather is it wonderful that the number of the dupes has not
been greater.
But the American politicians — the wire-pullers in all this puppet show,
have had uo desire for a settlement of the Alabama claims : neither did
they desire Irish Independeuce, or intend doing anything to etteot it. As
reasonably might a merchant be expected to desire the destruction of his
stock-in-trade before lie had effected an insurance. Therefore, when
Reverdy Johnson, as United States Ambassador, agreed with the British
Secretary of State upon a fair basis of settlement for the Alabama claims,
tlie treaty was forthwith attacked and repudiated, Johnson, honest,
guileless, and couscieutious man, was not of the initiated ; he belonged
not to the party, and supposed it was his duty to act honestly for the
settlement of a dispute which threatened to involve two great coun
tries in war. The foolish old man ; his conscientiousness ruined him.
So in Ireland, the candidates at the late elections who were favorable
to the Gladstone Government, which had been constructed ou the basis
of settling the Irish difficulties and removing Irish grievances, were opposed
with the iitmost violence by Fenianism.
Hence also came the ridiculous but painful farce of electing poor
O'Donovan (Rossa) for Tipperary, while he was pining in prison, under
going punishment as a treason convict.
Fully in accordance with the purpose which I have intimated, have
been the results of Fenianism, and the movements thereof. It has in no
wise improved the condition of Ireland or of the Irish people ; quite the
reverse. It increased discontent, interfered with industrial avocations,
created heart-burnings and feuds amongst the people, eradicated from the
minds of hundreds the principles of Christianity, and imbued them with
infidelity instead.
In America great things were to be done. From America great succor,
overwhelming aid M^as to go ; so said the emissaries from America, But
when the day of tribulation overtook those w ho had yielded too eagerly
and unwisely to the charms of the serpent, America, alas, did nothing,
great or small ; nor did succor go. The duped had to abide the consequences
ot their own indiscreetness, and of martial law brought upon them by
the heralds of freedom from America. The public mind in England has
been agitated, panic-stricken at times by the secret plottings and mid
night workings of the brotherhood, exciting vague fears and terrible

APPENDIX. 485
apprehensions ; but what benefit has come to the Irish people from
all this turmoil and tumult there or elsewhere? Some have been
hanged, others imprisoned, and hundreds ruined in their circumstances.
In the United States, the Irish people have been tortured by agitation,
the industrious have been fleeced, plundered to fill the coffers of the
institution, and set the principal knaves at fighting over the division of
the spoils, resulting in scandalous crimination and recrimination amongst
themselves. In Canada the Irish people have been injured not only in common with
the people generally, by the constant alarms of threatened raids, but in
especial manner, by the distrust of their fellow-subjects, from being
suspected of having sympathy for Fenianism.
Such have been the fruits produced. By its fruits the huge swindle
must now be judged. But the secret wire-pullers — the politicians of
shoddydom — have gained or nearly gained their end. Time has dried
he festering sores. Mammon may now sit majestically and reign securely
-n the model Repubhc ; for investigation with a view to retributive
justice, is no longer possible. Let us hope, therefore, that we shall hear
no more of Fenian raids in Canada, Probably, too, after the next presi
dential election, the Alabama claims will be settled or dropped. Then
Fenianism having served the purpose of its Yankee keepers, will be
neglected, and numbered with the other ephemerals of the past.
One thing, however, it has effected, for which it will be remembered
with shame on the one hand, and with jeers on the other. It has attached
the stigma of cowardice to Irish character. In this way Pigeon Hill and
Hinchinbrook -will long be remembered. Heretofore the Irish had credit,
at least, for gallantry, undaunted valor — heroism in battle. Without
recurring to a period too remote, mention may be made of Aughrim,
where Irish valor, exhibited in fighting for the cause of a renegade
king, extorted words of admiration from the foreign commander, St.
Ruth. In the armies of France, Irishmen sustained their soldierly
character ; and on the field of Fontenoy, Dillon and his brigade won
fame as imperishable as that of Leonidas and his three hundred deathless
Spartans, In the armies of Spain and of Austria, Irishmen distinguished
themselves. In the armies of England they sustained their warlike
reputation on many a bloody field ; and the ' ' Connaught Rangers, "
dauntless and defiant of death, became proverbial for their deeds
of daring. So in the armies ot the United States, and particularly iu
the recent tremendous struggle between the North and South, Irish valor
held its own, and added new military laurels to Irish fame .
But Pigeon Hill ! ! Hinchinbrook ! ! Alas ! alas ! shades of departed
Irish heroes, in justice to your own memories, in mercy to the honest liv
ing, impart to us the secret ot this inglorious decadence. I have it.
Thanks, spirits of the brave dead, for the inspiration. I will -v^ite it.
They were invading an innocent and peaceable people who had done no
wrong to them or to Ireland, and incurred no penalty. They were acting
without the sanction of authority. They were violating the laws of eternal
justice ; committing an outrage on society. The presence of the country's

486 ( LIVES OF THE JUDGES.
defenders, ready to do battle iu the just cause, forced the truth into the
invader's minds, and vivified it. Conscience, aroused by the sense of
immediate danger, smote them. The sense of injustice crying to Heaven
for vengeance, depressed them. Death stared them in the face ; every
man shrunk within himself from the hazard of meeting an angry God,
outraged by a flagrant breach of his laws. The sword of justice in the
hands of the Canadian volunteers, inflamed with vengeance, rushed upon
them, and paralyzed with terror, they fled like cowards : like cowards
fled men who, before then, had stood with dauntless courage, and
acted with heroic bravery on many a gory field where Grant and Lee
marshalled the opposing armies. Such, however, was the state of
mind and the resulting cowardly conduct which gave opportunity to
the plucky little soldier, Chamberlin, to proudly shout, ' ' give the cow
ards a parting shot, " Another effect has, indeed, resulted from Fenianism
and its threats towards Canada — -an effect more agreeable than any
other for Canadians to contemplate — an effect of priceless value. It
shews that though sunbeams cannot be extracted from cucumbers, good
may ensue to the innocent from the evil machinations and doings of the
¦wicked. Although Canada has been compelled to incur great expense, and her
progress has been seriously interrupted and retarded, yet all is, perhaps,
more than compensated by the spirit of patriotism which has been aroused,
and of self-reliance which has been implanted, resulting in an army of
volunteers, not large, indeed, but well disciplined, and as brave, intelhgent,
and patriotic, as any age or country has yet been able to boast of. In
them Canada has the nucleus of a large and fine army, should her circum
stances ever require it, which event, however, may God in His goodness
long forefend. I remain.
Your Excellency's humble servant,
John O'Connor,
Windsor, Ontario, lOth June, 1870,

THE END,

YALE UNIVERSITY

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