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Judicial Independence in British North America, 1825–67: Constitutional Principles, Colonial Finances, and the Perils of Democracy

Published online by Cambridge University Press:  23 May 2016

Extract

It is well known that “formal” judicial independence—appointment on good behavior rather than at pleasure—was established in Britain with the 1701 Act of Settlement, and, like many other aspects of the English constitution, not exported to the colonies of either the First or the Second Empire. Its absence formed one of the allegations against the crown in the American Declaration of Independence, and the Constitution of the New Republic accordingly included a federal judicial independence provision. British imperial policy in North America after the Revolution regarding judges continued as before, so that formal judicial independence was not established until 1834, and then only in Upper Canada (now Ontario). In the other three principal British North American colonies this was later still. What is now Quebec (Lower Canada) received good behavior appointments in 1843, and Nova Scotia in 1848. In the other colonies that joined the Canadian Confederation in 1867 (New Brunswick) or within a few years afterwards (British Columbia, Manitoba, and Prince Edward Island), good behavior appointments were introduced for the first time only when the colony joined Confederation.

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Copyright © the American Society for Legal History, Inc. 2016 

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References

1. For a useful succinct account of the establishment of the principle and its operation in the eighteenth century, see David Lemmings, “The Independence of the Judiciary in the Eighteenth Century,” in The Life of the Law: Proceedings of the Tenth British Legal History Conference, ed. Peter Birks (London: Hambledon Press, 1993), 125–50.

2. The Declaration of Independence states: “He [George III] has made Judges dependent on his will alone, for the tenure of their offices, and the amount and payment of their salaries.” The judiciary clause is Article III, Section 1. The states were not bound by this good behavior clause, and a variety of regimes emerged after 1789, with many embracing life tenure on good behavior in the first half of the nineteenth century. The best account of the complex history of judicial independence in the United States is Jed Shugerman, The People's Courts: Pursuing Judicial Independence in America (Cambridge, MA: Harvard University Press, 2012).

3. In Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, et al [1997] 3 S.C.R. 3 at para. 83, the then Chief Justice of Canada Antonio Lamer stated that “judicial independence is at root an unwritten constitutional principle,” one “whose origins can be traced to the Act of Settlement of 1701,” and that was not created but “recognized and affirmed” by the provisions for good behavior appointments in the British North America Act of 1867 that created the Dominion of Canada and laid out its constitution.

4. I have briefly discussed the arguments presented here in a lecture originally given at Griffith University and then published with other lectures in that series dealing with “Legal History Turns.” See The Many Meanings of Judicial Independence: Examples from British North America,” Law in Context 33 (2015): 107–23Google Scholar.

5. See John McLaren, Dewigged, Bothered and Bewildered: British Colonial Judges on Trial, 1800–1900 (Toronto: Osgoode Society for Canadian Legal History and University of Toronto Press, 2011), ch. 2.

6. See Selwyn's Memorandum, May 12, 1783, Nova Scotia Archives and Records Management [hereafter NSARM], Colonial Office Series [hereafter CO] 217, Vol. 35, 56–66; Order-in-Council, May 16, 1783, in CO 217, Vol. 25, 196; and Nova Scotia Assembly Journals [hereafter NS Journals], October 8, 1783.

7. Report from the Select Committee on the Civil Government of Canada. British Parliamentary Papers, Cd. No. 569, 1828 [hereafter Canada Committee Report], Minutes of Evidence, June 21, 1828, 228–30.

8. See Alex Castles, An Australian Legal History (Sydney: The Law Book Company, 1982), 131 and 159; Australian Courts Act, UK, 1828, 9 Geo IV, c. 83; An Act for the Better Government of Her Majesty's Australian Colonies, UK, 1850, 13 & 14 Vict., c. 59; and Peter Spiller, Jeremy Finn and Richard Boast, A New Zealand Legal History (Wellington: Brookers, 1995), 191–193.

9. An Act to Render the Judges of the Court of King's Bench in this Province Independent of the Crown, Statutes of Upper Canada [hereafter SUC], 1834, c. 2.

10. The literature is large. It can be said to begin with Paul Romney, Mr Attorney: The Attorney-General for Ontario in Court, Cabinet and Legislature, 1791–1899 (Toronto: Osgoode Society for Canadian Legal History and University of Toronto Press, 1986). The themes first identified by Romney have been taken up by others. I cannot provide a comprehensive list, but see especially Robert Fraser, “‘All the Privileges which Englishmen Possess': Order, Rights and Constitutionalism in Upper Canada,” in Provincial Justice: Upper Canadian Legal Portraits from the Dictionary of Canadian Biography, ed. Robert Fraser (Toronto: Osgoode Society for Canadian Legal History and University of Toronto Press, 1992), xxi–xcii; and Wilton, Carol, “‘Lawless Law’: Conservative Political Violence in Upper Canada, 1818–1841,” Law and History Review 13 (1995): 111–36CrossRefGoogle Scholar; Wright, J. Barry, “Sedition in Upper Canada: Contested Legality,” Labour/Le Travail 29 (1992): 757CrossRefGoogle Scholar. The historiography is well reviewed in an essay that takes some issue with the critique, arguing that in their everyday work in criminal cases, the judges acted impartially and properly: see Peter Oliver, “The Place of the Judiciary in the Historiography of Upper Canada,” in Essays in the History of Canadian Law: Volume VIII – In Honour of R.C.B. Risk, eds. G. Blaine Baker and Jim Phillips (Toronto: Osgoode Society for Canadian Legal History and University of Toronto Press, 1999), 444–47. Oliver describes the judges as “hard-working, humane and merciful”: 447.

11. For this, see, in addition to the works cited immediately above the still useful work of the province's early legal historian (and judge), Riddell, William Renwick, “Judges in the Executive Council of Upper Canada,” Michigan Law Review 20 (1922): 716–36CrossRefGoogle Scholar, and Judges in the Parliament of Upper Canada,” 3 Minnesota Law Review 3 (1918–19): 163–80Google Scholar. All of the colony's chief justices, from William Osgoode in 1791 to John Beverly Robinson in 1829, were members of both Councils.

12. Upper Canada Assembly Journals [hereafter UC Journals], January 13 and 14, 1826.

13. In 1828, for example, the Assembly passed a resolution on judges on councils that was essentially the same as that of 1826 quoted immediately above: see UC Journals, March 15, 1828.

14. Bathurst to Maitland, June 6, 1826, cited in Riddell, “Judges in Parliament,” 178.

15. For the Willis affair see McLaren, Dewigged, Bothered, and Bewildered, 74–87; Johnson, Leo, “John Walpole Willis’ Judicial Career in Upper Canada, 1827–1828,” Ontario History 85 (1993): 141–66Google Scholar; and, on the Chancery Court question, Weaver, John, “While Equity Slumbered: Creditor Advantage, a Capitalist Land Market, and Upper Canada's Missing Court,” Osgoode Hall Law Journal 28 (1990): 871914Google Scholar. See also Alan Wilson, ‘John Walpole Willis,’ in Dictionary of Canadian Biography Online Edition at http://www.biographi.ca [hereafter DCB online]. Almost all of the individuals discussed in this paper have an entry on DCB online, and all basic biographical information can be located there. Individual biographies are only referenced when they also deal with the substantive issues discussed in this article.

16. An Act to establish a Superior Court of Civil and Criminal Jurisdiction, SUC 1794, c. 2.

17. Bathurst to Maitland, June 6, 1826, cited in Riddell, “Judges in Parliament,” 178. For Maitland's concurring view, see Maitland to Huskisson, December 15, 1827, CO 42, Vol. 381, 401. For what follows see Murray to Colborne, September 29, 1828, in Return to An Address of the House of Commons, 5 June 1829, for copies or extracts of any communications … in pursuance of the recommendations of the Canada Committee [hereafter Return to an Address], British Parliamentary Papers, Cd. No. 73, 1829, 16–17. This response was conveyed to the Assembly in January 1829: UC Journals, January 20, 1829.

18. Canada Committee Report, 7 (good behavior appointments and permanent salaries) and 8 (judges on councils).

19. For all this, see UC Journals, March 14, 1829. The address was forwarded to London in early April: see Murray to Colborne, May 20, 1829, in Calendar of State Papers addressed by the Secretaries of State for the Colonies to the Lieutenant-Governor or Other Officers administering the Government of the Province of Upper Canada, 1821–1835 (hereafter Calendar of State Papers) in Report of the Public Archives for the Year 1935 (Ottawa: King's Printer, 1936), 233.

20. Jeffrey McNairn, The Capacity to Judge: Public Opinion and Deliberative Democracy in Upper Canada, 1791–1854 (Toronto: University of Toronto Press, 2000), esp. chap. 1; quotation at 31.

21. Of the fourteen men named to the court prior to 1829, five had been appointed directly from England or Ireland: in order they were William Osgoode, John Emsley, Henry Allcock, William Dummer Powell, and Willis. The first three were the first three chief justices of the colony, holding the office from 1792 to 1806. A further four were from Britain but had served formerly in a senior government position in a colony to which they had been appointed from Britain. In order they were Thomas Cochran, Robert Thorpe, Thomas Scott, and Sir William Campbell. Thorpe had been made chief justice of Prince Edward Island, from England, in 1802, and relocated to Upper Canada in 1805. Scott had been appointed from England as the colony's attorney-general in 1800 and was made chief justice in 1806. Powell was a Bostonian who had qualified at the Inns of Court. I include Cochran in this list even though he was born in Nova Scotia. He was called to the bar of Lincoln's Inn, and served as chief justice of Prince Edward Island before getting an Upper Canada appointment as a puisne judge in 1803. Only five were in some significant sense “local,” but they included five of the seven men who served on the court between 1825 and 1835, and all five were stalwarts of the family compact, especially John Beverley Robinson. They were D'Arcy Boulton and Levius Sherwood, who had both qualified to practice in Upper Canada a few years after arriving from England and Quebec respectively; James Macaulay and Christopher Hagerman, who were both born in the colony and qualified there; and, Robinson, born in Quebec of a loyalist family and who was taken to Upper Canada as an infant. For all these individuals see the entries in DCB online.

22. “An Act to exclude the Judges from the Legislative and Executive Council,” UC Journals, February 10, 11, and 23, 1830. The quotations are from reports of Assembly debates on the state of the colonial government, in Kingston Chronicle, January 23, 1830, and Brockville Recorder, January 26, 1830.

23. Colborne to Murray, 16 February 1829, in Copy or Extracts of the Answers of the Governors [hereafter Copy or Extracts], House of Commons Parliamentary Papers, 1830, No 574, 7, and in UC Journals, 1835, Appendix A21, 107–108.

24. Copy or Extracts, 7; Romney, Mr Attorney, 151; Riddell, “Judges in Parliament,” 732.

25. Canada Committee Report, 7.

26. Goderich to Colborne, February 8, 1831, in Calendar of State Papers, 257. See also Goderich to Colborne December 24, 1830, in ibid., 251–53.

27. This summary of Upper Canadian politics in the early 1830s is from Gerald Craig, “The 1830s,” in Colonists and Canadiens, 1760–1867, ed. Maurice Careless (Toronto: Macmillan, 1971); and Craig, Upper Canada: The Formative Years, 1784–1841 (Toronto: McClelland and Stewart, 1963). For more recent and detailed accounts, which confirm this general conclusion, see McNairn, The Capacity to Judge, esp. ch. 4, and James Johnson, Becoming Prominent: Regional Leadership in Upper Canada, 1791–1841 (Montreal: McGill Queen's University Press, 1989).

28. Civil List Act, SUC, 1831, c. 6.

29. Address of Assembly to the Crown, March 14, 1831, in UC Journals, March 14, 1831, and Upper Canada Legislative Council Journals (hereafter UC Council Journals), March 15, 1831. In addition to stating that it did not think that London had yet sanctioned a change in tenure, the Council said it was “persuaded” that as long as the judges “preserve a proper regard to the duties of their high office they are in fact perfectly independent” already.

30. See Opening Address of Colborne, November 17, 1831, and Message from Colborne to Assembly, November 30, 1831, both in UC Journals, November 17 and 30, 1831.

31. The Legislative Council discussed the bill extensively over many days, and made what were referred to as substantial amendments to it: UC Council Journals, December 11, 12, 15, 19, 23, 24, 30, and 31, 1833, and January 2, 9, and 10 and February 26, 1834.

32. The newspaper reports on the Assembly proceedings are very short and consist largely of procedural information available from the Journals: see Kingston Chronicle, October 29 and November 5, 1831, December 14, 1833, and February 8, 1834.

33. For the party designations, see the appendix on biographical data in Johnson, Becoming Prominent. An example of the party split is discussed immediately below, in the vote on adding an amendment to bar all judges from councils.

34. UC Journals, December 11, 1833; Christian Guardian, December 18, 1833; and Colonial Advocate, December 21, 1833. Only one Conservative, John Clark, voted for the amendment, and only one reformer, Hugh Thomson, voted against it.

35. This idea surfaced in 1832 before the Assembly's Select Committee on Grievances, initially established on November 22, 1831 to consider a large number of petitions sent in from various localities dealing with a range of issues, including judicial independence. The first report of the committee, including Minutes of Evidence, is in the Appendix to the 1831 UC Journals, 95 et seq. The committee stated that independence required agreeing on a “mode of impeachment,” and that this meant some kind of special tribunal; however, it could not suggest what kind: “The establishment of a Court of so high a nature, requires more deliberation and care than can well be given by your committee during the present Session”: UC Journals, 1831–32, Appendix, 198. A provision for a local tribunal likely appeared in a very early draft of the bill authored by Berczy in December 1833; however, it disappeared by the time the bill was introduced. On December 12, 1833, Berczy gave notice that he would “tomorrow” bring in a good behavior bill that would also include a provision “for the appointment of a tribunal, wherein [the judges] may be impeached,” but no such provision was included in the bill introduced the next day: for all this see also UC Journals, November 22, 1831 and December 12 and 29, 1832.

36. See UC Council Journals, December 31, 1833. This had formed the basis of a Legislative Council resolution in 1831: see ibid., March 15, 1831.

37. An Act to Render the Judges of the Court of King's Bench in this Province Independent of the Crown, SUC 1834, c. 2.

38. Of even greater significance than appointments, if the amount of space devoted to it in the 1835 Seventh Report from the Assembly Committee on Grievances is any gauge, were the financial ties that continued to bind King's Bench judges to the executive. Ironically, it turned out that the 1831 Civil List Act had provided a floor for judicial remuneration, not a ceiling. There were two aspects of this, each captured in the Report's succinct statement that the judges “are dependent on the crown for such retiring pensions as it may see fit to award them,” and that the judges looked to government for “the enjoyment of other offices and situations within its [the crown's] gift, by themselves and their families.” The former was a reference to the fact that judicial pensions were discretionary and, therefore, operated to make the judiciary quiescent. The latter was aimed particularly at Robinson, and the £400 salary he received as speaker of the Legislative Council in addition to his judicial salary. According to the committee, “as long as these pecuniary inducements can be held out to those occupying the judiciary we cannot consider it practically in a better or safer condition than it used to be.” The executive was using its financial resources to “exercise undue influence on the judiciary … derogatory from its presumed independence and purity.” UC Journals, 1835, Appendix A-21, quotations at 2 and 12.

39. Much of the famous 1835 Seventh Report was taken up with judicial issues. This committee was chaired by William Lyon Mackenzie and, with reformers back in the majority after the October 1834 election, the committee launched a general assault on the system of colonial government. In the area of judicial independence, it offered quite familiar arguments, adverting to concerns that David Lemmings has shown worried eighteenth century English critics concerned about a Baconian judiciary long after the Act of Settlement: Lemmings, “Independence of the Judiciary.” The Report repeated the previous demands for judges to be appointed from England: see UC Journals 1835, Appendix A21, especially at 2 and 85. How long and how assiduously the reformers pushed this idea is not known, but it had very little practical effect. The next three judges appointed to the King's Bench—Archibald MacLean and Jonas Jones when Kings Bench was expanded to five judges in 1837, and Christopher Hagerman in 1840 to replace Sherwood—had all been born in North America and qualified for the bar in Upper Canada. A fourth, William Henry Draper, appointed in 1847, was English born, but had emigrated to Upper Canada at 19 years of age and did his legal training there. The only exception to the move to a wholly indigenous judiciary was the appointment of Robert Sympson Jameson as vice-chancellor of the newly created Court of Chancery in 1837. He was typical of an earlier age, English born and trained, chief justice of Dominica from 1829 to 1833, and made attorney-general of Upper Canada from England in 1833.

40. What follows is drawn from a variety sources, and is necessarily a simplified version of a very complicated story. See, generally, Fernand Ouellet, Lower Canada, 1791–1840: Social Change and Nationalism (Toronto: McClelland and Stewart, 1980), and “Louis Joseph Papineau,” DCB online; Helen Manning, The Revolt of French Canada, 1800–1835 (Toronto: Macmillan, 1962); and Careless, Colonists and Canadiens.

41. They were bills: “to secure the independence of the judges … and for other purposes therein mentioned: (1826); “to disqualify the judges … from sitting or voting in the Legislative Council and Executive Council” (1829 and 1830, same title; “to secure the independence of the Judges” (1830); “to incapacitate the judges … from sitting … in the Executive and Legislative Councils, [and] to secure the independence of the Judges” (1831 and 1832, same title). I only have full copies of two of these. The 1826 bill is available on Early Canadiana Online as a free-standing document, www.canadiana.org, 9_03542. The 1832 bill is reproduced in Fourth Report of the Standing Committee on Grievances, January 29, 1836 (hereafter Fourth Report), Lower Canada Assembly Journals (hereafter LC Journals) 1836, Appendix EE. The appendixes are unpaginated; the bill is at 554 of the pdf. The content, although not the wording, of the other bills can be worked out from the LC Journals and the Lower Canada Council Journals (hereafter LC Council Journals), the appendixes to both of which include correspondence with London, and the many newspaper reports of debates.

42. The memorial is at LC Journals, March 6, 1826, Appendix.

43. There were two chief justices because the court reforms of 1794 divided the Court of King's Bench into two principal districts, Quebec and Montreal. The chief justice of the Quebec District was also chief justice of Lower Canada (Sewell) and Monk was chief justice of the Montreal District. For the court system, see Don Fyson, The Court Structure of Quebec and Lower Canada 1764–1860 (Montreal: Montreal History Group, 1994, periodically revised and available online at profs.hst.ulaval.ca/Dfyson/Courtstr). The ostensible cause of the impeachment was rules of practice that both had published for their respective courts, which were alleged to represent the introduction of English law and displace the French civil law. The Assembly also passed impeachment articles that were overtly political. The impeachment did not succeed in the Privy Council in England. The fullest account of it is Evelyn Kolish and James Lambert, “The Attempted Impeachment of the Lower Canadian Chief Justices, 1814–1815,” in Canadian State Trials Volume 1: Law, Politics and Security Measures, 1608–1837, eds. F Murray Greenwood and J. Barry Wright (Toronto: Osgoode Society for Canadian Legal History and University of Toronto Press, 1996), 450–86.

44. A 2 day debate on judicial independence produced four unanimous resolutions in support of it: LC Journals, March 9, 14 and 17, 1825.

45. La Minerve, March 12, 1831. Quotations from La Minerve, here and in notes 46, 52, 69, 71, 92, and 93 below, are from translations supplied by Genevieve Ryan. Viger was later appointed to the Legislative Council as part of Governor Sir James Kempt's efforts to diversify that body.

46. La Minerve, February 20, 1833.

47. See LC Journals, March 6, 1826, Appendix.

48. Goderich to Aylmer, February 8, 1831, in Fourth Report, 554. See also to the same effect Goderich to Aylmer, July 7, 1831, in ibid., 550, stating that Lower Canadian judges should be placed “in exactly the same position as that of the judges of the Supreme Court of Westminster.”

49. See “Bill for the trial of impeachments in this province,” LC Journals, January 22, 27, and 31, and February 17, 1821.

50. For the 1826 bill generally, see LC Journals, February 1, 8, 13, 14, and 15, and March 6, 1826.

51. Canada Committee Report, 159, Evidence of Austin Cuvillier, June 12, 1828.

52. See, for example, the remarks of John Neilson in the Assembly, reported in La Minerve, January 30, 1832. For Neilson see below.

53. LC Council Journals, March 21 and 22, 1826.

54. For the council's resolution on this issue, see LC Council Journals, March 15, 1830, and for the amendment see ibid., March 16, 1830. See also Montreal Gazette, March 22 and 25, 1830. I do not have a copy of what the Assembly bill said; however it is known that the Council amended the bill by adding a clause that a judge “may be removed by His Majesty in His Privy council upon the Address of both Houses of the Provincial Legislature.” The Council was likely also influenced by the fact that the Colonial Office had spoken against the idea to the Canada Committee. On that occasion, James Stephen argued that it might theoretically be possible to have a satisfactory local tribunal, but only if it consisted of judges “perfectly independent of the parties preferring the impeachment” and men “quite remote from all the feuds and party feelings of the colony”: Canada Committee Report, Evidence of James Stephen, June 21, 1828, 230.

55. Montreal Gazette, February 18, 1830.

56. Montreal Gazette, February 26, 1831.

57. The bill introduced to the Assembly did contain such an appeal provision, but it was struck out on a unanimous vote. Also defeated (37 to 13) was an amendment saying that the judgment of the impeachment tribunal would not be carried into effect until it had been submitted to London for approval. LC Journals, January 18, 1832; Montreal Gazette, January 31, 1832. Aylmer considered this issue ultimately irrelevant, as all were agreed that the royal prerogative of mercy could not be interfered with: see Aylmer to Goderich, January 26, 1832, in Fourth Report, 559.

58. Goderich to Aylmer, April 9, 1832, in Fourth Report, 562.

59. “A bill to secure the independence of the judges … and for other purposes therein mentioned,” LC Journals, February 13 and 14, 1826.

60. Canada Committee Report, Evidence of Austin Cuvillier, June 12, 1828, 159.

61. Montreal Gazette, February 4, 1829.

62. Canada Committee Report, Evidence of John Neilson, June 7, 1828, and of Denis–Benjaim Viger, June 7, 1828, 134 and 142. See also Evidence of Austin Cuvilier, June 12, 1828, ibid., 159.

63. Montreal Gazette, February 15 and 25, 1831.

64. For Sewell, see, especially, Brian Young, The Politics of Codification: The Lower Canadian Civil Code of 1866 (Kingston and Montreal: McGill–Queen's University Press and Osgoode Society, 1994), 25–28. Young provides a more nuanced account of Sewell's politics than F. Murray Greenwood and James Lambert, “Jonathan Sewell,” DCB online, from whom the quotation is taken, while agreeing with the assessment that he was extremely influential.

65. Montreal Gazette, January 27, 1832.

66. Canada Committee Report, 8.

67. LC Journals, January 5 and 9, and February 25, 27, and 28, 1829. The bill's title was changed from puisne judges to judges, on a 17 to 9 vote.

68. Montreal Gazette, January 15, 1829.

69. See Montreal Gazette, February 1, 1830: “A proviso giving the Chief Justice a consultative voice was struck out.” See also a number of references to “consultative voice” in the extensive report of the debates in the issue of February 4, 1830, and the reference to “voix consultative” in a report of a speech by Bourdages in February 1830: La Minerve, February 3, 1830.

70. See the report of the debate in committee of the whole on January 27, in Montreal Gazette, February 4, 1830. The remainder of this paragraph is from the same source unless otherwise stated. Bourdages was at one time a rival of Papineau's for the patriote leadership, but from circa 1830, he supported Papineau, having been unable to supplant him: see Richard Chabot, “Louis Bourdages,” DCB online.

71. La Minerve, February 3, 1830.

72. LC Journals, January 31, and February 4, 8, 9, and 11, 1831.

73. LC Council Journals, 1829, Appendix B. The address was also published in the Montreal Gazette, March 9, 1829.

74. See LC Council Journals, 1829, Appendix B, and Montreal Gazette, March 9 and 12 and April 4, 1829.

75. For these resolutions, see LC Council Journals, March 15, 1830.

76. Ibid., February 12 and 21, 1831. The report of the debate that follows is from Montreal Gazette, February 22 and 25, 1831.

77. Goderich to Aylmer, February 8, 1831, in Fourth Report, 554.

78. See Goderich's approval of the “laudable promptitude” with which the judges had removed themselves: Goderich to Aylmer, July 7, 1831, in Fourth Report, 550.

79. LC Journals, November 28 and December 5 and 28 1831; January 3, 11, 14, 16, 18, and 20 1832; Montreal Gazette, January 14, 21 and 27, 1832. There is a very long report of the debate in the last of these issues. See also Aylmer to Goderich, January 26, 1832, in Fourth Report, 558. The quotation is from Novascotian, May 5 1832, which ran a long article on the issue.

80. Novascotian, May 5, 1832.

81. Bathurst to Dalhousie, February 10, 1825, LC Journals, March 6, 1826, Appendix P.

82. See LC Journals, 1829, Appendixes A and B. Although this statement came 3 years later, it was clearly a reference to the 1826 bill.

83. See LC Journals, January 18, 1832; the casual and territorial revenue provision passed 33 to 24.

84. Goderich to Aylmer, September 29, 1831, in Fourth Report, 554.

85. What follows is a necessarily brief summary of a complicated and protracted political struggle. It is drawn from the general sources on Quebec political history noted in note 40 above, and from Peter Burroughs, The Canadian Crisis and British Colonial Policy, 1828–1841 (London: Arnold, 1972); Manning, Helen T., “The Civil List of Lower Canada,” Canadian Historical Review 24 (1943): 2447CrossRefGoogle Scholar; and Creighton, Donald, “The Struggle for Financial Control in Lower Canada,” Canadian Historical Review 12 (1931): 120–44CrossRefGoogle Scholar. See also Fourth Report, 507–11, which provides a useful overview.

86. For all of this, see Papineau's speech in Montreal Gazette, January 31, 1832.

87. Aylmer to Goderich, January 26, 1832, in Fourth Report, 562.

88. Goderich to Aylmer, April 11, 1832, in ibid., 564.

89. What follows is from the evidence taken before the select committee, reproduced in ibid., 589–91.

90. See Aberdeen to Aylmer, February 14, 1835, in LC Journals 1836, Appendix LL.

91. Colonial Office to Commissioner for Lower Canada, July 17, 1835, in LC Journals, February 13, 1836.

92. For the passage of the bill see LC Journals, January 16, 20, 29, and 30, and February 5 and 12, 1833. The final vote was fairly close: 27 to 19. For the long and heated debates in the Assembly see La Minerve, February 20 and 25, 1833, and Montreal Gazette, March 2, 1833.

93. La Minerve, February 25, 1833.

94. Fourth Report, 580. Sewell's biographers confirm his continuing involvement in political questions in the 1830s: see Greenwood and Lambert, “Jonathan Sewell.”

95. This was a bill “for securing the dignity and independence of the Legislative Council and .. Executive Council…and of the judicial body.” It passed both Assembly (unanimously) and the Legislative Council (11 to 6), although there was a recorded dissent in the Council by three members who denied the Assembly's right to legislate the composition of the upper house: see LC Journals, February 11, 12, 14 and 25, and March 18, 1834; LC Council Journals, February 14, 19, 21, and 22, and March 18, 1834; and Montreal Gazette, February 25 and 27, and March 4, 1834.

96. LC Journals, November 17, 21 and 27, 1835.

97. Ibid, February 26, 1836.

98. This was the Gosford Commission, named after its principal commissioner the Earl of Gosford. For its work see, inter alia, Philip Buckner, The Transition to Responsible Government: British Policy in British North America, 1815–1850 (Westport, CT: Greenwood Press, 1985), ch. 6.

99. James Stuart was appointed to the Special Council in April 1838 and then made chief justice when Sewell retired in October of that year. Two other judges also sat on the Special Council: Henry Black, Vice-Admiralty Judge, and Dominique Mondelet, the King's Bench judge for the District of Trois Rivières. Jean-Roch Rolland and Vallières de St Réal, King's Bench judges for the Montreal and Trois Rivières districts, were appointed to the Executive Council in 1838. For all of this see the respective entries on DCB online.

100. Philippe Panet and Elzéar Bédard, judges of the Court of King's Bench for the Quebec district, and Vallières de Saint-Réal, the King's Bench judge at Trois Rivières, were suspended but later reinstated. See Stephen Watt, “State Trial By Legislature: The Special Council of Lower Canada,” in Canadian State Trials Volume II: Rebellion and Invasion in the Canadas, 1837–1839, eds. F. Murray Greenwood and J. Barry Wright (Toronto: Osgoode Society for Canadian Legal History and University of Toronto Press, 2002), 258–59; and F. Murray Greenwood, “The General Court-Martial at Montreal, 1838–9: Legal and Constitutional Reflections,” in ibid., 326–29.

101. Report on the Affairs of British North America [Durham Report], London 1922 edition, 241.

102. The Union Act is the British North America Act, 1840, UK, 3 and 4 Vict., c. 35; sect. 52 of that Act gave a civil list of £45,000 to the union government, of which more than £16,000 was to go for judicial salaries. For the arguments over the civil list in the 1840s see Ormsby, William G., “The Civil List Question in the Province of Canada,” Canadian Historical Review 35 (1954): 93117CrossRefGoogle Scholar.

103. For its passage through the Assembly see Province of Canada Assembly Journals (hereafter PC Journals), June 15 and 23, August 24, and September 6 and 7, 1841, and for the Legislative Council see Province of Canada Legislative Council Journals (hereafter PC Council Journals), September 7, 8, and 16, 1841. The bill was interestingly titled “An Act to for better Securing the Independence and Uprightness of the Judges.”

104. PC Journals, September 12 and 15, 1842. It was referred to a select committee on second reading but then disappears from the record. There is very little on the 1841 and 1842 judicial independence bills in the principal source of Province of Canada Assembly debates, Elizabeth Nish, ed. Debates of the Legislative Assembly of United Canada (Quebec: Presses de L’École des hautes études commerciales, both 1970), Vol. 1., 1841, 19, 126, 631, 834–35, and 838, reporting debates of June 15 and 19, August 24, and September 6 and 7; Vol. 2, 1842, 20 and 29, reporting debates of September 12 and 15.

105. An Act to provide for the more easy and expeditious administration of Justice in Civil Causes, … in that part of this Province heretofore Lower Canada, Statutes of the Province of Canada (hereafter SPC) 1841, c. 20, which established District Courts of limited civil jurisdiction and abolished what had been known as the inferior terms of the Court of Queen's Bench.

106. An Act to render the Judges of the Court of King's Bench, in that part of this Province heretofore Lower Canada, independent of the Crown, SPC 1843, c. 15. For its passage, see PC Assembly Journals, September 29, October 12 and 20, and November 16, 1843; PC Council Journals, October 15, 17, 18 and 19, and November 16, 1843. See also brief mentions in Montreal Gazette, October 20 and November 21, 1843. There is a short report of the debate of 1843: see Debates of the Legislative Assembly of United Canada, Vol. 3, 1843, 255Google Scholar, reporting a debate of October 12, 1843.

107. An Act to render the Judges of the Supreme Court, and the Master of the Rolls, independent of the Crown, and to provide for their removal, Statutes on Nova Scotia (hereafter SNS) 1848, c. 21.

108. For the history of the court see J. Barry Cahill and Jim Phillips, “Origins to Confederation,” in The Supreme Court of Nova Scotia, 1754–2004: From Imperial Bastion to Provincial Oracle, eds. Philip Girard, Jim Phillips, and J. Barry Cahill (Toronto: Osgoode Society for Canadian Legal History and University of Toronto Press, 2004), 53–139.

109. An Act for Provide for the Support of the Puisne Judges of His Majesty's Supreme Court, SNS 1789, c. 12. See to similar effect An Act to Alter and Extend the Times of Holding the Supreme Court in Several of the Counties and Districts in this Province; and for Declaring the Qualifications of Persons Hereafter to Be Appointed Justices of the Said Court, Their Number and Salaries, ibid., 1809, c. 15.

110. Phillips, Jim and Miller, Bradley, “‘Too Many Courts and Too Much Law:’ The Politics of Judicial Reform in Nova Scotia, 1830–1841,” Law and History Review 30 (2012): 89133CrossRefGoogle Scholar. For Halliburton's conservative politics see Phyllis R. Blakeley, “Sir Brenton Halliburton,” DCB online, and his correspondence in NSARM, Manuscript Group [hereafter MG] 1, Vols. 334 and 334A, Halliburton Papers, passim.

111. NS Journals, March 3, 7, 14 and 15, 1848.

112. This account is from the Novascotian, March 20, 1848. Speakers in favor of the bill were Huntington, speaker William Young, reform icon Joseph Howe, attorney-general and leader of the government James Boyle Uniacke, and William Alexander Henry, the liberal member for Sydney County and a future Supreme Court of Canada judge.

113. This paragraph and those that follow are from the report of the debate in the Novascotian, March 20, 1848, unless otherwise stated. The other three speakers against the bill were all lawyers and conservatives: James DeWolf Fraser of Windsor Township, John Clarke Hall of Kings County, and Charles Harrington of Richmond County.

114. Fraser's remarks are reported in the Novascotian, March 27, 1848.

115. J. Murray Beck, The Politics of Nova Scotia: Volume 1, 1710–1896 (Tantallon, Nova Scotia: Four East, 1985), 133. However, Beck also notes that the Reform government was generally able to get its way, because one member missed the entire session, and another, William Rudolf of Lunenburg, opted not to oppose the new arrangements.

116. For the Council's handling of the bill as passed by the Assembly see Nova Scotia Legislative Council Journals (hereafter NS Council Journals), March 16, 21, 22, 24, and 25, 1848, and Appendix 29. The debate was also reported in the Novascotian, March 27, 1848.

117. Novascotian, March 27, 1848.

118. For these opinions see Brenton Halliburton, “Observations on a Bill, An Act to render the Judges of the Supreme Court, and the Master of the Rolls, independent of the Crown, and to provide for their removal, 22 March 1848,” and Alexander Stewart to Harvey, March 24, 1848, both in NS Council Journals, 1848, Appendix 29.

119. See NS Journals, March 25 and 28, 1848; and NS Council Journals, March 29 and 31, and April 3, 1848, and Appendix 29. After the Council's climb down the bill received royal assent on April 3, the day that Robie resigned: NS Journals, March 31, and April 3, 1848.

120. NS Journals, April 11, 1848.

121. See Harvey to Grey, April 10, 1848, in NS Journals 1849, Appendix 7. Harvey included the judges' letters already cited, as well as the Legislative Council protest, and additional letters from Robie and Stewart.

122. For the remainder of this paragraph see Harvey to Grey, April 10, 1848, in NS Journals 1849, Appendix 7.

123. See Grey to Harvey, June 24 and August 18, 1848, in ibid. This Earl Grey was the son of the Earl Grey who had been British prime minister in the early 1830s.

124. See his personal correspondence at NSARM, MG 1, Vols. 1598, 1599, and 1602, passim, William Blowers Bliss Papers.

125. For a full account see Phillips and Miller, “Too Many Courts and Too Much Law.” See also the same authors' “‘Exactions made upon the most distressed part of His Majesty's Subjects:’ The Public Debate over Judicial Fees in Nova Scotia in the 1830s,” in Justice et espaces publics en Occident, du moyen age à nos jours, eds. Pascal Bastien, Donald Fyson, Jean-Philippe Garneau, and Thierry Nootens (Quebec: Presses de l'Université du Québec, 2014), 299–314.

126. Quotations from the Novascotian, March 24, 1830.

127. NS Journals, February 27, 1837.

128. Novascotian, February 16, 1837.

129. See NS Journals, 1839–40, Appendix 45, and the public accounts reports of subsequent years.

130. What follows is drawn from two articles: Harvey, D.C., “The Civil List and Responsible Government in Nova Scotia,” Canadian Historical Review 28 (1947): 365–82CrossRefGoogle Scholar, and Burroughs, Peter, “The Search for Economy: Imperial Administration of ova Scotia in the 1830s,” Canadian Historical Review 49 (1968): 2443CrossRefGoogle Scholar.

131. NS Journals, April 12, 1838.

132. Civil List Act, SNS 1849, c. 1.

133. William Blowers Bliss to Henry Bliss, November 14, 1836, MG 1, Vol. 1599, No 33.

134. William Blowers Bliss to Henry Bliss April 2, 1847, ibid., No 107.

135. Girard, Philip, “The Supreme Court of Nova Scotia, Responsible Government, and the Quest for Legitimacy, 1850–1920,” Dalhousie Law Journal 17 (1994): 430–57Google Scholar, quotation at 432. For a brief account of appointments after 1848, see Cahill and Phillips, “Origins to Confederation,” 103–5. Patronage also sullied the reputations of other provincial benches: see Bell, David, “Judicial Crisis in Post-Confederation New Brunswick,” Manitoba Law Journal 20 (1991) 181–95Google Scholar; and Jonathan Swainger, “Judicial Scandals and the Culture of Patronage in early Confederation, 1867–78,” in Essays in the History of Canadian Law Volume X: A Tribute to Peter Oliver, eds. Jim Phillips, John Saywell, and Roy McMurtry (Toronto: Osgoode Society and University of Toronto Press, 2008): 222–54, and the same author's A Bench in Disarray: The Quebec Judiciary and the Federal Department of Justice, 1867–1878,” Les Cahiers de Droit 34 (1993): 5991CrossRefGoogle Scholar.

136. For reasons unknown, one New Brunswick judge, the master of the rolls, did have good behavior tenure. That position was created in 1838, and the person appointed was given good behavior: An Act to authorize the appointment of a Master of Rolls to the Court of Chancery in this Province, and to provide for such an Officer, Statutes of New Brunswick (hereafter SNB) 1838, c. 8, s. 1.

137. The first occasion was 1807, when Supreme Court judge Joshua Upham was deputized by the Council and Assembly to go to London and present a series of requests, including ones for an increase in judicial salaries and good behavior appointments. Only the former was successful. See Ann Condon, “Joshua Upham,” DCB online. The second occasion was in 1851, and that also went nowhere, as explained later in this section.

138. An Act for the Support of the Civil Government in this Province, SNB 1837, c. 1, was originally to remain in force for 10 years but was made perpetual in 1838: ibid., 1838, c. 51.

139. W. Stewart MacNutt, New Brunswick: A History, 1784–1867 (Toronto: Macmillan, 1963), 242; and Joseph Wilson Lawrence, The Judges of New Brunswick and their Times, 2nd ed. (Fredericton: Acadiensis Press, , 1983), 342–46.

140. Bell, “Judicial Crisis,” 183.

141. The discussion of New Brunswick politics here and later in this section is taken principally from MacNutt, New Brunswick. See also the same author's The Coming of Responsible Government to New Brunswick,” Canadian Historical Review 33 (1952): 111–28CrossRefGoogle Scholar, and New Brunswick's Age of Harmony: The Administration of Sir John Harvey,” Canadian Historical Review 32 (1951): 105–25CrossRefGoogle Scholar.

142. The Civil List Act does not enumerate any salaries. For these sums, see the appendixes to the New Brunswick Assembly Journals (hereafter NB Journals), 1838 and 1839, which includes a detailed table of the accounts, which includes salaries of the chief justice and puisne judges of the Supreme Court, clv–clvi.

143. NB Journals, 1839, clv–clvi; Report of the Commissioners of Judicial Inquiry, 1842, in ibid, 1842, Appendix, and ibid., March 24, 1848; and Master of the Rolls Act, s. 4.

144. Assembly Committee Report, February 25, 1841, Assembly Address to the Crown, 1843, and Assembly Address to the Crown, 12 April 1845, all in NB Journals, March 3, 1851. In 1841, the Assembly also voted for a commutation of judges' fees for a fixed annual amount.

145. Colonial Secretary Lord Stanley to Lieutenant-Governor Sir William Colebrooke, October 1, 1843, and same to same July 28, 1845, in ibid.

146. For the passage of the legislation see NB Journals, February 8, 9 and 22, and March 2, 3 and 13, 1849; New Brunswick Legislative Council Journals (hereafter NB Council Journals), March 5, 6, 9 and 12, 1849.

147. An Act for the Reduction of Judicial Salaries in this Province, SNB 1850, c. 76

148. NB Journals, April 22, 24, and 25, 1850. There were two bills, one to reduce Supreme Court judges' salaries and one to reduce that of the master of the rolls. An amendment was proposed in the Assembly that would have reduced salaries even more: the chief justice's to £600 and the puisnes' and the master of the rolls' to £500, but this was rejected. The amendment came from a Mr. Gilbert, and he was the only one who voted for it: ibid., April 24, 1850 and Saint John Morning News, April 25, 1850.

149. NB Council Journals, April 25, 1850; Head to Grey, May 1, 1850, in NB Journals, March 3, 1851.

150. Carter to Grey, May 8, 1851, in Lawrence, Judges of New Brunswick, 356.

151. Grey to Head, November 25, 1850, in NB Journals, February 15, 1851.

152. NB Journals, April 18, 1851.

153. Ibid., March 31, and April 1, 2, 5, 10, and 11, 1851; “An Act to Abolish the Fees Now Received by the Judges of the Supreme Court,” in Head to Grey, May 24, 1851, in ibid., January 28, 1852; and New Brunswick Reporter, April 25, 1851. There had been a previous unsuccessful attempt in 1850 to abolish fees without compensation by a private members bill: “A Bill to reduce the costs of actions in the Supreme Court.” This was passed by the Assembly but defeated in the Legislative Council: see Supreme Court Judges to Grey, July 1850, in NB Journals, March 3, 1851; NB Journals, April 15, 16, 22, and 23, 1850, and NB Council Journals, April 23, 24, and 25, 1850.

154. Grey to Carter, July 3, 1851, in Lawrence, Judges of New Brunswick, 357; Head to Grey, February 5, 1852, in NB Journals, April 4, 1853; NB Journals, January 29 and 30, February 20 and 21, and March 3 and 4, 1852; NB Council Journals, February 27 and March 3, 1852; and Grey to Head, March 12, 1852, in NB Journals, April 4, 1853.

155. Fredericton Reporter, February 16, 1849.

156. Fredericton Head Quarters, May 13, 1850.

157. Attorney-General Wilmot, who presented the future reduction bill in 1849, made this argument. He asserted that the House had the right to specify whatever salary it wanted for any office, including his own, that he did not believe in vested rights, and that “[i]f the exigencies of the country demanded the reduction of his or any other salary, he would not oppose it,” but it had been London's “settled policy” for “the last two hundred years” not to interfere with the salaries of incumbents: Fredericton Reporter, March 3, 1849; see also ibid., March 9, 1849. A year later, Wilmot had changed tack, and argued that London had altered its views and would give the colony more leeway: see Fredericton Head Quarters, May 22, 1850.

158. See the speech of James Boyd, member for Charlotte County, in 1849: Fredericton Reporter, March 9, 1849. See also Dr William Wilson's statement in April 1850 that “he could not consent to reductions which would involve a breach of public faith or violation of public contract”: Fredericton Head Quarters, May 13, 1850.

159. Head to Grey, May 1, 1850, in NB Journals, March 3, 1851.

160. John William Ritchie, reformer, Member for Saint John, and later a judge of both the New Brunswick Supreme Court and the Supreme Court of Canada, took this view in 1849, when it was the minority position (Fredericton Reporter, March 3, 1849), but by 1850, a majority of members had obviously decided that it was worth taking the fight to London.

161. NB Journals, April 25, 1850.

162. Fredericton Head Quarters, May 13, 1850. The Saint John Morning News, April 24 and 25, 1850, also carried brief reports of all the speeches made.

163. Fredericton Head Quarters, April 20, 1850. For his speech see ibid., April 26, 1850, Fredericton Head Quarters, May 13 and 22, 1850; and New Brunswick Reporter, April 26, 1850.

164. Fredericton Head Quarters, June 5, 1850.

165. Saint John Morning News, April 25, 1850.

166. Gleaner, May 5, 1851.

167. New Brunswick Reporter, April 25, 1851.

168. The bill was “to secure the independence of the justices of the Courts of Law and Equity”: NB Journals, January 31, 1852. A little over a week later, the bill was ordered to be printed and 100 copies made, but none have survived, and the measure appears to have been dropped: ibid., February 9, 1852. I have not found a copy of the bill; therefore, my assumption that it dealt with judicial tenure is based only on the title. There are only two newspaper references to it (Gleaner February 2, 1852, and Courier, January 31, 1852) and they do not discuss the content.

169. Fredericton Head Quarters, May 22, 1850.

170. Supreme Court Judges and Master of the Rolls to Head, July 1850, in Head to Grey, August 2, 1850, in NB Journals, March 3, 1851.

171. Grey to Head, November 25, 1850, in ibid., February 15, 1851.

172. See, for example, An Act for the Better Government of Her Majesty's Australian Colonies, UK, 1850, 13 & 14 Vict., c. 59, which gave colonial legislatures the power to set judicial salaries. Section 18 of that Act partly derogated from that power by prohibiting reductions in salary for incumbents.

173. See MacNutt, New Brunswick, 341–42; and NB Journals, April 9, 12 and 25, 1851. The problem was not so much the appointment of Carter, but his replacement as a puisne judge by Wilmot, at a time when the Executive Council was considering a proposal to achieve retrenchment by reducing the Supreme Court bench from four to three judges.

174. Gleaner, May 5, 1851. See also Courier, March 3, 1851.

175. Grey to Head, March 12, 1852, in NB Journals, April 4, 1853.

176. See Carter to Grey, May 8, 1851, and Wilmot to Grey, May 9, 1851, in ibid., January 28, 1852. All were forwarded in Head to Grey, May 24, 1851, ibid. Ironically Wilmot, who had supported salary reductions for incumbents as attorney-general, succinctly noted on this occasion that fee abolition would “cause a very considerable diminution from my present income, to which I cannot give my consent.”

177. George Street to Grey, May 5, 1851, in NB Journals, January 28, 1852.

178. In March 1853, John Thomas Williston, Member for Northumberland, brought in a bill for the commutation of the fees. Discussion occurred on a number of days, and included a request for documents regarding the fees, which was agreed to. Nothing appears thereafter in 1853. See NB Journals, March 21, 22, 26, 30, and 31, and April 4, 1853.

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