Greenwood, F. Murray

Guth, DeLloyd J.

English

bepress Legal Repository

Book Review: Flesh and Pulse - Sir John Beverley Robinson: Bone and Sinew of the Compact, by Patrick Brode

York University, Osgoode Hall Law School

Osgoode Hall Law JournalVolume 24, Number 4 (Winter 1986) Article 10Book Review: Flesh and Pulse - Sir John BeverleyRobinson: Bone and Sinew of the Compact, byPatrick BrodeDeLloyd J. GuthF. Murray GreenwoodFollow this and additional works at: http://digitalcommons.osgoode.yorku.ca/ohljBook ReviewThis Book Review is brought to you for free and open access by the Journals at Osgoode Digital Commons. It has been accepted for inclusion inOsgoode Hall Law Journal by an authorized editor of Osgoode Digital Commons.Citation InformationGuth, DeLloyd J. and Greenwood, F. Murray. "Book Review: Flesh and Pulse - Sir John Beverley Robinson: Bone and Sinew of theCompact, by Patrick Brode." Osgoode Hall Law Journal 24.4 (1986) : 1043-1048.http://digitalcommons.osgoode.yorku.ca/ohlj/vol24/iss4/10FLESH AND PULSESir John Beverley Robinson" Bone and Sinew of the Compact. By PatrickBrode. Toronto: Published for the Osgoode Society by the Universityof Toronto Press, 1984.Reviewed by DeLloyd J. Guth* and F. Murray Greenwood**The life of the law, before logic or experience, has to be in thelives of its actors. And because Canadian law is common law, a court-centred, judge-made law, the focus must be on our judges and lawyers.We have become adept students of the cases but we are only beginningto study the actors, by way of biography and autobiography. Congrat-ulations, then, to Patrick Brode for restoring flesh and pulse to one ofthis country's skeletal giants in the law.The autobiographer will have the insider's memory, usually bothselective and self-exculpatory, to set alongside harder evidence, be itdesk diaries or piles of files. The biographer, however, starts only withan outsider's curiosity, matched by a feeling and hope that the subject-person ought to be important. Either way, after months of research andre-writing, it becomes difficult not to think that the person deserves abook-length study.For Sir John Beverley Robinson there can be no doubt: son of aVirginia loyalist who fled to Canada, he defended his monarch atQueenston Heights, then prosecuted "traitors" in Upper Canada in 1814,continued to impose as austere jurisprudence as attorney-general in the1820s, and served thirty-three years as Chief Justice, strictly construinghis monarch's common law until retirement in 1862 and death in 1863.The very land on which Osgoode Hall still stands was his. He sold sixacres out of his private park in 1828 to the Law Society for £1000,and Patrick Brode computes that as overvalued by five times the goingprice for similar real estate in Toronto., Some might conclude that theLaw Society of Upper Canada's very beginnings were on an inflatedbase!After graduating in 1807 from Dr. John Strachan's prestigiousCornwall Grammar School for the Anglican 6lite, Robinson articled in© Copyright, 1986, DeLloyd J. Guth and F. Murray Greenwood.* Associate Professor of Legal History, Faculty of Law, University of British Columbia.** Associate Professor of History, Department of History, University of British Columbia.Patrick Brode, Sir John Beverley Robinson.'Bone and Sinew of the Compact (Toronto: Universityof Toronto Press, 1984) p. 167.OSGOODE HALL LAW JOURNALthe York law office of Solicitor-General D'Arcy Boulton. For the nextfew years he poured over Blackstone's Commentaries, learned the arcanetwists of procedure and cultivated the leading families of the law. Throughthe patronage of Chief Justice Thomas Scott and of Justice WilliamDummer Powell, Robinson secured appointment as acting Attorney-General in 1812 at the ripe old age of twenty-one. After the war andshort stint, while absentee Solicitor-General, at Lincoln's Inn, London,Robinson was appointed Attorney-General (1818). He sat in the Assemblyfrom 1821 to 1830, when he was named Chief Justice, Speaker of theLegislative Council and President of the Executive Council. In accordancewith the Imperial Government's attempts at constitutional conciliation,Robinson resigned from the Executive Council in 1831 but remaineda political confidant of Governors until well into the 1840s. He wasnot appointed to the Legislative Council after the union - which hepublicly deplored - but remained Chief Justice until 1862 when, shortlybefore his death, he was appointed first President of the Court of Errorand Appeal. Robinson was created a Baronet of the United Kingdomin 1854 and acted as the first Chancellor of the University of TrinityCollege, Toronto. In 1817 he had married Emma Walker of Middlesexand they had eight children, including the outstanding barrister,Christopher Robinson.This biography divides into sixteen chapters, offering a largely novelperspective on the political history of Upper Canada. The outstandingissues - Gourlay's banishment, the alien question, responsible govern-ment, the 'established' Church of England, and the union of Canadaare of course presented from Robinson's viewpoint and this is a definiteplus. The reader obtains a coherent ideological picture of the FamilyCompact and, more important, the experience of examining these centralissues in their legal dress, an approach too often neglected by politicalhistorians. Sprinkled throughout the book are revealing details on thelegal profession and on such matters of concern to the Compact as socialrelationships, patronage and intermarriage.As Brode emphasizes, Robinson was no neophyte to using thecommon law for political ends but he was also a stickler for both thereality and appearance of legality. As acting Attorney-General duringthe War of 1812, he had stood tall for the rule of law, despite pressurefrom the military who wished, without legislative authority, to indulgein mass round-ups of suspected traitors, summary executions by courtsmartial, and seizures of grain in areas where the courts were sitting.Brode's Robinson meticulously insured that proper procedures werefollowed in the 1814 treason trials held at the so-called "Bloody Assize"of Ancaster. But the author goes too far in leaving the impression that1044 [VOL 24 No. 4Book Reviewsthere were no abuses at all. Two American soldiers - the Hartwellbrothers - were deemed traitors because they had families in UpperCanada. This broad interpretation of local allegiance owed by foreign-ers - an exception to the general rule of allegiance - derived its authorityfrom an extra-judicial opinion of the Judges of England (1707). Suchan opinion was not binding, as Lord Camden, cJ., made unmistakablyclear in Entick v. Carrington. But such reasoning can continue to be opento numerous objections.2 Brode also does not mention another prisoner,Aaron Stevens, executed on the sole basis of an out-of-court confession.The sufficiency of such a confession had become a moot point in thewritings of the treason jurists, and it was still considered so by JusticeJames Macauley in the Upper Canada state trials of 1838.Brode offers a careful assessment of the Rebellion trials in whichRobinson was involved, but he might at times have deepened the analysis.The author presents a balanced treatment - including a mild criticismof the Chief Justice - for the trial of Hamilton's radical lawyer, CharlesDurand. While travelling from Toronto to Hamilton by stagecoach,Durand had been arrested by armed rebels and had supposedly advisedMackenzie to attack the defenseless city of Toronto immediately. Brode'stentative thesis, that the accused may have been innocent, can be furthersupported by contemporary documents, including a letter by Durand inthe Mackenzie-Lindsey Papers (Archives of Ontario), which indicate thatthe major Crown witness (Shafter) lied on a central point and that Durandhad told Mackenzie he wanted nothing to do with the latter's attemptedcoup. The author also exhibits good judgment in exonerating Robinsonfrom a charge of distorting the evidence in the trial of John Montgomery'sTavern. He also gives the Chief Justice full marks for disqualifying himselfat the trial of Dr. Thomas Morrison - a key Mackenzie supporter inToronto, deeply implicated in the Rebellion - because of mutual antipathyin past politics. In pointing to Robinson's courageous, well-reasonedstand - maintained in the face of opposition from the British Law Officers- Brode correctly concludes that, without special statutory provision,American 'brigands' invading the province owed no allegiance and couldnot be tried for high treason.To these latter points, supportive of Robinson's essential integrity,the author might have added others. In the Durand trial, for example,Robinson rejected the Crown's legal argument, that written advocacyof rebellion with simple intent to publish, but no actual publication,constituted treason. And Robinson's opposition to enforcing fully the2 10 Cambridge L.I, 1948, 61-63.19861 1045OSGOODE HALL LAW JOURNALantiquated doctrine of perpetual allegiance probably saved the life ofthe Irish-American 'General,' E.A. Theller. On the other hand, Robinson'ssumming-up could often be blatantly one-sided and his Lawless AggressionsAct of 1838 permitted the trial of civilian Upper Canadians by courtsmartial. In his charge to the Grand Jury (March 1838), moreover, Robinsondefined "compassing" or plotting the Queen's death under Edward In'sStatute of Treasons (1352) as including a mere conspiracy to rebel (whichwas not levying war), despite the fact that the object of the allegedconspiracy, Queen Victoria, had her residence more than 4,800 km. fromToronto. In short, Robinson's record in the treatment of securitycases - both as acting Attorney-General and as Judge - was a mixedone; but he was far more sensitive to the rule of law than most of thejudges and colonial law officers of the time. Robinson's integrity in securitycases - indeed in political cases generally - provided a revealing contrastto the ultra-royalist approach on his fellow Loyalist and near-contemporary, Jonathen Sewell, who acted successively as Attorney-General for Lower Canada (1795-1808) and Chief Justice of that province(1808-1838).One of the most perceptive portions of the book reviews Robinson'scommon law decisions as "Lord Chief Justice." We see him, time aftertime, ignoring local custom or conditions and rejecting American mod-ernisms in order to apply British precedent. Thus, the myriad technicalitiesof pleading, as practised in the courts at Westminster, were continuallyinfused into the law of the colony, at the same time that they wereevaporating in the State of New York. The facilitating of laissez-fairecapitalism by the courts of the United States found little echo in Robinson'sjudgments: parol evidence was to be largely excluded in cases dealingwith commercial paper;, seals were to be affixed to corporate contractson pain of nullity (until 1859, when recent British precedent alloweda change); state licensed monopolies - ferries for example - were tobe protected against competition; and the usury laws had to be enforced.In Robinson's priorities, the invisible hand of Adam Smith took secondplace to the public interest, as represented by the common law, the Crownand Parliament.Where there was no governing precedent, Robinson occasionallyignored the thrust of British doctrine to tailor the law to the local, largelyfrontier, situation. Thus in Dean v. McCarty (1864), the Chief Justicerecognized the vital economic importance of rapid settlement in rejectingstrict liability where necessary land clearing operations, such as burningslash, damaged a neighbour's property. After Ry/ands v. Fletcher (1868),however, Robinson's judgment was reversed by the Ontario Court ofAppeal (1882). As Brode shows, Dean v. McCarty was something of1046 [VOL 24 No. 4an aberration. Long after the American courts had abandoned it, Robin-son, for example, clung to the doctrine of waste, which inhibited theimprovement of landed property, including forested acres by tenants.The author agrees with Professor Risk's characterization of Robinsonthe judge as an uncreative positivist and one who exhibited strikingdeference to authority.3 Brode adds an important nuance: the lack ofcreativity grew naturally out of, and was explicitly grounded in, deferenceto the common law, Crown and Parliament. The insights and concreteexamples furnished by the chapter on Robinson's judgments will bevaluable not only to legal historians, but to students and teachers interestedin the frontier thesis, the Loyalist tradition, the evolution of the mixedeconomy, and the general ideological question of deference to authorityin Canadian history.Only a few matters of fact require more care than Brode provides.He could emphasize more strongly that Robinson and the "Tories" couldindulge significant law reform because their 'home' model and theirlegalism offered a base for an idealism that most constitutional liberalslacked, and often scorned. Slavery offered a case in point: In bothCanada's, it had been mainly local 'Tories,' like Colonel Simcoe, wholed the fight to abolish it in the 1790s. Ironically, Robinson's father hadopposed this, supporting loyalists who brought their slaves north. Andat the end of his career, Robinson's strict legalism drove him into awidely unpopular decision to return John Anderson, a fugitive Missourislave living in Brantford, to his 'owner.'4 Again Brode's narrative on the1833 Capital Punishment Act should have taken stronger notice ofcontemporary law reform in England, where the 1820s had alreadywitnessed the dismantling of much that was medieval of the commonlaw. That context helps explain the Canadian reduction for capital offencesfrom about 125 to about fifteen, but that Act hardly "defined the penallaws"5 which remained something of a jumble. Similarly, it is rathermisleading to state without explanation that after the Rebellion "eight-three Upper Canadians"6 received transportation for life to Van Dieman'sLand. In truth, seventy-eight were Americans, which fact no doubt defusedthe whole episode's volatility in Upper Canada's politics, identifying thedevil as coming from the outside!With this biography, the Osgoode Society continues to give the leadin Canadian legal history. And each member of the Law Society of Upper3 27 U.T.LJ., 1977,431.4 Brode, supra, note 1 at 264.S Brode, supra, note 1 at 184.6 Brode, supra, note 1 at 202.1986] Book Reviews 10471048 OSGOODE HALL LAW JOURNAL [VOL. 24 NO. 4Canada ought to be proud of this fact and of the consistently high qualityin scholarship produced by their patronage. They also should know thatwhat we continue to know, about our legal and illegal past, dependsentirely on the evidence we secure for survival. That is why the Bencher'sarchives at Osgoode Hall needs vigorous, vigilant support. Patrick Brodecould not have written this book without the Robinson papers at theArchives of Ontario,. as well as related manuscript collections (andpaintings) at Osgoode Hall, the Metropolitan Toronto Library, and thePublic Archives of Canada. What the author adds to research skill isa careful, vivacious pen and an innate ability to tell a good story well.The book is a pleasure to read and a model for future legal biography.

https://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?article=1859&amp;context=ohlj

Book Review: Flesh and Pulse - Sir John Beverley Robinson: Bone and Sinew of the Compact, by Patrick Brode

Abstract

Similar works

Full text

Available Versions

bepress Legal Repository

York University, Osgoode Hall Law School