Contributor: Mary Stokes
Race is a notoriously slippery construct. Who and what is black or white or ‘other’ are questions which have been long debated by lawyers and historians. But the difficulty of distinguishing the first lawyers of colour in Canada relates less to the indeterminacy of their colour than to questions of periodization and historical significance, in their way as constructed as the concept of race. Robert Sutherland, Abraham Walker and Delos Davis have all been celebrated as the ‘first black lawyer in Canada’ but also ignored, both during their own lives and after their deaths. Ironically, their colour made them at once visible and invisible to their contemporaries and to historians.
The claim that Robert Sutherland, who was called to the bar of Canada West (now Ontario) in 1855, was actually the first black lawyer in Canada seems unassailable, unless one considers pre-confederation British North America does not count as ‘Canada.’ And of course barring another discovery: academics were alerted to Sutherland’s existence by Constance Backhouse in the course of her research on the history of racism in the Canadian legal system in the late 1990s. Up to that point the honour of chronological primacy had gone to Davis or Walker, and some websites still cite each of the latter as having been first.
Despite recent efforts to reclaim their stories, not a great deal is known about any of these men. Especially is this true of Sutherland. His legal career seems to have been considered more of an anomaly than an achievement by his contemporaries, and few records have been found. We do know that Sutherland was not a native born Canadian. He is believed to have been the son of a free black Jamaican mother and (also free) white Scottish father, born in Jamaica in 1830 or thereabouts, who came to Upper Canada to study at Queen’s, the then-fledgling Presbyterian University. It is partly the ease with which he was able to attend university as the first student and then graduate of colour without visible means of support, and then gain admission to study law by the Law Society of Upper Canada and find articles—something that later members of marginalized groups found a challenge–that has sparked speculation that Sutherland was something of a ‘remittance man’ whose way in the world was paved by the presumed wealth and connections of his father. After graduation, he practised law, apparently quite successfully, was elected to municipal office against white opponents, and allegedly was supported by the local community against the racial slur of a member of a travelling circus. When he died in 1878, Sutherland left his substantial estate to Queen’s, a bequest which was instrumental in that institution managing to avoid financial disaster. The only hint that his life and career had been adversely impacted by racism is to be found in the terms of the gift to the university, “where he had always been treated as a gentleman.”
To be neglected by posterity was a fate which also befell the next person of colour to be called to the bar in British North America, Abraham Beverley Walker of New Brunswick. Walker, who born in Belleisle, NB, the child of a loyalist farming family, it is thought may have been educated by a clergyman who was pioneer of shorthand transcription, and in fact his stenographical ability may have been more a more significant factor in his career than his legal training. Walker attended university and then law school in the United States. After a three year apprenticeship with a lawyer during which he moonlighted as a shorthand reporter, he was admitted as a solicitor by the Supreme Court of New Brunswick in 1881 and called to the bar of St. John in 1882. His law practice in that (mostly white) city did not flourish, and he supplemented his income by working as a court reporter. He then tried his luck south of the border but returned to Saint John to attend, and be the first graduate, of the Saint John Law School. For some years he was librarian of the Saint John Law Society. After losing this post, he helped found and worked to promote the African Civilization Movement, an organization dedicated to the re-settlement of British Africa by educated black North Americans, in which effort he was engaged when he died in 1909. He was unconventional as well in his advocacy on racial issues; he was a promoter of rights for blacks, but not on the basis of colour blind-equality, rather, he argued for black superiority based on alleged ancient lineage.
It would be reductionist to blame all Walker’s professional woes on the undoubted racist nature of his society. The loss of his library position may have been the result of absenteeism as alleged, and the several failed attempts to recognize him with the designation of Queen’s Counsel may have been due to poor timing and the wrong political connections. However, his exclusion from an anniversary celebration of the NB bar in 1885 can only be attributed to systemic racism. That this led to a scandal in the profession, coupled with the fact that he was even considered for the QC, is only evidence that this racism was not uncomplicated.
The third man celebrated as the ‘first’ black lawyer in Canada, Delos Rogest Davis, (1846-1915) was born in Maryland, the son of a slave who fled with his family to Canada West in 1850. Davis was educated at church and later public school in a black community in south-western part of the colony. As an adult he worked at a number of what would today be considered blue collar jobs, until he became a teacher in or around 1870. While probably no more lucrative than his previous employment, teaching apparently afforded him a degree of leisure time and possibly the social standing necessary to commence what became an unusually lengthy process of becoming a barrister and solicitor. He began to study law with a local judge and lawyer, and became a notary public. However, his legal aspirations hit a snag when he was unable to find a lawyer to accept him as an articled student, as the completion of articles along with examinations was a prerequisite to the practice of law imposed by the Law Society. The one, very rare, exception to this monopolistic rule was an act of the provincial legislature. With the help of his MLA, Davis’s exceptional situation—his colour—and resulting hardship were the basis of two acts, passed some fifteen years after his studies began. In 1887 he began what appears to have been a successful practice in the racially mixed Windsor area, where he specialized in drainage and criminal law and, like Sutherland, became involved in municipal politics. Unlike Walker, Davis was eventually honoured as a K.C. (King’s Counsel). Notably, however, this recognition did not occur until the occasion of his retirement.
For further reading:
Deidre Rowe Brown has written movingly about Robert Sutherland—the little she could find in various archives about his life, supplemented with the substantial amount of relevant information available about his times, and the changing reception of his legacy—in “Robert Sutherland: Celebrating the Legacy,” 35 Queen’s Law Journal (2009-2010), 401.
For Delos Davis and Abraham Walker, the most authoritative accounts are to be found in The Dictionary of Canadian Biography Online: Owen Thomas, “Delos Rogest Davis,” and J.B. Cahill, “Abraham Beverley Walker.” For the historical experience of blacks and other racialized groups in the Canadian legal system generally, see three publications of the Osgoode Society for Canadian Legal History: Constance Backhouse, Colour-Coded: A Legal History of Racism in Canada , 1990-1950 ( U of T Press for the Osgoode Society for Canadian Legal History, 1999) , James W. St.G. Walker, “Race,” Rights and Law in the Supreme Court of Canada: Historical Case Studies, (Wilfrid Laurier University Press for the Osgoode Society for Canadian Legal History, 1997) and Barrington Walker, Race on Trial: Black Defendants in Ontario’s Criminal Courts, 1858-1958 (U of T press for the Osgoode Society for Canadian Legal History, 2010). Details for all three books are available on this site.