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A Brief History of the Court of King’s Bench for Upper Canada, 1791-1841.

Contributor: Jim Phillips

The Court of King’s Bench was founded in 1794, by the Judicature Act (34 Geo III, c. 2) of that year. The Act abolished the existing district Courts of Common Pleas and established King’s Bench as the sole superior court for the colony. The new court had ‘all such powers and authorities as by the law of England are incident to a superior court of civil and criminal jurisdiction,’ and referenced the English courts of King’s Bench, Common Pleas, and Exchequer. The court did not have Chancery jurisdiction. King’s Bench became the Court of Queen’s Bench in 1837 with the accession of Queen Victoria.

The 1794 Judicature Act specified that the Court was to consist of three judges, the Chief Justice of Upper Canada and two puisne judges. In 1837 the number of judges was increased to 5.

William Osgoode was the first Chief Justice of Upper Canada, appointed to that post in 1791, three years before the Court of King’s Bench was formally established.  He was a member of Lincoln’s Inn and, typically for the period, obtained the post through patronage. Osgoode drafted the Judicature Act but never sat as Chief Justice of King’s Bench, leaving the colony to become Chief Justice of Lower Canada in 1794.

Between 1794 and 1796 King’s Bench only had two judges – William Dummer Powell, a Boston lawyer who had trained at the Inns of Court was puisne judge and acting Chief Justice, and Peter Russell was acting puisne judge. Russell was not legally-trained, which was unusual by the late eighteenth century although not unique in the colonies.

In 1796 an English barrister, 28-year old John Elmsley, was appointed Chief Justice. Powell reverted to the post of puisne judge, and another English barrister, Henry Allcock, filled out the complement to three judges, as the Judicature Act specified.

In 1802 Elmsley left the colony to replace Osgoode as Chief Justice of Lower Canada, and was replaced as Chief Justice by Allcock. Powell remained as puisne judge and was joined by Thomas Cochrane, 1803-1804, a Nova Scotian who had trrained at the Inns of Court and was formerly Chief Justice of Prince Edward Island, and then by Robert Thorpe, an Irishman who had also been Chief Justice of Prince Edward Island.

In 1806 Allcock followed the pattern of his predecessors and transferred to Lower Canada. He was replaced as Chief Justice by Thomas Scott, a Scotsman and a member of Lincoln’s Inn who had been appointed attorney-general of Upper Canada in 1800. Scott served a decade as Chief Justice, with Powell as a puisne judge for the same period. The other puisne judge 1806-1807 was Thorpe, who was suspended from office for his political activities – promoting the responsibility of the executive to the elected assembly. He was able to secure the Chief Justiceship of Sierra Leone, a post from which he was later dismissed. It took until 1811 for another puisne judge to be appointed to Upper Canada, William Campbell. Campbell was a Scot who served in the British army in the American revolutionary war. He received as reward a land grant in Nova Scotia, became attorney-general of Cape Breton (a separate colony from Nova Scotia until 1820), and went back to Britain and used his influence to get the Upper Canada job.

When Scott retired in 1816 he was succeeded as Chief Justice by the long-serving Powell, a puisne judge since 1794, He served with puisne judges William Campbell and D’Arcy Boulton. Boulton was born in England and studied law at the Inns of Court but did not qualify. Fleeing bankruptcy, he emigrated, first to the United States in 1797, and then to Upper Canada, where he was licensed as a lawyer. In 1805 he became solicitor-general. In 1810 the ship on which he was travelling to England was captured by the French, and he spent over two years as a prisoner of war. After returning to England he was able to persuade colonial authorities to send him back to Upper Canada as attorney-general.

In 1825 Powell retired and was succeeded as Chief Justice by Campbell. Boulton continued as a puisne judge until 1827, when he retired. He was replaced by John Walpole Willis, another English Chancery barrister, who fell out with the Governor and was suspended in 1828. Willis later received a judicial appointed in New South Wales and was again removed by the Governor. Willis was briefly replaced by Christopher Hagerman, the first Upper Canadian judge born in the colony. Hagerman was appointed by the Governor, not London, and a year later the home government refused to confirm his appointment and gave the post instead to James Macaulay, another Upper Canada born judge. At the same time as this news arrived, Campbell resigned and was replaced as Chief Justice by John Beverley Robinson. Robinson was the most dominant judicial figure on the early to mid-nineteenth century, remaining as Chief Justice until 1862.  Robinson was born in Lower Canada, but had moved to Upper colony as a young man and lived the rest of his life there. When Levius Sherwood was appointed as the second puisne judge, joining Macaulay, the court had a full complement for the first time in some years. The three served together until 1837.

In 1837 the number of judges was increased to five, and Archibald MacLean and Jonas Jones were added to the court in consequence. See An Act to increase the present number of the Judges of His Majesty’s Court of King’s Bench in this Province; to alter the Terms for the sitting of the said Court; and for other purposes therein mentioned, Statutes of Upper Canada, 1837, c. 1. Both were North American – MacLean born in Lower and Jones in Upper Canada.

Also in 1837 a Court of Chancery was established, Upper Canada having previously been without one. The Chancellor was Robert Sympson Jamieson, an English barrister of the Middle Temple. He had been Chief Justice of Dominica between 1829 and 1833, and then secured the post of attorney-general of Upper Canada, the last attorney-general to be appointed from England, the last AG so appointed.

The Court of King’s/Queen’s  Bench of Upper Canada lasted only four more years, because Upper Canada stopped being an independent colony and became Canada West, part of the new Province of Canada, in 1841. Its judges during this last period were Chief Justice Robinson, and puisne judges MacLean, Macaulay, Jones, Sherwood (until 1840) and Christopher Hagerman (from 1840).

All of the judges mentioned here appear in the Dictionary of Canadian Biography, a wonderful resource available on line at www.biographi.ca.