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Conservatism, Radicalism, and Reform of the Civil Courts in Upper Canada, 1841-1853

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Conservatism, Radicalism, and Reform of the Civil Courts in Upper Canada, 1841-1853 Osgoode Hall Law Journal Volume 57 Issue 2 Volume 57, Issue 2 (Fall 2020) Article 3 1-14-2021 The “Majestic Equality” of the Law: Conservatism, Radicalism, and Reform of the Civil Courts in Upper Canada, 1841-1853 William N. T. Wylie National Historic Sites Directorate, Parks Canada Follow this and additional works at: https://digitalcommons.osgoode.yorku.ca/ohlj Part of the Law Commons Article Citation Information Wylie, William N. T.. "The “Majestic Equality” of the Law: Conservatism, Radicalism, and Reform of the Civil Courts in Upper Canada, 1841-1853." Osgoode Hall Law Journal 57.2 (2021) : 381-426. https://digitalcommons.osgoode.yorku.ca/ohlj/vol57/iss2/3 This Article is brought to you for free and open access by the Journals at Osgoode Digital Commons. It has been accepted for inclusion in Osgoode Hall Law Journal by an authorized editor of Osgoode Digital Commons. The “Majestic Equality” of the Law: Conservatism, Radicalism, and Reform of the Civil Courts in Upper Canada, 1841-1853 Abstract The mid-nineteenth century was an age of reform in the civil courts of the common-law world. Why, in spite of the clamour for change within Upper Canada and the introduction of reforms in adjacent common-law jurisdictions, were Upper Canada’s leading lawyers and politicians so reluctant to act? The answer is found in the conservatism of the province’s leaders, which stemmed not only from the legal training of the lawyers, but also from the moderate conservative ideology of the Upper Canadian leadership as a whole. At an almost unprecedented time of public debate, when resentment to lawyers and the courts was being expressed and a radical critique of the courts and the profession was emerging, Upper Canada’s most influential esidentsr managed to maintain political control and steadfastly refused to act in advance of the mother country. This article is available in Osgoode Hall Law Journal: https://digitalcommons.osgoode.yorku.ca/ohlj/vol57/iss2/3 381 The “Majestic Equality” of the Law: Conservatism, Radicalism, and Reform of the Civil Courts in Upper Canada, 1841-1853 WILLIAM N.T. WYLIE* The mid-nineteenth century was an age of reform in the civil courts of the common-law world. Why, in spite of the clamour for change within Upper Canada and the introduction of reforms in adjacent common-law jurisdictions, were Upper Canada’s leading lawyers and politicians so reluctant to act? The answer is found in the conservatism of the province’s leaders, which stemmed not only from the legal training of the lawyers, but also from the moderate conservative ideology of the Upper Canadian leadership as a whole. At an almost unprecedented time of public debate, when resentment to lawyers and the courts was being expressed and a radical critique of the courts and the profession was emerging, Upper Canada’s most influential residents managed to maintain political control and steadfastly refused to act in advance of the mother country. * Te author has a PhD in Canadian History from Queen’s University at Kingston, Ontario and spent most of his career as a historian at the National Historic Sites Directorate of Parks Canada. He thanks the anonymous reviewer of his paper for extremely helpful comments. An earlier draft was presented to the Osgoode Society Legal History Workshop at the University of Toronto in 2017. 382 (2020) 57 OSGOODE HALL LAW JOURNAL I. REFORMING THE COURTS DURING THE STRUGGLE FOR RESPONSIBLE GOVERNMENT, 1841–1849 ................................................................................................................ 391 A. Regionally-based Lower Courts ......................................................................................... 391 B. Superior Courts .................................................................................................................. 394 II. COURT REFORM AS A POLITICAL ISSUE, 1850–1853 ...................................................................... 403 A. The Clear Grits and the Radical Spring of Legal Reform .................................................. 403 B. Legislative Debates, 1850–1853 ......................................................................................... 408 C. Epilogue.............................................................................................................................. 420 III. CONCLUSION .................................................................................................................................... 421 THE MID-NINETEENTH CENTURY WAS a rare moment in the history of Upper Canada (later Ontario) when civil court procedure and organization became a subject of intense political debate. It was a time when change was in the air with the rise of Chartism in Britain, revolutionary movements on the continent, and the rhetoric of Jacksonian democracy in America. In the legal sphere, signifcant changes were already underway to common-law and equitable procedures in the province’s two touchstones, England and the United States. New York State, adjacent to Upper Canada, took the bold step of abolishing its equity court and merging common law and equity in 1848. Te British colonies of New Brunswick and Nova Scotia began a process of reform that led to the abolition of their courts of Chancery in 1854 and 1855 respectively.1 Similar debates began in Upper Canada in the 1840s, the result of both internal pressure and external infuence. By the early 1850s, a handful of vociferous radicals were advocating a complete overhaul of the legal system which they deemed to be unfair to the majority of the rural population. Even Upper Canada’s lawyers could see that reform of the antiquated procedures of the civil law would be necessary to adapt it to the needs of an emerging capitalist environment. Yet, the province failed to launch much needed and publicly requested law reform by the mid-1850s. Why was Upper Canada slower to introduce reforms than these other common-law jurisdictions? Te reasons include the culture of its legal profession, the emerging moderate conservative ideology of prominent politicians and other leading fgures in the province, and the limited infuence of critics of the 1. Lawrence M Friedman, A History of American Law, 3rd ed (Simon & Schuster, 2005) at 293-95; AH Manchester, A Modern Legal History of England and Wales, 1750–1950 (Butterworths, 1980) at 139-42; Philip Girard, “Married Women’s Property, Chancery Abolition, and Insolvency Law: Law Reform in Nova Scotia 1820-1867” in Philip Girard & Jim Phillips, eds, Essays in the History of Canadian Law, Volume 3: Nova Scotia (University of Toronto Press, 1990) 80 at 109 [Girard, “Married Women”]. WYLIE, THE “MAJESTIC EQUALITY” OF THE LAW 383 mainstream ideology and, in particular, of the political radicals who attempted to represent their viewpoint. Te conservatism of Upper Canada’s legal profession is well known. Te rigorous training that the Law Society of Upper Canada required of its students in English common law and equity encouraged a respect for legal tradition that could only have been deepened by the cautious behavior of Upper Canada’s judges during the frst half of the nineteenth century.2 While the judges were reluctant to depart from English precedents, G. Blaine Baker has found that by mid-century many lawyers from both Upper and Lower Canada in the United Province of Canada were drawing on a new-found faith in the capacity for social reorganization to introduce legislation intended to improve foundational institutions.3 Tis article demonstrates the limits of Baker’s argument when applied to civil court reform in Upper Canada. It is true that the profession exerted much infuence in politics: Not only were lawyers usually the leaders of the two political parties, but the proportion of lawyers among Upper Canada’s representatives in the Assembly was never less than one third and actually slightly more than ffty per cent after the election of 1847.4 Although leading lawyers were willing to make some adjustments to adapt the courts to the needs of an emerging capitalist society, their goals were almost invariably to preserve as much of the existing system as possible—particularly its legal procedure—while waiting for the mother country to initiate reform. Upper Canada’s lawyers were not only conservative by legal training, they were also being infuenced by a broader ideological consensus emerging among the province’s leading politicians, professionals, and businessmen by the 1840s. Tis viewpoint, which was increasingly held not only by Reformers but also by Conservatives in politics, was conservative in its rejection of revolution and its 2. G Blaine Baker, “Legal Education in Upper Canada 1785–1889: Te Law Society as Educator” in David H Flaherty, ed, Essays in the History of Canadian Law: Volume II (University of Toronto Press, 1983) 49 at 50-51, 55 [Baker, “Education”]; RCB Risk, “Te Law and the Economy in Mid-Nineteenth Century Ontario: A Perspective” (1977) 27 UTLJ, 403 at 438. 3. G Blaine Baker, “Introduction: Quebec and the Canadas, 1760–1867: A Legal Historiography,” in G Blaine Baker and Donald Fyson, eds, Essays in the History of Canadian Law, Volume XI: Quebec and the Canadas (University of Toronto Press, 2013) 3 at 310, 316 [Baker, “Historiography”]; ibid at 37-38; G Blaine Baker, “Strategic Benthamism: Rehabilitating United Canada’s Bar through Criminal Law Codifcation, 1847–54” in Jim Phillips, R Roy McMurtry, & John T Saywell, eds, Essays in the History of Canadian Law, Volume X, A Tribute to Peter N Oliver (University of
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