MHS Transactions, Series 3, 1947-48 Season
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The coming of civilization to a land inhabited only by people still living in the New Stone Age is a manifestation which well repays study: and with civilization always marches the Law. The story of the coming of the Law to Rupert's Land is still to be gathered into a comprehensive and authoritative volume, and that volume may never be written.
It is a simple matter to declare what laws shall be in force from time to time, in a new country. To administer and enforce such laws is a more difficult matter. The simple machinery which is made to work in the earliest times must, as the civilized population increases, as trade begins to flourish, and commerce becomes an important part of communal life, be changed, and improved, and made more elaborate if it is to fulfill its necessary and vital function.
It has often been remarked that the country west of Hudson's Bay has enjoyed a longer continuous connection with Great Britain than any other portion of the Dominion of Canada, and has witnessed a greater variety of experiments than any other section of the Dominion. [1]
Our tale begins with the granting on May 2, 1670, of the Royal Charter to "The Governor and Company of Adventurers of England Trading into Hudson's Bay."
The charter constituted the company and their successors "the true and absolute lords and proprietors" of this vast territory granted, saving the allegiance due to the King, and subject to the satisfaction of a nominal rent.
"The charter provided that the affairs of the company were to be managed by a governor and a committe, and that the company might make, revoke, and alter such reasonable laws, constitutions, orders, and ordinances, as the company might deem necessary and convenient for the good government of the company and of all governors of colonies, forts, plantations, etc., and for the better advancement of their trade or traffic, and plantations, and enforce such laws, etc., by penalties and punishments, provided that such penalties, etc., were not contrary or repugnant, but were 'as near as may be agreeable' to the laws of England. Under the terms of the charter the company had power to appoint governors and other officers to govern the territories granted to the company, such governors and their councils respectively being empowered to judge all persons connected with the company, or living within the territories granted, in all cases, whether civil or criminal, according to the laws of the Kingdom, and to execute justice accordingly. If any crime or misdemeanour were committed in any part of the company's territories where justice could not be executed for want of a governor and council there, the chief factor of the district and his council might send the accused to England for trial." [2]
The pattern is a familiar one. The laws might be ascertained, but they were to be interpreted and applied by men with no education in the law, and often men not qualified by temperament to administer the laws judicially. In some cases such duties might be unwelcome and the performance of them neglected.
These difficulties did not arise to any extent, however, until with the Red River Colony an extensive community was founded. Then we find one of the earlier governors of the colony of Assiniboia writing, in 1822: "I did not expect when I left England to be called upon at any time to perform any judicial functions for which I am not competent in point of ability, nor qualified by law." [3] The councillors, as well as the Governor of Assiniboia, were called upon to perform judicial functions for which they were as little qualified.
"The primary function of a councillor was not to advise nor to assist in the management or government of the colony. It was to act as an assessor in judicial matters." [4]
A natural result followed. "The council began to assume administrative and legislative functions. It began also to divest itself of judicial functions. In the former it was entirely successful; in the latter only partly so. The net result was to leave the council not less a judicial tribunal than an executive and legislative body." [5]
Such a combination of powers, functions and duties is never satisfactory, and as the colony at the juncture of the Red and Assiniboine increased in size and importance, its weaknesses became more manifest.
The courts, whatever their powers and functions, must have the means to enforce their decisions. It is not sufficient to have sheriffs. There must be a police force of some kind to enforce the decrees of the courts and to detect and prevent crime.
Miles Macdonell, Governor of the Red River Settlement in 1812, had realized this and suggested to Lord Selkirk that some form of military government should be established: a suggestion that was rejected. [6]
Governor Bulger realized it also, and two of the recommendations he made to the company in 1822 were to get courts and magistrates nominated by the King, and to have a company of troops sent out to support the magistrates and to keep the natives in order. [7]
Our conception of how justice should properly be administered requires that there should also be a strong legal profession: the barrister and solicitor each has an important part to play.
One of our distinguished Canadian historians, of French descent, says in a short history of the Bar of Montreal:
"Parmi les manifestations de ce progres est parallelement d la transformation sociale, economique et politique de Montreal, l'evolution du systeme judiciaire n'a pas ete la moins importante. La justice, en effect, est le premier besoin de l'homme vivant en societe. Service social essentiel, une same distribution de la justice est non seulement necessaire d la paix publique, mais elle constitute encore le principal element de stabilite des droits individuels. Or, l'avocat est l'intermediaire naturel entre le tribunal, dispensateur de justice, et l'individu lese dans sa personne et dans ses ciens. C'est sur lui que reposent la fortune, la liberte, et parfois la vie de ses clients." [8]
The Red River Settlement, or District of Assiniboia, had to wait until it became the Province of Manitoba for the separation of the judicial from the legislative functions, for a trained and organized legal profession, and for judges appointed by the King from members of the profession.
On March 20, 1839, however, the first judicial officer, educated and trained in the law, was appointed for Rupert's Land, with the title of Recorder. It is my intention to say something of the legal history of Manitoba from that date to the first appointment of Her Majesty's judge of Manitoba.
It should be, in passing, that the legal history of Manitoba before 1839 is a story full of interest to the lawyer, and should some day be told, even if only a few should be found to be interested in it. The history of our legal institutions since 1870 is better known, but there is an interesting story yet to be told.
To resume: The first Recorder of Rupert's Land, Adam Thom, "was educated at King's College, Aberdeen, and before coming to Canada was engaged as a schoolmaster in the north of Scotland. He practised law at Montreal and became connected with the Montreal Herald as editorial writer. During the stormy period of the Rebellion of 1837, he directed its editorial policy and acquired a great influence as the leading advocate of the views of the British party in the Montreal district. Thom was suspicious of the Durham Mission, and from the beginning severely critized Lord Durham's policy. His outstanding ability and the wide influence of his paper made Thom a dangerous antagonist, and Durham annexed his support. He was, accordingly, appointed one of the assistant commissioners of inquiry into the municipal institutions of Lower Canada. The report of this commission forms Appendix C. to Lord Durham's report. Thom returned to Great Britain with Lord Durham, and his extensive local information was of the greatest assistance in the final preparation of this report." [9]
Of Adam Thom, Professor A. R. M. Lower says:
"Then towards the end of the summer he (Lord Durham) appointed to the Commission on Municipal Institutions, and as personal adviser, Adam Thom, editor of the Montreal Herald, a Scot who had only been in the country a few years, but who had become one of the most reactionary Tories, a man unrestrained in his hate and contempt of French Canadians." [10]
It will be interesting to see to what extent Professor Lower's impeachment of this undoubtedly able man is justified. The inquiry throws an interesting light upon conditions in Assiniboia, during Thom's term as Recorder (March 20, 1839, to May 1, 1851) and on the administration of justice in the district.
All went quietly for some years, but in May, 1849, the company instituted prosecutions against one Pierre Guillaume Sayer and a number of others for illicitly trafficking in furs with the natives. The case against Sayer came on for trial before the court, consisting of the Governor and Councillors of Assiniboia, usually called the General Court, or the General Quarterly Court, on May 17, 1849.
The court consisted of Major Caldwell, Governor of Assiniboia, President, Recorder Thom, Alexander Ross, John Bunn and Cuthbert Grant, Councillors and Justices of the Peace.
"On the defendant being called to answer to the charge against him, a considerable time elapsed before he could be found, but on the assurance of Sheriff Ross that he was near at hand, the court waited, and the sheriff left the bench in search of him, but in place of the defendant coming to the bar of the court, James Sinclair, Peter Garrioch and many others presented themselves as delegates from a great number of armed half-breeds who were outside the court." [11]
This committee, as it has been called, was organized by Louis Riel, Sr., to secure the acquittal of Sayer and to affirm liberty to trade in furs. [12] One of the members of this committee was Francois Bruneau, who had in 1843 petitioned for a distillery and a reduction in the number of police. [13] Bruneau was a man of integrity who subsequently served as magistrate and councillor with marked ability and impartiality. [14]
James Sinclair handed a paper to the court, and after it had been read by the members of the bench, the recorder asked him in what capacity he and his associates appeared. The answer was, "As delegates of the people."
The recorder told these men that they could not be received in a court of justice in that capacity, and then proceeded to explain the law to them.
It is interesting to note what Schofield says of the recorder: "He was dogmatic and prone to make long dissertations on the law as he understood it, facts which did not commend him to the practical British-born colonists, and he did not speak French, a serious disability in the eyes of more than half the people in the settlement. He had been appointed by the company at a large salary and so public confidence in his impartiality was not great, especially in cases in which the company was one of the parties to the suit. To the colonists Mr. Thom sometimes appeared to act both as lawyer and judge, and this did not meet with their approval." [15]
After the recorder had given his explanation of the law, and some further discussion, "it was offered to Sinclair to pleade [sic] for the defendant, Sayer, and leave given for him and his party to withdraw and consult on the same, and the offer made by the recorder to Sinclair that he might act as foreman, and Garrioch on the jury if he wished to do so; all that he (the recorder) wished was a fair and impartial trial."
The party withdrew and on their return Sinclair appeared at the bar with the accused. A jury was selected, Sinclair taking objections to some of the proposed jurors, who were evidently not chosen. One of the jurors was Francois Bruneau already referred to. The trial then proceeded. Chief Factor John Ballenden acted as prosecutor and seems to have given some evidence, also, though whether he was sworn as a witness does not appear on the official record. Four witnesses were heard and Sinclair is shown to have cross-examined one, Magnus Linklater, the company's post master.
"The recorder, after summing up the evidence, addressed the jury and explained to them the rights of the Hudson's Bay Co. to this trade. The jury withdrew and after some time returned into court with a verdict of `Guilty of trading in furs.'"
The foreman of the jury, Donald Gunn, then recommended "the defendant to mercy, as it appeared that he thought he had a right to trade, as he and others were under the impression that there was a free trade."
Ballenden "immediately stated that the company did not value the furs which had been traded, but it was the principle of the transaction which he looked at, but once a jury has now given a verdict against this illicit trading, he willingly acceded to the recommendation of the jury and should drop the other three cases."
So ends the official record of what was probably the most remarkable case ever tried in the District of Assiniboia. It does not appear whether any sentence was ever imposed on Sayer. There was probably none.
The aftermath is curious and instructive. A meeting of the governor and council was held on May 31, 1849, "for the purpose of considering what measures ought to be devised for the prevention of such unlawful assemblages of the people as occurred" at the Sayer trial, "and for the restoration of the tranquility of the settlement ..." [16]
"The council concurred in the opinion that the excitement in question had arisen, in a great measure, from a desire on the part of the Canadian and halfbreed population to obtain the following objects, vidt.: 1st. The immediate removal of Mr. Recorder Thom from the settlement. 2nd. The conducting of all judicial business through the medium of a judge who would address the court in the French as well as the English language. 3rd. The rescinding of the existing law respecting all imports from the United States of America. 4th. The infusion into the Council of Assiniboia of a certain proportion of Canadian and half-breed members. 5th. A free trade in furs."
The record then proceeds:
"With reference to these objects, the council unanimously concurred in opinion, as regarded the first, that the personal liberty of Mr. Thom must be held equally inviolable with that of every other citizen, and that those attempting any infringement on the same must bear the consequences; with respect to the second, that Mr. Thom, having at the commencement of the proceedings, expressed his willingness, in future, to address the court in both languages, in all cases involving either Canadian or half-breed interests, such a line of procedure should be hereafter adopted; as respects the American imports, the council pledges itself to take the whole matter into its favourable consideration; that with respect to the infusion of Canadian and halfbreed members into the council, the council has no direct power in the matter, but will gladly make a recommendation to the Committee of the Hon'ble Hudson's Bay Company on the subject. With regard to free trade in furs, the council cannot interfere in the matter, as any alteration can only be effected by the Queen and the two Houses of Parliament." [17]
From the foregoing it appears that Recorder Thom was sufficiently acquainted with the French language to address the court in both languages.
He does not appear to have sat again as recorder until July 16, 1850, when the case of Foss vs. Pelly et al was heard. That was an action by Christopher Vaughan Foss against Augustus Edward Pelly and others in which the plaintiff sought to clear the reputation of a lady who had been defamed by the defendants. The jury, after being out four hours, found the defendants guilty and assessed damages as against Pelly and his wife at £300, and against the defendants, Davidson and his wife, at £100. [18]
It is interesting to observe that one of the witnesses for the defence was Louis Riel, active in the Sayer rising and father of the leader of the insurrection, 1869, dit L'Irelande [sic], and that Pelly conducted his own defence and questioned witnesses. But the significant matter for our inquiry is that the defendants, at the opening of the trial, objected to the formation of the court, as Thom was sitting as a judge in a case in which he earlier acted as attorney for the plaintiff, an objection that was overruled by the court. At a later stage, when Riel was being examined, the question was again raised. Upon this being done, an altercation took place in which the recorder bore his share, and the clerk was unable to record what was taking place. The noise in the court at this time was of such a nature as to cause Sheriff Ross to address the people, which had the effect of calming them, and the trial proceeded.
Thom never sat again as recorder or councillor. A petition was presented to Sir George Simpson asking for Thom's removal [19], and at a meeting of council, May 1, 1851, the governor announced that, in consequence of instructions received from the committee, Mr. Thom's commission as recorder and councillor had been revoked, but that Mr. Thom had been offered and accepted the office of Clerk of the Council and of the Court. [20] He held these offices at the same salary he had received as recorder, but, while he acted as clerk to the council, he was never called on to attend the court. He returned to Scotland in 1854. [21]
The general testimony is that he left behind him the reputation of great ability and that, as the first lawyer and judge in what is now Manitoba, he is entitled to a prominent place in our legal and general history.
After Thom's dismissal as recorder, Major Caldwell, Governor of Assiniboia, acted as judge. He said, in giving evidence before a parliamentary committee in 1857: "I administered justice as far as hearing what was said, but I pretty much adopted the plan which is usual in our military courts, and instead of charging the jury, which I felt I had not the ability to do (I had not phraseology to charge the jury in the language in which they should be charged), I merely desired the clerk of the court to read the proceedings to refresh the memories of the jury, and I left them to decide the question." [22]
It was not until 1855 that another lawyer was appointed recorder. This was F. G. Johnson, Q.C., a member of the Quebec bar, of great ability and an accomplished French scholar. He served until 1858, when he returned to Montreal. From 1858 to 1861 there was no recorder, but Dr. John Bunn, Chief Medical Officer, fulfilled the functions of that office without legal training. From 1862 to 1870 John Black, who had acquired some legal experience in Scotland, presided over the courts of justice and performed the duties of recorder. He was sent to Ottawa in the spring of 1870 as one of the delegates of Riel's Provisional Government to present the half-breeds' Bill of Rights and never returned.
In 1870 F. G. Johnson, who in the meantime had been a judge of the Superior Court of Quebec, returned to Assiniboia as recorder and administrator. In 1872 he went back to Quebec. In 1889 he was appointed Chief Justice of the Superior Court of that province, was subsequently knighted, and died in 1894.
While in 1849 council had unanimously agreed that in all cases involving either Canadian or half-breed interests the court should be addressed in both languages, no provision for this was made by law, and, indeed, it was probable that no such law could validly be made. The practice, however, would seem to have been followed when the presiding officer possessed command of the French language.
I have referred to the necessity for a police force, and some information about this can be extracted from the Records of Assiniboia from 1822 to 1869.
On May 29, 1822, the company passed a resolution, "that the governors in their respective districts may enroll and arm such numbers of the company's servants and other male inhabitants of the ages from 18 to 45, as they may from time to time deem expedient for the defence and protection of the settlements and of the lives and properties of the inhabitants, and that they take the necessary measures for the proper regulation and discipline of the said force while embodied." [23]
In September, 1823, Sir George Simpson expressed the view that raising a corps of militia could not then safely be attempted, and recommended the establishment of a police force on some regular system. [24]
In November of the same year he wrote that it had been considered "expedient to form a strong police, consisting of Mr. McKenzie as High Constable, and about fifty special constables who do the duty gratuitously, twenty regular or petty constables and two bailiffs." He pointed out that all settlers receiving land grants are bound by oath to assist in maintaining the peace and good government of the settlement, this being made an express condition in their titles. [25]
The scope of this paper will not permit me to deal with the attempts to form a local militia, or the demands by some of the population that regular troops should be stationed in the district. While military matters will require incidental mention, I shall confine myself as much as possible to the story of the police force. In 1822 we find Governor Bulger inquiring, "What can be expected if dishonest paupers, such as the great majority of the settlers are, when there is no jail, no magistrate, and no power to restrain their evil propensities." [26] The constables were appointed and in May, 1832, they were specially enjoined to impound straying stallions. [27]
In 1835 (February 12) the minutes of council contain an address from Governor Simpson in which he said:
"The population of this colony is become so great, amounting to about 5,000 souls, that the personal influence of the governor and council, and the little more than nominal support afforded by the police, which, together with the good feeling of the public, have heretofore been its principal safeguard, are no longer sufficient to maintain the tranquility and good government of the settlement, so that although rights of property have of late been frequently invaded, and other serious offences been committed, I am concerned to say we are under the necessity of allowing them to pass unnoticed because we really have not the means at command of enforcing obedience and due respect to the law." [28]
The sum of £100 was at that time allowed for the maintenance of the Police Establishment. [29] On February 12, 1835, it was resolved that that establishment was insufficient for the maintenance of the peace of the settlement. It was directed to be discharged as of April 1st following and provision was made for "a more efficient and disposable force" to be styled a Volunteer Corps. This was an armed body formed on a military model, consisting of a commanding officer, a sergeant major, four sergeants and 54 privates, whose pay amounted to about £400 per annum. [30]
This force did not function as well as it was hoped; its story may be extracted from the minutes of council, and after being reduced in numbers, it was disbanded June 16, 1845. [31]
In its place fifteen constables were appointed, who were paid three shillings and sixpence for each day's actual service on public duty, and at the end of every year an amount sufficient to bring the yearly pay up to £12. [32]
In 1848 the garrison of the settlement, sent out in the Oregon crisis of 1846, was withdrawn, against the wishes of many of the inhabitants.
The disturbances at the time of Sayer's trial in 1849 have already been referred to, and in 1850 it was directed that two constables be in attendance at each of the magistrate's courts during the sittings. [33]
In 1853 the number of constables was reduced to nine, to be appointed by the magistrates, and to serve for a term of three years. [34]
A recommendation was made in 1861 that a special police officer should be appointed at a salary of £30 per annum to enforce the laws for prohibiting the illegal sale of intoxicating liquors, who should use all diligence in obtaining proof of, and in prosecuting all offences against good order, of all breaches of the law generally, but more especially the liquor laws. This was approved and Nicholas Mousard was appointed. [35]
In 1862 and 1863, "the Sioux, who had been guilty of outrages and massacres in Minnesota, threatened the settlement. The settlers were eager to form a local militia for their defence. The council passed a resolution, which was embodied in a popular petition to the Home Government asking for military protection. [36]
The council at a meeting held March 11, 1863, expressed the opinion - "that while there was certainly some ground for anxiety regarding the public safety at the hands of the Indians, the danger to be apprehended from that source was not now so imminent as the petitioners appeared to believe, and that, under present circumstances, it would be somewhat premature on the part of the council to take immediate measures for the organization of such local force as that proposed, measures which, if adopted, would be attended with a heavier expense than perhaps, even the petitioners might be either able or willing to bear." [37]
The agitation for a military force continued, and was given new force by a jail break and rescue of prisoners which occurred on April 20, 1863. [38]
In the early part of 1866 "apprehension was again caused when a band of Red Lake Indians attacked" the Sioux, "close to Fort Garry. Retaliation was feared. Acting-Governor Black was authorized to raise a body of from fifty to one hundred mounted armed men to meet any emergency. In the following spring a small local force was advocated, not only to protect the settlement from Indian inroads, but to punish Indian depredations upon the cattle and other property of the settlers. The council, however, confined itself to authorizing a small addition to the strength of the existing constabulary force." [39]
Professor Oliver adds: "When serious danger again threatened the community, it did not come from the Indians, but was associated with the circumstances of the transfer of the settlement from the company to the Dominion. And the leading spirit was the son of that Louis Riel, the miller, who in 1849 had voiced the sentiments of the French Canadians against the too arbitrary rule of the company." [40]
The minutes of the council meeting of March 28, 1866, contain the following:
"A petition was presented from certain 'inhabitants of the Town of Winnipeg' representing that, owing to their locality having become a centre of business and a place where liquour was sold, the ordinary means of protection were found insufficient, and praying for the appointment of two constables for that neighbourhood, one for duty by night and the other by day. The subject was considered at some length and it was ultimately resolved that for the present the matter should stand over." [41]
With this sketch I shall leave the police force of the early days, hoping some one better qualified will write an account of its interesting history.
Time will not permit me to deal with other matters such as the appointment of sheriffs, and their functions, the establishment of jails, the forms of process in the court, the selection and qualifications of jurors, and other subjects too numerous to mention which should find a place in a legal history of Manitoba.
I should, however, like to say something of the coming of the Queen's Courts to Manitoba. When the Province of Manitoba was created, it was necessary to make provision for the administration of justice until the new courts were established and the judges appointed. This was done by keeping the jurisdiction of the General Court and the laws of Assiniboia in force during the transition period. The last sitting of the General Court was held in May, 1872.
In May, 1871, the Legislature of Manitoba at its first session established a court of justice for the province to be styled "The Supreme Court." The court was to be held by a judge styled "The Chief Justice," and was to meet at Winnipeg four times a year and at such other times as the Lieutenant-Governor might appoint. The province was divided into four counties for judicial purposes. A Sheriff of the Province was to be appointed, with a Deputy Sheriff for each county, and a Clerk of the Court, to be styled the Prothonotary. [42]
In the following year, and before a chief justice had been appointed, the Supreme Court Act was amended. The court was to be styled the "Court of Queen's Bench (or King's) instead of the "Supreme Court." It was to consist of a chief justice and two puisne judges, any one or more of whom should form a quorum. [43]
The amending act provided [44] that no person should be appointed as chief justice, or puisne justice, or prothonotary, unless such person was able to speak both the English and French languages. The then Minister of Justice, Hon. John A. Macdonald, on April 14, 1873, reported to the Governor-General that this provision was not within the powers of the Provincial Legislature. [45] Judges were appointed by the Governor-General and the only limit placed upon his discretion by the British North America Act is that the judges should be from the bars of the provinces to which they were appointed.
On July 2, 1872, the first judge of the province was appointed in the person of Hon. Alexander Morris. The Gazette announced his appointment in the following terms: "The Honourable Alexander Morris of Perth, Ontario, a member of the Privy Council and of Osgoode Hall, Barrister and an Advocate in the Province of Quebec, to be Chief Justice of the Court of Queen's Bench for Manitoba." [46]
He took the oath of office, August 14, 1872, [47] and was admitted a member of the Bar of Manitoba by order-in-council passed October 1, 1872. [48] Something should be mentioned about this procedure. At the first session of the legislature an act was passed "to regulate the admission to the study and practice of law in the Province of Manitoba." [49] It provided:
"1. Any person being a Barrister or Attorney of any Court in the Dominion of Canada, or an Attorney of any Court in Great Britain or Ireland, on fyling a satisfactory certificate of his being such Barrister or Attorney at the time of application, and of his good moral character, and also upon proof of his having served as an articled clerk for five years, shall be entitled to be admitted an Attorney and Barrister of this Province.
2. No other person shall be admitted as Attorney or Barrister, unless he shall have actually served with an Attorney, or partly with one Attorney and partly with another, under Articles of Clerkship, in this province or elsewhere, for a period of five years, and shall also have undergone a satisfactory examination before the Chief Justice and two barristers, named by the Court, one of whom shall be the Attorney-General for the time being.
5. On special application, and under special circumstances, the Lieutenant-Governor in Council may admit to the practice of the Law any person found duly qualified by such persons as may be appointed to examine such applicant."
The practice of appointment by order-in-council was freely resorted to in the first years of the province's history, and Chief Justice Morris was so appointed. As judges had to be selected from the bar of the province in which they were appointed, it was necessary that Chief Justice Morris should become a member of that bar.
On October 8, 1872, the Chief justice opened, in considerable state, the first assize held in Manitoba, and with an excellent charge to the Grand July [50] in the course of which he expressed his anxious desire to know neither race, creed or party, but to administer the laws without fear, favour or partiality. [51] This charge was delivered in French and in English. The sittings lasted six days and both civil and criminal cases were heard. It was described as "a pleasant week's" work, and there were no reserved judgments to bother the Chief Justice. He thanked the Grand Jury in French and English before he dismissed them.
Shortly after this Lieutenant-Governor Archibald went on leave and Chief Justice Morris was appointed Administrator of the Province. On December 2, 1872, he was appointed Lieutenant-Governor of Manitoba and the North-West Territories, and Manitoba was again without a Chief justice.
In the meantime two puisne judges of the court had been appointed. The first was Hon. James Charles McKeagney (October 7, 1872), described in The Gazette as: "The Hon. James McKeagney of the Town of Sydney in the Province of Nova Scotia, one of Her Majesty's counsel learned in the law ..." [52]
McKeagney was born in County Tyrone, Ireland, in 1815, the descendant of an ancient Scottish family which had removed to the North of Ireland after the Battle of Culloden. He removed to Nova Scotia with his parents in 1822 and received his education there. He was called to the Nova Scotia Bar and had judicial experience before he came to Manitoba. The new justice was appointed a member of the Manitoba Bar by order-in-council dated November 6, 1872 [53] and was sworn in as judge on December 14, 1872. [54] Besides sitting as judge of the Queen's Bench, it was his duty to preside in the Police Court, replacing the magistrates who had sat up to that time. [55]
The second puisne judge appointed was Hon. Louis Betourmay. Born at St. Lambert, Chambly, Quebec, in 1825, educated at the College of Montreal, and called to the Bar of Lower Canada in 1849, he was at the time of his appointment to the bench a member of the firm headed by Sir George Cartier.
On October 31, 1872, he was appointed Queen's Counsel, and then as puisne judge of the Court of Queen's Bench of Manitoba. [56] He was appointed to the Manitoba Bar by order-in-council dated December 12, 1872. [57]
The second sittings of the court was held January 7, 1873, with the two puisne judges presiding. Mr. Justice McKeagney charged the Grand Jury in English and Mr. Justice Betourmay charged them in French. [58]
In the course of the charges it was stated that the judges observed with pleasure that there were few charges of the gravest character, but they understood there were several charges for drugging liquor, a crime which merited severe punishment, and the jurors' particular vigilance was directed to such an offence.
One of the counsel who first made his appearance before the court as Mr., later Sir, Joseph Dubuc.
Mr. Justice McKeagney knew no French, or at least could not speak French well enough to charge a jury in that language. In 1873 he was sitting with a mixed jury. Both counsel addressed the jury in French and English, but the judge, having charged them in English, was compelled to direct the prothonotary to translate his charge into French, for the benefit of those jurors who were unable to speak English.
Counsel for the defence objected to this procedure on the ground that it was the express duty of a Manitoba judge to explain his meaning to the jury in both languages, himself, and not to call on a third party to do so for him, referring to the provision in the act already referred to. It will be recalled that it was not until April, 1873, that the Minister of justice gave the opinion that this provision was beyond the powers of the Provincial Legislature.
This was the subject of much comment and some complaint at the time. One of the Law Journals [59] pointed out that this requirement at that time practically limited the field for judicial appointment to lawyers from the Province of Quebec who were not trained in the common law, which was the law in force in Manitoba.
It was not long before the members of the Manitoba Bar commenced an agitation for the appointment of judges educated in Manitoba and members of the Manitoba Bar at the time of their appointment. For example, a resolution to that effect was passed by some twenty members of the Bar at a meeting held on May 10, 1882. [60]
On the other hand, we find that at a special meeting of the Bar held October 13, 1882, to consider what recommendations should be made regarding the appointment of a chief justice to succeed Chief Justice E. B. Wood, appointed in 1874, who had recently died, resolutions were passed urging the appointment should be made from outside the Manitoba Bar because of the necessity of obtaining a man skilled in equity, and asking for the appointment of T. W. Taylor. [61]
Taylor, however, was not appointed Chief Justice, that appointment going to Chief Justice Wallbridge, our third Chief Justice, but he was appointed a puisne judge, January 5, 1883, and eventually became Chief Justice, our fourth, in 1887.
It has been stated that the first member of our Bar to be appointed to the Bench was Mr. A. C. Killam, who was appointed a puisne judge in 1885, becoming our fifth Chief Justice in 1889. [62] This, however, is not correct. The honour belongs to Mr. Joseph Dubuc, who was appointed puisne judge November 13, 1879, and who became our sixth Chief Justice, August 8, 1903.
But let us go back to 1873. On September 15 in that year Ambroise D. Lepine, charged with the murder of Thomas Scott, appeared before Mr. Justice Betourmay, sitting as police magistrate, and Gilbert McMicken. An objection to the jurisdiction of the court, the alleged crime having been committed March 4, 1870, was overruled as being a matter for a higher court.
"In November following he (Lepine) appeared before the Court of Queen's Bench, Mr. Justice McKeagney presiding. Hon. Mr. Royal, who appeared for the prisoner, raised the question of jurisdiction, to which Attorney-General Clarke replied, and judgment was reserved. On the 22nd December, 1873, Mr. Justice McKeagney, on the application of Mr. Royal, opposed by the AttorneyGeneral, granted bail, the prisoner in $4,000 and two sureties in $2,000 each." [63]
The next term of court opened on February 10, 1874, Mr. Justice McKeagney presiding. The judge was unprepared to give judgment, and he and the Attorney-General indulged in a heated altercation.
His Lordship said "I do not intend to give judgment until next term. I do not think myself competent or justified in deciding a question of such importance without a full bench; I will therefore await the appointment of a Chief Justice till next term, and if at that time there is no Chief justice appointed, I will have the question re-argued before myself and my learned brother Betourmay, and then decide the question."
Before the next sitting of June 12, 1874, the Hon. Edmund Burke Wood of Ontario had been appointed Chief Justice (March 11, 1874), the second Chief Justice of the province, and at that sitting the three judges were in attendance. Attorney-General Clarke represented the Crown; Hon. Joseph Royal and Hon. Joseph Dubuc the prisoner. The court decided that it had jurisdiction to try Lepine and then postponed the trial to the next (October) term, when it was held before the Chief justice and a jury of twelve. "In the meantime there had been a change of government and Hon. Joseph Dubuc had now become AttorneyGeneral." [64] The Crown was therefore represented by Mr. Francis E. Cornish and Mr. Stewart Macdonald. Hon. Mr. Royal, who appeared for Lepine, had with him Mr. J. A. Chapleau of the Quebec Bar. The trial lasted twenty-one days. Mr. Royal addressed the jury for four and a half hours in English, and as there were several French-speaking members of the jury, Mr. Chapleau addressed the jury in French from 9.30 p.m. until midnight, and finished his address next morning in English. One of the Crown counsel addressed the jury in French, the other in English.
After a charge lasting nearly a day, the jury was out for several hours, returning with a verdict of "Guilty with a recommendation to mercy." Lepine was sentenced to hang January 29, 1875, but on January 25 "the Governor-General, the Earl of Dufferin, on his own responsibility, and without calling for the advice of his minister, as was then within the powers of the Governor-General, commuted the sentence to two years imprisonment."
And here I must bring this rambling sketch to a close. I should like to have said something of the life and character of the first three judges of the Court of Queen's Bench. They were able men and good judges; they rendered great services to their adopted province, and did honor to the Bars of Ontario, Nova Scotia and Quebec, from whence they respectively came. Space, however, will not permit me to do this or to mention many other matters which I have found most fascinating. I hope that some day a worthy history of the administration of justice in Manitoba, from the earliest times to the present, and of the judges and lawyers and the various officials who played worthy parts, will be written by some one who possesses the necessary scholarship, and to whom it will be a labour of love.
1 See Professor E. H. Oliver's articles in Publication of the Canadian Archives No. 9 (1914) (hereafter referred to as Oliver) I, p. 20.
2 Article by Professor F. Read of the Manitoba Law School, 10 Man. Bar News, p. 451.
3 Oliver, I, p. 43: Governor Bulger to Andrew Colvile, Dec. 7, 1822.
8 Marcheal Mantel, Librarian of the Bar of Montreal, "Les Avocats a Montreal," Revue du Barreau; December, 1942.
10 Professor A. M. Lower, Colony to Nation, 1946, p. 246.
11 This extract and the account of Sayer's trial is taken from the Company's Records as printed in 2 Western Law Times, pp. 12 o.q.
15 Schofield, The Story of Manitoba, I, p. 180.
18 Quarterly Courts Records in Manitoba Provincial Library, pp. 181 o.q. July 16, 1850.
19 1 Alberta Law Quarterly 181: See note 65.
21 Hargrave's Red River, p. 90: 1 Alberta L.Q. 181.
22 Minutes of Evidence taken before the Select Committee on the Hudson's Bay Company, 1857.
25 Oliver, I, p. 258, and see the Form of Oath at p. 245.
35 Oliver, I, p. 476, and see p. 471.
42 Statutes of Manitoba, 34 Vic. Cap. 2.
43 Statutes of Manitoba, 35 Vic. Cap. 3.
45 Dominion and provincial Legislature, 1867-1895, p.774.
46 Can. Gazette, Vo.6, July 6, 1872.
47 1 Western Law Times, p. 99.
48 See the list in the records of the Law Society of Manitoba, copied from the Manitoba Directory of 1877-78, p.104, and 1 Western Law Times
49 Statutes of Manitoba, 1871, cap.10.
50 1 Western Law Times, p. 84.
51 8 Can. Law Journal (N.S.) 262 (1872).
52 Can. Gazette, Vol. 6, October 19, 1872.
53 See the list referred to in note 49.
54 Winnipeg Free Press, Dec. 14, 1872, p. 4.
55 And see Manitoba Statutes, 35 Vic, cap. 4 0.2 (1872).
56 Canada Gazette, Vo. 6, p. 393, Nov. 9, 1872.
57 See the list referred to in note 49.
58 Winnipeg Free Press, January 18, 1873, p. 8.
59 9 Can. Law Journal (N.S.) p. 279 (1873).
62 12 Manitoba Law Reports: front sheet. In 1903 Killam, C.J., resigned and was appointed a puisne judge of the Supreme Court of Canada. See 5 Can. Law Times, p.64.
63 The proceedings prior to and during the trial of Lapine are reported in a small volume published by two press reporters, which is now in the Provincial Library.
64 See an article by Chief Justice Harvey of Alberta in 1 Alberta Law Quarterly, p. 171 at p.193: "Some Further Notes on the Adiministration of Justice in the North West," from which part of this account is taken.
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